Warragamba Winery Pty Ltd v State of New South Wales

Background 5There is an issue in the proceedings concerning the location of the commencement or point of origin of the fire. The evidence served by the parties dealing with that issue is as follows. 6The plaintiffs rely upon the report of Trevor Roche dated 2 March 2009. Mr Roche is of the opinion that the Hall Ridge track led almost to the point of origin of the fire and was to the west of the fire. The point of origin of the fire is said to be a tree struck by lightning shown in photo 14 attached to a statement of Detective Senior Constable Brian Olliver prepared for the Coronial Inquiry. DSC Olliver describes the tree as being approximately 16 metres east of the Hall Ridge track. The plaintiffs contend that fire suppression forces could have travelled safely along this track. 7The first defendant relies upon a statement of Stephen Walker dated 18 September 2009. That report annexes a Wildfire Investigation Report that identifies the same tree as that referred to by DSC Olliver as the area of origin of the fire. Mr Walker, however, gives a different grid reference to the tree than that nominated by DSC Olliver. 8The first defendant also relies upon a report of Ross Smith dated 30 September 2009. Mr Smith nominates the approximate point of origin of the Mount Hall fire as to the west of the Hall Ridge track, rather than to the east. If that were accepted it would follow that ground crews could not safely have attacked the fire using the Hall Ridge track. 9The plaintiffs then served a report from Trevor Roche dated 11 February 2011 in reply. In that report Mr Roche adhered to his previously expressed opinion as to the point of commencement of the fire. He remained of the view that Mr Smith's assertions that the fire started to the west of the Hall Ridge track were incorrect. 10The controversial August 2011 reports of Mr Woods contain an analysis of photographs of the tree that was struck by lightning that DSC Olliver and Mr Walker had concluded was the point of origin of the fire. Mr Woods also relies upon information contained in the report of Mr Hehir. Mr Woods offers the opinion that the point of origin of the fire was to the west of the Hall Ridge track.

Plaintiffs' contentions 11The plaintiffs' first complaint is that neither report is in reply. The material in Mr Roche's 11 February 2011 report concerning the point of origin of the fire is not new evidence but is itself evidence in reply to Mr Smith's 30 September 2009 report. It does no more than confirm Mr Roche's earlier opinion that the point of origin of the fire was to the east of the Hall Ridge track. Mr Smith was critical in his 30 September 2009 report of Mr Roche's opinion that the track was to the west of the point of origin of the fire. The difference between these two was evident from 2009 and certainly by no later that February 2011. The plaintiffs contended that if the defendants intended to rely upon them, reports from Mr Woods and Mr Hehir could and should have been served as early as September 2009 but at least prior to February 2011. 12The plaintiffs emphasise that their complaint that the latest reports from Mr Woods and Mr Hehir are not in reply is underscored by the terms of the correspondence that preceded the 12 April 2011 orders that were made by consent. It is apparent from a letter written by the first defendant's solicitor to the plaintiffs' solicitor on the previous day that the plaintiffs were under the impression that any response to Mr Roche's report that the defendants were then contemplating would be limited to matters related to the allocation to the fire of two helicopters and a fixed wing aircraft, with an added caveat that some witnesses may be difficult to locate or to persuade to give statements. Mr Woods and Mr Hehir have produced reports that fall outside and go beyond both of those areas of concern. Even if they did not, the statements were not provided within the time frame contemplated by the order. 13The plaintiffs rely upon UCPR 31.28, which is in the following relevant terms: " 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports ... on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) ... (3) Except by leave of the court, or by consent of the parties: (a) an expert's report ... is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report ..., when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report ... served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)." 14According to this rule, taking the defendants' position at its highest, the reports of Mr Woods and Mr Hehir should have been served no later than 10 June 2011. In the face of the plaintiffs' opposition to the use of these reports, the defendants therefore require the leave of the Court, which is not to be granted, " unless the court is satisfied... that there are exceptional circumstances that warrant the granting of leave ". That expression was considered by Campbell JA in State of NSW v Tyszyk [2008] NSWCA 107 at [206] as follows: "[206] I venture to repeat what I said (with the agreement of Tobias JA and Handley AJA) in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]-[67]: 'Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2) [2007] NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4). (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208). (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913). (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]). (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913). (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186). In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.'" 15The plaintiffs assert that the defendants have offered no explanation for the late service of the reports or any reasoned proposition that characterises them as " in reply ". Moreover, the reports deal with a significant issue in the proceedings and one that has been on the table from the earliest days of the litigation. Nothing approaching exceptional circumstances has been established so as to warrant the grant of leave to admit the reports. 16The plaintiffs contend further that if the reports were admitted, and they were required at this stage of the proceedings to respond to them, they will suffer considerable prejudice because the plaintiffs will necessarily be forced to divert their limited resources to obtaining evidence to meet the reports at a time when they are in the throes of final preparation for a long and difficult trial. The plaintiffs contend in these circumstances that, in the absence of a satisfactory explanation for the late service of these reports, and where, on the plaintiffs' case, there has been previous default in compliance with orders for the service of reports, the defendants' conduct amounts to "relevant delinquency" and "unreasonable conduct" of the sort that would justify the making of an order that costs be paid forthwith on an indemnity basis: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [44]; Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1.

Defendants' response 17Senior counsel for the defendants frankly and quite properly conceded that insufficient attention had been paid to the latest Roche report in February this year, and that as a result the issues upon which Mr Woods and Mr Hehir now seek to express their opinions were not identified as such when they could and should have been. This was explained in the following way: "KING: But my learned friend says that there is no explanation for why we've come up with Mr Woods and Mr Hehir when we have. But I can tell your Honour that that was driven by an appreciation of what Mr Roche was saying in his report served in February when it was more closely considered. There is additional material there.

... the history of it is this, as I endeavoured to say quite a few minutes ago; that we were, I concede, we were preoccupied up until the middle of April with what we saw as the shifting ground on the part of Mr Roche from ground crews and one plane to three different aircraft. That was the letter of 11 April that my learned friend took you to. I concede that what and I made this concession earlier and I'll repeat it that what we did with Mr Woods and Mr Hehir is different and it had its genesis in a closer reading of Mr Roche's report served in February. HIS HONOUR: I suppose that's what I was asking. KING: I'm not endeavouring to evade the obvious proposition because it can't be evaded. We could have. HIS HONOUR: That's all my question was. The material from Hehir and Woods is prompted by the Roche report, but it comes later because you say you were directing your attention to other matters? KING: Yes. We could have, a counsel of perfection leads me to concede that we could have dealt with it in April with this other stuff if we had focused on that, but our focus wasn't on the use that Mr Roche makes of evidence which he comes to; namely, Olliver, Bransgrove, Walker. We didn't to put it bluntly we didn't twig to that until a later closer reading of the report." 18The defendants contend that "Mr Woods' report has its genesis in Mr Roche's 11 February 2011 report and in his '[a]lternative initial attack scenario' , which he raised for the first time at paragraphs 111 to 146 of [that] report". The defendants submit that the plaintiffs' assertion that there is nothing new in Mr Roche's 11 February 2011 report is "untenable" in light of the content of his earlier report. The defendants contend that "[t]here is a clear shift on 'initial attack' from one relying on a joint use of ground troops and a nominated fixed wing aircraft, to the 'alternative', in which initially only helicopters are used, with Mr Roche nominating the particular helicopters for the first time". 19Paragraph 111 of Mr Roche's 11 February 2011 report is in these terms: "111. As I have indicated at paragraph 66 of this report, on the basis of the evidence now available to me, I have formed the conclusion that the point of ignition of the Mt Hall fire was east of the Mt Hall Ridge Track, to the south of Mt Hall. Accordingly, the alternative initial attack option that I consider could have occurred is based on that premise." 20The evidence that Mr Roche refers to as the evidence "now available" to him, and which the defendants contend is evidence upon which he relies "for the first time as establishing the point of origin" are the statements of RFS investigator Inspector Walker and NSW police investigators DSC Olliver and Sergeant Mark Bransgrove. Mr Roche refers to that evidence at paragraphs 58 to 64 of his 11 February 2011 report. Paragraph 65 of his report then states his conclusion as follows: "65. On the basis of their evidence, I can only conclude that the fire did in fact commence to the east of the Mt Hall Ridge Track to the south of Mt Hall and not as expressed by Mr Smith, west of the Hall Ridge Track." 21It was in this context that the defendants emphasised what was contained in the following paragraphs of their written submissions: "8. While we accept that Mr Roche referred to the reports of the NSW Police Investigators in his final report, he did not rely on them for the point of origin of the fire. Rather he asserted at paragraph 63 of his March 2009 report that " [a]ccording to the evidence, the fire commenced on a saddle ", which he asserts at paragraph 64 was " reported by FB44 ". It was only [in] his 11 February 2011 report that he expressly relied upon Messrs Olliver, Bransgrove and Walker's investigation for the point of origin. This focused attention on whether the fire investigators identification of the lightning struck tree as being the fire's point of origin was correct. 9. At the heart of Mr Woods' report is his analysis of the photographs taken of the lightning struck tree by the fire investigators. It was on the basis of those photographs that Mr Woods concluded that the lightning struck tree the subject of those photographs was struck after the Mt Hall fire, and therefore could not have been the cause of the Mt Hall fire. The plaintiffs have not explained why those photographs could not be provided to either Messrs Olliver or Bransgrove, or another suitably qualified fire investigator, so as to obtain their opinion in a short period of time." 22The defendants submitted in these circumstances that giving the plaintiffs any opportunity they needed, either before the commencement of the hearing, or within a reasonable time after that, to serve any further evidence they chose to marshal in response to Mr Woods and Mr Hehir, would adequately protect the plaintiffs' position.

Consideration 23In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [112] - [113] the majority of the High Court said this: "[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. [113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings." 24The precise or approximate location of the point of origin of the Mount Hall fire has been alive as a significant issue in these proceedings from their inception. The evidence upon which the experts have relied for the purposes of the opinions that they have expressed on that issue has been available for much longer. It was most publicly exposed and examined at the Coronial Inquiry. Its importance lies in the fact that the Hall Ridge track either was, or was not, a safe and available means of access to fight the fire, having regard to the prevailing wind, depending upon whether the lightning struck tree that caused the fire lay to the east or the west of that track. 25The parties' respective cases have long been in the course of preparation. The plaintiffs' relevant expert for the purposes of this issue, Mr Roche, signed off on his views on 11 February 2011. At the time he did so the defendants had themselves also qualified Mr Smith whose contrary opinion had been produced on 30 September 2009. Mr Smith's report is no less than 68 pages and 279 paragraphs. Mr Roche replied to it on 11 February 2011. The defendants complain that Mr Roche's reply should have been produced and provided to them much earlier. 26Mr Woods' two reports and Mr Hehir's report are in evidence before me on this application. The former are quite lengthy but the latter is not. Mr Woods' second report is an effective reproduction of his first report with some corrections and amendments. Part of the introduction to Mr Woods' report is as follows: "2. The plaintiffs' claims are in respect of property damage suffered by them in and around Warragamba, Silverdale and Mulgoa on 25 December 2001, resulting from a bushfire, known as the Mt Hall Bushfire. At the time of the outbreak of the Mt Hall Bushfire in December 2001, I was employed at the NSW Rural Fire Service ("RFS") as a Project Officer, responsible for the establishment of fire investigation capability for the RFS, having been appointed in February 2001. In late January 2002, I recall assigning Inspector Steve WALKER and Inspector Steve SMITH to investigate the cause and origin of a number of fires that had started in December 2001 in and around the Blue Mountains, including the Mt Hall Bushfire. Inspectors Smith and Walker attended the fire scene and then prepared a report into the cause and origin of the Mt Hall Bushfire. In that report, among other things, they reported that a lightning struck tree was suspected as the cause of the Mt Hall Bushfire. Their original report was supplied to NSW Police for inclusion in a Coronial Brief of Evidence which was accepted into evidence at the time of the Coronial Enquiry into the Mt Hall Bushfire. 3. I have been asked to review the original report, along with other documentation and provide my opinion as to whether the RFS investigators correctly identified the area of origin of the Mt Hall Bushfire. The following is my report providing that opinion." 27Mr Woods expresses his conclusions at paragraphs 46 and 47 as follows: "46. In my opinion after conducting the review of the documentation provided to me and relating it to my training, experience and accepted standards concerning wildfire investigation, I do not believe the cause of the Mt Hall Bushfire was the subject lightning struck tree as identified by the Investigation Team of Inspector Walker and Smith; and Sergeant Bransgrove and Senior Constable Olliver. 47. I am of the opinion that the Specific Origin Area (and Point of Origin) of the Mt Hall Bushfire was located further to the north from the subject lightning struck tree identified by the Investigation Team to the west of the Hall Ridge." 28As far as I can determine, none of the information or material that Mr Woods refers to in forming his opinion was not also available to be utilised and examined by Mr Smith for the purposes of his 30 September 2009 report, or at the latest at some time prior to 11 February 2011. This emerges from paragraph 6 of Mr Woods' report. The lightning strike records sourced from the Kattron Company would appear also to have been available during that time even though the information was apparently not obtained for provision to Mr Woods until later than that. 29In this respect it seems to me that the defendants are attempting to augment their case on the issue of the point of origin of the fire by qualifying another expert to say what Mr Smith has either said already or could have said if asked to do so. The defendants acknowledge that Mr Woods is now being asked to report on matters that were plainly on show in Mr Roche's report to which, by reason of their own inadvertence, they have only recently become alerted. They admit that there is no reason why that could not have happened before. In terms of the Aon analysis referred to above, there must come a time beyond which further augmentation of a party's evidence cannot be permitted. I think that time has come in this case. 30There is, however, another reason why I take this view. The defendants have contended that there is nothing new in either the Woods or Hehir reports and that the plaintiffs should be able to meet them. This sentiment is well documented in a letter written by the defendants' solicitor to the plaintiffs' solicitor in the course of the current dispute. Part of that letter, which is dated 23 August 2011, is as follows: "2. We disagree that the report raises a new issue that has not previously been raised. As referred to in the previous subparagraph, Mr Roche specifically refers to the issue of the point of origin of the Mt Hall track and whether it is to the east or west of the Hall Ridge in paragraphs 49 to 65 of his 11 February 2011 report. 3. Given the evidence your clients have already served, 9 weeks is sufficient time for you to respond to Mr Woods' report, if you consider it necessary. At the recent directions hearing...on 8 August last, Mr Nock SC repeated what he had told Mr King SC beforehand, namely that you were obtaining a supplementary report from Mr Roche commenting on some witness statements served for the defendants. Given that Mr Roche has already addressed the issue on the point of origin in his 11 February 2011 report as referred to above, it should be a simple matter to put Mr Woods' report before Mr Roche as part of that exercise, if you wish to do so...

5. The only material referred to in Mr Woods' report, which has not been discovered or produced previously, is the information provided by Kattron and the lightning data maps created using that information referred to above. That information was obtained by the RFS recently from a commercial provider and is not discoverable. At all times your clients could have approached the same provider and obtained the information. Given that you have now been provided with the information, there should be no reason why it cannot be shown to your clients' experts." 31An examination of the Kattron material referred to in Mr Roche's report, which is also dealt with in more detail by Mr Hehir in his report, appears to suggest that the defendants are proposing to use it to support a very different case on the point of origin issue than has so far been advanced by them or the plaintiffs. All other experts and investigators who have turned their mind to the issue have proceeded upon the basis of observations of the physical characteristics of the damaged tree that is thought to have been struck by lightning thereby causing the fire. There is a dispute about whether or not the tree concerned was struck before or after it was otherwise damaged by fire and whether it was located east or west of the Hall Ridge track. However, as I read the Woods and Hehir reports, they also uniquely direct attention to the question of lightning strikes in the area at the time of the fire in order to provide a basis for suggesting that there was no lightning strike or event at the relevant time in the vicinity of the tree that the plaintiffs suggest was the start of the fire. This analysis attempts to establish that the timing of any possibly relevant lightning strike does not coincide with the plaintiffs' analysis of the location of the point of origin of the fire based on observations of the tree after the fire had passed. For example, Mr Woods' report says this at page 19: "vi. Lightning Strike records recorded a storm passing through this area on the 15 January 2002, resulting in a number of lightning strikes impacting in the general area of Mt Hall. In my opinion the tree identified by the Investigation Team was struck after the fire, more likely than not, during this storm." [Emphasis added]. 32Mr Woods' report also says this at page 20: "i. Lightning was reported in the vicinity of the Blue Mountains prior to 0700 on the 24 December 2001. Some lightning strikes were recorded on the Kattron lightning detection system around this time. Additional strikes were recorded, in the area by the Kattron lightning detection system on the 15 January 2002, well after the outbreak of the fire and prior to the investigation taking place...given the remote location of the fire and the absence of any other likely cause, in my opinion these records confirm the cause of the Mt Hall Bushfire resulting from a lightning strike emanating from the storm that occurred on or before the 24 December 2001. Further the lightning storm of the 15 January 2002 that affected this area more likely than not, resulted in the lightning damage to the subject lightning struck tree as identified by the Investigating Team." 33Assuming that I correctly understand this approach, it is different to anything so far raised on the issue and is new. It relies upon Mr Hehir's expertise as a geographic information systems analyst to interpret lightning strike data. This discipline puts in contest, and depends upon the specific timing and location of, recorded lightning strikes as a cause of the fire, as allegedly supported by new data that have never been referred to before. In this way it also purports to raise doubts about when, and therefore whether, the particular tree inculpated by the plaintiffs was actually struck by lightning, by attempting to isolate and specify the particular time that this must necessarily have occurred. This is in contrast to the experts' uniform approach so far that has simply concentrated upon the location of the tree that was struck by lightning relative to the Hall Ridge track. If, as the defendants suggest, it was always open to the plaintiffs originally to obtain and utilise this material themselves, it follows that the same can be said of the defendants. If they had wanted to promote an hypothesis of this type, they were entitled and obliged to do so in a timely way in accordance with directions that I gave. It is not a proper assessment of where the balance lies for the defendants now to assert that the plaintiffs could also have used this material. They did not. That was their choice. Nor did the defendants attempt to use it until it was, in my opinion, too late for them to do so. The defendants cannot now seek potentially to alter or divert the course of the case on this issue and expect the plaintiffs without complaint to accommodate the change. The defendants' gracious acknowledgement that the plaintiffs should have a reasonable opportunity to do so does not alter my view.

Conclusion and orders 34In my opinion, the defendants should not be permitted to rely upon the reports of Mr Woods or Mr Hehir. The defendants should pay the costs of the application before me forthwith on the ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2011