FEDERAL COURT OF AUSTRALIA

Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 5)

[2009] FCA 1320

EVIDENCE — Expert evidence — Application to reject tender of expert report — Relevance — Whether expert's evidence based on specific knowledge based on that expert's study, training or experience — Importance of identifying the relevant opinion of the expert and the material upon which the opinion is based — Whether expert has expertise with respect to the issues on the pleadings — Held expert does have particular expertise — Held expert report covers wider issues than those on the pleadings — Held difficulties distinguishing fact from opinion within expert report — Held detailed editorial exercise would be necessary to separate relevant from irrelevant - Tender of whole pressed – Held Application allowed and tender of report rejected

Environment Protection and Biodiversity Conservation Act (1999) ss 142, 475

Evidence Act 1995 (Cth) ss 55, 56, 76, 79

Evans Deakin Proprietary Limited v Sebel Furniture Limited [2003] FCA 171 applied

WIDE BAY CONSERVATION COUNCIL INC v BURNETT WATER PTY LTD ACN 097 206 614

QUD 319 of 2008

LOGAN J

10 NOVEMBER 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  Paragraph 17(a) of the Further Amended Statement of Claim be struck out.

2.                  The tender in evidence of the report of Mr Jim Tait is rejected.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

            The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                    An application has been made on behalf of the Respondent, Burnett Water Pty Ltd (Burnett Water), for the rejection of the tender by the Wide Bay Conservation Council Inc (Conservation Council) of a report of Mr Jim Tait.  That report is presently exhibit A for identification.  The report is supplemented, insofar as Mr Tait’s knowledge, training, and experience is concerned, by an affidavit from that gentleman which was filed by leave today. 

2                    Section 55 of the Evidence Act 1995 (Cth) (Evidence Act) provides that the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. Section 56 of the Evidence Act then provides that, except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.  As a corollary and perhaps, with respect, unnecessarily, that section further provides that evidence that is not relevant in the proceeding is not admissible. 

3                    So far as opinions are concerned, s 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.  An exception to that particular generality, found in s 76, is provided by s 79, which materially provides that, if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule - ie, that in s 76 - does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

4                    The objection taken to the receipt of evidence from Mr Tait goes to both relevance as well as whether Mr Tait meets the requirements of s 79 so far as the exception to the opinion rule is concerned.  The arguments for and against the reception of Mr Tait’s evidence are more particularly detailed in the outlines of submissions which have been filed and then supplemented by oral submissions made on behalf of the parties. 

5                    It is instructive, insofar as relevance is concerned, to recall exactly what is the contravention that is alleged in the proceeding. 

6                    The statement of claim has undergone, to use an understatement, some revision following the institution of proceedings.  In its present further amended form, the contravention with which it is concerned is that alleged in para 27.  The allegation there made is of a contravention of s 142 of the Environment Protection and Biodiversity Conservation Act (1999) (Environment Protection and Biodiversity Conservation Act) in the following manner.  Materially, condition 3 attached to the approval given by the Minister under that Act required Burnett Water at all material times to: 

1.                  install a fish transfer device on the dam suitable for the lungfish;  and

2.                  commence the fishway when the dam became operational. 

The contravention alleged, then, is in these terms: 

That Burnett Water contravened that condition, condition 3, by:

(a)                installing the downstream fishway with an operation range of water levels in the dam reservoir between EL62 - that is 62.0 metres - and EL67.9 metres, such that it is not suitable for lungfish when water levels in the dam reservoir are beneath EL62.0 metres, because it cannot be operated and lungfish are unable to enter it;

(b)                failing to commence to operate the downstream fishway when the dam became operational in or about November 2005;

(c)                failing to operate the downstream fishway continuously, subject only to minor interruptions for repairs and maintenance and environmental flows, after the dam became operational in or about November 2005

(d)                failing to operate the downstream fishway between November 2005 and January 2009;

(e)                failing to commence to operate the upstream fishway when the dam became operational in or about November 2005;

(f)                 failing to operate the upstream fishway continuously, subject only to minor interruptions for repairs and maintenance and environmental flows, after the dam became operational in or about November 2005, and/or

(g)                failing to operate the upstream fishway for periods particularised in paragraph 26 of the further amended statement of claim.

It is not necessary for the purposes of this ruling to detail the particularised periods in para 26. 

7                    For completeness, I should observe that there is an allegation as to future conduct in contravention of s 142 of the Environment Protection and Biodiversity Conservation Act, in para 28 of the further amended statement of claim.  The allegations there made, in effect, reproduce in terms of apprehended future conduct, conduct which is alleged to have occurred in contravention of condition 3 already. 

8                    It is the alleged contraventions in para 27 which are said to give rise to the power enjoyed by the Court under s 475 of the Environment Protection and Biodiversity Conservation Act to grant injunctive relief.  The apprehension as to future conduct is said to enliven a discretion to grant such relief.

9                    It is just as important as appreciating what the alleged contravention is also to appreciate what the alleged contravention is not.  In that regard, para 17(a) of the further amended statement of claim might usefully be considered.   That particular paragraph, under the guise of an allegation as to what is a suitable fish transfer device, makes particular affirmative allegations in relation to the qualities that are said to attend a suitable fish transfer device:  for example, one likely to allow any normal-sized lungfish attempting to move upstream and downstream of the dam wall to do so without injury or death.  There is no allegation of any contravention by Burnett Water insofar as the qualities of the fish transfer device are concerned with respect to whether the device as designed and installed might occasion injury or death to lungfish attempting to move upstream and downstream.

10                Paragraph 17(a) is disconnected with the affirmative allegation of contravention made in para 27, and further, with the allegation as to proposed future conduct made in para 28 of the further amended statement of claim.  Insofar as it contains allegations of fact; it is, therefore, truly embarrassing in the technical sense of that term in a pleading.  There was no particular endeavour to defend that paragraph when that apprehended quality was drawn to the attention of Senior Counsel for the Conservation Council.  An application was made orally on behalf of Burnett Water for the striking out of that paragraph.  It seems to me that it is necessary to do that, lest it be thought that in some way, the allegations which repose in that paragraph are in any way germane to the contravention that is alleged in para 27.

11                Once it is appreciated what the alleged contravention is, the relevance considered intoto of Mr Tait’s report becomes, for that reason alone, a very moot point indeed.  It is apparent from the letters of instruction and from the report itself that the report is in the nature of a wide-ranging critique, as Mr Tait sees it, of the Paradise Dam, the fish transfer device, and also of the merits or otherwise of that dam.  It also contains a collation of material sourced from the research of others concerning the lungfish. 

12                It is by no means impossible to see how, as a matter of discretion, evidence which might go to demonstrate that the contraventions as alleged are important because the lungfish have nowhere else to go, in terms of migration upstream or downstream is relevant.  It is, further, by no means impossible to see how evidence which would show that passage over the dam wall in a flood event, particularly given the stepped configuration of the dam wall, would be likely to occasion injury or death to the lungfish is relevant.  That evidence would go to emphasise why it is, as a matter of discretion, there is an importance in the granting of injunctive relief sought by the Conservation Council in the event that one or more contraventions are proved. 

13                The difficulty is that Mr Tait’s report is wide-ranging, and without a detailed editorial exercise it is difficult, to say the least, to dissect from it that which might be regarded as relevant in the way I have described to matters of discretion, from that which is truly irrelevant, having regard to the contraventions alleged.  The Conservation Council, though offered more than one opportunity so to do, has shown an absence of disposition to undertake such an editorial exercise, having regard to the contraventions pleaded in para 27. 

14                A helpful and reflective summary of principle in relation to the reception of expert evidence having regard to the Uniform Evidence Act (of which the Evidence Act is an exemplar), is to be found in the judgment of Allsop J, as his Honour then was, in Evans Deakin Proprietary Limited v Sebel Furniture Limited [2003] FCA 171 at [670].  His Honour there observed:

Central to the orderly and admissible presentation of any expert evidence is the clear identification of the opinions that the expert seeks to present.  This is a separate question from whether, for the opinions of the expert to be admissible, the basis of the opinions on the assumed facts must be set out, about which there may be different views expressed in Makita and Quick v Stoland.  I think, however, any such difference is unlikely, in most cases, to be of significance in the light, in particular, of s 135 of the Evidence Act and its likely application to disembodied and unsubstantiated expressions of opinion, a matter to which reference was made in Quick v Stoland. If I may say so, without intending to put to one side the comprehensive reasons of Heydon JA in Makita or the careful reasons of the Judges in Quick v Stoland, in this case I particularly bear in mind what Gleeson CJ said in HG v The Queen at 727:

“The opinions of Mr McCombie were never expressed in admissible form.”

15                And then his Honour emphasised this:

An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. 

16                Then a little later:

Argument in this Court proceeded on the basis that it was possible to identify from Mr McCombie’s written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. 

17                Then again Allsop J emphasised this in Gleeson CJ’s reasons in HG v The Queen [1999] HCA 2 at [39]:

Even so, the provisions of section 79 will often have the practical effect of emphasising the need for attention to requirements of form.  By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. 

18                This particular passage goes to the second basis upon which objection is taken to Mr Tait’s opinion, which is that it is non-compliant with the requirements of the exception to the opinion rule, found in s 79 of the Evidence Act. 

19                Though initially, on the face of the report itself, I was apprehensive as to whether Mr Tait had exposed any particular expertise in relation to fish ecology and biology as applied to lungfish, I am satisfied, having regard to his supplementation of his experience in the affidavit filed this morning by leave, that he does have experience in relation to the ecology and management issues associated with the passage of freshwater fish, including lungfish, over barriers.  The difficulty is that his report, as I have observed, ranges much more widely than the issues on the pleadings.  Further, insofar as section 4 in particular of the report is concerned, that appears to be but a mere collation, as opposed to, overtly, the views of someone experienced with lungfish enlarging upon, by reference to his own specialised knowledge, the views of others which he regards as correct and appropriately included by way of highlighting particular qualities of the lungfish.  There is also the vice elsewhere evident in the report, insofar as it may be relevant, of not making plain what is fact and what is opinion. 

20                I do not regard it as appropriate to attempt to engage in a red pencil exercise in respect of a report which ranges far beyond issues in the pleadings and which, as to section 4, contains the deficiency I have mentioned.  The case is one in respect of which directions of longstanding have been in place in relation to the filing in advance of evidence upon which each party proposes to rely.  It is incumbent, having regard to such directions, which reflect the usual practice of this Court since its creation, for parties to order evidence in a way which meets the formal requirements of the Evidence Act as to admissibility. 

21                For these reasons I regard the report either as not relevant, or, insofar as a process of minute dissection might disclose remnants which are relevant, those parts, having regard to the issues, have not been the subject of any alternative position put on behalf of the Conservation Council.  I also regard the report as deficient in terms of technical compliance with the requirements of the exception to the opinion rule in s 79, the latter largely for the reasons reflected and enlarged upon in the submissions, written and oral, made on behalf of Burnett Water.  I therefore reject the tender of Mr Tait’s report.

Associate:

Dated:         17 November 2009