FEDERAL COURT OF AUSTRALIA

Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment [2017] FCA 1615

ORDERS

THE COURT ORDERS THAT:

1.    Subject to further or other order, pursuant to section 136 of the Evidence Act 1995 (Cth), the following evidence:

(a)    FRB-14 (being a copy of a Macquarie Harbour Dissolved Oxygen Working Group report dated 6 October 2014);

(b)    FRB-20 (being a copy of a Cawthron Institute Report dated 21 August 2015);

(c)    FRB-38 (being a copy of a notice of determination issued by the EPA on 16 January 2017 including a copy of an IMAS Report dated January 2017);

(d)    FRB-39 (being a copy of notices of determination issued by the EPA in May 2017 and June 2017 including statement of reasons);

(e)    FRB-40 (being a copy of an IMAS Report dated May 2017);

(f)    FRB-41 (being a copy of an IMAS Report dated September 2017);

may not be used to prove the truth of any fact about the existence of which an opinion was expressed in that evidence subject only to one exception, that to the extent that the data recorded in those reports (as exampled by the dissolved oxygen readings) is opinion evidence, that evidence may be used to prove the existence of and truth of that data.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    The First, Second and Third Applicants (Huon) commenced these proceedings on 6 February 2017.

2    Huon’s pleadings have been substantially recast on more than one occasion, with costs thrown away. By consent I have ordered that the Applicants have leave to file and serve a Third Further Amended Statement of Claim in the form emailed to the parties on 12 December 2017. I have made orders by consent for a timetable for finalising the pleadings and associated matters.

3    The Third Further Amended Statement of Claim pleads a case on a more limited basis to that which the Applicants first advanced. However, it is no less significant for that. The Applicants seek a declaration that a determination made by the Third Respondent (the Commonwealth Minister for Environment) on 3 October 2012, is invalid. The impugned determination made by the Minister was that a proposed expansion of marine farming operations in Macquarie Harbour was not a controlled action for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) provided it was undertaken in the manner set out in his decision.

4    Prior to the Huon obtaining leave to file their Third Further Amended Statement of Claim the Court had listed the following preliminary issues for hearing on 19 March 2018 with an estimated hearing time of five days:

1.    On the proper construction of the Referral and the notice of the Decision, was the First Respondent and/or the Second Respondent included in the Decision as the “person[s] taking the action” for the purposes of the Decision?

2.    On a proper construction of the Referral and the notice of the Decision, did the proposed action thereby referred for the purposes of the Third Respondent’s decision of 3 October 2012 (the Decision) include the matters pleaded at sub-paragraphs 20(a) to (c) of the Second Further Amended Statement of Claim (SFASOC)?

3.    Are the matters pleaded at sub-paragraphs 20(a) to (c) of the SFASOC “action” within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)?

4.    Is the Decision invalid on either of the grounds pleaded in paragraphs 21 and 22 of the SFASOC?

5.    If the decision is not invalid on either of the grounds pleaded in paragraphs 21 and 22 of the SFASOC, and if the First Respondent and/or the Second Respondent were not included in the “persons taking the action”, is the Decision invalid on any of the grounds pleaded in paragraph 38, as particularised, of the SFASOC; and if so, which grounds?

6.    If the decision is not invalid on either of the grounds pleaded in paragraphs 21 and 22 of the SFASOC, and if the First Respondent and/or the Second Respondent were included in the “persons taking the action”, is the Decision invalid on any of the grounds pleaded in paragraph 39, as particularised, of the SFASOC; and if so, which grounds?

7.    If any of questions 2, 4, 5 or 6 above is answered “yes”, is the Applicant entitled to a declaration that the Decision is invalid?

5    The Court is content to proceed on the basis that hearing the preliminary issues as stated remains appropriate notwithstanding that some issues have ceased to be live and the parties may now be agreed as to the answers that the Court should give to several of the questions posed. However, the filing of the Third Further Amended Statement of Claim will obviously require minor consequential amendments to be made to the text of the preliminary questions. The parties have been ordered to confer to settle an agreed revised text limited to those consequential matters and to provide that text to the Court no later than 4.00 pm on Monday 19 February 2018. If the parties are agreed and now wish the trial to be otherwise conducted they may seek alternative orders.

6    The matter that requires resolution today arises out of the timetabling orders I made on 23 November 2017.

7    It primarily concerns objections to the admissibility of affidavit evidence filed on behalf of the Applicants.

8    On 23 November 2017 I ordered that the Applicants file and serve any affidavit material upon which they intend to rely in relation to Question 7, that is the question as to possible exercise of the discretion on the assumption that the Court might in due course find that the decision of the Minister was invalid, and the Respondents to serve lists of objections to that affidavit evidence. Both have been done.

9    A preliminary concern presents itself – the pleadings are not yet closed. None of the Respondents have yet had the opportunity to file and serve their defence to the Applicants’ Third Further Amended Statement of Claim. In so far as their existing defences to the Applicants’ Second Further Amended Statement of Claim stand, only the Third Respondent (the Commonwealth) has made an affirmative pleading (at [40]) that a declaration should not be made, if invalidity is established, on discretionary grounds. That pleading is most general. It denies that the Applicants “are entitled to the relief claimed against or in relation to the Third Respondent, including by reason of the Applicants’ unreasonable delay in bringing the proceedings”.

10    However, in the light of submissions already advanced in these proceedings, the Court is entitled to proceed on the premise that one or more of the Respondents intend to assert (and plead) inter alia, that relief in any event should be refused on broader discretionary grounds. Those grounds can be anticipated to include that it would be inequitable to grant relief to the Applicants, they themselves having acquiesced to the Minister’s decision, taken advantage of it and benefited economically from it.

11    That provides some brief context regarding the relevance of the Applicants’ several affidavits and the several objections pressed in relation to them.

12    The Court acknowledges that in the interests of narrowing the issues in dispute many of the objections initially pressed in relation to the Applicants’ evidence have been withdrawn or, if they are to be pressed, are more appropriate for resolution at the hearing. What remains for determination at this point are objections premised on the grounds that they involve the expression of expert opinion not otherwise admissible pursuant to the Evidence Act 1995 (Cth) (the Evidence Act).

13    It is helpful to illustrate what is in issue by a discussion of some examples, although they are not inclusive of all of the matters of the kind that has been the subject of objection. I turn by illustrative purposes to the objections pressed in relation to [73] and [74] of the affidavit of Frances Bender sworn 15 November 2017 (the First Bender Affidavit) and Annexures FRB-20, FRB-37, FRB-40 and FRB-41. I should also include, in this regard, a discussion of Annexure FRB-38.

14    Whilst I will not discuss all of the annexures in detail, it is convenient to give a short summary of some of the matters that are objected to.

15    Paragraphs 73 and 74 of the First Bender Affidavit simply depose to the publication by the University of Tasmania’s Institute for Marine and Antarctic Studies (IMAS) of the documents in Annexures FRB-40 (the May IMAS Report) and FRB-41 (the September IMAS Report). If those annexures are inadmissible by reason that they contain opinion evidence, then [73] and [74] of the First Bender Affidavit becomes irrelevant and the Respondents’ objection to them must be made good on that basis.

16    I explain the background to these reports in very brief terms. The Second Respondent in his statement of reasons and findings of fact cites what he refers to as “ongoing IMAS benthic surveys in Macquarie Harbour” when he made a determination in May 2017 pursuant to management controls 3.0.1 and 3.3.5 of the “Macquarie Harbour Marine Farm Development Plan October 2005” (at FRB-39, p 738 of the First Bender Affidavit) :

11.    Ongoing benthic surveys in Macquarie Harbour by IMAS have highlighted deterioration in conditions under and around the farms, a significant decline in the total abundance and number of benthic fauna species collected from the leases assessed and provides significant concerns regarding the potential for sediment “souring”. The most recent survey by ILAS in January 2017 revealed patterns in the abundance and number of species of benthic fauna largely unchanged from the October 2016 survey, with the exception of a lease in the deeper central harbour where there was a further decline. Later sampling referenced in the IMAS April 2017 draft report and the May 2017 Progress Report raised the possibility of some faunal recovery.

12.    The April 2017 update on the status of dissolved oxygen and benthic conditions in Macquarie Harbour by IMAS stated that dissolved oxygen conditions in the middle and bottom waters remained extremely low in late 2016 before a replenishment of oxygen was seen in the deep bottom waters in early 2017. While this replenishment may have had a role in those areas exhibiting benthic recovery, it may be short lived as the benthic oxygen demand remains high. Given that DO levels in the middle of the water column remain low, and this mid-water region represents a much larger proportion of the total volume of water in the harbour, there is still clearly capacity for the DO levels in bottom waters to decline.

17    The entirety of the January IMAS Report is at Annexure FRB-38. No objection was initially pressed in relation to its admissibility. However, Mr Gray QC very properly accepted that any ruling should apply analogously to that report.

18    Annexure FRB-40 (the May IMAS Report) provides an update on the status of dissolved oxygen and benthic conditions in Macquarie Harbour following the January 2017 Report (see page 3). Annexure FRB-41 further updates both the January and May Reports. Each is a complex document containing data on matters such as dissolved oxygen levels which express onclusions based on that data.

19    Annexure FRB-20 was referred to by the parties as the Cawthron Report. It was issued on 21 August 2015. Its formal title is “Macquarie Harbour Environmental and Fish Health Monitoring Review”. Published by the Cawthron Institute it is constituted by an Executive Summary covering three individual “technical review sections”, each with individual section authors: benthic: Dr Barrie Forrest; water quality: Dr Ben Knight; and fish health: Dr Colin Johnston. The title page of the Cawthron Report discloses it was prepared for the Department of Primary Industries, Parks, Water and Environment Tasmania.

20    Annexure FRB-21 makes plain that the First Respondent took the Cawthron report into account when making a draft biomass determination in September 2015.

21    Annexure FRB-37 is a submission made by Huon to the EPA (the Second Respondent) in response to the Director’s invitation that it do so in respect of certain draft determinations he proposed making regarding biomass levels in Macquarie Harbour. In summary Huon submitted:

•    The biomass limit for the whole of MH should be reduced to a level below 10,000T (the total industry biomass was 10,169 at the end of August 2016 when environmental conditions were already compromised). If immediate action is not taken to reduce biomass to a level that allows it to recover the entire harbour may need to be completely fallowed to enable recovery.

•    There is a direct correlation between employment and biomass levels and Huon will not accept any further discriminatory decision making that may place the long-term security of jobs at Huon at risk. Huon has been at pains to protect the jobs of its employees by not operating a “boom and bust cycle”, the rapid increases in biomass by other operators was a risk that was accepted by each operator and the consequences must also be apportioned in that context. Further, Huon submits that it is preferable to maintain the security of employment through more conservative management of biomass now, rather than place all employment at risk if the entire harbour needs to be fallowed.

•    The Draft Determinations appear to endorse biomass limits based on commercial strategies and does not give sufficient consideration to the available science indicating deteriorating environmental conditions;

•    The Draft Determinations will continue to provide the other operators in MH with a commercial advantage over Huon and in effect, punish Huon for its lower risk tolerance and prudent management of MH whilst rewarding the higher risk strategies of other operators;

•    MH is strategically important to Huon Aquaculture and the salmon farming industry more broadly and the biomass limits indicated in the Draft Determinations do not support the long-term sustainability of MH for salmon farming;

•    Huon supports the conversion to a TPDNO based biomass limit;

•    The EPA should reconsider the Draft Determinations and set biomass limits for the whole of MH that are based on scientific evidence and that apply equitably to all operators in MH;

•    The EPA should provide a transparent assessment of the scientific information on which a final determination is made; and

•    Huon has a longstanding concern about the decision-making process followed by the State Government with respect to MH.

22    In regard to the objections pressed by the Respondents on the basis that the reports at FRB-20, FRB-40 and FRB-41 contain expressions of opinion, I take what the Fourth Respondent submits at [23] of Mr Gunson SC and M Bennett’s submissions to be common ground in respect of the position of all Respondents; that is, I take it not to be in dispute that in so far as the contested material is relevant to the subjective beliefs of Mr and Mrs Bender (who I am entitled to find are the controlling minds of the Applicants) the Respondents do not object to those documents being in evidence.

23    To the extent that understanding is in error I would in any event accept the submission advanced by Mr Gray and Ms Evans on Huon’s behalf at [10] of their written submissions to the effect that each of the annexures is admissible as relevant to their subjective concern that Macquarie Harbour might suffer or had suffered environmental damage. In that context they are relevant to “provid[ing] a subjective reason/motivation for Huon taking (belated) action”. It is plainly relevant evidence not tendered to prove the existence of a fact about the existence of which the opinion was expressed.

24    Putting aside the further question of whether those annexures would then also be admissible pursuant to s 77 of the Evidence Act to establish the truth of their content (that is, whether as a matter of fact Macquarie Harbour has been the subject of any environmental harm and whether, if so, any such environmental harm has been caused by pen fish farming). I accept that each of those reports is a significant document which can be accepted to have been and to be relevant to Huon’s understanding (through the understanding of Mr and Mrs Bender) of the circumstances as from time to time it understood it to confront, and still understands it to confront, as a fish farmer with leases within Macquarie Harbour.

25    It can hardly be suggested that the Applicants were not entitled to have regard to the Cawthron Report, for example, as relevant to the concerns they assert they had and still have, given that that report was relied upon by the First Respondent as the determining authority in respect of proposed controls of biomass levels. Similarly, given the Second Respondent relied on ongoing IMAS benthic surveys in Macquarie Harbour in making his May 2017 determinations, it can hardly be suggested that Huon cannot adduce the updated IMAS reports as relevant to its subjective concerns and to establish that it had and continues to have a proper basis for those concerns.

26    Assuming it will be contended against Huon in subsequent pleadings that discretionary grounds justify or require the Court not to grant Huon relief even if otherwise a declaration of invalidity might be made, it must be open to the Applicants to refer to those reports as informing its subjective understandings and reasons for acting, or failing to act, as they did. Each of those reports, on the premises identified above, are relevant and admissible pursuant to s 51 of the Evidence Act.

27    I turn now to what is in contention: the potential extended use of Annexures FRB-20, FRB-40 and FREB-41 for the purposes referred to at [11] of the Applicants’ submissions. The Applicants submit that in addition to demonstrating Huon’s subjective concerns, it is entitled to rely on that evidence as objective evidence as to the deterioration of the environmental conditions in Macquarie Harbour for the purposes of demonstrating there is a public interest in the grant of relief to be weighed against any discretionary factors against the granting of relief.

28    The Third Respondent’s position is to the contrary. Its starting premise is as stated at [3] of its submissions on admissibility:

At a general level, the Minister objects to scientific views being asserted by Huon unless those views are supported by properly admissible expert evidence. Reports in the public sphere that have not been prepared in accordance with the Federal Court’s requirements for expert evidence are not properly admissible.

29    For the Fourth Respondent Mr Gunson submits (joined by Mr McElwaine SC for the Fifth Respondent):

11.    Section 76 prohibits the production of that material in the following terms:

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

12.    It is no answer to such an objection to say simply that the material is admissible for another purpose. The text of s 76 is clear in its terms: it prevents the evidence of an opinion being accepted to prove the existence of the fact. That is precisely the reason that the material in dispute is being proffered. So much is clear from the submissions of the Applicant, filed on 14 December. They say (at [11]) that the evidence is relied upon as:

…objective evidence as to the deterioration of the environmental conditions in Macquarie Harbour, including in the dissolved oxygen levels, for the purposes of demonstrating that there is a public interest in the grant of relief, to be weighed against the discretionary factors against relief.

13.    The material plainly goes beyond ‘objective evidence’ because it purports to draw a link between certain matters (i.e. the dissolved oxygen levels) and the marine farming being undertaken in Macquarie Harbour (if this were not so, the material would be of no relevance).

14.    The material is therefore plainly inadmissible, unless it can be brought within the exception created by s 79 in the Evidence Act. Section 79 operates in combination with Rule 23 of the Federal Court Rules, and the expert evidence practice note (GPN-EXPT). Section 79 is clear in its terms. It provides that:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

30    However, in a like manner as s 60 of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation that is admissible because it is relevant for a non-hearsay purpose, s 77 of the Evidence Act provides that the opinion rule does not apply to evidence of an opinion that is admissible because it is relevant for a purpose other than the proof of an existence of a fact about which the opinion is expressed.

31    Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 (Lithgow) is the leading authority on the admissibility of opinion evidence. In that case a statement of lay opinion was ultimately held inadmissible by the High Court notwithstanding that it was contained in a business record. However, that was because that evidence was relevant only to establish the fact in respect of which it had been expressed.

32    That is made clear at [9] of the plurality judgment of French CJ, Heydon and Bell JJ, in which their Honours explained the background as follows:

The trial judge did not refer to the impugned representation. That is probably because she had ruled, after admitting into evidence (without objection) the records of the Ambulance Service in which it appeared, that the impugned representation not be used as evidence of the truth of its contents. Since there was no relevant use of the impugned representation other than as evidence of the truth of its contents, the trial judge's ruling amounted to a rejection of it.

33    By contrast, as discussed above, in these proceedings the representations in each of the three documents are also relevant and admissible for a distinct and separate purpose other than in relation to the proof of the existence of the facts about which any opinion contained within them is expressed.

34    Lithgow requires only that the admissibility of a representation be tested against the provisions of ss 76 to 79A of the Evidence Act. Section 77, which dis-applies the opinion rule when the impugned evidence is admissible for another purpose, is a provision within those provisions.

35    Just as it was the clear intention of the Australian Law Reform Commission (the basis upon which the provisions of the Evidence Act was drafted – and open to the Court to have regard to in respect of its construction: see Australian Law Reform Commission, Evidence (Interim Report), Report No 26 (1985) at [685] and Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) at [7.105]) that subject to s 136, whenever evidence that is relevant for a non-hearsay purpose is admitted, it may also be used as evidence of the facts stated, the same may to be understood with respect to s 77 in so far as it applies to the opinion rule. The capacity to exclude or limit evidence for unfairness in such circumstances is provided for by ss 135 and 136 of the Evidence Act.

36    Thus, anticipating that s 77 may apply, the Third Respondent submits at [4]:

…[I]f documents are exhibited to simply to demonstrate the fact of Huon’s belief, those documents should be the subject of a limited use ruling and not be admitted for the truth of their contents.

37    The Fourth Respondent submits at [21]:

Alternatively, a limited use direction pursuant to s 136 should be made in respect of the entirely of the Applicants’ evidence. In Roach v Page (No. 11) [2003] NSWSC 907, Sperling J considered the application of s 136 to evidence that contained inadmissible opinion evidence but was itself admissible for other purposes, pursuant to s 77. His Honour confirmed that s 77 should not be used as a tool to admit opinion evidence which does not otherwise comply with s 76. At [77]:

Without a limiting ruling pursuant to s 136, opinion evidence, with no disclosed basis for the opinion and propounded by a person not show to be qualified, would stand as evidence of the facts the subject of the opinions by reason of the fortuitous circumstance that the opinions were in a document admissible for some other reason. This was not the kind of case likely to have been contemplated by the legislature when enacting s 77.

Neither the Third nor Fourth Respondent relies on s 135 of the Evidence Act.

38    The reasoning of Sperling J is not a warrant for the automatic application of s 136. The submission that s 136 should be applied as if it were intended to ensure that the Evidence Act did not alter the position at common law regarding particular categories of evidence was rejected by the High Court in Papakosmas v R [1999] HCA 37; 196 CLR 297.

39    The terms of s 136 are to be applied in the specific circumstances of a particular matter, rather than preconceptions regarding the vice of such evidence. Section 136 is as follows:

General discretion to limit use of evidence

The court may limit the use to be made on evidence if there is a danger that a particular use of the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing.

40    Having regard to those terms, I note that the Fourth Respondent expressly confirms at [23] of Mr Gunson’s submissions that it “does not object to the inclusion of objective material (such as the dissolved oxygen readings) which are matters of objective fact rather than opinion, although it does not accept that such material can have any relevance in the absence of appropriately qualified scientific opinion as to the cause and effect of this information”.

41    In my view there is no danger that the evidence would be unfairly prejudicial to any party or be misleading or confusing if I decline to limit the use of what is contained in the objected to reports to prevent the Applicants from relying on the source data referred to in the objected to reports. The data itself is not contentious. In my view it may well not warrant the description of expert evidence at all – but in light of the position of the parties that is unnecessary to decide; to the extent it is I will permit its use to prove the truth of the data (such as the dissolved oxygen readings) referred to therein.

42    However, subject to an important caveat, I accept there is a danger that it would be unfairly prejudicial to the respondent parties and productive of confusion were I not to limit the use of evidence to exclude, in so far as any opinions are expressed in the various reports, to establish as an objective fact, having regard to that data, that the action as undertaken by the Applicants and the Fourth and Fifth Respondent (at least purportedly) in conducting fish farming in the manner permitted by the Minister’s decision has been the cause of environmental harm to Macquarie Harbour.

43    For the removal of any doubt, that will not prevent the Applicants relying on such opinions as are expressed therein to establish that Huon itself had and continues to have a proper basis for subjectively holding that belief.

44    I have reached that conclusion having regard to:

(1)    the Applicants by their Third Further Amended Statement of Claim having expressly abandoned their earlier pleadings at [33] that:

… [T]he Action [the expansion of marine farming] has, will or is likely to have, a significant impact on a declared World Heritage Area as:

(a)    The Action has, will or is likely to reduce dissolved oxygen levels within Macquarie Harbour.

(b)    The Action has, will or is likely to impact on the water quality of Macquarie Harbour.

(c)    The Action has, will or is likely, to impact on the natural values of Macquarie Harbour

(2)    that the Respondents will not have any opportunity to test such opinion evidence by cross-examination; and

(3)    in the absence of a pleading and particulars being provided by the Applicants, the scope of what would be in contest with respect to harm will be insufficiently confined to permit the Respondents or any of them wishing to contest the assertion of public interest advanced prudently to limit any responsive expert evidence to particular boundaries – with the near certain prospect that the length of the trial and its expense will exponentially increase.

45    The caveat I referred to earlier is necessary because the danger of both unfair prejudice and confusion I have found to exist is premised, at least in a significant degree, on there currently being no relevant pleadings to put the fact of substantial impact on or harm generally to Macquarie Harbour in issue. In essence, the Applicants seek to make an un-particularised case that they do not plead, on materials substantially incapable of being fairly tested. If the position with respect to the pleadings were to change, for example if a Respondent were to plead in its Third Further Amended Defence an affirmative proposition that (put crudely) fish farming in Macquarie Harbour has occasioned and will occasion no relevant environmental harm, then different considerations might apply. I do not wish to be understood to suggest that a different conclusion would necessarily be reached – but in such circumstances it would be open to the Applicants to request that my ruling be revisited.   

46    There remain two other matters which I should, out of prudence, address.

47    The first is the Applicants’ submission that the Court might apply s 190(3) of the Evidence Act, absent the consent of the parties, to admit the reports including the impugned opinion evidence, on the basis that what those reports refer to is not genuinely in dispute. In logical order perhaps that issue arises first but in any event I reject that submission.

48    There is little reason to doubt that many if not all of the reports to which objections have been made have been treated with great seriousness by the respondent parties – not the least the First and Second Respondents in their role as regulators. Given that each of the First and Second Respondents have made express reference to at least parts of those reports, it would be absurd to suggest otherwise. However, in environmental matters in particular, it is common to assert that a regulator should adopt the precautionary principle. A regulator may properly have regard to expert opinion and act on the premise that it provides a sound basis for prudent decision-making without necessarily adopting its premises as proven and the truth.

49    Illustrative of that proposition, in oral submissions Mr Costello expressed the Third Respondent’s position thus:

[T]he position of the Commonwealth is that it does not rule out the marine farming may have an effect on dissolved oxygen levels. But it does not accept that marine farming necessarily has an effect. Its position has always been that that is a matter that requires investigation. Similarly we do not accept that an effect on dissolved oxygen levels is tantamount to environmental harm.

50    I infer from the submissions advanced on behalf of the Fourth and Fifth Respondents that the opinions expressed in certain of the reports may be more strongly disputed by them. However what a party might submit is not decisive. The power to conclude that a matter is not genuinely in dispute can be exercised notwithstanding such submissions if it is sufficiently clear that the assertion that a particular fact is in dispute is entirely without merit. Such a conclusion is inappropriate in this case.

51    I reject the proposition that the First and Second Respondents’ decision to have regard to the contents of the various reports in their decision making should be accepted to be the adoption by those parties of the truth of all of the conclusions reached by the authors of those reports.

52    In the event I am not persuaded that there is anything sufficiently clear in the materials before me to justify my proceeding on the basis that the facts to which the opinion evidence relates (which in any event appears to me in almost every instance to have been expressed in cautious, qualified and conditional terms) is relevantly not genuinely in dispute in these proceedings.

53    The second is the Applicants’ submission that s 81 of the Evidence Act would permit certain statements to be admitted into evidence as admissions on behalf of the First and Second Respondents. Section 81(1) provides that the hearsay rule and the opinion rule do not apply to evidence of an admission.

54    As an example of what Huon contends to be an admission, Mr Gray referred to a statement appearing in the reasons for the decision given by the Director of the EPA when making a determination made in May 2017:

Current research tells us that fish farming has some part in contributing to the low dissolved oxygen seen in the bottom waters of the quarry harbour, but to what extent is currently unknown.

55    Mr Gray indicated that there were other statements of a similar character which the Applicants would contend should be characterised as an admission.

56    It is inappropriate for me to decide such questions at this point. A particular reason for my refraining to do so is that the hearing I conducted was explicitly focused on the question of admissibility of opinion evidence. On that premise Mr Turner representing the First and Second Respondents indicated that those parties had no relevant interest in the determination of those questions and sought leave to withdraw. Having obtained such leave he did so. It would be in breach of the requirements of procedural fairness were I to express a conclusion with respect to admissions asserted to have been made by the parties Mr Turner represents without having had the benefit of Mr Turner’s submissions.

57    Moreover, associated with the submissions advanced by Mr Gray are complex questions of law regarding the degree to which, if any, a submission made by one respondent might bind the others.

58    Mr Gray submits that an admission made by one respondent that is admissible under s 81 must be evidence available to be taken into account against all the respondents assuming the Court may need to weigh up the discretionary factors standing for and against the making of a declaration.

59    Mr Gray submits that the respondents, having made common cause against the exercise of the discretion, an admission made by one stands as evidence against all. Mr Gray did not cite authority in support of this contention, but submitted that, “it seems to follow from the logic” (transcript p 54 lines 19-20).

60    I make no criticism of Mr Gray for pressing submissions based on admissions – oral argument evolved in a way which was not anticipated when Mr Turner obtained leave to withdraw, however, if such submissions are to be pressed, they must be pressed after all parties have had an opportunity to consider the implications and to respond.

61    Finally, I turn to the precise terms of the ruling I should make to give effect to these reasons.

62    Mr Gunson submits that a general s 136 order should be made over the entirety of the evidentiary materials sought to be relied on by the Applicants. He submits it would be appropriate for the Court to adopt the approach followed by Harrison J in Hamod v State of New South Wales (No 10) [2008] NSWSC 611. He submits that the Court should prohibit the use of any of the Applicants’ evidence for the purposes of proving that:

(a)    Macquarie Harbour is suffering environmental harm; and

(b)    in so far as Macquarie Harbour is suffering environmental harm, that harm is being influenced or caused by pen fish farming.

63    Although resisting such an order being made, Mr Gray submitted that, were it to be, its terms should be expressed as follows:

Subject to further or other order, pursuant to section 136 of the Evidence Act 1995 (Cth), the following evidence:

(a)    FRB-14 (being a copy of a Macquarie Harbour Dissolved Oxygen Working Group report dated 6 October 2014);

(b)    FRB-20 (being a copy of a Cawthron Institute Report dated 21 August 2015);

(c)    FRB-38 (being a copy of a notice of determination issued by the EPA on 16 January 2017 including a copy of an IMAS Report dated January 2017);

(d)    FRB-39 (being a copy of notices of determination issued by the EPA in May 2017 and June 2017 including statement of reasons);

(e)    FRB-40 (being a copy of an IMAS Report dated May 2017);

(f)    FRB-41 (being a copy of an IMAS Report dated September 2017);

may not be used to prove the truth of any fact about the existence of which an opinion was expressed in that evidence, provided that the evidence may be used:

(a)    to prove the truth of the water quality data summarised therein; and

(b)    to prove that marine farming contributes to the consumption of dissolved oxygen.

64    Mr Gray’s drafting is generally to be preferred. It more neutrally confines any advanced ruling on evidence to the materials in relation to which submissions have been addressed and the language of the Evidence Act. However, Mr Gray’s proposed proviso (b) is inconsistent with the Court’s reasoning. Moreover, proviso (a) adds a gloss to what the Court has stated it regards as uncontentious as between the parties. I will therefore make orders restricting any use of opinion evidence in the terms proposed by Mr Gray subject to a single qualification: that, to the extent that the data recorded in those reports (as exampled by the dissolved oxygen readings) is opinion evidence it may be used to prove the existence of and truth of that data.

Associate:

Dated:    12 January 2018

SCHEDULE OF PARTIES