FEDERAL COURT OF AUSTRALIA

Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 6) [2019] FCA 1853

ORDERS

THE COURT RULES THAT:

1.    The report of Iain Charles Neish dated 25 October 2018 be admitted into evidence subject to the rulings made in these reasons.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    Objection has been taken to the report of Iain Charles Neish dated 25 October 2018. This is a lengthy report dealing with a number of topics related to what can be described broadly as the seaweed industry in Indonesia.

2    The topics covered by the report include:

(a)    an overview of the history of seaweed farming in Indonesia to “the present-day” (25 October 2018), by reference to the geographical, environmental, social and economic factors within Indonesia that impact on the development and expansion of that industry;

(b)    the socio-economic significance of seaweed farming in coastal communities in Indonesia, with particular reference to the Kupang-Rote region with which this case is concerned;

(c)    the basics of tropical seaweed agronomy;

(d)    eucheumatoid seaweed farm management, costs and returns;

(e)    the processing of carrageenan seaweeds;

(f)    the geographic context of seaweed farming in Kupang-Rote, including factors that distinguish this region from other seaweed growing regions in Indonesia;

(g)    evidence that seaweed crop failures occurred in the Kupang-Rote region at the time of the Montara oil spill, and in subsequent years;

(h)    non-petroleum environmental factors that may have impacted Kupang-Rote seaweed production at the time of the Montara oil spill, and in subsequent years;

(i)    market factors that may have impacted Kupang-Rote seaweed production at the time of the Montara oil spill, and during subsequent years; and

(j)    a possible scenario of the Kupang-Rote seaweed industry absent crop failures that took place in 2009.

3    As will be apparent, some of these topics are directed to seaweed crop failures that occurred in the Kupang-Rote region at around the time of the Montara oil spill. However, the report does not seek to express an opinion on a causal relationship between those failures and the oil spill. One section of the report—dealing with the evidence of petroleum-related materials reaching the Kupang-Rote region at the time of the Montara oil spill—was not tendered. Certain other paragraphs, or parts of other paragraphs, of the report were also not tendered or their rejection was agreed to.

4    As a general observation, Dr Neish is well-qualified to give expert evidence in respect of the topics I have listed. He is a marine biologist and businessman who has worked with seaweeds, seaweed farmers and aquaculture systems since 1965.

5    Dr Neish commenced participation in the seaweed industry in 1965, when he undertook seaweed surveys and conducted research projects with the Nova Scotia Research Foundation Seaweeds Division. That work was done at the time he was completing an Honours degree (First Class with University Medal in Biology) at Dalhousie University in Halifax, Nova Scotia, Canada from 1963 to 1967. He completed his PhD in Zoology at the University of British Columbia, Vancouver, Canada in 1970. During that time he developed skills in computer modelling of energy and material flows through ecosystems. Models initiated during that time were later applied by him to diagnostic analyses of seaweed value chains and the development of seaweed aquaculture agronomy systems.

6    In 1970, Dr Neish co-founded Atlantic Mariculture Ltd, which produced seaweeds as sea vegetables, and Applied Marine Research Ltd, which undertook seaweed industry-related contract work at several locations around the world.

7    Dr Neish first came to Indonesia in connection with the seaweed industry when he participated in surveys of natural seaweed stocks in East Indonesia during the (vessel) “TrueBlue” survey of 1974. The surveys were conducted by a partnership (comprising the three major carrageenan manufacturers at the time) called Ocean Resources Development Association. From that time, Dr Neish’s focus shifted primarily to Southeast Asia.

8    In 1977, Dr Neish undertook management functions in seaweed farm-development projects and factory installations in the Philippines, Malaysia and Indonesia. For more than 20 years he was a Project Manager for Marine Colloids Inc (later FMC Corporation and then Dow-Dupont). From 2003 to 2008, he was part of the team that developed the Seaplant.net initiative of the World Bank IFC-PENSA and PEP Philippines programmes. Since the end of those programmes in 2008, he has devoted his time to projects with GTZ, USAID, AusAID, FAO, ILO and UNIDO, and several private companies. During those projects, he participated in surveys and value chain analyses that included engagement with hundreds of active seaweed farmers in Indonesia and other countries. The results of his work have been published. He is also the co-author and co-editor of books on the commercial development of eucheumatoid seaweed farming and the development of eucheumatoid seaweed value chains.

9    Dr Neish became heavily involved with the development of seaweed cultivation in Indonesia when he managed Indonesian farm-development and seaweed-purchasing projects by FMC Corporation between 1986 and 1999. Currently, he is a Research and Development Adviser to PT Sumber Tanaman Samundra, which is an Indonesian seaweed farming company. He is also a Director of PT Sea Six Energy Indonesia, a seaweed processing company. The systems used by the latter company were initially developed in India. Full-scale development is now being undertaken in Bali, where Dr Neish now lives.

10    As Dr Neish put it in his report:

I have not spent 53 years working with seaweed for the sake of seaweed. From a commercial standpoint I see seaweed as a way of making money from sun + seawater + human effort. I seldom work directly with seaweed; I work with people who are engaged in seaweed-based value chains. In tropical regions such as Kupang-Rote, the foundation link of those value chains is community enterprises (for example, seaweed farms and post-harvest treatment facilities) located in “productive ecoscapes”.

11    One of the sources from which Dr Neish drew in preparing his report is another report dated 5 February 2018 entitled Farm practices in areas that experienced seaweed crop failures at the time of the 2009 Montara incident: from interviews conducted during December 2017 and January 2018 with seaweed farmers in Kupang and Rote Ndao regencies of Nusa Tengarra Province in eastern Indonesia (the February 2018 report). The February 2018 report was prepared by Dr Neish in collaboration with Mr Boedi Sardjana Julianto. According to Dr Neish, Mr Julianto has had extensive experience in interviewing farmers and developing and conducting farm training programmes with organisations that include OXFAM, UNIDO, CIDA USAID and AusAID.

12    The February 2018 report is based, in part, on field surveys and structured interviews conducted with seaweed farmers who lived in or near 81 villages in the Kupang and Rote Ndao regencies of Nusa Tengarra Timur. It is characterised by Dr Neish as a timeline of events based on those seaweed farmers’ stated recollections of their seaweed farming experiences before, during and after the time of the Montara oil spill. It includes reference to other cited source materials. The report was commissioned by the applicant’s solicitors.

The objections

13    The respondent raised a large number of objections to the report.

14    The first objection is to the February 2018 report (as a whole) which has been included as Annexure “B” to the report dated 25 October 2018. As to this, the respondent submitted that it was hearsay evidence on which the applicant seeks to rely for a hearsay purpose. Insofar as the February 2018 report is relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. Alternatively, the respondent submitted that the February 2018 report should be rejected on discretionary grounds under s 135 of the Evidence Act 1995 (Cth) (the Evidence Act).

15    In essence, the February 2018 report is a description of seaweed farming at various times in various sectors (chosen by Dr Neish) in Kupang-Rote. It is Dr Neish’s distillation, analysis and evaluation of a seemingly large body of information. It is true that a considerable part of that information was sourced from personal contact and structured interviews with seaweed farmers and other seaweed value-chain participants, but this was not the only source of information that Dr Neish consulted. He also consulted maps and satellite imagery and other reference materials listed in the report. This enabled Dr Neish to (amongst other things) delineate survey tracks (on which he reports) which were used to assist in identifying current locations of seaweed farming activity. These locations were visited and personal observations about them are made by Dr Neish. These visits assisted Dr Neish to compile colour-coded maps to designate the state of seaweed farming, which he observed, as at December 2017 and January 2018, and to promulgate and assign categories of seaweed farming activity to those areas.

16    The February 2018 report contains Dr Neish’s personal observations and assessment of the seascapes and landscapes near seaweed farming areas. It also references and relies on data in the Kupang-Rote area from previous studies conducted by him and other researchers. Information on seasonal variability in farm productivity, farm operating models and farm gate prices for dried seaweed was obtained from interviewees in the surveyed areas. However, Dr Neish also obtained information on prices from other sources, including bi-monthly price polls conducted by PT Jaringan Sumber Daya of collectors and traders at transport locations.

17    The February 2018 report then provides analyses, by designated sectors and sub-sectors, of the state of seaweed farming (farm system utilised; cultivars farmed; crop situation; and crop productivity) at various time periods—broadly, before the Montara oil spill, during the Montara oil spill and after the Montara oil spill—based on the responses given by interviewees of their state of knowledge on those topics as at December 2017/January 2018.

18    The February 2018 report is not naked hearsay evidence. As I said, it is Dr Neish’s distillation, analysis and evaluation of information and other data he obtained in the course of conducting the survey he performed, for the purpose of preparing the report. Properly characterised, it represents Dr Neish’s opinion on the state and character of seaweed cultivation and farming at various locations in Kupang-Rote in the time periods referred to, based on his specific research. The Evidence Act does not circumscribe the subject matter on which an opinion can be expressed under s 79 of the Act. It does not preclude, for example, the expression of an expert opinion on the state of seaweed farming at various times and places in Indonesia. The requirement is that the person purporting to express the opinion must have specialised knowledge based on training, study or experience, and the opinion that is expressed must be wholly or substantially based on that knowledge. Clearly, Dr Neish has specialised knowledge of seaweed farming in Indonesia, both generally and in particular locations. His opinions are not rendered inadmissible because they were formed, in part, by the information he obtained from the survey that was conducted. I do not know how, plausibly, an opinion on the state of seaweed farming at different locations and at different times could be expressed without recourse to appropriate source material, including previous representations (in some form) made by those who actually engaged in farming activities at the relevant locations and the relevant times. How otherwise is the relevant data (on which the opinion is based) to be obtained? Ultimately, the opinion(s) expressed are substantially based on Dr Neish’s specialised knowledge, being the knowledge he gained from conducting the survey and analysing its results, informed also (no doubt) by his considerable experience in and study of the Indonesian seaweed farming industry over many years, and by his training and experience as a marine biologist and his experience as a businessman who has worked with seaweeds, seaweed farmers and aquaculture systems in Indonesia and other places. The February 2018 report is not (as it were) a mere repetition or recitation by Dr Neish of discrete previous representations made by other persons. On this basis, I am persuaded that the February 2018 report, considered as a whole, is admissible as an expression of expert opinion under s 79(1) of the Evidence Act.

19    Even if, contrary to my view, Dr Neish’s reliance on information garnered from interviewees in the survey process is not amenable to the exception provided by s 79(1), and would infringe the hearsay rule, such as to taint the admissibility of the February 2018 report as a whole, I would dispense with the application of those rules on the basis that their application would cause or involve unnecessary expense and delay: s 190(3) of the Evidence Act.

20    In this connection, and having regard to the factors referred to in s 190(4) of the Evidence Act, I am satisfied that the evidence is of probative value, although I accept that its reliability will be a function of the accuracy of the responses given to the questions asked in the survey form and the extent to which Dr Neish’s conclusions expressed in the report are an accurate distillation, analysis and summation of those responses. As to the latter, the respondent is able to seek access to the source materials relied on by Dr Neish (in particular, the completed survey forms) in order to test the soundness of Dr Neish’s conclusions and opinions. The respondent is also able to seek access to the completed survey forms in order to direct the Court’s attention to the quality of the responses given in the survey process.

21    Further, I do not understand the respondent’s defence of this proceeding to involve any dispute as to the state of seaweed farming in the Kupang-Rote region or that there were crop failures in that region in the latter months of 2009 and thereafter, after the Montara oil spill. What is in dispute is whether there is any causal relationship between the oil spill, the crop failures and the state of seaweed farming at relevant times. But, as Dr Neish is at pains to point out in the February 2018 report, he does not “presume to establish cause-and-effect connections between reported crop failures and the coincident occurrence of the Montara incident”. The Court has already received a considerable amount of lay evidence concerning these crop failures, involving direct observation by the witnesses concerned. Evidence of the state of seaweed farming before, during and after the Montara oil spill is clearly of importance, but what is at the heart of the case is whether the oil spill was causative of relevant loss or damage, a matter on which the February 2018 report, as tendered, expresses no opinion.

22    For completeness, I should also record that I perceive no cogent basis on which I should reject the February 2018 report, as a whole, under s 135 of the Evidence Act. That said, the weight I should attach to particular parts of the February 2018 report is another matter and will depend on how the applicant will seek to deploy the report in final submissions. Put simply, there may be some aspects of the February 2018 report on which I would place less weight than other aspects. I am not bound, simply by rejecting the respondent’s objections, to accept any part of the February 2018 report unquestioningly or, indeed, to prefer any part of it over other evidence in the case. The extent to which I should rely on the February 2018 report will be a matter for the parties to address me on in due course.

23    The second group of objections are based, in large measure, on the asserted inadmissibility of the February 2018 report: para 23, second sentence; paras 53, 54, 57 and 58; paras 175 – 179; paras 180 – 182; paras 185 – 190; para 199; paras 201 – 203; and paras 255 – 262. In light of my ruling on the admissibility of the February 2018 report, these particular objections fall away (although, in some cases, the admissibility of these paragraphs was challenged on other grounds). With respect to paras 176 and 177, the applicant accepted, in submissions, that these paragraphs must be read as assumptions on which Dr Neish’s later reasoning is based. I will treat them accordingly. Further, with respect to para 199, the applicant indicated that certain words (“and on interview with farmers”) are not read. As to paras 255 – 262, the applicant accepted in submissions that insofar as these paragraphs stated factual matters (as opposed to Dr Neish’s opinions), they should be read as assumptions. Once again, I will treat them accordingly.

24    The third group of objections comprises a large number of miscellaneous objections. I will deal with each, in turn.

(a)    Paras 24 – 50. These paragraphs give an overview of the history of seaweed farming in Indonesia by reference to factors that impact on the development or expansion of seaweed farming. The respondent submitted that this evidence is not relevant. I reject that objection. The evidence provides matters of context (including the nature of the Indonesian seaweed industry, and the nature of seaweed farming and the types of seaweed grown) in which the alleged loss and damage is said to have occurred.

(b)    Para 29, second sentence (“[the Kupang-Rote region is] viewed by the industry as a region with underdeveloped potential”). The respondent submitted that this evidence is hearsay relied on for a hearsay purpose. I reject that objection. The evidence is an expression of Dr Neish’s specialised knowledge of the seaweed farming industry in Indonesia and of the down-stream supply chain for dried seaweed, and is admissible under s 79(1) of the Evidence Act.

(c)    Para 48, second and third sentences (“and Indonesian seaweed farmers responded by filling the supply gap within several months. This is an example of Indonesia as “alpha tropical seaweed source”.”). The context in which this statement is made is Dr Neish’s reference to the fact that following the devastation caused by Super Typhoon Yolanda in the Philippines in 2013, there was a serious shortage of spinosum, one of the eucheumatoid seaweeds. The substance of the challenged evidence is that the shortage was filled by Indonesian seaweed farmers. The respondent submitted that the evidence is hearsay relied on for a hearsay purpose. Insofar as the challenged statement was relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject these objections. The challenged statement is tendered as opinion evidence and is based on Dr Neish’s specialised knowledge of seaweed farming and supply chains in Southeast Asia. It is admissible under s 79(1) of the Evidence Act. In oral argument, the respondent focussed on the fact that Dr Neish did not provide reference to underlying data in support of his general statement. That complaint goes more to the weight I should give to Dr Neish’s statement, rather than its admissibility.

(d)    Para 54, last sentence. As I have noted, objection was taken to paras 53, 54, 57 and 58, based primarily on the admissibility of the February 2018 report as a whole. However, there remains a discrete objection to the last sentence of para 54, which is Dr Neish’s bare statement that work done by someone else—Moreno (2017)—“reached conclusions like my own” (emphasis added). As the applicant acknowledged in oral argument, this statement is problematic. In my view, the statement is too general and evaluative to be accorded any weight, even though made by someone with specialised knowledge. I reject the statement under ss 135(b) and (c) of the Evidence Act.

(e)    Figure D-2 and para 60. Figure D-2 is a graph of Indonesian seaweed export tonnage and values from 2000 to 2008 derived from a report prepared by Dr Neish in 2009 entitled An analysis of world production and trade in tropical red seaweeds; with focus on the Philippines and Indonesia (Neish 2009). Para 60 of the report explains that the data on which he relied did not discriminate between spinosum and cottonii seaweed but that he had estimated that cottonii accounted for about 90% of the joint exports. Para 60 otherwise explains what is discernible from Figure D-2. The respondent submitted that the evidence is hearsay relied on for a hearsay purpose. Insofar as the challenged statements are relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject these objections. The challenged statements are tendered as opinion evidence and are based on Dr Neish’s specialised knowledge of seaweed farming and supply chains in Southeast Asia. The evidence is admissible under s 79(1) of the Evidence Act.

(f)    Para 62. In this paragraph, Dr Neish explains that at the time that he was writing another report in 2011 entitled Socio-economic dimensions of seaweed farming in Indonesia: original version (Neish 2011), the Kupang-Rote region was going through crop failure events that were coincident with the Montara oil spill. Dr Neish says that, prior to that time, the Kupang-Rote area was typical of other Indonesia seaweed farming areas, for reasons he explains. The respondent submitted that the evidence is hearsay relied on for a hearsay purpose. Insofar as the challenged statement is relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject these objections. Dr Neish’s statements are clearly opinion evidence and tendered on that basis. The evidence is based on his specialised knowledge of seaweed farming and farming practices in Indonesia. The evidence is admissible under s 79(1) of the Evidence Act.

(g)    Paras 69 – 82, other than para 73, second sentence (as to which, see below). These paragraphs deal with seaweed farming practices. The respondent submitted that the evidence is not relevant. I reject that objection. Once again, the evidence provides matters of context in which the alleged loss and damage is said to have occurred.

(h)    Para 73, second sentence. This is a statement that there is a paucity of research addressing how seaweed crop health can be acutely and chronically impacted by the sorts of oily materials reported by people in the Kupang-Rote region during the second half of 2009 and beyond. The respondent submitted that this evidence should be admitted subject to a limitation under s 136 of the Evidence Act that the reference to “oily materials” be taken as only Dr Neish’s understanding. The applicant accepted that limitation and the evidence will be admitted accordingly.

(i)    Paras 105 – 109. These paragraphs deal with seaweed crop growth rates and yields. They are, in part, based on the work undertaken by Dr Neish which he reported on in Neish 2009 and Neish 2011. The respondent submitted that the evidence is hearsay relied on for a hearsay purpose. Insofar as the challenged statement is relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject these objections. The evidence is clearly opinion evidence and is tendered on that basis. The evidence is based on Dr Neish’s specialised knowledge. It is admissible under s 79(1) of the Evidence Act.

(j)    Paras 110 – 147. These paragraphs provide an overview of the management of seaweed farming in the Kupang-Rote region and of the costs and returns to seaweed farmers. The statements made by Dr Neish are, in part, based on information contained in Neish 2011 and the February 2018 report. In the course of submissions, the applicant indicated that some paragraphs or parts of paragraphs are not read. Those paragraphs or parts of paragraphs are included in the list provided at [26] below. The respondent submitted that the evidence relied on by the applicant is hearsay relied on for a hearsay purpose. Insofar as the challenged paragraphs are relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject these objections. The evidence is clearly opinion evidence and is tendered on that basis. The evidence is based on Dr Neish’s specialised knowledge. It is admissible under s 79(1) of the Evidence Act.

(k)    Paras 157 – 160. These paragraphs deal with how farmers’ income, external costs and traders’ gross profit contribute to the costs of exported raw dried seaweeds. The respondent submitted that the evidence is not relevant. On the basis of material currently before me, I have doubts about the ultimate relevance of these paragraphs. However, at the present time I am not persuaded that the evidence is clearly not relevant. I will not, therefore, reject it on that basis. The respondent also submitted that the evidence is hearsay relied on for a hearsay purpose. Insofar as the challenged paragraphs are relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly based on Dr Neish’s specialised knowledge. I reject those objections. The evidence is tendered as opinion evidence and is based on Dr Neish’s specialised knowledge. It is admissible under s 79(1) of the Evidence Act.

(l)    Paras 161 – 164. These paragraphs deal with the feasibility of establishing value-adding facilities (carrageenan processing facilities) in the Kupang-Rote region. The respondent submitted that the evidence is not relevant. Once again, on the basis of the material currently before me, I have doubts about the ultimate relevance of these paragraphs. However, at the present time, I am not persuaded that the evidence is clearly not relevant. I will not, therefore, reject it on that basis.

(m)    Para 161, first sentence. This is a statement that Dr Neish had heard about several cases where private and public organisations assessed the feasibility of establishing carrageenan processing facilities in the Kupang-Rote region. In another sentence of this paragraph, Dr Neish says that he had, in fact, written a preliminary business plan for PT Flobamora Bahari (PTFB), whose intended activities he goes on to describe. The respondent submitted that the challenged statement was hearsay. I reject that objection. The evidence is admissible under s 78 of the Evidence Act.

(n)    Para 162, second sentence. This is a statement about PFTB’s intended operations in respect of which Dr Neish provided a preliminary business plan, which is referenced in the report. The respondent submitted that the evidence is not relevant. I reject that objection. This ruling is covered by the ruling in (k) above.

(o)    Para 164. The substance of this paragraph is that, in the long run, the Kupang-Rote region could be an attractive location for multi-stream, zero-effluent processing facilities as proposed in PTFB’s plan. The respondent submitted that this evidence is opinion that is not based wholly or substantially on Dr Neish’s specialised knowledge. I reject that objection. The evidence is clearly based on Dr Neish’s specialised knowledge. It is admissible under s 79(1) of the Evidence Act.

(p)    Paras 165 – 174. These paragraphs deal with factors that distinguish the Kupang-Rote region from the rest of Indonesia in respect of seaweed farming. The respondent submitted that the evidence is not relevant. I reject that objection. The evidence provides context in which the alleged loss and damage is said to have occurred. The respondent also submitted that the evidence is not based on Dr Neish’s specialised knowledge. I reject that objection. The evidence is clearly based on Dr Neish’s specialised knowledge and is admissible under s 79(1) of the Evidence Act.

(q)    Paras 192 – 196. These paragraphs deal with value chain analyses undertaken by Dr Neish in 2012 and 2015. These analyses are referenced in the report. The respondent submitted that this evidence is not relevant. The gravamen of this evidence is that the other regions did not suffer crop failures at the time that crop failures were being suffered in the Kupang-Rote region. I am satisfied that the evidence is relevant. I therefore reject that objection. The respondent also submitted that the evidence is hearsay relied on for a hearsay purpose. Insofar as the challenged paragraphs are relied upon as opinion evidence, the respondent submitted that the opinion given is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject these objections. The paragraphs are tendered as opinion evidence and are clearly based on Dr Neish’s specialised knowledge. The evidence is admissible under s 79(1) of the Evidence Act.

(r)    Para 199. In this paragraph (as read), Dr Neish opined that there was nothing in the weather data that he analysed (in a report prepared in 2016 entitled Weather patterns from Kupang (20 years) and Rote (10 years)) which indicates that weather inimical to seaweed farming was present during or after the 2009-2010 period when crop failures were observed in the Kupang-Rote region. The respondent submitted that this evidence is not admissible because Dr Neish has not explained how that conclusion is drawn. I reject that objection. Dr Neish’s opinion is a negative conclusion based on the absence of evidence that would lead to the opposite conclusion. His opinion requires no greater elaboration in the circumstances.

(s)     Paras 204 – 208. These paragraphs concern monsoon-related seasonal variability in seaweed farm productivity. They are related to paras 201 – 203 (see [23] above) but are based on information from Neish 2011 rather than the February 2018 report. The respondent submitted that the evidence in paras 204 – 208 is hearsay relied on for a hearsay purpose. Insofar as the challenged paragraphs are relied upon as opinion evidence, the respondent submitted that the opinion is not wholly or substantially based on Dr Neish’s specialised knowledge. I reject those objections. The challenged paragraphs are tendered as opinion and are clearly based on Dr Neish’s specialised knowledge. The evidence is admissible under s 79(1) of the Evidence Act.

(t)    Paras 263 – 279. These paragraphs express opinions as to likely scenarios with respect to seaweed farming (absent crop failures in 2009) in respect of four identified individuals (including the applicant), based on accounts given by them in affidavits. Although it is not entirely clear, I think it is implicit from the submissions made that the applicant accepts that the statements made in the affidavits, on which Dr Neish relied, should be treated as assumptions on which his opinions are expressed. However, in form, it is difficult to extract fact from opinion in a number of the paragraphs. As events have transpired, the affidavits of the individuals concerned have been received in evidence in heavily redacted form. Each deponent has given oral evidence and been cross-examined. Each has been excused from further attendance as a witness. Subject to any further debate about the matter, I am not satisfied that the evidential basis on which Dr Neish expressed his opinions (where he did express them) is the same as the evidence presently before me. As matters presently stand, I reject paras 263 – 279.

25    I should record that the hearsay objections I have noted in the preceding sub-paragraphs were based largely on the fact that Dr Neish relied on, and cited, his previous research, which (so the argument ran) would have been based on, or included, what others would have told him when he was carrying out that research. I do not accept that this means that the opinions Dr Neish expressed in his report are not opinions as such, but mere hearsay evidence. Further, Dr Neish’s opinions could not be rendered inadmissible simply because they are based on his (as opposed to someone else’s) prior research.

Parts of the report not read

26    For completeness and convenience, I record that the applicant does not read the following paragraphs, or parts of paragraphs, of the report:

(a)    para 61, final sentence;

(b)    para 104;

(c)    para 113, first sentence;

(d)    para 114;

(e)    para 117, final sentence;

(f)    paras 183 and 184;

(g)    para 191;

(h)    para 197;

(i)    para 198, first and second sentences;

(j)    para 199, the words ‘and on interviews with farmers’;

(k)    para 228(b), final sentence;

(l)    para 228(d), final sentence;

(m)    para 243 and Figure L-9;

(n)    para 247, final sentence;

(o)    para 250, final sentence;

(p)    para 280, first, second and fourth sentences; and

(q)    para 287.

Associate:    

Dated:    12 November 2019