Federal Court of Australia

McNickle v Huntsman Chemical Company Australia Pty Ltd (Hearing Vacation) [2022] FCA 133

ORDERS

THE COURT ORDERS THAT:

1.    The initial trial dates be varied as follows:

(a)    the initial trial listed to commence on 2 May 2022 be vacated;

(b)    the initial trial be listed to commence at 10:15am on 4 September 2023 and, subject to further order, continue until the conclusion of the hearing day on 26 October 2023; and

(c)    the initial trial then be listed to recommence at 10:15am on 13 November 2023 and, subject to further order, continue until the conclusion of the hearing day on 22 December 2023.

2.    The case management hearings listed on 11 March 2022 and 6 April 2022 be vacated.

3.    Order 9 of the Orders dated 8 October 2021, requiring mediation to commence no later than 22 February 2022, be varied to a date to be fixed.

4.    The proceeding be listed for a “round table conference” in Melbourne at 9am on 21 March 2022 (with an estimate of half a day), with such conference to reconvene at 9am on 23 March 2022 (with an estimate of half a day and with senior counsel present).

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

1    Almost a year ago, six months after this class action was first fixed for hearing, I am recorded saying at a case management hearing on 5 March 2022: “Whatever else is unclear today… one thing … is clear: that the hearing date will be deferred over my dead body”: T17.1–2. Despite this rhetorical flourish, representing what might be accurately described as a firm provisional view adverse to any later adjournment application, the applicant now seeks a deferral of the hearing dates.

2    Needless to say, the decision about whether or not to grant the vacation of the hearing dates, like any other practice and procedure decision, is guided by the provisions of Pt VB of the Federal Court of Australia Act 1975 (Cth) (FCAA), and any discretion must be exercised in such a way as to facilitate the overarching purpose, being the just resolution of this dispute, according to law, and as quickly, inexpensively and efficiently as possible: s 37M of the FCAA.

3    If the focus was simply on what is the quickest, most inexpensive, and most efficient approach, it would, of course, be to retain the hearing date. But, as Gleeson CJ observed in relation to a cognate provision of the then Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word “just”: Murray Gleeson, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000). The just resolution of any dispute is of paramount importance.

4    There are four matters relied upon by the applicant in order to seek the vacation of the hearing dates.

5    First, it is alleged that there has been inadequate discovery made by Monsanto Company US, the third respondent, which is said to have resulted in further discovery having to be provided of 46,000 documents, of which 30,945 documents have been discovered in the last three days.

6    Secondly, prejudice is said to be caused to the preparation and presentation of Mr McNickle’s case as a result of learning, in January 2022, that Mr McNickle’s expert witness in the field of animal studies and biostatistics, Dr Christopher Portier, is unable to continue to participate in the proceeding due to ill health. This is combined with the fact that Mr McNickle’s replacement expert witness in this field, Dr Steven Bayard, is said not to be in a position to complete his report until mid-March.

7    Thirdly, the applicant points to the alleged unsatisfactory lack of progress of preparation of an “Agreed Background Facts” document (initially ordered on 28 September 2020 to be produced by 11 December 2021), which is to detail all facts not bona fide in dispute in narrative form.

8    Fourthly, it is said that significant prejudice is occasioned to the preparation and presentation of Mr McNickle’s case as a result of Mr McNickle’s nominated expert witness in the field of epidemiology, Professor Bruce Armstrong, informing the solicitors for Mr McNickle on 7 February 2022 that he is unable to continue to participate in an expert witness conclave or give evidence at the hearing due to unexpected and serious health difficulties that he has encountered.

9    If only the first three of these four issues existed, in my view, the hearing date could have been retained.

10    First, although there are worrying aspects relating to the late provision of documents to Mr McNickle, at present it may well be that the perceived difficulties are significantly overstated. If there was a real issue arising by reason of an important document being the subject of late discovery, then it may have been possible for that issue to be accommodated; alternatively, it may have been necessary to revisit the question of whether the hearing date should be retained at a later point. However, I do not consider that we have, at this stage, reached that point. In saying this, I am not minimising my concern as to the fact that apparently quite significant documents may have been provided somewhat later than I would have expected.

11    Secondly, as to the issues concerning Dr Portier, I raised with the parties the expedient of Dr Bayard, the replacement witness, engaging with the respondent’s expert witnesses in the fields of animal studies and biostatistics and preparing a joint report. I do not accept that this would not have been an appropriate course, and I expressly reject the notion this would have occasioned unfairness to the applicant if it had been necessary to adopt it.

12    Thirdly, although I expected the agreed background facts documents to have reached completion by this stage, I am confident, that with appropriate focus prior to the hearing date, this document could have been completed, including that part of the document that relates to the marketing and production of the Roundup product in Australia, which inexplicably appears to be a sticking point between the parties.

13    But the insurmountable problem is that which has arisen most recently relating to Professor Armstrong. The field of epidemiology is, as senior counsel for the applicant correctly submits, one of the critical areas of expertise in which expert opinion evidence will be adduced in this case. Professor Armstrong, before his recent difficulty, provided a very detailed report which is supportive of Mr McNickle’s case on liability. Similarly, Monsanto has served a very lengthy (193 pages plus appendices) report from Dr Shelley Harris in which she expresses opinions that conflict with those advanced by Professor Armstrong. This is a key issue requiring resolution in this case. Although there are other expert witnesses who do deal with matters of epidemiology in their reports, it is fair to say that those witnesses are not ones who have their primary area of specialised expertise in the field of epidemiology. On this basis, I am satisfied it would simply be unfair for the case to proceed with Mr McNickle having to try to find an epidemiologist at very short notice, and attempt (almost certainly unsuccessfully) to have that epidemiologist then brought sufficiently up to speed in order to engage usefully with Dr Harris at the hearing.

14    I should add that it is to Professor Armstrong’s great credit that he drew the attention of the applicant’s solicitors to his difficulty so promptly, upon learning of the issue causing him to form the view that he can no longer play a role in the proceeding. Alas, this is one of the vicissitudes of life and litigation, and despite the fact that I am satisfied that I have done all that I can to maintain the hearing date, it is necessary for the hearing dates to be vacated. The Court wishes Professor Armstrong well.

15    Finally, Mr Finch SC makes the very valid point that one of the difficulties of vacating a large trial is that there are collective sighs of relief by all practitioners, who then go away and concentrate on other things, and the knowledge gained by intense preparation evaporates (having to be reacquired at a later time). Undoubtedly, that will be the case for some parts of the team, but it is important not to lose momentum. Further, there is some prospect, of course, of there being cases in my diary that will free up time in order to allow me to bring the case on earlier than would be the case if I was required to set a hearing date today. In any event, while the iron remains hot, I intend to fix a “round table” conference, at which all the complex issues about the future preparation of this hearing (including discovery and questions relating to the optimal reception of opinion evidence) can be canvassed.

Associate:

Dated:    21 February 2022