FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Shenzhen Energy Transport Co Ltd (No 4) [2016] FCA 143 File number(s): QUD 178 of 2013 Judge(s): GREENWOOD J Date of judgment: 24 February 2016 Catchwords: PRACTICE AND PROCEDURE – consideration of an application by the respondent to the proceeding to adjourn the trial of the action listed to commence on Monday, 4 April 2016 for a period of three weeks with a fourth buffer week in reserve should the trial not conclude within three weeks Cases cited: Commonwealth of Australia v Shenzhen Energy Transport Co Ltd [2015] FCAFC 116 Date of hearing: 17 February 2016 Date of last submissions: 17 February 2016 Registry: Queensland Division: General Division National Practice Area: Admiralty and Maritime Category: Catchwords Number of paragraphs: 83 Counsel for the Applicant: Mr M Scott QC and Mr C Young Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr S Lawrance Solicitor for the Respondent: Thynne & Macartney ORDERS QUD 178 of 2013 BETWEEN: COMMONWEALTH OF AUSTRALIA Applicant AND: SHENZHEN ENERGY TRANSPORT LTD Respondent JUDGE: GREENWOOD J DATE OF ORDER: 24 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The trial of the action set down to commence on Monday, 4 April 2016 and concluding on 22 April 2016 subject to the reservation of a fourth week should the matter not resolve in three weeks, is adjourned to a date to be fixed having regard to discussions conducted by the Court with the parties. 2. The costs lost by reason of the adjournment are reserved for later determination. 3. The parties are to file and serve written submissions on the question of costs within 14 days. 4. Subject to whether any party to the proceeding wishes to be heard orally on the question of costs, the costs of the proceedings will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 The present proceeding is concerned with an interlocutory application by the respondent to the principal proceeding ("Shenzhen") for an order that the trial of the action, set down for three weeks commencing on 4 April 2016, be adjourned to a date not before June 2016. 2 Other orders sought by Shenzhen are that: the date for service of the respondent's evidence be extended from 15 February 2016 to 25 April 2016; the expert witnesses hold conferences of experts in their respective disciplines and prepare joint expert reports on or before 23 May 2016 rather than 14 March 2016; on or before 30 May 2016, the joint reports be provided to the parties, and the applicant file the joint reports with the Court on or before 6 June 2016 rather than 21 March 2016 and 28 March 2016 respectively. 3 Shenzhen relies upon seven exhibits and 10 other documents contained in a "Working Bundle" of documents in support of the application. It is not necessary to recite in these reasons the title of each of the documents. Exhibit 7, however, comprises three reports of a marine scientist, Dr Kettle, dated 7 May 2014, 1 September 2015 and 15 September 2015. 4 On 3 April 2010, the Shen Neng 1 owned by Shenzhen ran aground on the Douglas Shoal, which forms part of the Great Barrier Reef and falls within the area of the Great Barrier Reef Marine Park ("GBRMP"), due to the admitted negligent navigation of the vessel by the Chief Officer: para 3, amended defence, 23 June 2014. 5 The body with statutory responsibility for the management of the GBRMP is the Great Barrier Reef Marine Park Authority ("GBRMPA"). 6 Officers of the GBRMPA took a primary role of investigating the grounding site and the status of the vessel including boarding the vessel on four occasions: 8 April 2010 together with officers of the Australian Federal Police ("AFP") and the Australian Maritime Safety Authority ("AMSA"); 14 April 2010 together with officers of the AFP and AMSA; 21 May 2010 with an officer of the Queensland Parks & Wildlife Service; and 28 May 2010. Also in 2010, the Australian Institute of Maritime Science ("AIMS") inspected the grounding site to map fine scale bathymetry of the impact site of the grounding and conducted an underwater video survey of the bottom of the Douglas Shoal which led to a report called, put simply, the "Negri Report" of June 2010 by Negri et al, prepared by AIMS at the request of the GBRMPA. Dr Laurence McCook, Manager Ecosystem Health and Resilience Science Coordination Group, GBRMPA, prepared an Impact Assessment Report of the grounding called the "McCook Report" dated June 2011. 7 On 23 May 2011, Dr Brett Kettle, an expert in issues of marine science retained by the Commonwealth, conducted a visit to the site of the grounding with GBRMPA officers. Dr Kettle provided a first report consisting of a technical review of the GBRMPA Impact Assessment Report, in 2011. 8 Shenzhen, however, was also examining the relevant circumstances and consequences of the grounding. On 8 April 2010, it engaged marine consultants called "Polaris Applied Sciences" to provide a report. The report dated 20 April 2010 is entitled "Polaris Dive and Reef Report". Legal professional privilege is claimed for it. "Polaris Dive Photographs" said to be related to the report are also the subject of a claim of legal professional privilege. Shenzhen's discovered "Daily Status Report" of 30 April 2010 records that on 4 April 2010 a Polaris "Reef Expert Specialist", Mr Graham, boarded the Shen Neng 1 and subsequently disembarked on 19 April 2010, a period of 15 days: affidavit, Ms Lye, 16 February 2016, para 23. 9 Shenzhen was also taking other steps. In its discovery list, Shenzhen refers to a document entitled "BMT WBM Shen Neng 1 Grounding Field-Based Impact Assessment Summary Report" dated 4 May 2012 and another document entitled "BMT WBM Field-Based Impact Assessment Summary Report" dated 1 June 2012. BMT WBM are consulting engineers and surveyors who were engaged in April 2010 by Shenzhen to conduct research at the Douglas Shoal in connection with the grounding of the vessel: affidavit, Ms Lye, 16 February 2016, paras 24 and 25. 10 Shenzhen's spreadsheet of discovered documents (at "JL33", p 103 of Ms Lye's affidavit of 16 February 2016) records that statements were obtained from the following mariners on the Shen Neng 1 at the time of the grounding, on the following dates: Statement of the Chief Officer Wang Xuegang 20 January 2011 Statement of the Third Officer Dang Changjun 17 February 2011 Statement of AB Jiao Zhiyang 21 February 2011 Statement of the Chief Engineer Hou Shuzhi 23 February 2011 Statement of the Master Wang Jichang 23 February 2011 Statement of the Second Officer Jia Xiangbing 23 February 2011 Statement of Carpenter Huang Jianada 24 February 2011 11 These statements seem to be statements taken by the Australian Transport Safety Bureau ("ATSB"), a body established under the Transport Safety Investigation Act 2003 (Cth) responsible for investigating accidents and other transport safety matters involving marine operations in Australia that fall within Commonwealth jurisdiction. The ATSB undertook an investigation following the grounding of the Shen Neng 1 which resulted in the publication of a report entitled "Marine Occurrence Investigation No. 274". That report is said to identify all documents obtained by the ATSB from the vessel, the salvors and third parties directly relevant to the ATSB's investigation. Statements taken by the ATSB are said to be covered by statutory immunity and at least at 28 August 2015 Shenzhen did not have the statements: see the remarks of Mr Keane, counsel for Shenzhen, at a directions hearing on 28 August 2015: T, p 20, lns 30-47; T, p 21, lns 1-14. It is not clear whether the statements are in Chinese (Mandarin or otherwise) or in English and it is not known whether copies of the statements were given to each individual. At some time, the statements seem to have come into the possession or control of Shenzhen as Shenzhen's spreadsheet identifies each of these documents as documents in the possession or control of Shenzhen over which claims of privilege are made. They may be the same statements as the ATSB statements or, possibly, draft statements taken otherwise. 12 It seems that Dr Kettle undertook another independent review of the GBRMPA Impact Assessment Reports in August 2012 (Kettle Report No. 2): Tab 6, Working Bundle, affidavit, Ms Lye, 18 August 2014, para 34. 13 On 28 March 2013, the principal proceeding was commenced by the Commonwealth of Australia. 14 From 9 to 13 October 2013, Dr Kettle undertook five days of fieldwork and completed 14 dives in the area of the Douglas Shoal. The date, location, task, imagery collected and samples collected are set out at Table 2 of Dr Kettle's Report dated 7 May 2014 (Kettle Report No. 3) filed by the applicant on 31 July 2014. 15 On 18 June 2014, consent orders were made by which the date for the filing of the applicant's evidence-in-chief was extended to 9 September 2014 (from 26 August 2014) and the date for the filing of the respondent's evidence-in-chief was extended to 9 December 2014 (from 25 November 2014). 16 In the meantime, Shenzhen was engaging with Seabyte Inc, (ship casualty environmental consultants), and also the London P&I Club. Seabyte conducted a site visit to the Douglas Shoal. On 28 March 2014, Seabyte sent an email to the London P&I Club copied to Thynne & Macartney and another email was sent to the same addressees on 30 March 2014. In the Shenzhen spreadsheet of discovered documents, the following emails are mentioned: email Seabyte to Thynne & Macartney and others, 26 March 2014; email Seabyte to London P&I Club and others, 28 March 2014; email Seabyte to London P&I Club and others, 30 March 2014; email Seabyte to London P&I Club and others, 31 March 2014. 17 On 20 August 2014, the orders of 18 June 2014 for the filing of evidence by particular dates were vacated. 18 In late October and early November 2014, Dr Kettle undertook a further site visit to the Douglas Shoal. As to site visits to the Douglas Shoal, Dr Kettle expressed the opinion to Ms Lye (set out in Ms Lye's affidavit of 6 May 2015) that a site visit to the Douglas Shoal can take place in any month of the year subject to recognising that diving operations during a site visit are most likely to be hampered by wave or swell related surges and tide and wind related currents. Thus, in Dr Kettle's view, the best time to conduct a site visit, at any time of the year, is when any proposed diving operation coincides with what is known as the "neap tide phase", which is a period that occurs within a few days of the smallest tides in a tidal phase. These neap tide phases can easily be calculated by reference to tidal charts for the region, in Dr Kettle's view. Dr Kettle says that diving operations at the Douglas Shoal are unsafe in conditions where wave heights reach 1.4 metres ("critical level waves") and that historical annual wave data suggests a significant decrease in the likelihood of critical level waves in a given year in the month of January and in the period June to December. 19 On 23 February 2015, Dr Kettle again visited the Douglas Shoal and undertook further observation of and sampling from particular areas of the Douglas Shoal. 20 On 7 May 2015, a directions hearing took place. 21 The applicant was ordered to file any further evidence-in-chief by 14 August 2015 and the respondent was ordered to file its evidence by 29 January 2016. On that day, the trial of the action was set down for three weeks commencing on 4 April 2016, with a fourth "buffer" week set aside should the matter not conclude within 15 sittings days. 22 At the directions hearing the Commonwealth (Mr Young of counsel) observed that, by reason of the pleadings, issues concerning Shenzhen's contended entitlement to limit its liability in respect of the Commonwealth's claims, and the value of that limit, were both issues for trial and although it was necessarily implicit in Shenzhen's allegation in para 11 of the amended defence that there was only one distinct "occasion", the question of whether there was "more than one distinct occasion" was an issue. The Commonwealth foreshadowed an interlocutory application seeking the production by Shenzhen of particular documents going to the question of "multiple occasions". 23 The Commonwealth also foreshadowed that there would be one more report from Dr Kettle which the Commonwealth anticipated filing by the end of May. The reports of Dr Kettle were said to constitute the Commonwealth's evidence-in-chief as to the area of damage to the Douglas Shoal, the remediation proposals and the costs. The Commonwealth said that Dr Kettle would be visiting the Douglas Shoal again, most likely in June 2015, for the purpose of assessing any further damage to the Shoal caused by Cyclone Marcia. The Commonwealth submitted a number of times that by the end of May 2015, Shenzhen would have available to it all of the applicants' expert evidence on remediation. The Commonwealth said that it assumed that Shenzhen intended to send their own expert to the Douglas Shoal to answer Dr Kettle's opinions and produce a report about remediation. The "window of time" said to be available to visit the Douglas Shoal and conduct diving operations was a period from July to November. The Commonwealth observed that "given all of our material on that topic [damage and remediation] will be in by May, … if that window is not taken advantage of, there is a real risk of undue delay to this proceeding if that window is missed and it has to happen in 2016": 7 May 2015, T, p 6, lns 42-45. 24 The Commonwealth also contended that there was, therefore, "ample time" for Shenzhen to conduct its site visits. The Commonwealth also observed that "we're urging our friends to get on with it if that is something that they're seeking to do": T, p 7, lns 30-31. The Commonwealth observed that, "depending on the nature of the documents that we then see on discovery for the foreshadowed application, issues about the entitlement to limit and the valuation exercise", would be issues in the proceeding. The Commonwealth observed that assuming that all of those issues are "in play", the trial ought to take about 10 days. 25 At that directions hearing, counsel for Shenzhen, Mr Lawrance, observed that in the view of the respondent's expert, the only reliable time to conduct a survey at the Douglas Shoal would be October or November. Mr Lawrance also observed that if the trial date was to be set for April 2016 the respondent would be content with an order that it file its evidence by 29 January 2016. Mr Lawrance observed that an estimate of 10 days for the trial seemed to be reasonable "on the current pleadings" which in Shenzhen's view did not then include any question about there being more than one occasion for the purpose of the limitation. 26 Although the reply had not, at this point, been amended to plead three separate occasions, it was nevertheless the position on the existing pleadings that the Commonwealth's claim for damages arising out of the negligence of the respondent's officer was sought to be answered by Shenzhen by the pleading of the limitation point and thus the respondent bore the onus of establishing, on the facts, that the integers necessary to make good a limitation of its liability were made out. However, Mr Lawrance observed at this directions hearing: "So at the moment nothing about navigation is in issue so that the trial is going to be about remediation and limitation, but if that becomes an issue, it potentially makes it a longer hearing". Although the Commonwealth's application for access to documents was yet to come as a necessary element of enabling the Commonwealth to determine whether it would amend its reply, Shenzhen was, in substance, on notice that there was a real and non-remote possibility that the question of multiple occasions would be in issue and, in any event, Shenzhen, as a matter of law, bore the onus of making good every matter, fact or circumstance needed to be established to engage the limitation on the footing of a "distinct occasion" (as the Full Court found): Commonwealth of Australia v Shenzhen Energy Transport Co Ltd [2015] FCAFC 116. 27 Against the background of these exchanges, a period of 15 days was allocated for the trial rather than 10 days (with a "buffer" fourth week set aside): T, p 12, lns 33-38. 28 As events transpired, Dr Kettle's site visit to the Douglas Shoal (foreshadowed for June 2015 at the 7 May 2015 directions hearing) and scheduled for either June or July 2015 did not occur "due to urgent work he was required to undertake in Tasmania in June 2015 for another client as well as weather conditions in late July 2015 which coincided with the neap tides": affidavit, Ms Cooper, 18 August 2015, para 7. 29 On 4 August 2015, Dr Kettle departed Gladstone for a 10 day site visit to the Douglas Shoal with a "dive team" and a "sampling team". As things turned out, conditions were predicted to be unsafe from late Tuesday, 11 August 2015 and thus the site visit was brought to an end on 12 August 2015. 30 As at 18 August 2015, Dr Kettle's intention was to return to the site on Thursday, 20 August 2015 for a three day visit. The point of the date of 18 August 2015 was simply that Ms Cooper was deposing to events to that date for the purposes of another directions hearing on the following day. Dr Kettle's view (as Ms Cooper explains) was that if the site visit proceeded on 20 August 2015, Dr Kettle expected to provide his "final report to AGS before the end of September 2015", although his view was also that should the weather conditions deteriorate from 20 to 23 August 2015 and become unsafe for diving, a delay of 14 days would occur before another neap tide occurred. Should there be such a delay, Dr Kettle's "final report" to AGS would not be available until early October. 31 It seems that the further site visit from 20 to 23 August 2015 was for the purpose of collecting "some final water and sediment samples for testing": affidavit, Ms Cooper, 18 August 2015, para 9. 32 On 17 August 2015, Shenzhen's marine expert, Mr Raaymakers, through Thynne & Macartney, asked of the AGS and thus Dr Kettle whether he might accompany Dr Kettle on the proposed further visit to the Douglas Shoal planned for 20 to 23 August 2015. On 17 August 2015, AGS advised Thynne & Macartney that Dr Kettle foresaw some practical problems in doing so related to the size of the vessel Dr Kettle intended to charter which would not accommodate two dive teams. A further perceived problem was that Mr Raaymakers might not have held a "sufficient permit" from the GBRMPA entitling him to engage in relevant activities at the Douglas Shoal and a permit would not be able to be issued by Thursday, 20 August 2015. 33 As to the charter vessel, Thynne & Macartney advised AGS by email on 18 August 2015 that Mr Raaymakers would ideally take a support diver with him but if that was not possible due to too many people on the boat, he would attend by himself. In an email dated 18 August 2015, AGS elaborated upon the features of the activities of Dr Kettle's proposed visit to the Douglas Shoal and expressed Dr Kettle's concern that the activities proposed by Mr Raaymakers would require, for "insurance" and "certification" purposes, a "minimum legal dive team" of three persons and that Dr Kettle's dive team could not take responsibility for the safety of Mr Raaymakers in diving alone. 34 As to the GBRMPA permit question, AGS advised Thynne & Macartney on 18 August 2015 that GBRMPA had considered that matter and it took the position that a consideration of the activities Mr Raaymakers sought to undertake at the Douglas Shoal called into question whether Mr Raaymakers was properly engaged in a "research project" and considered that from "what has been described it sounds like Mr Raaymakers will be conducting commercial research and as such he requires a permit". The permit might well take up to "8 weeks" to issue, it was said. 35 Mr Raaymakers, of course, just like Dr Kettle, is engaged as an expert to assist the Federal Court in the determination of the issues in controversy. To the extent that Mr Raaymakers's needs, as a matter of proper construction of the relevant statutory or regulatory instruments, a permit from GBRMPA to enable him to lawfully visit the Douglas Shoal for the purposes of discharging his task as an expert witness in these proceedings, it should go without saying that the GBRMPA will, of course, facilitate such permits as might be necessary to enable Mr Raaymakers to discharge his functions as an expert witness, within the time constraints required by the litigation and the Court. 36 On 27 August 2015, Mr Raaymakers lodged with the GBRMPA (as it required) an application for a "new research" permit (see affidavit Ms Lye, 16 February 2016, p 124, Item 3) to enable him to conduct a site visit to the Douglas Shoal for this case, as an expert. It was granted on 25 September 2015 for a period until 30 September 2018. It seems to be uncontroversial that this permit will enable Mr Raaymakers to attend the Douglas Shoal (and its surrounds) to undertake whatever observations and gathering of samples as may be necessary in order to assist the Court as an expert witness. 37 The evidence of Mr Fisher in his affidavit of 16 February 2016 is that Mr Raaymakers was sent a preliminary brief on 10 April 2015 to consider the possibility of providing expert advice in the case. He was briefed by Thynne & Macartney to undertake investigations at the Douglas Shoal and prepare a report directed to the damage to the reef and remediation to the Douglas Shoal, on 21 August 2015. Mr Szymczak was briefed on 11 September 2015. 38 Mr Fisher, in his affidavit of 18 August 2015, on the eve of the directions hearing on 19 August 2015, observed that it was "highly likely" that Mr Raaymakers would need to undertake "extensive fieldwork on Douglas Shoal to complete his opinion" and that Mr Raaymakers could not be fully briefed as the final report of Dr Kettle had not been received. Mr Fisher also contended in that affidavit that his "instructions" (from the London P&I Club) had "always been" that Mr Raaymakers should conduct his thorough fieldwork, if required, after receipt of all of the applicant's evidence on damage and remediation: para 9. 39 On 30 June 2015, the Commonwealth retained a navigational expert, Mr Paul Davidson, to provide an opinion on navigational issues relevant to the period immediately following the grounding on 3 April 2010 and up to the point at which the vessel was re-floated, 12 days later. Documents sought from Shenzhen in the discovery application (which had been resisted by Shenzhen) were thought to be relevant to forming an opinion on whether, after the initial grounding, there were acts of bad seamanship which had caused additional damage. The Full Court ordered on 24 August 2015 that Shenzhen give discovery of the relevant documents, reversing the orders of the primary judge refusing an order for discovery. 40 Mr Davidson would require, it was said, about six weeks from the date of being provided with the discovered documents to give his opinion. 41 At the directions hearing on 19 August 2015, the Commonwealth proposed a date of 9 October 2015 as the new date for filing Dr Kettle's further report and the report of the Master Mariner, Mr Davidson, subject to, in the latter case, the production of the documents. The previous orders contemplated that Shenzhen would file its evidence by 29 January 2016 on the assumption that it would have had the Commonwealth's material by 14 August 2015. Receipt of the Commonwealth's material on 9 October 2015 would mean that the "window of opportunity" for a site visit to the Douglas Shoal by Mr Raaymakers, informed by Dr Kettle's final report, would be potentially difficult and in any event, the optimal diving period seemed to be from July to October/November. 42 Shenzhen expressed concern that the Commonwealth's default in delivering the final Kettle report (fundamentally due to Dr Kettle having elected to undertake and complete other work for another client) was unfairly "jamming" it up against the "cyclone season". 43 The delay in relation to the production of a report from Mr Davidson was largely contributed to by Shenzhen's election to unmeritoriously resist the applicant's application for discovery of documents relevant to Mr Davidson's enquiry and the formation of his opinion. 44 Although Shenzhen had available to it Dr Kettle's reports of 2011, 2012 and 2013, it says it understood that the final Kettle report would address the results of the later dives, observations made in those dives, and the analysis emerging from them and that for Shenzhen to conduct a diving program without the applicant's final evidence on damage and remediation was also "unfair". 45 At T, p 8, lns 38-45, Mr Lawrance said this: To cut to the chase, there's no reason Dr Kettle can't put on his final report that deals with everything save for dotting the Is and crossing the Ts of the final water and sediment samples. That report can be done without any further diving and in my submission there's no reason why it can't be put on by the end of this month. That will be a couple of weeks late. If we get that report then, my client can still dive in October and conduct its survey knowing substantially all of what Dr Kettle says, and the existing timetable can be, with some small massaging, essentially retained, and we would retain the hearing date. 46 At T, p 9, lns 1-9, Mr Lawrance said this: So my proposal is that your Honour simply extend the time for service of the applicant's evidence until the end of this month. If and when there is a need for a supplementary report from Dr Kettle that deals with the water and sediment testing then we can look at it when we receive it and see if there really is an issue, and there may need to be an application for leave to rely on it, but if it doesn't raise anything that we can't deal with, it would be sensible. But your Honour should extend time for service of the applicant's evidence until the end of this month. We should have a corresponding extension for the service of our evidence, but it's only a matter of a couple of weeks, and the hearing dates can be retained. 47 At this directions hearing, the position seemed to be that the site visit to the Douglas Shoal on 20 August 2015 was to proceed: T, p 12, lns 26-29. In that context, the Court made this observation at T, p 12, lns 41-47 and T, p 13, lns 1-4: And what I will need, Ms Lye, or what I would like to see is – well, understand, first of all, whether the dive went ahead on the 20th, and then I would like to understand something from Dr Kettle in some reasonable degree of detail about why it is that he would not be able to produce a report within a reasonable period of time in the early part of September; certainly by mid-September, on the assumption that the respondents are in the process right now of putting in place arrangements with Mr Raaymakers to enable him to do a survey sometime in October, or between the second half of September and October, because I do take the force of the difficulty which is created, that if a survey isn't able to be done by the beginning of November, then the sort of climatic difficulties [in] Dr Kettle's experience are likely to be increased by orders of magnitude in the cyclone season. 48 In the result, the applicant was excused from non-compliance with the earlier orders (as that failure was due to Dr Kettle's election to undertake other work) and the matter was listed for further directions a week later in order to take account of what might have transpired on 20 August 2015. 49 For the purposes of a directions hearing on 28 August 2015, Ms Lye filed an affidavit of 27 August 2015 explaining the steps Dr Kettle had taken in the period from 12 August 2015 to 25 August 2015. Those steps were concerned with the collection of water and sediment samples, delivery of the samples to a testing laboratory, obtaining preliminary results, re-running the tests, re-visiting the Douglas Shoal on 20 August 2015, collecting further sediment samples and delivering those samples to the testing laboratory. As to the provision of a report, Ms Lye said this: 5.11 In the meantime, Dr Kettle has prioritised finalising a report based on his previous site visit conducted in October/November 2014. This report excludes Dr Kettle's confirmatory findings on analysis of water samples taken on his site visit in October/November 2014. These confirmatory samples were collected by Dr Kettle on his site visits on 23 February 2015, 5 to 11 August 2015 and 21 to 25 August 2015. 5.12 Dr Kettle expects to have this report completed by close of business 31 August 2015. 5.13 Dr Kettle anticipates finalising his final report by 10 September 2015. 5.14 At this stage, Dr Kettle does not foresee any need to undertake a further site visit to Douglas Shoal. 50 As to a report from the navigational expert, Mr Davidson, Ms Lye deposed in her affidavit of 27 August 2015, that Mr Davidson remained of the view that each of the documents sought in the Commonwealth's amended discovery application (filed 27 July 2015) remained relevant to his forming an opinion whether, after the initial grounding, there were acts of bad seamanship which caused additional damage. Mr Davidson anticipated that his opinion would be available no later than 19 October 2015 on the assumption that he received the documents by 1 September 2015. 51 On 28 August 2015, the respondent was ordered to give discovery of particular categories of documents. Any disputed claims for privilege by either party were to be the subject of a separate application. So too was the question of whether particular documents should be produced to the applicant. 52 The following orders were made that day in relation to steps on the part of the applicant: the applicant file any application for leave to amend its reply, on or before 26 October 2015; on or before 1 September 2015, the applicant file and serve the expert report from Dr Kettle based on his site visit to the Douglas Shoal conducted in October and November 2015; on or before 14 September 2015, the applicant file and serve any further expert report from Dr Kettle concerning remediation; on or before 26 October 2015 (apart from the orders just mentioned) the applicant file and serve any additional evidence upon which it intends to rely. The respondent was ordered to file and serve any additional evidence upon which it intended to rely by 15 February 2016. 53 At the directions hearing, Mr Keane for Shenzhen suggested that the trial dates be vacated because Shenzhen could not finalise its instructions to Mr Raaymakers until it knew the case it would have to meet based on Dr Kettle's report (not due until 14 September 2015) and the report from Mr Davidson, together with the lay evidence from the mariners. 54 Mr Keane also made submissions at the directions hearing that to the extent that the evidence of Mr Davidson would go to the issue of whether or not there was more than one distinct occasion (and the evidence of the marine consultant would go to costing the damage), it might be necessary for Mr Raaymakers to assess those reports and, to that extent, Shenzhen might not be able to finalise instructions to Mr Raaymakers until receipt of the evidence and the amended reply pleading the multiple occasions. The directions hearing was conducted by Justice Rares, in my absence. Rares J observed that, at least as at that date, the extent to which the Commonwealth might assert more than one occasion was not yet clear. Rares J observed: "When and if there is some [significance] to the scope of the litigation by raising these issues we will know to what extent you [Shenzhen] may or may not be prejudiced in preparing for the hearing. But to do something today [adjourn the trial] when it … may be that the issues just remain as quantum and agency – whatever that means [may be premature]": T, p 5, lns 27-35. At the directions hearing, Mr Keane submitted that if the nature of the trial changes to comprehend multiple distinct occasions, addressing those matters would be an "intensely factual" exercise and it would be unlikely that 15 trial days would be sufficient to deal with the matter. 55 Mr Lawrance, at the recent directions hearing, said that he thought that 15 days would be sufficient. 56 At T, p 7, lns 32-39, Rares J made these observations: But at the moment, the idea that we can't get this thing ready over the next few months, given the amount of work that has been no doubt done already and given the state of knowledge that your client [Shenzhen] has had since [the Shen Neng 1] went aground in April 2010 and the investigations that have gone on, I think I can assume your client has got a fairly good understanding [of] what happened, what was damaged and what needs to be fixed. Obviously, the evidence needs to be refined and articulated and prepared properly, having regard to whatever it is the Commonwealth is going to precisely rely on. I understand those difficulties. 57 At T, p 8, lns 1-5, Rares J also said this (addressing Shenzhen's counsel): … and you know what that damage is or you have certainly had plenty of opportunity to find out. What remediation work may or may not be capable of being done and how much that costs, I understand you may need to get proper articulation of the Commonwealth's case on that. But let's see what we can get out Mr Young [the Commonwealth] in terms of why all this time should be taken. 58 As to that, Mr Young said that as to Dr Kettle's evidence, a report would be provided by 1 September 2015 concerning the October and November site visits and a final report would be provided by 14 September 2015 which would be in addition to the existing three reports filed by Dr Kettle, one file in April 2013 and one filed in July 2014 (as described earlier in these reasons). As to the navigational evidence of Mr Davidson, the Commonwealth maintained its position that Mr Davidson would need access to the documents consistent with the orders made by the Full Court and additional orders. Mr Young submitted that provided that Mr Davidson received the documents by 1 September 2015 he would need until 26 October 2015 to produce his report. 59 Rares J observed, in addressing Shenzhen's counsel, that his Honour did not accept that Shenzhen needed to have the trial dates vacated (at least at this time) or that Shenzhen could not "fix things up". His Honour observed that there may be "some big issue, if it comes up" about the distinct occasions that requires the question of adjournment of the trial dates to be "revisited, but at the moment, (a) we don't know that there are going to be distinct occasions relied on and, (b) we don't know what, if any, substantive difficulty that will cause" (T, p 18, lns 3-7). Rares J also observed that if Mr Raaymakers does have logistical difficulties in carrying out an inspection of the Douglas Shoal in November, there may then be a "concrete set of facts" going to whether the trial dates should be vacated especially in circumstances where trial dates had been fixed for over a year when Mr Raaymakers made the decision (no doubt together with Shenzhen) to go to the Douglas Shoal in October or November of 2015. 60 As to the navigational evidence, Rares J in addressing Mr Young on behalf of the Commonwealth, said this (T, p 19, lns 33-44): But, I mean, you've got to be realistic here. If we're talking about getting statements from the crew, (a) they're going to be in Mandarin or whatever the crew speaks. They've got to be obtained, translated, set out, giving – you know, it's one thing for a master mariner to give some expert [evidence] in English in a field he's expert in. It's another thing to get ship's officers who are not fluent in English, they will have – the officers will have some English, because they've got to be able to go to ports around the world, but they're not going to be fluent in English, and they're going to have to have translations. The translations are going to have to be checked properly and prepared properly. And they're all around the world. They're at sea, presumably, most of these people. They've got to be located. They've got to be tracked down. I think that's much too tight for them to do that on their lay evidence, and ... 61 In the result, the fourth report of Dr Kettle was filed and served on 1 September 2015. This report concerns a 10 day field visit. The majority of the fieldwork occurred in October 2014. Dr Kettle records in his report that a further survey of the site occurred in early October 2013 approximately three and a half years after the initial grounding. This quite substantial report of 196 pages therefore concerns fieldwork and research activities undertaken by Dr Kettle for the purposes of the trial in 2013 and 2014. 62 The fifth report of Dr Kettle was filed and served on 15 September 2015. Again, it is a substantial report and it represents an analysis of the consequences of the grounding and the movements after the grounding. It represents the final report of Dr Kettle. On 26 October 2015, the report of Mr Davidson was filed. So too was the affidavit of Mr Winkler. 63 The Commonwealth was given leave to amend its reply. An amended reply was filed and served on 12 November 2015. 64 Mr Fisher, in his affidavit of 16 February 2016, says that on 29 November 2015 to coincide with a neap tide at the Douglas Shoal, Mr Raaymakers, Mr Szymczak and the dive team arrived at the Douglas Shoal. Mr Raaymakers intended to conduct a survey for 11 days. The weather proved more favourable than anticipated and the field trip was extended until 12 December 2015. Mr Fisher says, on information and belief from Mr Raaymakers, that collecting samples at Site 1, being the grounding site, was interrupted due to the presence of bull and tiger sharks with the result that the dive team was only able to obtain a very limited number of samples at Site 1. During the field trip the dive team collected samples "along some other transects" but did not complete "all planned transects". The detail of transects is not identified and it seems to be unclear about the extent of the interruption at other diving sites apart from Site 1 (as defined). A diving trip was not arranged for the next neap tide phase in December as that was only five days after the conclusion of the field trip. A further field trip occurred commencing 28 January 2016. Mr Raaymakers intended to complete the survey by 5 February 2016. Conditions were rough on 2 February 2016 resulting in damage to the tender vessel. On 3 February 2016, Mr Raaymakers and the dive team returned to port due to strong winds. The dive team encountered tiger sharks and bull sharks at Site 1 again and abandoned any attempt to take further samples from that site. During the second field trip, the dive team collected samples along more transects although the extent of those transects are not identified. 65 Mr Raaymakers intends to commence another field trip in late February or early March 2016 to coincide with the next neap tide. 66 Mr Fisher received instructions to brief Mr Ward and Mr Perrott to provide an expert opinion on "operational aspects of carrying out remediation to Douglas Shoal and to consider the remediation proposal contained in the reports of [Dr Kettle]" on 18 December 2015 and formally briefed those men on 22 December 2015. 67 The point of the brief is to obtain a report on whether there are more efficient and effective and less costly ways of carrying out remediation other than in the way suggested by Dr Kettle. 68 Mr Ward and Mr Perrott are said to be liaising with other experts, in order to form their own opinion, on five issues consisting of: marine biology, water and sediment handling and treatment; the design of bespoke equipment for remediation works; the availability, cost and capabilities of suitable vessels to be used in a remediation operation; and ship and maritime operations companies to do the work, their personnel and expenses. 69 Apart from these steps, Shenzhen briefed on 27 November 2015 Captain John Simpson of Soils Marine Consultants to provide an expert report on the navigational aspects of the grounding in response to the report of Mr Davidson. Mr Fisher says that Captain Simpson tells him that he will be unable to complete his report until he receives evidence from Master Jichang Wang and Chief Officer Wang Xuegang and Chief Engineer Hou Shu Zhi about the factual allegations in the amended reply. Mr Fisher says that Captain Simpson expects to be able to provide a report approximately two weeks after receiving that evidence. 70 As to the mariners, Mr Fisher says that he does not hold affidavits or statements or information from which affidavits or statements could be drafted from the mariners concerning the factual background to the issues raised in Mr Davidson's report of 26 October 2015. Mr Fisher says that on 3 November 2015, his office contacted Shenzhen seeking assistance with contacting the former staff of the vessel and on 5 and 9 November 2015 his officer again contacted Shenzhen following up the contact of 3 November 2015. On 9 November 2015, Shenzhen told Mr Fisher that on 3 November 2015 it had requested information from Tosco the former ship managers of the Shen Neng 1 but had not received any response. Mr Fisher wrote to Captain Li of Tosco Keymax ("Tosco") on 10 November 2015 and was told on 11 November 2015 that about half of the members of the crew who were on board the vessel at the time of the incident are "currently serving on board vessels, and the other half are not now contracted to Tosco". Mr Fisher says that between 11 November 2015 and 23 December 2015 he "followed up" Captain Li on three occasions requesting the provision of details concerning the crew so that Mr Fisher would be able to contact them. 71 Mr Fisher says that on 24 December 2015, he was told by Captain Li that, as to the crew, the Master was on leave; four of the officers and engineers are no longer contracted with Tosco and Tosco does not have current contact details; and three of the engineers are serving on various vessels (three are nominated). Mr Fisher describes the waters where those vessels are trading. Mr Fisher says that on 12 January 2016, he asked for contact details for the Chief Engineer, First Engineer and Third Engineer from Captain Li but no response had been received by 16 February 2016. On 22 January 2016, Mr Fisher established that the First Engineer was serving on a vessel which would be calling into port in the United Kingdom on 27 January 2016 and thus on 28 January 2016, Mr Fisher arranged for the first engineer to be interviewed there. An affidavit based on that interview has not yet been finalised or sworn as the ship left port before the affidavit could be finalised. Mr Fisher says that by 16 February 2016, he had not been able to obtain permission from the operators of two of the other three ships to board their vessels to speak to the engineers. Mr Fisher says that on 22 January 2016, he requested lawyers from a Hong Kong firm to locate other crew within China. Mr Fisher has been informed that that firm believes they will be successful in locating other crew but have not been successful to date. 72 There are a number of obvious concerns which have given rise to the present state of affairs. They include these considerations. 73 First, although Mr Young for the Commonwealth agitated strongly the position at the relevant directions hearing at which the matter was set down for trial that Shenzhen would have Dr Kettle's substantive report (and, in substance, his final report) by the end of May 2015, the report was not delivered in May or June or July or August and it was not until the Court agitated concern about the reasons for the delay that commitments were made for the delivery of a first report on 1 September 2015 and then a further report by 15 September 2015. The first report deals with the outcome of work undertaken in 2013 and in 2014. Plainly enough, that report should have been available much earlier. The second report deals with later work. The reports are substantial and although Mr Scott for the Commonwealth says that an expert would be capable of getting to the nub of those reports quite quickly, the simple fact is that the protocol was that Dr Kettle's final report would be available in reasonably good order to Shenzhen (by the end of May). 74 It is perfectly obvious that once it became clear (presumably to Dr Kettle) that Shenzhen was planning to send Mr Raaymakers to the Douglas Shoal in October, Dr Kettle elected to undertake work in Tasmania for another client on the assumption that his report would not now be needed until later in time. That was very unfortunate. 75 Second, Shenzhen put in place arrangements for Mr Raaymakers to go to the Douglas Shoal in October 2015 and as it turned out he began his field visit on 29 November 2015 and conducted that visit until 12 December 2015. In other words, notwithstanding that Shenzhen knew from the very outset that damage to the Douglas Shoal and remediation steps and methodologies related to remediation were a critical issue, Shenzhen took no step to send its expert to the Douglas Shoal until virtually December 2015 knowing that the trial was to occur in April 2016 and knowing from the very outset that damage and remediation was a critical issue. There is simply no good explanation for that. Obviously enough, Mr Raaymakers and Shenzhen would want an expert to visit the Douglas Shoal armed with Dr Kettle's final views and final report. However, that circumstance has got nothing to do with a total failure on the part of Shenzhen to gather expert evidence in a timely, rational or sequential way on a critical issue in the proceeding. 76 Third, Shenzhen has known for some time that a real and non-remote possibility was that multiple occasions would be asserted. Although it is true that Shenzhen did not know the content of the allegations of multiple occasions until the amended reply was filed, it certainly knew that the collection of events, steps, actions and activities undertaken in the 12 day period from the grounding until re-floating would be the subject of close examination. Nothing was done of any substance to gather evidence from the mariners until the last gasp before trial. There is no rational explanation for that failure. Again, obviously enough, Shenzhen would wish to put to the mariners the particular allegation of multiple occasions and the factual circumstances comprising each of those multiple occasions. However, that forensic step is one which ought to have occurred as a further forensic step consequent upon Shenzhen being armed with existing statements from the mariners. It is not sufficient to simply say that there was no real basis for seeking out the mariners and talking to them until the amended pleading was received. Had Shenzhen made the documents available as it ought to have rather than resist the discovery application, Mr Davidson would have had the documents and Shenzhen would have had Mr Davidson's report much earlier. 77 Fourth, steps ought to have been taken much earlier to engage with Mr Ward and Mr Perrott because it has been obvious from the very outset that the matters which will be the subject of a report from them, have been in issue in the proceedings. Again, no doubt Mr Ward and Mr Perrott would wish to respond to the detail of Dr Kettle's reports. I accept that the late delivery of Dr Kettle's two substantial reports has made it more difficult for Shenzhen but again, Shenzhen must have known that a contention would be advanced by it that there are efficient cost minimisation methodologies which could be deployed to limit the scope of the costs of carrying out remediation. This question has been alive from the very beginning but yet nothing was done even in a preparatory way to obtain evidence from experts such as Mr Ward and Mr Perrott about that matter and, of course, in going about their tasks, they propose to speak to other experts across the five areas already mentioned. Those steps ought to have been invoked a long time ago. 78 Fifth, as to Mr Davidson, specifically, the provision of his report was influenced by an election by Shenzhen to resist discovery of the documents. That was, and was shown to be, an unmeritorious position to adopt. It delayed Mr Davidson's report. I do not accept that awaiting the report of Mr Davidson was a necessary or rational step before seeking to engage with Captain Simpson about whether in the 12 day period there might have been acts of bad seamanship giving rise to multiple occasions. I accept that, of course, Shenzhen would wish to put to Captain Simpson the particular detail of the alleged multiple occasions and the opinions expressed by Mr Davidson but Shenzhen ought to have been putting in place an expert to examine documents and material within its own possession which would have indicated whether there was likely to be a basis for acts of bad seamanship during the course of the 12 day period. Moreover, to the extent that Captain Simpson would need to understand the evidence of the officers and particularly the engineers, steps ought to have been taken much earlier to marshal and obtain that evidence as it was plainly going to be a matter of relevant preparation to do so. 79 The Commonwealth opposes the application to adjourn the trial and does so largely on the footing that Shenzhen has had a sufficient opportunity to address the reports of Dr Kettle and says that Mr Raaymakers, like experts in cases of this kind, is capable of getting to the nub of the expert opinion expressed in Dr Kettle's reports. The delivery of the two further reports of Dr Kettle in and by mid-September 2015 is said to provide no basis on which the trial ought to be adjourned. Secondly, the Commonwealth says that Mr Raaymakers has been to the Douglas Shoal and was able to conduct an extensive site visit from 29 November 2015 until 12 December 2015. Thirdly, the Commonwealth says that Shenzhen has failed to properly "disaggregate" the problem it is said to be confronting in the sense that Mr Fisher has failed in his affidavit to identify the particular problem he and Shenzhen are confronting in receiving the material later than they would have liked and in having the site visit interrupted. In other words, the Commonwealth asks rhetorically, what precisely is the problem that Shenzhen is having difficulty confronting? As to the Master Mariners, the Commonwealth says that Shenzhen has done nothing to marshal their evidence and the conduct of Shenzhen in failing to facilitate discovery of the relevant documents has been a cause of real delay in addressing the evidence about multiple occasions. 80 Notwithstanding these submissions and having regard to all of the matters I have mentioned, I am reluctantly satisfied that the proper course, in the exercise of the discretion, is to adjourn the trial so that the matters in controversy can be properly addressed. I accept that Shenzhen will suffer prejudice in the conduct of the trial if the trial is not adjourned, although a large part of that prejudice is self-inflicted in the sense that it is prejudice inflicted upon Shenzhen by a failure on the part of others to marshal evidence in a timely way on matters in controversy. It may be, however, that that prejudice has arisen for particular reasons which are not identified in the affidavit material, going to the question of instructions and the like. I also accept that the applicant will suffer prejudice in terms of making arrangements with its witnesses but I do not accept that that prejudice is not capable of being addressed. 81 A material consideration in deciding that the trial ought to be adjourned in order to ensure that the issues are properly dealt with at trial is whether alternative trial dates can be found so that the delay to the trial is minimized. That requires the Court to consider steps it might take to deal with other litigation or steps which might be taken to make time available to a particular Judge to deal with the matter. There is always dislocation in adjourning a matter set down for a reasonably lengthy period like this. There is dislocation to the Court, other litigants and witnesses who organise their affairs, in a forward-looking way, on the footing that a particular matter involving a body of evidence is to be heard at a particular time. In other words, people work up to these things. 82 In this case, steps have been taken by the Court to make time available to have the proceeding heard at trial in either June or July this year or across a period in those months. The delay will thus be a period of approximately six weeks before a trial might start. Accordingly, discussions will be held with the parties about preferred dates and the trial will be adjourned. The Court will endeavour to accommodate counsel for the parties in setting a date. 83 The Court will make directions orders that the parties put on written submissions in relation to the costs "thrown away", that is to say, lost by reason of the adjournment. I certify that the preceding eight-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 24 February 2016