Supreme Court New South Wales Medium Neutral Citation: CH2M Hill Australia v State of NSW [2012] NSWSC 808 Hearing dates: 16/07/2012 Decision date: 16 July 2012 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Admit paras 2, 3, 10-12 and 19 of affidavit. Reject balance. Catchwords: [EVIDENCE] - admissibility - affidavits - opinion; expert - application for leave to rely on further expert evidence - Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) - Whether "exceptional circumstances" exist supporting the admissibility of expert's reports - whether interests of justice favour application for leave being granted. Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: CH2M Hill Australia Pty Ltd (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M Christie SC / L Shipway (Plaintiff) J Simpkins SC / D Talintyre (Defendant) Solicitors: Norton Rose (Plaintiff) Clayton Utz (Defendant) File Number(s): 2009/326148 Judgment - re admissibility of affidavit of Mr hornsey of 2 july 2012 - see transcript page 281 1HIS HONOUR: One of the issues in these proceedings is the question of what has been called cation exchange, which may occur when a geosynthetic clay liner (GCL) containing bentonite comes into contact with wet concrete which sets to form a protective layer. It has been suggested that free calcium ions in the cement will permeate into the bentonite and replace sodium ions, thus, in some way which I presently do not fully understand, affecting the permeability of the GCL. 2That enthralling topic has been the subject of very detailed expert evidence, and I am to be further entertained with oral evidence from the experts in question given in concurrent session. 3When the evidence for the plaintiff (coming from Professor Benson) was served, one of the steps taken by the defendant was to give Professor Benson's report (of 30 September 2010) to the manufacturer of the GCL that was used in this case: a company known as Geofabrics Australasia Pty Limited. The defendant procured an affidavit from Mr Hornsey, who either is or was at the relevant time the national technical manager of Geofabrics, to which was annexed a letter reporting on certain tests carried out by a Mr Gibbs of Geofabrics with the assistance of Mr Buckley of that company and Mr Hornsey. 4The letter reported various findings and concluded, among other things, that further testing was required on samples of bentonite and water exposed to concrete prior to making a definite assessment of long-term performance. 5That letter was provided to Professor Benson and he commented on it in a report in reply dated 22 September 2011. I have been informed, without controversy, that Professor Benson's reply report was supplied to the defendant shortly after it was verified. 6The defendant now seeks to rely on a second affidavit of Mr Hornsey, sworn on 2 July 2012. The bulk of that affidavit responds to Professor Benson's reply report. It does so in some detail. It also (in paragraph 19) gives evidence of the nature of the GCL that was used in the testing that is the subject of Mr Hornsey's earlier affidavit. 7The second affidavit of Mr Hornsey was not served at least 28 days before the date of commencement of this hearing (see UCPR r 31.28(1)). Thus, unless the affidavit is merely an updating of the earlier affidavit, or unless there are exceptional circumstances (see subr (4)), the second affidavit cannot be used in evidence. 8It was submitted for the defendant that there were relevantly exceptional circumstances because either it had not been appreciated that Mr Hornsey's evidence was expert evidence to which the rule was applicable or, alternatively, because Professor Benson is present and ready to give evidence and the plaintiff has had a sufficient opportunity to assimilate the matters in Mr Hornsey's second affidavit. I assume, for the purposes of this debate, that the second affidavit was served on or very shortly after 2 July 2012. 9It was not suggested that the second affidavit falls within r 31.28(4)(b), as being "merely" an updating of the first affidavit. If that suggestion had been made, I would reject it. Plainly, the second affidavit goes way beyond updating anything in the first affidavit. 10I have to say that I simply do not understand how the defendant, or its legal advisers, could have failed to appreciate that Mr Hornsey was purporting to give expert evidence. His first affidavit set out his qualifications and experience, including in assessing the performance of GCLs in general, and GCLs containing bentonite in particular. In terms, the first affidavit purported to reply to a section of Professor Benson's first report. In terms, it purported to identify and give evidence of tests that had been carried out in respect of matters that were thought to have been raised by the relevant section of Professor Benson's first report. 11It is only necessary to go to the letter to which I have referred, which is headed "summary of sodium bentonite/concrete interaction testing", to appreciate this point. The letter states in terms that the objectives of the testing were to assess the effect, on the hydraulic conductivity or flow rate of GCLs, of direct contact with concrete during the concrete curing period. 12It may be extraordinary that the defendant and its legal advisers did not recognise that this was expert evidence, but that does not seem to me to be an exceptional circumstance within r 31.28(4)(a). Those circumstances must be circumstances that in some way justify the late reception of the evidence taking into account the interests of justice and the subject matter and purpose of the rule, in respect of which the circumstances are prescribed as exceptional. 13Plainly enough, the purpose of r 31.28 is to ensure that any party to litigation seeking to rely on expert evidence must notify the other party or parties of that expert evidence at least 28 days before the hearing commences. Plainly enough, that is to be done so that the other party can assess the expert evidence and work out how to meet it. 14The question of expert evidence is governed, in general terms, by Division 2 of Part 31 of the Rules. Rule 31.17 sets out the main purposes of that division. Those purposes include ensuring that the Court has control over the giving of expert evidence and ensuring that expert evidence is restricted as much as possible. For convenience, I set out r 31.17: 31.17Main purposes of Division (cf Queensland Uniform Civil Procedure Rules 1999 , rule 423; United Kingdom Civil Procedure Rules 1998 , rule 35.1) The main purposes of this Division are as follows: (a)to ensure that the court has control over the giving of expert evidence, (b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings, (c) to avoid unnecessary costs associated with parties to proceedings retaining different experts, (d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court, (e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings, (f) to declare the duty of an expert witness in relation to the court and the parties to proceedings. 15Various ways of achieving those purposes are then set out in succeeding provisions of the Rules. By rule 31.19, directions are required before expert evidence is called. By r 31.20, the court may give directions, on a wide variety of topics, in relation to expert witnesses. By r 31.23, expert witnesses must undertake to abide by the code of conduct (Schedule 7 of the Rules) and by r 31.24, experts are expected to confer and to attempt to agree. That will lead, among other things, to a joint report (r 31.26). 16The purpose of Division 2 of Part 31 would be subverted if the court were simply to regard, as exceptional circumstances, the fact that a party did not appreciate that particular evidence was expert evidence. That would mean that parties who were ignorant or inattentive would gain a procedural advantage, possibly of a very significant nature, denied to parties who were careful and thoughtful. I do not think that anything in the rules, or for that matter in the "just, quick and cheap" objective enshrined in s 56 of the Civil Procedure Act 2005 (NSW) requires such a conclusion. 17In assessing where the interests of justice lie in this case, I must take into account, among other things, the significance of the issue. It is clear, from the way that the plaintiff's case was opened, that the question of cation exchange is regarded as significant on the question of liability. That is because the plaintiff wishes to suggest that the defendant should have been aware of this possibility, and should have provided a design, for the lining of the IDALS and equalisation basins with which this case is concerned, that would not (or might not) be rendered less efficacious than it should be because of the possibility of cation exchange. 18Nonetheless, depriving the defendant of the benefit of Mr Hornsey's second affidavit would not mean that it is left without any evidence on this topic. It has retained Professor Rowe, and Professor Rowe has provided a report that deals, among other things, with this question. Further, Professors Rowe and Benson have conferred, and the court has the benefit of their joint report. 19By contrast, Mr Hornsey has not been involved in any expert conclave with Professor Benson and Professor Rowe. Thus, the court is not in a position to make any assessment, or have any assistance, of how Professors Benson and Rowe might regard the matters set forth in Mr Hornsey's second affidavit, nor has the court been given any opportunity to understand how Mr Hornsey might respond to such questions as Professors Benson and Rowe might raise in the course of any such conclave. 20Expert evidence is always a very difficult matter, because by definition experts are giving evidence about subjects where specialised knowledge, based on study, training or experience, is necessary to understand the field so as to enable the expression of opinions that are relevant to making ultimate findings of fact. The whole rationale of the process of joint conclave is aimed at assisting the court, as much as possible, to gain a sufficient understanding, in a short space of time, of technical matters that experts have often spent their working lives analysing and developing. That purpose is subverted if the conclave process is not utilised to the maximum extent. 21I do not know how the second affidavit of Mr Hornsey goes any way towards rectifying the defects that Professor Benson perceived in the first affidavit, and in particular the letter attached to it. Thus, I have no way of assessing the significance of this aspect of Mr Hornsey's evidence, or of the impact on the defendant of depriving it of the benefit of that evidence. What I do know is that the evidence was provided late, and that the only excuse given for that late provision is one which I do not regard as acceptable. 22In circumstances where Professors Benson and Rowe have travelled from overseas to give evidence, and where there is no suggestion that they have been given any opportunity, jointly, to consider the impact of Mr Hornsey's second affidavit on the detailed views that they expressed in their joint report, I think that the interests of justice require that the second affidavit, insofar as it purports to give expert evidence, should be rejected. That is because I do not think that it is in the interests of justice for the plaintiff to be ambushed by that evidence, in circumstances where neither the plaintiff nor the court can have the benefit of a joint assessment of it. 23There are perhaps two aspects of the second affidavit that fall into a somewhat different category. One is a relatively short section which does reply specifically to a criticism raised by Professor Benson as to the nature of the water used in the testing that was the subject of Mr Hornsey's first affidavit. That reply evidence is set out in paragraphs 10 to 12 of Mr Hornsey's second affidavit. To the extent that those paragraphs do no more than give evidence of the way in which the water was produced, I think that they should be admitted. Again, paragraph 19, which as I have said, simply identifies the product used in testing, should be admitted. 24Finally, so much of the second affidavit as acknowledges (retrospectively, but no criticism is now made of this) the code of conduct and identifies Mr Hornsey's qualifications should be admitted. 25In the result, I admit paragraphs 2, 3, 10-12 and 19 of the affidavit of Mr Hornsey sworn 2 July 2012 (although I will hear counsel on any specific objections to paragraph 12) and I reject the balance of that affidavit. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2012