Supreme Court New South Wales Medium Neutral Citation: Marvoe Management Pty Ltd v Plantation Management Services (WA) Pty Ltd (No 1) [2016] NSWSC 1272 Hearing dates: 5–7 September 2016 Date of orders: 07 September 2016 Decision date: 07 September 2016 Jurisdiction: Common Law Before: Campbell J Decision: Affidavit of Wayne Andreatta of 15th August 2016 rejected Catchwords: PROCEDURE– late service of expert material following making of joint report– whether appropriate to grant leave to adduce evidence– evidence rejected Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005, r 31.26(5) Category: Consequential orders (other than Costs) Parties: Marvoe Management Pty Ltd t/as The Sweetlife (Plaintiff) Plantation Management Services (WA) Pty Ltd (Defendant) Representation: Counsel: G P McNally SC with A J Barnett (Plaintiff) R Cavanagh SC with Mr S Walsh (First and Second Defendants) Solicitors: Rural Law with Peter Long (Plaintiff) Gilchrist Connell (First and Second Defendants) File Number(s): 2011/00377173 EX TEMPORE JUDGMENT (Revised) 1. The plaintiff, whom I will refer to by its trade name, The Sweet Life, sues the first and second defendants, who trade as Territory Tree Nursery. The cause of action is based in contract. 2. The particular breach alleged is that the Territory Tree Nursery – in general terms without engaging in all the liability issues – supplied watermelon seedlings for planting in a commercial horticultural enterprise conducted outside Darwin, which were affected by a condition commonly known as fusarium wilt. 3. The plaintiff's case is that the infection required them to, effectively, not completely, abandon the planting, harvesting and marketing program for the 2011 season resulting in losses, which they claim by reference to the evidence they adduce totals in the order of $4.8 million. The largest part of the claim relates to the loss of the expected net profit, assessed by one accountant as being a little over $3 million. There is a very significant issue between the parties as to the magnitude of any loss that could be attributed to the alleged breach of contract. 4. This is the second day in which I have taken evidence in the trial and most of the time so far has been taken up by very careful cross-examination of the plaintiff's principal witnesses directed to challenging and testing the plaintiff's case as to quantum. 5. In broad terms the issue may be defined in this way: the plaintiff says that 2011 would have been a bumper year, and indeed the best year of the enterprise so far, which has been going for about eight years. The defendant says that 2011 was always going to be a bad year and that the conditions were such that not only would there have been no bumper crop but that net profits, if any, would have been modest. 6. In this context and in this state of the evidence the plaintiff is about to call Mr Wayne Andreatta, a witness who has sworn two affidavits in the proceedings, the first on 26 September 2014 and the second more recently on 15 August 2016. 7. There is no doubt that Mr Andreatta is a qualified and experienced agronomist and project developer. He has had very long experience in irrigated horticulture and in particular fruit growing. That experience goes back to his boyhood when he worked on his family's farm. After qualifying as an agronomist he spent long years working for Yenda Producers Co-Operative Society Ltd out of Griffith and in that capacity he developed a relationship with the Amaro family, who are one half of the driving force behind The Sweet Life. 8. As part of his work with Yenda he would consult with customers on any difficulties they experienced on the understanding that the customers dealt with Yenda for their supplies. He obviously had a very good and close working relationship with the Amaro family over many years. 9. He became intimately involved with the events that have given rise to this litigation. Initially that involvement was part of his work with Yenda but he also took leave of absence, including some long service leave, to work on The Sweet Life property outside Darwin to assist with the difficulties that were experienced with the seedlings that had been supplied by Territory Tree Nursery. 10. From his experience as an agronomist he had some previous knowledge of fusarium wilt, which he looked into in years past. The evidence in his first affidavit is greatly informed by his expertise as an agronomist and he gives evidence that could only be given by someone who has a deep knowledge of the horticultural industry and who has professional acquaintance with fusarium wilt. 11. No objection of a general kind is made to him giving that type of evidence in his first affidavit, and indeed it is patently relevant because the observations he made, the information he received and the opinions he formed greatly influenced and informed the actions and strategies adopted by The Sweet Life to deal with the fusarium wilt and its impact upon their enterprise. 12. Both parties have qualified experts, and indeed each has qualified an eminent plant pathologist from the United States of America. The Sweet Life has engaged Professor Everts and Territory Tree Nursery Professor Martyn. Those experts have, in accordance with the modern practice of the Court, met in conference and produced a joint report, which will be admitted into evidence in due course. I have received a working copy of the report which is dated 30 August 2016. 13. Part of the defendant's case in relation to quantum is that the 2011 growing season in the Northern Territory was extremely wet and comparatively, by Territory standards, very cold. The experts also agree that: "As a result of the cold temperatures watermelon plants most likely would have exhibited slow physiological growth that would have resulted in fewer and smaller fruit, fruit with less sugar and delayed harvest." 1. The defendant has also qualified an independent agronomist, a Mr Hartley, who participated in a conference about likely yields with two chartered accountants who are giving evidence as to loss of profit. I am informed that their joint report has been prepared but is yet to be made available to the parties or to the Court. But it is expected that, in some form or another, those witnesses will give concurrent evidence during the course of the trial. 2. Rule 31.26(5) of the Uniform Civil Procedure Rules 2005 provides that: "Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report." 1. In his second affidavit, Mr Andreatta does just that. Mainly by reference to the views of Professor Martyn, he gives evidence of his observations of the effect of the prevailing conditions on the watermelon crop in the Northern Territory in 2011 which contradicts the opinion expressed by the joint experts that I have quoted earlier in these reasons. For instance, in [2] of his affidavit he says that his observation was that healthy plants did not suffer yield or quality loss, despite the poor weather conditions. He offers the opinion, in [3], that the sweetest and best watermelon was produced when the night-time air temperature was relatively cold for the Territory at 18 degrees Celsius. He also deals, in [4], with suggestions that there may have been a pre-existing level of the disease Fusarium Wilt in the fields and, generally speaking, seeks to deflect a number of the opinions expressed by the independent experts dealt with in the joint report 2. I accept the relevance of Mr Andreatta's observations and expressions of opinion given that he has had an advantage not enjoyed by the American experts of having been involved with the property contemporaneously with relevant events. Indeed, neither of the plant pathologists have had the opportunity even of a view, given their place of residence. 3. It is also relevant to bear in mind that expert reports are, at the latest, supposed to be served 28 days prior to trial and indeed typically, with modern case management, long before then if the directions made by the Registrar or a judge are complied with. 4. As I have said, there is no doubt that, both by way of observations and expression of opinion, Mr Andreatta's evidence is sought to be adduced to deflect what the plaintiff may perceive as the adverse aspects of the opinions expressed in the joint report. 5. I am not persuaded that I should grant leave to read the second affidavit at this time. I am of the view that to permit leave in this regard will undermine the established process for the eliciting of expert opinion through the early exchange of reports, joint conferences, preparation of joint reports and the giving of concurrent evidence by the experts who participated. The purpose, of course, of these modern rules is to further the overriding purpose of civil litigation as established by the provisions of section 56 of the Civil Procedure Act 2005 (NSW) and permitting this evidence, given or served so late in the preparation of this case which was set down for hearing for four weeks quite some time ago, would have the effect of undermining that purpose. 6. A significant purpose of the process of requiring experts to meet and discuss the case is to reduce the issues that have to be determined by identifying the true issues in the case so far as concerns their branch of expertise. There can be no doubt that, with respect and without any criticism implicit or explicit, the purpose of Mr Andreatta's second affidavit is to substantially outflank that process and I am of the view that that is not in the interests of the administration of justice in the circumstances of this case. 7. Accordingly, I uphold Mr Cavanagh SC's objection to the second affidavit. 8. I have no reason to question the sincerity of the matters relayed by Mr Andreatta in his second affidavit but it needs to be borne in mind that, in the circumstances as I have set them out and as Mr McNally SC acknowledges, and did acknowledge from the outset, it cannot be said that he is an independent expert. In the circumstances of the case that consideration is of somewhat less importance than the other matters I have already referred to but at the same time it is not completely insignificant. ********** Amendments 12 September 2016 - Amendment to Case Name 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: 12 September 2016