Supreme Court New South Wales Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 21) [2019] NSWSC 294 Hearing dates: 20 March 2019 Date of orders: 20 March 2019 Decision date: 20 March 2019 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender of paragraphs [16] and [17] in EXP.ROD.021.001 during re-examination of Dr Altinakar allowed. Catchwords: EVIDENCE – witness evidence – re-examination – scope of re-examination – whether cross-examination of expert witness meant that tender of previously disallowed evidence could be tendered – tender allowed Legislation Cited: Evidence Act 1995 (NSW), s 39 Cases Cited: Hadid v Australis Media Ltd (Supreme Court (NSW), Sperling J, 5 November 1996, unreported) Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) [2018] NSWSC 1828 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 19) [2019] NSWSC 262 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 20) [2019] NSWSC 287 Texts Cited: Odgers, Uniform Evidence Law (13th ed., 2018, Thomson Reuters) Category: Procedural and other rulings Parties: Rodriguez & Sons Pty Limited (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Limited (Second Defendant) State of Queensland (Third Defendant) Representation: Counsel: N Owens SC; R Yezerski (Plaintiff) D Klineberg (First Defendant) D Williams SC; HJA Neal; N Simpson (Second Defendant) JM Horton QC; E Morzone (Third Defendant) Solicitors: Maurice Blackburn Pty Ltd (Plaintiff) King & Wood Mallesons (First Defendant) Norton Rose Fulbright (Second Defendant) Crown Solicitor for the State of Queensland (Third Defendant) File Number(s): 2014/200854 EX TEMPORE Judgment (Revised from transcript) 1. An issue has arisen about the admissible scope of re‑examination of Dr Mustafa Altinakar. It is necessary to explain how the evidence has developed to this point. April 2018 1. Dr Altinakar has been recalled to give further evidence in the circumstances outlined in Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority (trading as Seqwater) (No 18) [2018] NSWSC 1828, ("Rodriguez (No 18)"). In short, Dr Altinakar was able to give further evidence because of a circumstance that I found to be unfair, namely, that which arose out of the late service on the plaintiff of an affidavit from Mr Malone which included a hydrograph of inflows taken from the Aurecon/URBS model at the point known as Rifle Range Road. Rifle Range Road is a boundary discharge point for inflows into Dr Altinakar's hydraulic model. As explained in Rodriguez (No 18), the affidavit was served on the day prior to Dr Altinakar giving oral evidence in April 2018. The first defendant ("Seqwater"), had previously advised, a number of weeks before, that it would not be relying on affidavits in response to Dr Altinakar's reports and modelling served in October 2017. 2. The topic of the affidavit of Mr Malone and the cross‑examination of Dr Altinakar on behalf of Seqwater in April 2018 concerned Dr Altinakar's use of the so‑called rated flows at the boundary discharge point at Rifle Range Road and its asserted unreliability compared to the use of the discharge hydrograph included in Mr Malone's affidavit taken, as it was, from the Aurecon/URBS model. During the cross‑examination of Dr Altinakar in April 2018, it was suggested to him that there was a discrepancy in peak flows of around 760m3/s between the two sets of figures. 3. One part of the cross‑examination of Dr Altinakar in April 2018 addressed the materiality of the differences in the peak figures. In particular, at transcript pages 3452 to 3454, the cross‑examiner raised with Dr Altinakar the size of the catchment area for the Rifle Range Road boundary point which was said to be 2,520.59 km2. It was noted that the flows at Rifle Range Road account for about 85% of the Lockyer Creek catchment area flows and about 38% of the total flows for the downstream catchments below Wivenhoe Dam. It was also suggested that it was the largest contributor of downstream flows from the dam shown in his model, a matter that Dr Altinakar agreed to. [1] 4. After taking up these points, the cross‑examiner at transcript page 3454 then asked Dr Altinakar the following question, and he gave the following answers: "Q. A difference in peak flow of about 761 cumecs at this location can't be dismissed as immaterial; do you agree? A. Very difficult to say. It is difficult to say where we have to also consider, because these are highly non‑linear processes, and without doing a simulation, it would be very hard for me to tell. But I would guess that as you would go more and more downstream, the effect would be negligible, practically. Q. But as you stand here now, you can't dismiss as immaterial a difference in peak flow of 761 cumecs at this location? A. Yes, at least locally, immediately downstream, it would probably be important to take it into account." [2] October 2018 Reports 1. In Rodriguez (No 18) at [74], I allowed the plaintiff to adduce further evidence from Dr Altinakar defending his use of the rated flows at Rifle Range Road. However, I did not allow Dr Altinakar to adduce evidence of a re‑working of his model to account for what he then understood to be Mr Malone's hydrograph setting out the discharge figures at Rifle Range Road derived from the Aurecon/URBS model (Rodriguez (No 18) at [69]). In so concluding, I placed particular significance on a finding that I had made to the effect that the course of events had revealed that at least between the period of April to August 2018 the plaintiff had made a forensic decision not to prove or further prove the immateriality of the differences between the two flows (Rodriguez (No 18) at [65]). The materiality of the differences was addressed in the extract from Dr Altinakar's evidence that I have set out above (at [5]). 2019 Reports 1. In Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 19) [2019] NSWSC 262 ("Rodriguez (No 19)"), I rejected an application by both Seqwater and the second defendant, SunWater Ltd ("SunWater"), to adduce further expert reports in response to Dr Altinakar's further report because, in essence, I had concluded that they had previously made considered forensic decisions not to adduce expert reports in response to his evidence and there had not been any relevant material change since those decisions were made (at [40]). 2. In Rodriguez (No 19) at [19] to [29], I summarised the effect of the reports that Seqwater and SunWater sought to tender. At [31], I observed that at a certain level of generality, the reports were responsive to Dr Altinakar's further reports, in that they sought to rebut his contention that the rated flows at Rifle Range Road that he utilised in his 2017 modelling were preferable to Mr Malone's hydrograph. However, I also noted that they involved an expansion of the points that had previously been raised with Dr Altinakar about the differences between the two sets of figures. This included querying the location of the boundary condition at Rifle Range Road and undertaking a comparison of not just the peak discharge produced by Dr Altinakar's model at O'Reilly's Weir at the confluence of the Lockyer Creek and the Brisbane River with the discharge that was produced by the Aurecon/URBS model, but the shape of the hydrograph as well. 3. In Rodriguez (No 19) at [15], I noted that the plaintiff had advised the Court that it had recently determined that, to that time, it and Dr Altinakar had been proceeding upon a misapprehension concerning the hydrograph attached to Mr Malone's affidavit that was served on the day prior to Dr Altinakar giving evidence in April 2018. In particular, there had been a misunderstanding of the timing of the flows depicted in the hydrograph. It suffices to state that, between the plaintiff and Seqwater, there is a dispute as to who is responsible for that misapprehension. 4. In Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 20) [2019] NSWSC 287, ("Rodriguez (No 20)") I allowed the plaintiff to tender a further report from Dr Altinakar that took the revised flow figures from Mr Malone's hydrograph and applied the reasoning set out in his further report from October 2018 to those revised figures (at [6]). However, I rejected an application by the plaintiff to tender two paragraphs and an accompanying annexure, which stated as follows: "16 I have also run the DSS-WISE model using the correctly timed hydrograph instead of the rated hydrograph for Rifle Range Road that I used in my 2017 Setup. I did not make any other changes to the digital elevation model or the modeling inputs that I used in the 2017 Setup. I also did not recalibrate the model. The results confirm that the evidence I gave during my cross-examination in April 2018 (Trans. 3454.6-19) was correct. While the corrected hydrograph has a higher peak, the effect is only felt locally in the vicinity immediately downstream of Rifle Range Road to the confluence with Brisbane River. As the flow travels further downstream, the effect is practically negligible. By the time it reaches Lowood, there is almost no effect. The elevation differences obtained by subtracting the maximum flood elevation from the simulation using the correctly timed hydrograph (which will hereafter be referred to as the 2019 Simulation) from that of the 2017 simulation is within the range of -2 centimeters to +4 centimeters along the entire modeled reach of the Brisbane River from Wivenhoe Dam to Moreton Bay. 17. I have performed the same comparison of the results for Scenario I calculated with the 2017 simulation and the 2019 Simulation. A summary of the results of my simulation using the correctly timed hydrograph is provided as Appendix A to this report, along with a complete set of supporting electronic documents containing the results files." 1. The basis for rejecting the tender of these paragraphs was the finding noted earlier that the plaintiff had previously made a forensic decision not to embark upon proving, or further proving, the immateriality of the difference between the two sets of figures for the discharge at Rifle Range Road and that to now allow that to occur would involve granting the plaintiff leave to revisit that decision (Rodriguez (No 20) at [10]). 2. The cross‑examination of Dr Altinakar commenced immediately after the publication of the oral reasons in Rodriguez (No 20). Two matters should be noted about the position of the parties at the commencement of the cross‑examination. Firstly, the plaintiff was now on notice, via the service of the rejected experts' reports, that the defendants had a number of points which in one sense were responsive to Dr Altinakar's reasoning in his October 2018 report, but which also widened the forensic battlefield. 3. Even though I had excluded those reports on the basis that Seqwater and SunWater were to be held to their previous forensic decisions not to adduce evidence in response to Dr Altinakar, I did not prevent them from cross‑examining Dr Altinakar on the points that emerged from that expert evidence. Thus, for example, counsel for Seqwater cross‑examined Dr Altinakar upon the overall shape and timing of his model's hydrograph at O'Reilly's Weir compared to that produced by the Aurecon/URBS model. [3] Similarly, Senior Counsel for SunWater cross‑examined Dr Altinakar upon the appropriateness of the location of his boundary condition at Rifle Range Road. [4] 4. Second, both Seqwater and SunWater were forewarned that Dr Altinakar had now undertaken a modelling exercise which had confirmed the suspicion that he had expressed in his evidence in April 2018 as to the immateriality of the difference between the two suggested discharge figures at Rifle Range Road, being the results described in the paragraphs set out at [10] above. The Application 1. Senior Counsel for the plaintiff, Mr Owens, submitted that, in light of the cross‑examination of Dr Altinakar, he is entitled to re‑examine Dr Altinakar to adduce the paragraphs of his report set out above which were rejected in Rodriguez (No 20). 2. Subsection 39(a) of the Evidence Act 1995 (NSW) (the "Evidence Act") effectively confers on a party an entitlement to question a witness about matters "arising out of" the evidence given by the witness in cross‑examination. Subsection 39(b) allows other questions to be put but only with a grant of leave. 3. Mr Owens SC submitted that he was entitled to adduce this evidence under s 39(a) but, failing that, he sought leave under subsection 39(b). Given the previous decisions that I have made, I cannot envisage a circumstance where I could conclude that the evidence could not be adduced under s 39(a) but I would nevertheless allow the grant of leave. It follows that the matter falls to be resolved by reference to subsection 39(a). 4. Mr Owens SC pointed to various passages in the recent cross‑examination of Dr Altinakar by SunWater and Seqwater which he submitted effectively put in issue the subject matter of paragraphs 16 and 17 of Dr Altinakar's report set out above. 5. At the outset, I note that there was something of a tension between the approach taken to the cross‑examination of Dr Altinakar on the Aurecon/URBS flow figures by each of Seqwater and SunWater. The effect of Seqwater's cross‑examination was that the figures produced by the Aurecon/URBS model at Rifle Range Road were relevantly accurate and to be preferred to the rated figures, even though Rifle Range Road was not a calibrated point in the Aurecon/URBS model. The relevant calibrated points were Glenore Grove and Savages Crossing. 6. The primary position put on behalf of SunWater was that it was not appropriate to use any figures at Rifle Range Road as a boundary discharge because the Aurecon/URBS model was only calibrated to a point further upstream in the Lockyer Creek, namely Glenore Grove, and then further downstream in the Brisbane River, namely Savages Crossing. [5] That said, during the course of the cross‑examination of Dr Altinakar on behalf of SunWater, at various times it was suggested to him that he had erred in not using the Aurecon/URBS figures for Rifle Range Road. [6] However, it seems that this was either put as a sub‑point, or an alternative point, to its ultimate submission about the location of the boundary discharge. 7. During the course of the cross‑examination of Dr Altinakar by junior counsel for Seqwater he was asked to agree with a general proposition that the "ability to derive reliable flow rates from a hydraulic model depends, of course, on the reliability of the flow inputs". [7] Later, the cross‑examination returned to this topic: [8] "Q. The proposition that I wish to put to you is that for water levels above 15.5 metres, using the rating at Rifle Range Road doesn't accurately account for all of the water flowing through the floodplain? A. Could you please repeat the question again? Q. Yes. For water levels above 15.5 metres at Rifle Range Road, using the rating for Rifle Range Road to determining flows doesn't accurately account for all flows flowing through the floodplain? A. Yes. Q. In your earlier cross‑examination ‑ and I'll just ask for a couple of pages to be brought up: it is T 3452 to 3453. If you want to see this in detail, please ask. I am just going to put a proposition ‑ I don't want to be unfair, but hopefully to save a bit of time ‑ we'll see if you agree with me. In your cross‑examination at this page you accepted that the largest source of flows for the downstream catchment areas from Wivenhoe Dam ‑ the largest single source is Lockyer Creek at Rifle Range Road? A. Yes. Q. And that Rifle Range Road contributes about 38 per cent of the entire downstream catchment? A. I wouldn't know the percentage, but ‑‑ Q. I'll just point that bit out. On the right‑hand side, page 3453, you were taken to various figures. Between lines 11 and 23 you were taken to various figures, and I'm not suggesting you need to do calculations again, but you accept that about 38 per cent of the total downstream catchment area related to Rifle Range Road; that's what was being spoken about? A. Yes. Q. You accept that? A. Yes. Q. So you agree that it is vital to have accurate flow estimates at Rifle Range Road for the purposes of inputs into a hydraulic model? A. Of course. Q. That is particularly so when considering the modelling of a flood the cause of which is not dominated by flows from Wivenhoe Dam? A. Okay, yes." (emphasis added) 1. It can be seen that, during this passage, counsel referred Dr Altinakar to transcript pages 3452 to 3453. That is a reference to the earlier occasion when Dr Altinakar gave oral evidence, namely in April 2018, summarised above. Transcript pages 3452 to 3453 concern that part of the questioning of Dr Altinakar in April 2018 where the significance of the contribution of discharges at Rifle Range Road to the Lockyer Creek discharge and, in turn, the Lockyer Creek discharge to downstream catchments was explored. The question about the immateriality of the difference of 761m3/s at Rifle Range Road was put immediately after this (at transcript page 3454). 2. The balance of the cross‑examination in the above passage effectively restates what was suggested in April 2018. The suggestion that it is "vital" to have accurate flow estimates at Rifle Range Road for the purposes of inputs into a hydraulic model only begs the question, vital to what? 3. Considered in context, I cannot determine that this cross‑examination was directed to anything other than the significance of the inflows at Rifle Range Road to the overall results of Dr Altinakar's model. Whether it was intended or not, this part of the cross‑examination certainly raised as an issue the materiality of the figures for discharge at Rifle Range Road. This must be considered in the context of the overall point sought to be made on behalf of Seqwater, namely, that the more reliable figure was the figure produced by the Aurecon/URBS model. 4. In these circumstances, I am compelled to the conclusion that the point sought to be raised in this passage of the cross‑examination was the question of the materiality of Rifle Range Road discharges to the overall flow estimates produced for the model as a whole. Why else, it might be asked, is it vital to have accurate flow estimates for inputs other than for the purpose of this model producing accurate estimates of downstream flows and downstream water levels? 5. Mr Owens SC also sought to rely on a further passage where the cross‑examiner put to Dr Altinakar that he could not reasonably conclude "that your 2017 Set‑up did not significantly underestimate the true discharge at Lockyer Creek during the 2011 flood event". [9] In answer to that question, Dr Altinakar stated, "[a]pparently it did not". In and of itself I do not think that that part of the cross‑examination invites any response concerning an assessment of the materiality of the discharge at Lockyer Creek. It must be seen in the context that the cross‑examiner was effectively putting back to Dr Altinakar a conclusion he reached in paragraph 130 of his further report and was submitting that it had no proper basis. 6. The next day, Dr Altinakar was cross‑examined by senior counsel for SunWater. The cross‑examination included the following passage: [10] "Q. Could we go to page 101. A critical input to your 2017 model is the rated flow at Rifle Range Road, isn't it? A. There was an inflow discharge which is important, yes. Q. It is critical because it is the starting point of the whole model? A. I wouldn't say it is critical because ‑ because ‑ immediately downstream of the Rifle Range Road there is a huge inundated area and the small errors that I would make in that discharge would dissipate immediately upstream of Brisbane River and the differences would be small. That's what I was ‑ I believed in and I believe, if I'm not mistaken, I also testified to that during the 2017 court hearing. HIS HONOUR: Q. You mean 2018, you mean last year? A. I'm sorry, 2018. I'm sorry. … MR WILLIAMS: Q. You agreed yesterday, didn't you, with Mr Klineberg, that it is vital to have accurate flow estimates at Rifle Range Road for the purposes of inputs into a hydrologic model and your answer was "Of course". Do you remember giving that evidence? A. As a general argument, yes, but it depends on the location and it depends on the different types of circumstances. Q. Mr Klineberg's next question was this: Q. That is particularly so when considering the modelling of a flood, the cause of which is not dominated by flows from Wivenhoe Dam? A. Okay, yes. A. I am sorry, could you please ‑‑ Q. Q. That is particularly so when considering the modelling of a flood, the cause of which is not dominated by flows from Wivenhoe Dam? You said, "Okay, yes"? A. Yes. Q. What I want to suggest to you is that you're now trying to diminish the importance of having accurate flow estimates at Rifle Range Road for the purposes of your model? A. I'm not trying to diminish, sir, because I know that to be so based on my subsequent computations. That's a knowledge that I have and I know it to be true." (emphasis added) 1. By asking a question to the effect that it is a "critical input" to the 2017 model, being the rated flow at Rifle Range Road, the cross‑examiner was flirting dangerously with the question of materiality. The balance of the passage appears to be directed to attacking Dr Altinakar's credit by suggesting that he was somehow seeking to walk away from the answers he had given the previous day by "now trying to diminish the importance of having accurate flow estimates at Rifle Range Road for the purposes of your model". 2. The answer given by Dr Altinakar was entirely responsive. He asserted that he was not "now" trying to diminish that because "I know that to be so based on my subsequent computations". The reference to "subsequent computations" is, or at least appears to be, to the computations set out in paragraphs 16 and 17 of his further report set out above. Thus, Dr Altinakar was responding to the suggestion that, between Monday and Tuesday, he had changed his evidence on the significance of having accurate flows by saying that, since he had undertaken those computations, he knew that the accuracy of the estimates at Rifle Range Road was not of such critical importance because the characteristics of Lockyer Creek, as it were, washed away the differences in peak flow rates. 3. Again, in this respect, the cross‑examination has raised the question of the modelling described in paragraphs 16 and 17 of his further report. 4. A few pages later, the cross‑examiner then suggested that there were "two weaknesses" in his use of the rated figure at the boundary condition: firstly, that he had used the Rifle Range Road rated flow; and, secondly, that he did not add any flow from Bypass C, being a particular aspect of the Aurecon/URBS model, at that point. [11] This then led to the proposition noted earlier being put to him, namely, that he should have used Glenore Grove as his boundary condition rather than Rifle Range Road. [12] 5. Mr Owens SC also pointed to other passages in the transcript which involved an attack upon Dr Altinakar's credit to the effect that he had not acted as an independent expert. In particular, it was suggested that, prior to his October 2018 reports, when he was using the wrong figures from Mr Malone's hydrograph, he refused to address the possibility that those incorrect figures may have suggested that his modelling was wrong and did not address this possibility in his further reports. 6. It is not necessary to consider this further. This is so because, in my view, the above passages clearly did raise an issue about the materiality of the differences between the rated flows at Rifle Range Road and the flows as assessed by the Aurecon/URBS model to the overall "vitality" of his model. They also raise an issue as to his credit and specifically whether over the two days of giving evidence he had somehow changed his mind concerning the necessity to have reliable figures for the inflow at Rifle Range Road. Decision 1. Subsection 39(a) of the Evidence Act is widely expressed. The phrase "arising out of", if taken too literally, could simply be used as a vehicle that would invite a questioning in re‑examination of every conceivable topic that was raised with a witness during cross‑examination. 2. However, it has been accepted that it does not extend that far but, equally, it is not limited to removing ambiguities and uncertainties. Instead, re‑examination is to be allowed "whenever an answer in cross‑examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts related to credibility, which is capable of being construed unfavourably to the party calling the witness and which represent a distortion or incomplete account of the truth as the witness is able to present it" (Hadid v Australis Media Ltd (Supreme Court (NSW), Sperling J, 5 November 1996, unreported) as cited in Odgers, Uniform Evidence Law (13th ed, 2018, Thomson Reuters) at 213). 3. The passages from the cross‑examination that I have described certainly lead to the position that, unless supplemented or explained, Dr Altinakar's evidence will be an incomplete account of the truth, at least so far as he asserts it. 4. The cross‑examination of him by Seqwater is capable of leaving an incomplete account of the truth so far as Dr Altinakar asserts it as to how "vital" it is to have accurate flow estimates at Rifle Range Road for the purpose of inputs into his hydraulic model and how "vital" it is to have correctly selected either the rated flows or the flows extracted by Mr Malone from the Aurecon/URBS model. The true position so far as Dr Altinakar asserts it is, as I understand, as explained in paragraphs 16 and 17 of his affidavit. 5. So far as SunWater's cross‑examination is concerned, the cross‑examination of Dr Altinakar is capable of presenting an incomplete account of his state of mind from time to time concerning the importance of having accurate flow estimates at Rifle Range Road for the purposes of his model. The true position, at least so far as Dr Altinakar asserts and as I understand it, is that at least since he did the modelling which is referred to in paragraphs 16 and 17 of his further report as set out above, the importance of having accurate flows was diminished because of the characteristics of the lower Lockyer Creek. 6. For those reasons, I am satisfied that the plaintiff has an entitlement under subsection 39(a) of the Evidence Act to question the witness on the topic raised and, in particular, tender paragraphs 16 and 17 of his further report. ********** Endnotes 1. T 3453.39. 2. T 3454.6 - .19. 3. T 10372.30 - .45. 4. T 10464.15. 5. T 10464.19. 6. T 10463.27 - .38. 7. T 10342.27. 8. T 10349.17 to T 10350.17. 9. T 10381.6. 10. T 10461.35 to T 10462.45. 11. T 10463.27. 12. T 10464.11. 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: 21 March 2019