Supreme Court New South Wales Medium Neutral Citation: Jones v Murrumbidgee Irrigation Limited [2019] NSWSC 1228 Hearing dates: 16 September 2019 Date of orders: 17 September 2019 Decision date: 17 September 2019 Jurisdiction: Common Law Before: Wright J Decision: The 29 July 2011 report of EAL Consulting Services is not admitted in evidence in these proceedings. Catchwords: EVIDENCE – Expert evidence – Report not complying with requirements in r 31.23 Uniform Civil Procedure Rules 2005 (NSW) - Whether the Court should otherwise order the report be admitted pursuant to rule 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW) – Report not adopted by authors by signature or subsequent evidence – Report expressly identified as preliminary and "intended for the sole use of the client" – Report not admitted in evidence Legislation Cited: Civil Procedure Rules 2005 (NSW) Evidence Act 1995 (NSW) Cases Cited: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Investmentsource v Knox Street Apartments [2007] NSWSC 1128 Category: Procedural and other rulings Parties: Sally Patricia Jones (First Plaintiff) Yambiana Pty Ltd trading as Yambiana Australia (Second Plaintiff) Murrumbidgee Irrigation Limited (Defendant) Representation: Counsel: M Scott and M Connor (Plaintiffs) J Steele and J Thompson (Defendant) Solicitors: Mackenzie & Vardanega (Plaintiff) Thompson Cooper Lawyers (Defendant) File Number(s): 2015/337197 Judgment 1. The plaintiffs wish to rely on expert evidence contained in a report dated 29 July 2011 on the letterhead of EAL Consulting Services. 2. The defendant objects to the admission of the report on the basis that the report cannot be admitted without the Court's leave pursuant to rule 31.23 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and leave ought not to be granted. In addition the defendant contends that the report ought to be excluded entirely pursuant to s 135 of the Evidence Act 1995 (NSW) as it is more prejudicial than probative. 3. Before turning to consider the relevant provisions of the UCPR and the Evidence Act, it is useful to make some observations concerning the report of 29 July 2011. The report of 29 July 2011 1. The report is headed "PRELIMINARY SOIL AND SURFACE WATER ASSESSMENT" with a subheading "An assessment of potential metal toxification of agricultural lands from off-site water-born sources". 2. Although the report is on the letterhead of "EAL Consulting Services", the report states on the first covering page: "PREPARED BY: Nick Davison, Troy Shepherd and Katie Whitney EAL Consulting Service in conjunction with the Environmental Analysis Laboratory, Southern Cross University A.B.N 41 995 651 524" 1. On the second covering page, the following appears: "Disclaimer The Environment Analysis Laboratory (EAL) as part of Southern Cross University has conducted work concerning the environmental status of the site, which is the subject of this report, and has prepared this report on the basis of that assessment. The work was conducted, and the report has been prepared, in response to specific instructions from the client or a representative of the client to whom this report is addressed, within the timeframe and budgetary requirements of the client, and in reliance on certain data and information made available to EAL. The analysis, evaluations, opinions and conclusions presented in this report are based on that information, and they could change if the information is in fact inaccurate or incomplete. While due care was taken during the field survey and report preparation, EAL accepts no responsibility for any omissions that may have occurred due to the nature of the survey methodology (including Mapping or GPS -related errors). EAL has made no allowance to update this report and has not taken into account events occurring after the time its assessment was conducted Due consideration has been given to the site conditions and to appropriate legislation and documentation available at the time of preparation of the report. As these elements are liable to change over time, the report should be considered current at the time of preparation only. This report is intended for the sole use of the client and only for the purpose for which it was prepared. Any representation contained in the report is made only to the client unless otherwise noted in the report. Any third party who relies on this report or on any representation contained in it does so at their own risk." 1. Next on the second covering page there is a table headed "Revision List". This table indicates that a draft version of the report was prepared on 20 October 2010 by Mr Nick Davison. Revision number one was prepared on 20 June 2011 by Ms Katie Whitney and revision number two was prepared on 29 July 2011 by Mr Davison and Ms Whitney. The table also states that the fieldwork for the draft report was carried out by Troy Shepherd. 2. Throughout the report, the report itself and the assessments are described as "preliminary" and at section 1.1 it is noted that "EAL Consulting Services has been commissioned … to undertake a preliminary soil and surface water assessment of impacted agricultural lands…". In section 1.1, the report also states a conclusion but this is expressly identified as being based on the report of a different expert: "Water-borne metals and deoxygenation were implicated in the damage [to channels and rice in 2009/10] according to consulting agronomists Hutchins Agronomic Services (Hutchins 2010)." 1. In various places, the report describes that it is investigating "potential" sources of contamination or toxification or damage. 2. Section 2.1 of the report states under the heading "Objectives": "The principal purpose of this report is to provide information regarding potential sources of crop damage and livestock losses. With the information provided by the client, observations and measurements made during the site inspection performed by EAL (17th – 19th August 2010) and the review of relevant literature sources, the objectives of this assessment were limited to: Identify local soil and surface water characteristics of the investigation area (as stated above) within the site, as well as associated waterways and similar systems (where accessible); Characterise physical and chemical aspects of contaminated soils and surface water entering the site for agricultural uses; Establish a suitable level of information to confidently identify potential sources of assumed contaminants and transmission pathways; and Make recommendations for remediation or mitigation actions to minimise current impacts." 1. The report goes on to record sampling of soil, surface water and sediment, some of which was apparently undertaken by Mr Shepherd. Some of the samples were said to have been taken by "the client's representative". It can be noted that some of the descriptions of the locations of these samples did not correspond with the locations of the samples shown in maps which were included in the report. 2. Summaries of the analyses of soil, surface water and sediment samples were provided in the body of the report and each of these were said to be based on "laboratory certificates" provided in appendices 1, 2 and 3 to the report. It appears that these certificates were certified by Mr Lancaster who is described as the laboratory manager of Environmental Analysis Laboratory, Southern Cross University. 3. Section 8 of the report is headed "Conclusions and Recommendations" and states: "The preliminary assessment of soils, sediments and surface waters of the North Corynnia property has identified the following: … Although metal toxification appears to be a likely cause of crop damage and livestock lost at North Corynnia, the transport mechanism(s) of metals as dissolved species or within the suspended sediment load requires further investigation to be more adequately understood; and … Although the information gathered is part of this assessment supports the accumulation of metals within irrigated paddocks as a likely cause of crop damage, the primary source of incoming metals and their associated transport mechanisms is not fully identified. …" 1. The report itself is not signed by any person on their own behalf or on behalf of EAL Consulting Services, Environment Analysis Laboratory, or Southern Cross University. 2. The report does not contain an acknowledgement by any person that he or she has read the code of conduct set out in Schedule 7 to the UCPR. 3. The report does not contain any statement of the qualifications or experience of Mr Davison or Ms Whitney. Nonetheless, there is a letter dated 11 August 2010 from EAL Consulting Services to the second plaintiff, marked to the attention of the first plaintiff, signed by Mr Davison, and headed "Amended Scope and Costing for soil, sediment and water investigation (water-borne contamination of rice crop and secondary toxic effect upon livestock) at North Corynnia, Tabbita". This letter appears to be an offer to provide services which the plaintiffs could accept by signing the form attached to the letter headed "Client Acceptance". Appendix 1 to that letter of offer contains certain information in relation to the qualifications and experience of Mr Davison, Mr Lancaster and Mr Shepherd. No information was provided as to the qualifications of Ms Whitney. 4. Except to the extent referred to above, the report does not comply with the requirements for the content of an expert's report set out in clause 3 of schedule 7 to the UCPR. 5. There is no other evidence from Mr Davison, Ms Whitney or Mr Shepherd. 6. It appears that the report of 29 July 2011 has been considered by the experts called by the defendant and, indeed, has been commented upon by an expert called in reply by the plaintiffs, Mr Lancaster. Mr Lancaster, in his report of 26 May 2019 describes himself as "EAL Director/Manager". He has also provided his curriculum vitae attached to that report and expressly acknowledged that he has read and abided by the expert witness code of conduct set out in schedule 7 to the UCPR. Mr Lancaster refers to the report of 29 July 2011 on page 2 of his 2019 report in the following terms: "… the EAL Consulting report regarding possible presence of sulphides in the soil profile at the… Property and the possible contribution of the irrigation water to the formation of sulfidic sediment formation. …". 1. In addition, in response to the criticism that the 29 July 2011 "report lacks appropriate scientific rigour", Mr Lancaster says, at page 3 of his 2019 report: "However, the results are part of a preliminary assessment that suggest clear conclusions that at a minimum would require further scientific study to verify validity." 1. Mr Lancaster's comments are telling indications that the 29 July 2011 report only establishes the "possible" presence of sulphides and the "possible" contribution of irrigation water, that the assessment was only "preliminary" and any "clear conclusions" suggested should not be taken to have validity without verification by further scientific study. Relevant statutory provisions 1. UCPR r 31.23(3) provides: "(3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it." 1. Rule 31.18 provides the following relevant definitions: "expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence. expert witness means an expert engaged or appointed for the purpose of: (a) providing an expert's report for use as evidence in proceedings or proposed proceedings, or (b) giving opinion evidence in proceedings or proposed proceedings. expert's report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based." 1. It can be noted here that it was not in dispute that the report of 29 July 2011 was an "expert's report", that r 31.23(3) applied to it and that the plaintiffs required the Court to "otherwise order" before the report could be admitted in evidence. 2. Section 135 of the Evidence Act provides: "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." Submissions 1. Ms Steele of counsel, who appeared with Mr Thompson, for the defendant submitted that the Court should not otherwise order and should reject the 29 July 2011 report for six reasons: 1. The report was apparently prepared to by Mr Davison and Ms Whitney, with field assistance from Mr Shepherd, but did not specify which witness held which opinions expressed and Ms Whitney's qualifications were not provided and thus her expertise was not established. 2. The report fails to set out the facts and assumptions on which it is based. 3. The disclaimer to the report makes it plain that the authors could not give the declarations necessary to comply with the code of conduct especially as to having made all necessary, desirable and appropriate inquiries etc. 4. The report is said to be for the sole use of the client and any third party who relies on it does so at their own risk. 5. There is a dearth of evidence as to the collection of the samples referred to and analysed in the report and as to the laboratory testing. There are discrepancies in the locations of samples. 6. There is a real difference in the role of an expert retained to advise a client and an expert engaged to give evidence in Court. The defendant referred to the decision in Investmentsource v Knox Street Apartments [2007] NSWSC 1128 at [50] and other cases referred to in that decision. It was submitted to be particularly significant that Mr Davision, Ms Whitney and Mr Shepherd did not provide supplementary evidence concerning compliance with the code of conduct. 1. Mr Scott of counsel, who appeared with Mr Connor, for the plaintiffs submitted that the report was prepared more than four years before the litigation commenced and not for the purposes of litigation. It was largely an analysis of test results from the various samples referred to. The testing was certified by Mr Lancaster. If the report were rejected, it was submitted that the whole case could be derailed. 2. It was also noted that Mr Davison has been required for cross-examination and Mr Lancaster has dealt with criticisms of the 29 July 2011 report in his 2019 report. The 29 July 2011 report was also said to have been commented upon by the experts for the defendant and discussed at the conclave of experts. 3. In reply, Ms Steele submitted that the testing certified by Mr Lancaster was only part of the report concerning the analysis of the samples. The sampling process, the location of the samples and similar matters were not properly or reliably established. Mr Scott submitted that the sampling documentation could be made available. Consideration 1. Some principles which might guide the determination of whether the Court should otherwise order under r 32.23(3) have been considered by the Court of Appeal in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279. In that case, Young JA (Beazley P and Handley AJA agreeing) held, at [63]: 1. Each case must be considered on its merits. 2. There is validity in the proposition that in preparing reports without having agreed to be bound by the code of conduct, there is a real risk that the expert will have committed to a particular form of opinion which an ex post facto adoption of the code cannot cure. 3. Nonetheless, the Court may consider that the assumed "real risk" is non-existent or minor, where, for example, an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report. In such a case, the evidence should be admitted, if the court can see that the expert is not just rubber stamping the original report. 1. The present is not, however, even a case where there has been an initial report with subsequent evidence that the expert has considered the code of conduct and, complying with the code, the expert affirms the initial report. 2. The circumstances of the present case do not, in my view, provide any sufficient basis for ordering that the 29 July 2011 report should be admitted despite the failure to comply with the requirements of UCPR r 31.23 for a number of reasons. First, the report itself has not been expressly adopted by any of the authors who are said to have prepared any version of it. It is not signed by Mr Davison, Ms Whitney or Mr Shepherd. It has not been adopted by any of them in a later affidavit or statement. 3. Secondly, the expertise of one of the stated authors, Ms Whitney, has not been established nor have the portions of the report for which she is responsible been identified. This raises serious issues as to whether the report is admissible under s 79 of the Evidence Act in any event. 4. Thirdly, none of Mr Davison, Ms Whitney or Mr Shepherd has given subsequent evidence that they have become aware of the requirements of the code of conduct and, complying with its requirements, adhere to those parts of the 29 July 2011 report for which they may be responsible. 5. Fourthly, the plaintiffs provided no explanation as to why an expert's report, complying with the requirements of the UCPR and relating to the subject matter of the 29 July 2011 report, has not been or could not be provided. Nor was any explanation provided as to why Mr Davison, Ms Whitney and Mr Shepherd have not given other evidence as to their awareness of the obligations under the code of conduct in schedule 7 to the UCPR and how complying with those obligations would have affected their opinions expressed in the 29 July 2011 report. 6. Fifthly, the 29 July 201 report and the assessments which it contains are expressly identified as "preliminary". This indicates that it is not intended to be a definitive statement of opinions on the issues dealt with in the report. This is confirmed by consideration of the conclusions in section 8 of the report that one matter "requires further investigation to be more adequately understood" and another is "is not fully identified". The later comments of Mr Lancaster that the "results are part of a preliminary assessment" and the conclusions "at a minimum require further scientific study to verify validity" and his description of some of the conclusions as being merely "possible" provide further confirmation. 7. Sixthly, it would be inappropriate for the Court to rely on the 29 July 2011 report in light of what is stated under the heading "Disclaimer" at the beginning of the report, which has been set out in full above. The proper conclusion is that the authors of the report were not intending to put forward anything other than a preliminary document to be relied upon only by the plaintiffs. The authors appear to have been examining hypotheses put forward by other persons, such as Mr Hutchins, carrying out preliminary assessments and suggesting possible answers or lines of enquiry, based upon analyses of certain samples of soil, water and sediment. The document was not prepared to be relied upon by third parties, including a Court. 8. Seventhly, in this particular case, a number of the observations of MacDougall J in Investmentsource v Knox St Apartments [2007] NSWSC 1128 at [50] are applicable and support the conclusion that the Court should not otherwise order. These observations are as follows: "(1) [The author] did not prepare his report with a conscious appreciation of the obligations imposed by … Schedule 7 …. (2) There is a real difference between the role of an expert retained to advise a client and the role of an expert engaged to give evidence. The former owes his or her primary obligation to the client; the latter owes his or her primary obligation to the Court. It cannot be assumed that those obligations are identical, or that in any given case performance of them would lead to the same outcome in terms of opinion. (3) … there is a real risk that an expert who has not prepared a report under the discipline of the applicable schedule will form an opinion from which, thereafter, he or she would find it difficult to retreat, even if circumstances arise that might raise this as a possibility. (4) An expert retained to advise a client is not usually confronted with alternative expert evidence. An expert retained to give evidence usually is. In the latter case, the expert's obligations under the applicable schedule require that he or she consider the alternative material, and reconsider his or her position in its light. …" 1. Finally, the evidence concerning the location, process of obtaining and handling of the samples is defective in a number of respects. Furthermore, even though Mr Lancaster, who apparently certified the test results in appendices to the 29 July 2011 report, has provided a report dated 26 May 2019, he has not confirmed or endorsed the results in the appendices, on the basis that he has read and complied with the code of conduct in schedule 7 to the UCPR and adheres to the evidence in the certificates. 2. In all the circumstances and for these reasons, I refuse to otherwise order under r 31.23(3) of the UCPR. Accordingly, the Court rules that: 1. The 29 July 2011 report is not admitted in evidence in these proceedings. ********** 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: 17 September 2019