Corbet & Anor v Department of Transport and Main Roads [2020] QLC 34

LAND COURT OF QUEENSLAND CITATION: Corbet & Anor v Department of Transport and Main Roads [2020] QLC 34 PARTIES: Alvin Roy Corbet (as trustee for the Alvin Corbet Family Trust) and Emberwell Pty Ltd (as trustee for the Tebroc Unit Trust) (applicants) v Department of Transport and Main Roads (respondent) FILE NO: AQL105-17 PROCEEDING: General application DELIVERED ON: 14 September 2020 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 11 September 2020 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDERS: 1. The applicants be granted leave to file and rely upon the affidavits of Terry Hinds and Garry Dan, sworn 7 September 2020 and the affidavits of Andrew Corbet and Sherie Phillips, sworn 8 September 2020. 2. The applicants be granted leave to file and rely upon the further amended Statement of Facts, Matters and Contentions which is Annexure SED-5 to the affidavit of Sarah Elizabeth Davies, sworn 10 September 2020. 3. I vacate the listing for hearing commencing on 21 September and list the matter for hearing for 15 days commencing on 9 November 2020 in Brisbane. 4. The applicants must pay the respondent’s costs of the application and which are incurred because of the amendments and further lay evidence, assessed on the standard basis, if not agreed. -- 1 of 6 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the applicants required leave to amend its statement of facts, matters and contentions – where the applicants made an application for leave to amend its statement of facts, matters and contentions and to file and rely on additional lay witness affidavits - where the respondent opposed the application in full – where the Court granted leave to amend the applicants’ statement of facts, matters and to file and rely on additional affidavits Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, applied APPEARANCES: C Hughes QC, with V Brennan (instructed by Sarah Davies Legal) for the applicants J Horton QC, with J Brien (instructed by Clayton Utz) for the respondent [1] On the 10th of September, last Thursday, the applicants applied for leave to file and rely upon a number of affidavits by lay witnesses, for leave to amend its statement of facts, matters and contentions, and for a direction that the civil engineers prepare a supplementary joint expert report. I heard that application the following day. [2] In summary, the applicants say the orders are necessary to correct some assumptions made by the civil engineers which are false and to fill some gaps in the lay evidence. Counsel for Corbet says the trial can go ahead as listed if I make the orders requested. [3] The respondent, the Department of Transport and Main Roads, opposes the application because of its timing and the consequences for the trial. It says the lay evidence has a greater scope than the applicants contend and experts other than the civil engineers will need to revisit their reports. I accept that submission. If leave is granted to lead the lay evidence, it raises the matters the respondent has a legitimate need to investigate and, further, it has consequences for other expert evidence, not just that given by the civil engineers. -- 2 of 6 -- 3 [4] Because this involves a proposed amendment to what is in effect a pleading, I will apply the principles the High Court identified in Aon Risk Services Australia Limited v Australian National University1 in deciding the application. [5] One factor is the point in the litigation at which the application is made. The application has come extremely late in the proceedings and there is no dispute about that, just over a week prior to the commencement date for trial in a proceeding which commenced more than three years ago in April of 2017. This proceeding has been intensively case managed through a court-managed expert evidence process. The applicants could and should have raised the matters addressed by the proposed amendments and further evidence earlier than it has. [6] A second factor is the adequacy of the explanation. The applicants’ explanation for delay is given in two affidavits, one filed prior to the hearing and one after, that I read today. The explanation in the first affidavit is entirely inadequate and the second adds little of any merit. There are two aspects to the explanation. One, that the applicants’ solicitor is a sole practitioner. Of course, it is a matter for the applicants to decide how they will be represented. However, the respondent should not be disadvantaged by that, nor should public resources and Court time be wasted as a result of that choice. The applicants have engaged both junior and senior counsel who could have reviewed critical documents such as the expert reports in a timely way. [7] The other aspect of the explanation is that the applicants were focused on preparing for and taking part in a mediation. That should not have distracted the applicants from preparing for trial, which was imminent. In any case, in order to properly prepare for the mediation – which was directed to include the parties’ nominated experts – the applicants should have carefully considered the expert reports. Although the applicants’ solicitor says she thought some of those factual issues could have been corrected at the mediation itself, there does not seem to be any evidence before me about whether that took place. [8] Finally, the solicitor for the applicants made a sweeping and unsubstantiated allegation that an expert engaged by the respondent ignored uncontested evidence. I have disregarded that in deciding the application. It is not so unusual for experts to 1 (2009) 239 CLR 175; [2009] HCA 27. -- 3 of 6 -- 4 misunderstand their brief or need to revisit their reports. For one thing, parties, through their representatives, are not always as clear as they might be about the facts or the questions that arise for the experts to consider. Further, this case was managed by way of sequential reports. The purpose of that approach is to allow relevant experts to complete their work in turn, bearing in mind the consequences of one report on another. Here the focus has been on the civil engineers’ evidence, but that report has consequences for others, the accounting and valuation reports as well. [9] The applicants have not provided a satisfactory explanation for their delay in bringing forth the lay evidence. In this case, however, I think the predominant factor is the nature and importance of the amendments and the lay evidence to the parties seeking to make them and lead the evidence. The reason they are proposed now is to correct and supplement the factual basis for the experts’ opinions. I accept they are matters of substance with real consequence for the applicants. The lay evidence does not appear to raise new issues, but it does provide information directly relevant to important points in issue. That information should have been provided in the relevant expert’s brief at the outset. That is the purpose of requiring lay evidence before the experts meet. [10] The final factor I must consider is the extent of delay and costs associated with the amendments, together with any demonstrated or assumed prejudice to the party opposing leave. As I have already indicated, if these orders are made the trial will need to be postponed. The respondent says there a number of steps it anticipates it will need to take, although it cannot be definitive about them until it has conferred with its expert witnesses. [11] In summary, there are new traffic numbers that the traffic engineers will need to consider. The respondents will seek disclosure of relevant documents about the drilling that Mr Dan has deposed to, and the geotechnical engineers will need to revisit their report in light of that evidence. The respondents ask for the signed tax returns referred to by Ms Phillips. They also seek disclosure of the profit and loss statements for the relevant period. The valuers will need to consider this evidence and, if necessary, revise their report. Some of the proposed lay evidence goes to the nature of the composting activity on the resumed land. The environmental scientists, and perhaps to a lesser degree the town planners, will need to reconsider their reports. -- 4 of 6 -- 5 [12] These further investigations relate to matters in sharp contest: the nature of the activities on the resumed land; whether they require a particular type of surface on the reinstatement land; whether it was necessary to construct a concrete pad on the reinstatement land; whether a clay surface would have sufficed; whether there was sufficient clay in situ on the reinstatement land for a pad; and whether there is equivalence between the current and former operations. The respondents, however, have not suggested they would suffer any particular prejudice if given time to investigate and respond to this new material. [13] The Aon principles are not a shopping list of factors of equal weight and one or more will assume greater importance because of the circumstances of the case. As I have already indicated, in a case of this nature which involves the compulsory taking of land by the State, I consider the predominant factor is the nature and importance to the applicants’ case of the orders proposed, the amendments and the further evidence. The Court’s function is to justly compensate the applicants. To do so, the Court, and the experts engaged by the parties to assist the Court in that function, must have an accurate factual foundation. [14] Although the applicants’ explanation for delay is entirely unsatisfactory and the timing is very late, adjourning the trial will allow the respondent to properly prepare for trial and will avoid the prejudice of surprise. A further aspect of prejudice, of course, is cost and this can be dealt with by an order, at least to some extent. [15] The applicants say I should reserve costs. I reject that submission. The applicants have sought the indulgence of the Court and, on usual principles, should expect to bear the costs of the indulgence. There is no need to await the outcome of the trial to consider the relevance or the necessity of the amendments and further evidence. The applicants’ case on the application is that they are both relevant and necessary. [16] The respondent will have its costs of the application and of any further costs incurred because of the amendments and further lay evidence. [17] The respondent seeks an order that those costs be assessed on the indemnity basis. There is a principled basis for making that request. As I have already observed, the need to revisit the evidence is a little surprising, given the matter has been through a lengthy court-supervised pre-trial process and the applicants could and should have -- 5 of 6 -- 6 addressed this earlier, either by properly briefing the experts or correcting misapprehensions in a timely way as the expert reports came in. [18] In compensation cases, the expert evidence is critical, and it is surprising, to say the least, that the applicants, through their representatives, did not give the expert reports proper attention as they were provided. [19] Against that, the applicants have invoked the jurisdiction of this Court because their land has been taken by the State and they are exercising their statutory right to have compensation determined in the face of an offer they reject as inadequate. In those circumstances, I have decided to exercise my discretion to order costs on the standard basis. [20] I will make orders in terms of paragraphs 1 and 2 as proposed by the applicants, and I will make the following further orders. Order 3 will be that I vacate the listing for hearing commencing on 21 September and list the matter for hearing for 15 days commencing on 9 November 2020 in Brisbane. Order 4 will be that the applicants must pay the respondent’s costs assessed on the standard basis, if not agreed, of the application and which are incurred because of the amendments and further lay evidence. Orders: 1. The applicants be granted leave to file and rely upon the affidavits of Terry Hinds and Garry Dan, sworn 7 September 2020 and the affidavits of Andrew Corbet and Sherie Phillips, sworn 8 September 2020. 2. The applicants be granted leave to file and rely upon the further amended Statement of Facts, Matters and Contentions which is Annexure SED-5 to the affidavit of Sarah Elizabeth Davies, sworn 10 September 2020. 3. I vacate the listing for hearing commencing on 21 September and list the matter for hearing for 15 days commencing on 9 November 2020 in Brisbane. 4. The applicants must pay the respondent’s costs of the application and which are incurred because of the amendments and further lay evidence, assessed on the standard basis, if not agreed. -- 6 of 6 --