Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 19) [2019] QLC 13

LAND COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 19) [2019] QLC 13 PARTIES: Cherwell Creek Coal Pty Ltd (ACN 063 763 002) (applicant) v BHP Queensland Coal Investments Pty Ltd (ACN 063 763 002) QCT Resources Pty Ltd (ACN 010 808 705) BHP Coal Pty Ltd (ACN 010 595 721) Mitsubishi Development Pty Ltd (ACN 009 779 873) QCT Investments Pty Ltd (ACN 010 487 831) Umal Consolidated Pty Ltd (ACN 000 767 386) QCT Mining Pty Ltd (ACN 010 487 840) (respondents) FILE NO: MRA1332-08 DIVISION: General division PROCEEDING: Requests from experts for further information in Court Managed Expert Evidence (CMEE) process DELIVERED ON: 7 March 2019 DELIVERED AT: Brisbane HEARD ON: Submissions closed 1 February 2019 HEARD AT: Heard on the papers PRESIDENT: FY Kingham ORDER: The requests for information are declined. CATCHWORDS: CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURE – whether to require the parties -- 1 of 6 -- 2 to respond to requests for information made by expert witnesses during a meeting of experts in a Court Managed Expert Evidence (CMEE) process – where two distinct requests were made and the experts did not agree – where the Court declined the requests EVIDENCE – EXPERT EVIDENCE – where the experts engaged by the parties made requests for further information during a meeting of experts – where the information did not relate to key facts relevant to issues in dispute – where the Court considered it was not necessary or desirable for the information to be provided to the experts – where the Court declined the requests Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 17) [2018] QLC 45, considered APPEARANCES: Holding Redlich Lawyers for the applicant Allens for the respondents [1] One of many issues that arises in this claim for compensation by Cherwell Creek Coal Pty Ltd, for the loss of opportunity to develop its proposed mine, is the probable conditions for and costs of road access for transporting coal from the proposed mine. [2] Three expert witnesses1 are preparing a joint report to the Court about that. They have made two requests for further information through Member Stilgoe, in her capacity as the Convenor of the Court Managed Expert Evidence process in this case. [3] In a recent decision in this case, I canvassed the relevant features of the Court’s rules and procedures in relation to expert evidence.2 I will not repeat those passages here. However, I have taken into account the features I identified in my earlier decision in deciding these requests. [4] The expert witnesses do not agree the information is necessary to prepare their joint expert report and different experts have joined in or not opposed each request. The Court may direct the parties to respond to a request, even if it is not unanimous, if providing the information is necessary or desirable in preparing expert evidence for the hearing. 1 Mr Thatcher and Mr Trevilyan (engaged by Cherwell Creek) and Mr Runge (engaged by BMA). 2 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 17) [2018] QLC 45, [7]–[12]. -- 2 of 6 -- 3 [5] Cherwell Creek supports a positive response to one of the information requests, and takes no position on the other. The respondents (BMA) oppose the Court directing the parties to provide the information requested, regardless of who made it. [6] The first of the two requests relates to Cherwell Creek’s proposition that it would have been able to “toll wash” coal from its mine at the Carborough Downs’ mine Coal Handling Preparation Plant. The second request is for details of any road conditions or agreements that applied to the Caval Ridge mine. It is not necessary for me to descend to the detail of the requests or the experts’ reasoning in making the requests. The Convenor has recorded that fully in her filed report. Carborough Downs’ intersection [7] It is standard industry practice to use a CHPP to wash, prepare and sort coal by grades for transport to market. Many mines have an onsite CHPP. Cherwell Creek says it would have used the CHPP on the nearby Carborough Downs mine for that purpose. [8] Mr Runge has asked for information about the state of the intersection of the Carborough Downs mine with the Peak Downs Highway as at April 2009, when Cherwell Creek alleges it would have commenced bulk sampling of coal. Neither Mr Thatcher nor Mr Trevilyan think the information is necessary to complete the joint expert report, although Mr Trevilyan does not oppose the request. [9] Mr Runge’s evident concern is that the operations on Carborough Downs might affect its capacity to receive coal from Cherwell Creek, resulting in additional cost to Cherwell Creek. He informed the CMEE Convenor that the internal operations of Carborough Downs would determine whether a left or right hand turn off the highway was required. Both now exist. However, if there was no left hand turn in 2009, he estimates it would have costed in the order of $1m to construct. [10] Whether Cherwell Creek would be required to provide (and pay for) a left hand turn depends on (at least) the following:  that there would have been operational constraints for Carborough Downs in receiving coal from Cherwell Creek’s mine (including as a result of restricted haulage hours taking into account school opening and closing times);  that there was no left hand turn in existence in 2009; -- 3 of 6 -- 4  that the Department of Transport and Main Roads would have required a left- hand turn off the highway to the Carborough Downs CHPP; and  that Cherwell Creek would be required to pay the cost of providing that facility. [11] It is understandable that Mr Runge would prefer to eliminate uncertainty about matters that might affect his opinion. Necessarily, there will be a great deal of uncertainty in assessing Cherwell Creek’s hypothetical proposition in retrospect. The information requested by Mr Runge will not resolve all uncertainty. For example, it will not resolve whether the department would have required an upgrade and, if so, who would bear the cost of the upgrade. [12] I am also conscious that the parties would have to obtain the information from witnesses who are not their employees or contractors, but third parties with no interest in the proceedings. I would not require the parties to trouble such witnesses for further information unless persuaded there was some real utility in doing so. [13] Further, unlike my previous decision, this matter is not central to the case and it is not clear whether any of the factors that I have identified are now or will be in issue at the hearing. If there are relevant disputes, the Court will decide them, not the experts.3 [14] Whether in their own report or in a joint expert report, the Court expects expert witnesses to identify any matters that might affect their opinion and the consequence of those matters for their opinion. In a joint expert report, where the experts differ about that, they must make that clear for the Court. [15] That is consistent with the requirement for experts to identify the factual basis for their opinion and the reasoning process that leads to their opinions.4 [16] Mr Runge accepts he is in a position to address different scenarios in a joint expert report. I consider the information is not necessary or desirable for the expert witnesses to prepare their joint expert report. 3 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [77], [87]. 4 Ibid [85]. -- 4 of 6 -- 5 Caval Ridge information [17] Mr Trevilyan and Mr Thatcher have made the second request. They would like to have the conditions of approval and related documentation about road access and road works for the Caval Ridge mine, constructed between 2012 and 2014. They identified the following parallels between the Caval Ridge mine and the proposed Cherwell Creek mine:  both sought to use AB-triples; and  the tonnages transported for the construction phase of the Caval Ridge mine are comparable to the initial sample pit tonnages asserted for the proposed Cherwell Creek mine. [18] There is some inconsistency in the reasoning of Mr Trevilyan and Mr Thatcher in support of the request. Mr Trevilyan said that it might help decide whether Cherwell Creek would be required to upgrade site access from the Dysart turnoff to the proposed Cherwell Creek mine. Mr Thatcher said the experts agree an upgrade would have been required and only the standard of upgrade is in dispute. [19] BMA is not confident it could retrieve the requested information. Even if it could do so, I have reservations about the relevance of the Caval Ridge conditions and infrastructure to Cherwell Creek’s proposed mine. [20] The question is what upgrade, if any, Cherwell Creek would have been required to undertake had its mine proceeded as it said it had planned. Mr Trevilyan and Mr Runge have already provided reports on the conditions and cost of road access and it is not clear how information about Caval Ridge could resolve any differences between them. [21] There is a real prospect the experts and the Court might be distracted by the dispute between the expert witnesses about whether the Caval Ridge mine is a relevant comparator and, if so, how it might be adjusted to accommodate any points of distinction. [22] It is not clear whether the parties are in dispute about those matters. BMA says Caval Ridge is not a relevant comparator. Cherwell Creek has taken no position on the request. -- 5 of 6 -- 6 [23] In those circumstances, I am not satisfied that providing the information is possible or that it is necessary or desirable for the expert witnesses to prepare their joint expert report. [24] I will not direct any party to respond to either information request. FY KINGHAM PRESIDENT OF THE LAND COURT -- 6 of 6 --