Company 57 Pty Ltd v Department of Transport and Main Roads (No 2) [2017] QLC 23

LAND COURT OF QUEENSLAND CITATION: Company 57 Pty Ltd as TTE v Department of Transport and Main Roads (No. 2) [2017] QLC 23 PARTIES: Company 57 Pty Ltd as Trustee for Beacon Pastures Trust (applicant) v Chief Executive, Department of Transport and Main Roads (respondent) FILE NO/s: AQL544-15 DIVISION: General PROCEEDING: Application for disclosure DELIVERED ON: 8 May 2017 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 4 May 2017 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDER/S: 1. The application filed 28 April 2017 is refused. 2. The applicant must pay the respondent’s costs of the application for disclosure, enforcement to be deferred until the matter has been determined. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCLOSURE – where application for disclosure was refused – where uncontested evidence that there were no further relevant documents in some categories requested – where the applicant did not establish other relevant documents were under the control of the respondent Erskine v McDowall [2001] QDC 192 Interchase Corporation Limited (in Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 -- 1 of 5 -- 2 Land Court Rules 2000, r 13 Uniform Civil Procedure Rules 1999, r 211 APPEARANCES: Mr DC Fahl of Counsel (instructed by Kelly Legal) for the applicant. Mr DA Quayle of Counsel (instructed by Clayton Utz) for the respondent. [1] Company 57 has applied for an order that certain documents be disclosed by the Department of Transport and Main Roads (“DTMR”). Seven categories of documents were identified in Attachment 1 to the application. Company 57 no longer seeks an order in relation to Category 6. [2] Land Court Rules 2000 r 13 applies Ch 7 of the Uniform Civil Procedure Rules 1999 (“UCPR”) to this proceeding. Rule 211 of the UCPR imposes on parties a continuing obligation to disclose documents which are:  in their possession or under their control; and  directly relevant to a matter in issue in the proceedings. [3] Mostly, the documents sought by Company 57 relate to source documents, working papers and communications with or by one of DTMR’s experts, Mr Gray. He has provided reports quantifying and estimating the value of the sand resource on the land resumed. [4] The onus is on Company 57 to establish the order should be made. [5] Mr Gray’s affidavit of 3 May 2017 addressed many of the categories of documents sought at paragraphs 6 and 8 – 11. He was not required for cross-examination and there is no evidence to contradict his. Given his uncontested evidence about Categories 2(c), 2(d) and 2(f), I am not satisfied there are any further documents in those categories. Likewise, his evidence about Category 1 is supported by Mr Dwyer and neither has been contradicted or cross-examined about that topic.1 [6] Category 2(e) relates to an extract from a text book which is adequately referenced in Mr Gray’s report which is an appendix to the Quarry Experts Joint Report (“joint 1 Affidavit of Patrick John Dwyer sworn 2 May 2017. -- 2 of 5 -- 3 report”). As the notes on p 78 of that document make explicit, Mr Gray has used Table 4.1 from that text. [7] Mr Gray has not addressed Category 4 and Category 5 expressly. He may well have such documents in his possession. Assuming that is so, there is no evidence that, if they do exist, they are under DTMR’s control as that term is used in r 211 of the UCPR. Company 57 relied on a decision by Robertson DCJ in Erskine v McDowall.2 That case is distinguishable because the party seeking the order had no means to obtain the document in question. The only person who could secure it was the respondent. That is not the case here. [8] Certainly DTMR could request those documents from Mr Gray, assuming they exist. They had done so before when they provided documents from Mr Gray, even though they disputed the documents were disclosable. [9] Whether DTMR can compel Mr Gray to produce any documents that do exist is a different question. There is no reliable evidence on the point. [10] Company 57 invited me to draw an inference about DTMR’s contractual arrangements based on a contract between DTMR and another expert. I am not prepared to draw the inference given Mr Gray was engaged by DTMR’s lawyers and there is no evidence about the terms. Mr Dwyer might have been able to assist the Court on that point but was not required for cross-examination. [11] The same question of control relates to categories 2(a) and 2(b). If there are relevant documents in Mr Gray’s possession, Company 57 can obtain them through either a subpoena or non-party disclosure. Company 57 relied on the decision in Interchase Corporation Limited (in Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1).3 [12] That case involved the different point of whether a client’s claim of legal professional privilege could prevent disclosure of documents in the expert’s possession. That case involved what was then called third party discovery and is now referred to as non-party disclosure. If Company 57 brought such an application against Mr Gray, the judgment in Interchase is authority for the proposition that he 2 [2001] QDC 192. 3 [1999] 1 Qd R 141. -- 3 of 5 -- 4 could not resist it because of a claim for legal professional privilege. It does not, however, deal with the question of control. [13] Assuming there are documents in Categories 2(a), 2(b), 3, 4 and 5 and that they are under DTMR’s control, Company 57 has not established they are directly relevant to a matter in issue in the proceedings. [14] This proceeding is well advanced. This is a no pleadings jurisdiction, although the parties have stated their contentions in points of claim and response. Broadly stated, the documents might be relevant to an issue the Court must determine. However, that relates to an issue upon which both parties have engaged experts. The Land Court Rules 2000 prescribe a process intended to identify areas of agreement and disagreement between the experts. To that extent, the matters in issue in the proceedings, to the extent they are matters within a witnesses’ expertise, are refined through the conference and joint report of the experts. [15] The expert conferences involving Mr Gray have concluded and joint reports have been prepared. The experts engaged by Company 57 to address the issues canvassed by Mr Gray did not apparently require the documents requested in order to express their opinions. [16] Further, experts are restricted in the evidence they can give following a joint report. They are not able to depart from or qualify an opinion which is the subject of agreement, without leave.4 Except for the reliability of the information contained in the Department of Natural Resources and Mines (“DNRM”) data used by Mr Gray in his calculations, Company 57 failed to identify how the documents sought related to a matter in issue following the joint reports. [17] The final category of documents is Category 7. As far as these documents are relevant, they have already been disclosed. The contract documents relate to the project constructed after the land was resumed. The only relevance to these proceedings is to assist the civil engineers to put a value on the benefit that Company 57 is alleged to have received from roadworks constructed during that project. The engineers agreed the schedule of rates for that project was a reasonable basis for estimating value. They had the schedule and used it in their joint report. 4 Land Court Rules 2000 r 24E (3)(a). -- 4 of 5 -- 5 The dispute between them relates to the length of the roadworks, not the basis for valuing the benefit. [18] The application is refused. There is no reason why costs should not follow the event. Orders [19] Therefore, the orders of the Court are: 1. The application filed 28 April 2017 is refused. 2. The applicant must pay the respondent’s costs of the application for disclosure, enforcement to be deferred until the matter has been determined. FY KINGHAM PRESIDENT OF THE LAND COURT -- 5 of 5 --