The case of Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 17)  QLC 45 concerned a request for information by expert witnesses (Experts) as part of a Court managed expert evidence process in the course of a proceeding in the Land Court of Queensland for compensation for the loss of opportunity to commercialise a coal mine.
The Experts requested further information pertaining to nine categories of information after a Court managed expert evidence meeting. The Court noted that the Respondents supplied information in relation to three categories of information but were unwilling to provide five other categories of information (Additional Mining Information).
The Respondents made the following submissions as to why it was unwilling to provide the Additional Mining Information:
it was inappropriate for the Experts to request the Additional Mining Information as a result of a Court managed expert evidence process;
the Additional Mining Information lacked utility;
the Additional Mining Information would cause undue delay.
The Court found that the Experts' request was not an "inappropriate process" as argued by the Respondent and concluded that the Additional Mining Information had utility. The Court held that the Additional Mining Information directly related to the key facts of the Applicant's compensation claim and therefore any delay caused by the release of the Additional Mining Information was justified.
The Court ordered that the Respondents provide the Experts with the Additional Mining Information.
Court found that the Additional Mining Information request conformed with the Court's rules and procedures
The Respondents submitted that the Experts' joint report was not an opportunity for inquisitorial fact finding. The Court rejected the Respondents' submission on the basis that as part of an expert's duty to the Court, an expert may identify further information that would assist the Court on matters within the expert's area of expertise.
The Court relevantly identified some of the Court's rules and procedures specific to expert witnesses which are as follows:
an expert witness has a duty to the Court which overrides any obligation owed to any party to the proceeding and must not act as an advocate (at  and );
an expert witness may identify and request further information which they do not have access to that would assist them to fulfil their duty to the Court (at  and );
an expert witness can alter or abandon an opinion (at );
an expert witness is not constrained by information provided by the party who engaged them (at ).
The Court held that the Experts' request for the Additional Mining Information was not an "inappropriate process" and rather, conformed with the Court's rules and procedures.
Court found that the Additional Mining Information had utility
The Respondents alleged that the Additional Mining Information lacked utility given that the Experts had differing views about the importance of the information. The Court noted that both the Applicant's and the Respondents' mine planning experts differed in view as to how much weight ought to be given to the Additional Mining Information.
The Court held that even though the mine planning experts differed on how much weight they sought to place upon the Additional Mining Information, as all Experts joined in the request for the Additional Mining Information, the Court concluded that the Additional Mining Information had real utility.
Court held that any further delay was justifiable
The Respondents submitted that the Additional Mining Information would cause delay in finalising the Experts' reports and therefore the request ought be declined.
The Court found that the Additional Mining Information would result in minimal delay and would be unlikely to interrupt the commencement of the forthcoming trial unless there was an unexpected result. The Court concluded that further delay as a consequence of an unexpected result would however be justifiable as the opinions formed would directly relate to the key facts of the compensation claim. The Court held that delay in and of itself was not a principled reason for declining the information request.
The Court found that the Respondents ought to provide the Experts with the Additional Mining Information and allowed the Experts' request.
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