Marvoe Management Pty Ltd v Plantation Management Services (WA) Pty Ltd (3)

Mr Cavanagh SC, who appears for the first and second defendants with Mr Walsh, has tendered the report of Tony Hartley dated 29 March 2016. Mr Hartley is an agronomist by profession. Mr McNally SC, who appears with Mr Barnett for the plaintiff, has objected to paragraphs 4.7 to 4.9 and 4.45(d) which relate to the effect of colder weather, I put it in general terms, upon the performance of a watermelon crop.

In those paragraphs Mr Hartley has set out his understanding of the information from the Bureau of Meteorology records collected a short distance from the plaintiff property for the weather conditions for the 2011 and 2012 growing seasons and has expressed the opinion, in paragraph 4.9, that, relevantly for my purpose, "the cold temperatures in 2011, [would have had] a significant negative impact on the yield of crops". He rated that probability as high.

Mr McNally objects on three bases. He invokes r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW) to the effect that leave is required to call any expert evidence dealing with a topic covered by a joint experts report, and concurrent evidence under that provision.

I have yesterday and today heard the evidence of Professors Martyn and Everts, plant pathologists, on a wide range of topics including the effect, or the likely effect, of cold temperatures on the yield of a watermelon crop.

The second ground calls into question whether an agronomist holds the relevant branch of specialist knowledge to express an opinion; and the third relates to whether, from the explanation given by Mr Hartley, he has demonstrated that the opinion he expresses is wholly or substantially based upon that specialist knowledge.

So far as the first objection is concerned I am prepared to grant leave. Mr Hartley's report was served some time ago. It was always expected that he would give evidence in the case and in fact, by agreement between the parties, he participated in a conference of chartered accountants and produced a joint report which is relevant for quantum issues.

Although he does not share the same qualifications as the other experts I have referred to, doubtless, had the parties thought of it, he could have conferred by AVL in relation at least to questions eight and nine in the issues referred to the plant pathologists, as did other experts based in Australia.

I am satisfied, given that the report was served some time ago and that he has participated in the pre-trial procedures the parties agreed upon it is appropriate to grant leave that he give evidence if the other objections are not made good.

From his qualifications described in his report, he is a professional agronomist; he also has experience in the cucurbit industry and he has provided advice in his professional practice in relation to the management of, inter alia, watermelon and rockmelon crops covering all aspects their cultivation.

I think that an agronomist, at least in general terms, is well-qualified to talk about the effect of the weather upon farm performance and I think that the opinions expressed are well within his expertise.

It must be said that there is no controversy about the idea that temperatures below about 13 degrees Celsius may have an effect upon watermelon growth, particularly in the early stages. That is the effect of the evidence, at least in general terms, I heard from the plant pathologists.

I am satisfied that, at least again in general terms, an agronomist is able to express opinions about whether those temperatures are likely to have an effect upon a crop of watermelons. I accept that the opinion in paragraph 4.9 is expressed in language of some generality but reading the passage as a whole it's clear that the basis of that opinion is the statement in paragraph 4.7 that:

These matters, as I have said, are not especially controversial, given what has fallen from the plant pathologists, and I accept that Mr Hartley has sufficiently explained the basis of the opinion expressed in paragraph 4.9 to make it admissible and I admit the report.