Expert Evidence Issues in Bushfire Survivors Action

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In April, the Environmental Defenders Office brought proceedings on behalf of the advocacy group Bushfire Survivors for Climate Action (a group which includes bushfire survivors, firefighters, and local councillors) to the NSW Land and Environmental Court. Bushfire Survivors filed the case as a means of urging state bodies to concede to, and operate with, the knowledge of the direct connection between greenhouse gas emissions and the escalation of natural disasters in Australia.

The claim challenged the adequacy of Environmental Protection Authority’s responses to climate change. It sought an order of mandamus that would require the EPA to:

  • develop environmental quality objectives, guidelines and policies to ensure environment protection; and
  • develop draft policies in accordance with Chapter 2 of the Protection of the Environment Operations Act 1997 to ensure environment protection.  [4]

The Applicants argued that despite the EPA’s statutory duty to develop objectives, guidelines and policies to ensure environmental protection, the EPA has and continues to fail to do this with the genuine aim of regulating greenhouse gas emissions.

In September, Bushfire Survivors filed a Notice of Motion requesting leave to obtain expert evidence. The Notice of Motion came before the Court in October.

The Expert Evidence

Justice Moore questioned whether he should allow Bushfire Survivors to submit questions to an expert witness where the questions did not seem to contend directly with issues signposted in the Defendant’s Notice Disputing Facts.

The Notice of Motion proposed to ask the expert about the effects of greenhouse gases and climate change on the natural environment of Australia, the extent to which Australia was progressing to its climate change reduction goals, and the extent to which she thought the actions of the EPA were conducive to achieving those goals. The questions did not refer to specific EPA-related policies and legislation, and often referred to environmental phenomena in “Australia” rather than “NSW”. [18] When read next to the Defendants’ reply to statements of facts, the questions did not indicate a correspondence of issues in disagreement such that Justice Moore compared the questions to the “opening skirmish” in “golf… with, at the present time, the parties playing different holes” (whereas litigation commonly involves “rallies… dependent on the evidence advanced and the replied to it”). [25]-[26]

Decision and Reasoning

Justice Moore granted leave to the Bushfire Survivors.

His orders, however, included amendments to the expert witness questions, in particular, that the words “and how that would impact on the environment of NSW” be added to the end of each question so that the questions provide sufficient direction to the expert to respond on matters within the jurisdiction of the Court. [29]

The Court based its decision on two considerations:

Procedural
The expert evidence in this matter, despite its latitude, could still ameliorate pre-trial disagreements between the parties. The introduction of expert witness evidence would limit the complication of requiring both sides to agree on issues of fact regarding climate science before the commencement of the trial, even if the EPA may not have focused their dispute on climate science issues. [20]

Substantive
The report would better articulate the Applicants’ concerns and therefore provide more context to the key issues at trial. The expert evidence would have the capacity to provide “at least the opportunity for the trial judge to be presented with a more coherent framework for addressing the underlying issues of complaint arising in these proceedings”. [27]

The potential to assist the trial judge in the above two ways was sufficient for the Court to grant leave to Bushfire Survivors to obtain the report, with the preliminary nature of the hearing in mind and with adherence to the rule that issues of admissibility should be left to the trial judge to determine.

Takeaways

  • At the preliminary stage of a trial, questions in an expert witness report are for the most part not subject to issues of admissibility. However, parties should ensure that the questions they pose at least possess the potential to assist the Court is providing a context or framework for their grievances.
  • Although questions to the expert witness may be broad, they must nonetheless fall within the jurisdiction of the Court in which the matter is being heard. To ensure this is the case, lawyers should amend their questions in the brief so that they instruct the expert to comment on matters within the relevant jurisdiction.

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