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AusNet Electricity Services Pty Ltd v Liesfield

AusNet Electricity Services Pty Ltd v Liesfield

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Case Copied 23 September 2014 77 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No S CI 2012 4538

AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) (FORMERLY SPI ELECTRICITY PTY LTD)	Appellant
v
RODERIC LIESFIELD	Respondent

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2014
DATE OF JUDGMENT:	23 September 2014
CASE MAY BE CITED AS:	AusNet Electricity Services Pty Ltd v Liesfield
MEDIUM NEUTRAL CITATION:	[2014] VSC 474

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PRACTICE AND PROCEDURE – Class action proceedings against the appellant arising out one of the Black Saturday bushfires (‘the Murrindindi fire’) – Appellant claimed legal professional privilege in relation to a bundle of reports it had prepared (‘the technical analysis documents’) – Documents produced shortly after the appellant was advised by the Victoria Police that the police were investigating whether the appellant was responsible for the start of the fire – Associate Judge ruled that the technical analysis documents were not privileged – Appeal against the decision of the Associate Judge – Instruction for production of the documents given by a sub-committee of the board of directors – Member of the sub-committee giving the instruction not called to explain purpose in seeking production of the technical analysis documents – Consideration of the dominant purpose of the sub-committee – Consideration of possible purposes of the sub-committee other than privileged purposes – Consideration of inferences that could be drawn from the appellant’s failure to call evidence that was available to be called – Blatch v Archer considered – Appeal dismissed.

PRACTICE AND PROCEDURE – Appeal from a decision of an Associate Judge on findings of fact – nature of appeal – test to be applied on appeal to findings of fact.

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P H Solomon QC with Mr P H Wallis	Herbert Smith Freehills
For the Respondent	Ms F K Forsyth with Ms M Szydzik	Maurice Blackburn

TABLE OF CONTENTS

Introduction

The Bushfire Response Team

Bushfire Litigation Sub-Committee

The change of focus of the police investigations

The meeting of the sub-committee on 12 July 2011

The decision of the associate judge

The grounds of appeal

The nature of the appeal

The new evidence

Perry v Powercor

Issue 1: Whose purpose?

Issue 2: Admission of Evidence

Issue 3: Dominant Purpose

Two or more purposes

The associate judge’s finding on purposes

Did the associate judge err on dominant purpose?

HIS HONOUR:

Introduction

This is an appeal from the decision of an associate judge who ordered that the appellant produce for inspection by the respondent a body of documents the appellant created in 2011, known as the ‘technical analysis documents’.

The respondent to the appeal is the representative plaintiff in proceedings by way of a class action against the appellant and others seeking damages arising out of the Black Saturday fires – in particular the fire that commenced near the Murrindindi Sawmill in Wilhemina Falls Road at Murrindindi, Victoria. These proceedings are known as the Murrindindi class action and commenced on 7 August 2012.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 474
Decision Date: 23 September 2014

CaseChat Overview and Summary

In AusNet Electricity Services Pty Ltd v Liesfield, the dispute arose from class action proceedings initiated against AusNet following the devastating Murrindindi fire, one of the Black Saturday bushfires. AusNet sought to claim legal professional privilege over a series of technical analysis documents prepared in the aftermath of the fire, which were produced shortly after it was informed by the Victoria Police that it was under investigation for potentially causing the fire. The Associate Judge ruled that the documents were not privileged, a decision AusNet appealed. The crux of the appeal was whether the technical analysis documents were protected by legal professional privilege, a matter dependent on whether they were prepared for a privileged purpose.

The court was tasked with determining the dominant purpose of the sub-committee of AusNet’s board that instructed the production of the documents. The court considered the possible purposes behind the instruction, noting that the member of the sub-committee who gave the instruction was not called to testify. The court weighed the inferences that could be drawn from AusNet’s failure to present available evidence and applied the principles established in Blatch v Archer to guide its analysis.

The court held that the appeal against the findings of fact made by the Associate Judge was dismissed. The reasoning relied on the application of the appropriate test for reviewing findings of fact in an appeal from an Associate Judge's decision. The court found that the Associate Judge's conclusions were supported by the evidence and that the appeal did not succeed in establishing that the documents were privileged. The court's decision upheld the instruction for the production of the technical analysis documents.

Orders