Liesfield v SPI Electricity Pty Ltd (Ruling No 1)

[2013] VSC 634

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4538 of 2012

RODERIC LIESFIELD	Plaintiff
V
SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS (According to the attached schedule)	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2013
DATE OF RULING:	27 November 2013
CASE MAY BE CITED AS:	Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1)
MEDIA NEUTRAL CITATION:	[2013] VSC 634

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PRACTICE AND PROCEDURE – Discovery – Ediscovery – Collaborative approach to discovery – Discovered documents in one proceeding treated as discoverable in another – Avoiding excessive discovery - Implementation of the purposes of the Civil Procedure Act 2010 (Vic) – Civil Procedure Act2010 (Vic) ss 7, 26, 55 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Forsyth	Maurice Blackburn
For SPI Electricity Pty Ltd	Mr P H Solomon SC with Mr P Wallis	Herbert Smith Freehills

HIS HONOUR:

Introduction

1. This is the final class action claim (in the sense of date of issue and disposition) arising out of the Black Saturday fires in February 2009.  It relates to the Murrindindi fire which commenced in proximity to the Murrindindi Mill and caused substantial devastation (including loss of life) to areas situated to the south-east of the Mill.

2. The claim is brought pursuant to the class action provisions of the Supreme Court Act 1986 (Vic) by Mr Liesfield on behalf of group members who suffered injury, property damage or economic loss. The defendants to the claim are the same as those of the Kilmore East-Kinglake Black Saturday bushfire claim,[1] namely:

   [1]Carol Matthews v SPI & Ors (SCI 2009 04788) and referred to as the “Kilmore East-Kinglake proceeding”.

(a)       SPI, the power company responsible for the Murrindindi feeder line (“MDI-1”);

(b)      UAM, the electricity asset inspection company;

(c)       DSE;

(d)      CFA; and

(e)       the State of Victoria, vicariously liable by statute for the acts or omissions of members of the Victoria Police.[2] 

[2]See Matthews v SPI & Ors (Ruling No 2) [2011] VSC 168 [28] – [38].

1. This ruling concerns the vexed question of the scope of discovery by SPI to Mr Liesfield and the group members.  I say vexed because discovery and the demands placed upon the parties and the Court has been a real issue in the Kilmore East-Kinglake proceeding and plays a significant part in my consideration of the issues raised by the combatants on this application.

2. Prior to the discovery hearing on 13 November, the parties could not have been more apart in terms of their demands.  Mr Liesfield’s discovery proposal was immense  whilst SPI was only prepared to give scraps.  During the directions hearing, counsel (and instructing solicitors) made sensible concessions at least to the extent that the chasm between them was no longer yawning – though it still in some part remained.

3. Ultimately, I have not accepted the final position of either party but rather sought to find a solution.  I have in paragraphs 31 to 49 set out my conclusion as to the scope of discovery to be provided by SPI. 

4. My reasons follow.

   The case against SPI and the likely issues at trial

5. I hope I do no disservice to Ms Forsyth’s helpful and succinct description of the case put by her client Mr Liesfield against SPI with the following summary. 

6. In the years prior to Black Saturday, a conductor on pole 6 near the Murrindindi Mill made contact regularly with the stay wire attached to the pole.  That contact produced arcing, with subsequent weakening of the conductor.  On Black Saturday, contact occurred again, with the result that a short circuit initiated, causing a fuse to fail at the isolating substation at the Mill.

7. Two SPI linesmen attended the Mill, replaced the fuse and reenergised the line.  The line, within a short time, fractured close to pole 6 causing the line near pole 5 (a short distance away) to fall onto a farm fence with the result of energising the fence.  Ultimately, a fire started in a paddock a relatively short distance from that point of contact.

8. On Black Saturday and over the ensuing weeks remedial work was carried out by SPI linesmen and contractors on pole 6.  In particular, the position of the conductor was modified so as to increase the separation between it and the stay wire.

9. SPI denies that its assets were a cause of the fire and, indeed, asserts that human intervention, rather than the failure of an electricity asset, was the source of the fire.

10. Ms Forsyth also submitted (and I accept) that the following are the likely relevant issues that will arise at trial:

·     How was pole 6 configured on Black Saturday?

·     How close was the northern conductor (the red conductor) to the stay?

·     What was the condition of the conductor on Black Saturday?

·     What does SPI know about the possible/probable cause of the fire on Black Saturday?

·     Did the fallen conductor cause the fire?

·     Did SPI know about any faults relating to clearance problems between the conductor and the stay wire on the line prior to the fire?

·     What was observed about the pole on the day by SPI, its employees or agents?

·     What was observed about the fallen conductor on the day by SPI, its employees or agents?

·     What internal consideration was given by SPI for the reason that the conductor fell?

·     What occurred on the relevant circuit on Black Saturday?

·     What changes were made to pole 6 and its infrastructure subsequent to the fire?

·     What investigations were carried out by SPI, its employees or agents, as to the cause of the fire?

Discovery to date

1. In July of this year, I ordered that documents discovered in the Kilmore East-Kinglake proceeding be treated as discoverable in this proceeding.[3]  In the Kilmore East-Kinglake proceeding, SPI discovered approximately 50,000 documents, 90 per cent of which were discovered prior to 11 April 2012.

   [3]General Form of Order dated 19 July 2013.

2. SPI’s subsequent discovery has occurred by way of three tranches.  According to Mr Neil Jack of Herbert Smith Freehills (“HSF”), solicitors for SPI, the categories of documents discovered included:

(a)       Documents retrieved or produced in connection with the Coronial Investigation into the Murrindindi bushfires, including:

(i)       Correspondence with Victoria Police;

(ii)      Historical maintenance and power outage records;

(iii)     Records from the day of the fire;

(iv)     Route plans and single line diagrams for the relevant assets;

(v)      Procedures and manuals relevant to re-installation of the fuses;

(vi)     Photographs of conductor samples and exhibits in police store, and analysis of those conductor samples; and

(vii)     Photographs of the relevant assets both before and after the fire.

(b)      All available design and construction documents for the electrical assets alleged to be involved in the Murrindindi bushfire from the Benalla and Seymour depots; and

(c)       Relevant (and undiscovered) papers and minutes provided to, produced by, or for the consideration of, the Bushfire Litigation Committee between the period of 1 January 2007 and 31 July 2010.[4]

[4]Letter from HSF to this Court setting out SPI’s previous discovery, dated 12 November 2013. 

Material on this application

1. During the hearing I accepted as exhibits correspondence between HSF and Maurice Blackburn (solicitors for Mr Liesfield) regarding the scope of discovery.  I was also provided with a bundle of photographs and plans of pole 6 and the area in which the fire occurred, as well as plans of the Murrindindi feeder, which were marked for identification and ultimately admitted absolutely.

2. In addition, I indicated to the parties that I would rely upon the evidence that I have heard and the exhibits tendered in the course of the Kilmore East-Kinglake proceeding –in particular the evidence of Mr Walley and Mr Clark, an SPI engineer and SPI manager respectively.  Neither party contended that this was an inappropriate course.  If they had I would have taken the view that the Civil Procedure Act2010 (Vic) and particularly s 48[5] mandated this course – especially in light of the discovery feuds that occurred in the Kilmore East-Kinglake proceeding.[6]

   [5]Section 48 of the Civil Procedure Act 2010 (Vic) sets out the Court’s power to order and direct pre-trial procedures.

   [6]Both Zammit and Derham AsJJ heard discovery and privilege issues, and all parties were embroiled in discovery disputes for many months.    

3. I did not require the parties to file affidavits, despite their keenness to do so.  I contemplated permitting Mr Jack of HSF to give oral evidence and be cross-examined on the discovery exercise, but ultimately I did not consider this necessary.

   The position of the parties

4. Correspondence between the parties concerning the Murrindindi discovery dates from at least July of this year, but it is of little utility to cite the history of the positions taken by the protagonists prior to the hearing.  What is important is the position each party adopted by the end of the hearing.  As I indicated previously, each side made sensible concessions, which have narrowed the scope of the dispute.

   Mr Liesfield’s position

5. By the end of the hearing, Mr Liesfield’s position on proposed documents to be discovered was substantially as follows:

   A.     Documents obtained from the shared drives

   Relevant documents yielded from shared drives relating to Engineering, Asset Strategy and Planning, Distribution Network Development, Distribution Lines and Asset Inspection, as well as those shared drives identified by SPI on which relevant material of the personnel from the Seymour depot (identified at category C below) is likely to be stored. 

   B.      Bushfire Mitigation Management Committee Document Library 

   Relevant documents yielded from the Lotus Notes Document Library maintained in respect of the Bushfire Mitigation Management Committee in relation to the Murrindindi Fire.

   C.      SPI files of Seymour/Northern Region employees

   Relevant documents yielded from searches of hard drives and hard copy files of the following SPI personnel who worked at the Seymour depot or in the Northern Region:

   (a)Glen Johnstone;

   (b)Paul Lewis;

   (c)Jason Kaak;

   (d)Phillip Moffatt;

   (e)Anthony Nachtigal;

   (f)Wayne Story;

   (g)Craig Velt;

   (h)Peter Schwarzman;

   (i)Brian Hubble;

   (j)Paul Lane; and

   (k)Richard Martin.

   D.     SPI files of head office personnel

   In addition, relevant documents yielded from searches of hard drives and hard copy files of the following SPI personnel who worked in the SPI head office:

   (a)The person or persons responsible for the 1993, 1999, 2002 and 2009 works on the relevant poles (if different to those at category C above);

   (b)Ross Clark;

   (c)Yoshiko Yamaoka;

   (d)Saman De Silva;

   (e)John Costolloe;

   (f)Mark Butson;

   (g)Anthony Walley;

   (h)Andrew Randall;

   (i)Mark Nevins;

   (j)Denis McCrohan;

   (k)Robert Garland;

   (l)Derek Postlethwaite;

   (m)Graeme McClure;

   (n)Norm Drew;

   (o)Gary Towns;

   (p)John Kelso; and

   (q)Clive Baillie.

   E.      Design Documents

   Extracts from the AM/FM database regarding the assets comprising MDI-1 that to date that have not been discovered, and any relevant design documents of the Murrindindi assets on the feeder MDI-1 from the south isolating substation to the Murrindindi zone substation.

   SPI’s position

6. At the end of the hearing, SPI’s proposal for discovery was as follows:

   (1)Electronic mailboxes and hardcopy files as at 7 February 2009 of the following persons:

   (a)Paul Lewis and Glen Johnstone (the two linesmen who attended a fault on MDI-1 at the Murrindindi Mill on Black Saturday);

   (b)      Paul Lane (Region Manager, North);

   (c)       Richard Martin (Senior Design Engineer, Northern Region);

   (d)      Peter Schwarzman (Survey Officer, Northern Region);

   (e)       Brian Hubble (Asset Performance Coordinator, North);

   (f)       Jason Kaak (Seymour depot employee);

   (g)      Anthony Nachtigal (Seymour depot employee);

   (h)      Craig Velt (Seymour depot employee);

   (i)Ross Clark (Director of Distribution Network Reliability and member of Bushfire Response team); and

   (j)        John Costolloe (Principal Engineer, Poles & Line Materials).

   (2)Any electronic shared drive or hard drive used by any of the persons identified above as a location in which that person regularly stored documents.

   Principles relevant to this application

7. Central to any interlocutory application (including the resolution of discovery disputes) are the provisions of the Civil Procedure Act 2010 (Vic) (“the Act”). Section 7 provides that the overarching purpose of the Act and court rules in relation to civil proceedings is “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.”[7]

   [7]The Act, s 7.

8. With this overarching purpose in mind, s 55 of the Act provides for discovery as follows:

   (1)A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.

   (2)Without limiting subsection (1), a court may make any order or give any directions—

   (a)requiring a party to make discovery to another party of—

   (i)any documents within a class or classes specified in the order; or

   (ii)one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;

   (b)relieving a party from the obligation to provide discovery;

   (c)limiting the obligation of discovery to—

   (i)a class or classes of documents specified in the order; or

   (ii)documents relating to one or more specified facts or issues in dispute;

   (d)that discovery occur in separate stages;

   (e)requiring discovery of specified classes of documents prior to the close of pleadings;

   (f)expanding a party's obligation to provide discovery;

   (g)requiring a list of documents be indexed or arranged in a particular way;

   (h)requiring discovery or inspection of documents to be provided by a specific time;

   (i)as to which parties are to be provided with inspection of documents by another party;

   (j)relieving a party of the obligation to provide an affidavit of documents;

   (k)modifying or regulating discovery of documents in any other way the court thinks fit.

   (3)A court may make any order or give any directions requiring a party discovering documents to—

   (a)provide facilities for the inspection and copying of the documents, including copying and computerised facilities;

   (b)make available a person who is able to—

   (i)explain the way the documents are arranged; and

   (ii)help locate and identify particular documents or classes of documents.

9. Rule 29.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”) provides the following concerning the scope of discovery:

   29.01 Scope of discovery

   (3)…for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given-

   (a)documents on which the party relies;

   (b)documents that adversely affect the party's own case;

   (c)documents that adversely affect another party's case;

   (d)documents that support another party's case.

   (4)     Notwithstanding paragraph (3)-

   (a)if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;

   (b)a party required to give discovery who has, or has had in his, her or its possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.

   (5)For the purposes of paragraph (3), in making a reasonable search a party may take into account-

   (a)the nature and complexity of the proceeding;

   (b)the number of documents involved;

   (c)the ease and cost of retrieving a document;

   (d)the significance of any document to be found; and

   (e)any other relevant matter.

10. Rule 29.05 further provides as follows:

    29.05 Order limiting discovery

    In order to prevent unnecessary discovery, the Court may, before or after any party is required to make discovery by virtue of a notice for discovery served in accordance with Rule 29.02, order that discovery by any party shall not be required or shall be limited to such documents or classes of document, or to such of the questions in the proceeding, as are specified in the order.

    29.05.1. Order for general discovery

    At any stage of a proceeding, the Court may order any party to give discovery in accordance with Rule 29.01.1.

    29.05.2. Order for expanded discovery

    (1)At any stage of a proceeding, the Court may, by order, expand a party's obligation to give discovery beyond that required by Rule 29.01.1.

    (2)Without limiting any power of the Court, an order under paragraph (1) may specify any document or class of document to which the expanded obligation relates.

11. These provisions make clear that the Court’s powers in relation to discovery are broad. In sum, both the Act and Rules mandate that any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.

12. As experience in the Kilmore East-Kinglake proceeding shows, the vast amount of data created and stored electronically creates significant challenges for the scope and limits of discovery.  I have previously commented on the pitfalls of discovery in large-scale litigation, and the reform efforts that have been undertaken over recent years to mitigate the problems.[8]  It is well recognised that discovery disputes and large, unfocussed discovery exercises can result in colossal costs and delay that ultimately work against the interests of the parties and the operation of the justice system as a whole. 

    [8]Refer to Matthews v SPI Electricity and SPI Electricity Pty Ltd & Utility Services Corporation Ltd (Ruling No 3) [2011] VSC 399 and the Australian Law Reform Commission and Victorian Law Reform Commission reports cited there. Refer also to Zammit AsJ’s ruling Matthews v SPI Electricity Pty Ltd & Ors [2011] VSC 401 and the recent comments of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46.

13. In 2000, the Australian Law Reform Commission noted that:

    In almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly, and the most in need of court supervision and control.[9]

    [9]Australian Law Reform Commission, Managing Justice: a Review of the Federal Civil Justice System, Report No 89 (2000) [6.67].

14. Only three weeks ago the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd[10] commented upon the increasingly burdensome task of discovery, and the distracting interlocutory applications that often accompany it.  The Court was critical of discovery disputes which frustrate the overriding purpose of Civil Procedure statutes, and emphasised that discrete discovery issues should be resolved long before they are pursued as costly and time-consuming ”satellite“ proceedings in superior courts.[11]

    [10][2013] HCA 46 (“Expense Reduction Analysts Group”).

    [11][2013] HCA 46 [7].

1. I am also keenly aware of this Court’s concern over a growing culture of discovery which aims to leave “no stone unturned” or to “search for the smoking gun.”[12]  The shift away from the Peruvian Guano[13] test and amendments to both Federal and State court practice demonstrate the determination of the legislature and the Court to reverse this trend.[14] 

   [12]Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) at Part 5. 

   [13]Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 63.

   [14]For example, significant amendments were made to the Federal Court Rules 2011 (Cth) in 2011, requiring parties seeking discovery in the Federal Court to make a formal application addressing how discovery will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. See also amendments to the Act and Rules, as well as the introduction of various Supreme Court guidelines and practice directions, e.g. Practice Note No 1. of 2007: Guidelines for the Use of Technology in any Civil Litigation.

2. Accordingly, in the present case there is a fundamental need to ensure that the discovery process is contained within manageable limits. This is particularly so given the access of Mr Liesfield and his lawyers to the material discovered in the Kilmore East-Kinglake proceeding. Having regard to the provisions of the Act and the Rules, it is evident that practicality – rather than the strict application of legal principle – should be the key criteria for resolving Mr Liesfield’s application.

   Analysis

3. It is convenient to address this issue by reference to the categories proposed by Mr Liesfield.

   A.       Documents obtained from the shared drives.

4. Counsel for Mr Liesfield argued that there were a number of shared drives within  the SPI database which potentially could house relevant documents.  These shared drives were the subject of discovery protocols in the Kilmore East-Kinglake proceeding and, so it was argued, are of relevance in this case.

5. SPI contended that provided there was adequate discovery of documents held by key personnel (as provided by its proposal), then the shared drive exercise was unnecessary and unproductive.  It relied upon an analysis carried out by Mr Jack of HSF in a letter of 18 October 2013 as evidence of the fruitless nature of the search.  In essence, that exercise demonstrated that the search would involve the collection of hundreds of thousands of additional documents, extending the discovery to at least May 2014 – with little discoverable material.

6. I accept the SPI submission for three reasons.  First, the sole basis for Mr Liesfield contending that the searches are justified is that the exercise was carried out in the course of the Kilmore East-Kinglake proceeding.  The discovery exercise in that case was extraordinarily expensive and time-consuming both to the parties and the Court.  Both Derham and Zammit AsJJ sat on several occasions with one hearing on the question of discovery occupying three days with lengthy cross-examination of at least one witness.  It is a practice that should not be repeated.

7. Second, it has become clear in the course of the evidence in the Kilmore East-Kinglake proceeding that, as with any modern communication system in a business, documents that are created or controlled by SPI employees are distributed widely to other employees within the SPI management structure.  In other words, discovery provided by reference to an individual’s portfolio of documents is likely to produce probative documents and a reasonable spread of personnel will, probably, identify all of the relevant documents.

8. Third, I accept that Mr Jack’s exercise demonstrates that to a large extent to undertake this task will be a vastly expensive, time-consuming and ultimately futile exercise.

9. On this point, I need only conclude by referring to the High Court’s recent warning in Expense Reduction Analysts Group that discovery disputes can distract parties from taking steps towards a final hearing, encourage the outlay of considerable expense, and squander the resources of the Court.[15]  As the Court held, “speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings.”[16]

   [15][2013] HCA 46 [59].

   [16]Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 [53].

10. Accordingly, I will not make any order for discovery in relation to the proposed searches of the shared drives.  I will, however, take into account that the discovery by named individuals within the SPI structure is sufficiently wide to ensure that the relevant documents are identified given the absence of the shared drive search.

    B.       Bushfire Mitigation Management Committee Document Library

11. The Bushfire Mitigation Management Committee has direct responsibility for consideration of fire-related risks associated with SPI assets.  Provided the search is limited to documents related to the Murrindindi fire, such documents should be discovered.

    C.       SPI files of Seymour/Northern Region employees

12. The only contest between the parties here related to the identity of the employees who should be required to give discovery and eventually that boils down to a contest over the files of two employees, Phillip Moffatt and Wayne Story.

13. It seems clear that Mr Story had only a transient involvement with maintenance work on the conductor after the fire – the evidence so far reveals that he was simply the recipient of a phone call.  On the other hand, Mr Moffatt attended the pole and, it appears, was involved in work upon it.

14. In my opinion, it is appropriate that SPI give discovery of documents held by Mr Moffatt, but not of documents held by Mr Story.

15. Accordingly, the following persons should provide discovery:

    (a)Glen Johnstone;

    (b)Paul Lewis;

    (c)Jason Kaak;

    (d)Phillip Moffatt;

    (e)Anthony Nachtigal;

    (f)Craig Velt;

    (g)Paul Lane;

    (h)Richard Martin;

    (i)Peter Schwarzman; and

    (j)Brian Hubble.

    D.       SPI files of head office personnel

16. This disagreement was solely over which other personnel should be required to give discovery, with SPI suggesting that discovery should be given by two identified head office personnel whilst Mr Liesfield requested discovery from 16 individuals. 

17. Not surprisingly, I think neither approach to be reasonable.  Again, not surprisingly, I think the answer is somewhere in between the two. 

18. It is reasonable to assume that SPI personnel in senior management, engineering and allied areas hold documents relevant to the issues in this case. Relying upon the evidence given by Mr Clark and Mr Walley in the Kilmore East-Kinglake proceeding and my knowledge of the SPI management structure, I think it is likely that material both relevant and potentially probative to the Murrindindi issues will come from the following areas of SPI through the personnel identified:

    (a)Senior Management – Mr Ross Clark, Mr Norm Drew, Mr John Kelso and Mr Gary Towns;

    (b)the Engineering Lines Group – Mr Saman De Silva, Mr John Costolloe and Mr Anthony Walley;

    (c)Investigations – Mr Clive Baillie; and

    (d)Network Intelligence and Automation – Mr Graham McClure.

19. Accordingly, the hard copy and electronic files of these individuals should be discovered by SPI.

20. Finally, I consider it unreasonable to require SPI to search for persons said to be “responsible” for works on the line between 1993 (when the line was maintained by SECV) to 2009 as required by category D(a).[17]  If, of course, in the searches of documents held by SPI personnel I have nominated it becomes reasonably apparent that other persons within this category can be identified and that they hold relevant documents then I would expect HSF to advise Maurice Blackburn of that fact.

    [17] Referred to at [19] above.

    E.        Design Documents

21. SPI have already provided a number of design documents from both its hard copy sources and its digital database, AM-FM.  It should provide any further documentation concerning the design of the line and any alterations to it.  For the purpose of this exercise, the line is limited to that part of the MDI-1 feeder that runs from the Murrindindi South Isolating Transformer (STH-ISO) to the Murrindindi Mill.

    Staging of Discovery

22. Mr Jack’s estimates as to discovery were based upon discovery being completed and then provided to Mr Liesfield’s lawyers.  This is an unsatisfactory approach.

23. I am prepared to accept, based on Mr Jack’s estimate, that it will take at least a couple of months before the documents have gone through what appears to be an extraordinarily protracted process of examination.  For my part, I am sceptical (to put it mildly) as to the process of collation, review, editing, final review and then delivery by HSF.  I cannot see how any documents produced prior to Black Saturday and regarded as probative to the issues in dispute require any great analysis.  I accept that post-Black Saturday, documents may require examination to ensure that no privilege issues arise, particularly given the role of the lawyers within SPI management after Black Saturday.  Nevertheless, as counsel for SPI pointed out, Mr Jack should not be second-guessed and I am prepared, with considerable hesitation, to accept that such a process is necessary.  However, I do not see why the process cannot be accelerated given the significance of the case, the resources available to SPI and HSF and HSF’s previous experience in the Kilmore East-Kinglake proceeding.

24. I see no reason why SPI should not give discovery on a rolling basis commencing on 1 February 2014, thereafter monthly and concluding on 1 May 2014.

    The provisions of the Civil Procedure Act

25. In addition to providing documents I have identified, SPI will be aware of its ongoing obligation, pursuant to s 26 of the Act, to disclose “the existence of all documents that are or have been in that person’s possession, custody or control – (a) of which the person is aware; and (b) which the person considers, or ought to reasonably consider, are critical to the resolution of the dispute.”

    Orders

26. I propose the following orders, subject to discussion with counsel.

27. Pursuant to Rule 29.05 of the Rules, SPI to discover the following categories of documents:

    1.Any relevant documents retrieved as a result of reasonable searches of the electronic mailboxes and hard copy files of the following SPI personnel:

    (a)Glen Johnstone;

    (b)Paul Lewis;

    (c)Jason Kaak;

    (d)Phillip Moffatt;

    (e)Anthony Nachtigal;

    (f)Craig Velt;

    (g)Paul Lane;

    (h)Richard Martin;

    (i)Peter Schwarzman;

    (j)Brian Hubble;

    (k)Ross Clark;

    (l)Norm Drew;

    (m)John Kelso

    (n)Gary Towns;

    (o)Saman De Silva;

    (p)John Costolloe;

    (q)Anthony Walley;

    (r)Clive Baillie; and

    (s)Graham McClure.

    2.Any relevant documents retrieved as a result of reasonable searches of the electronic shared drive or hard drive used by any of the persons identified at (1) above as a location in which that person regularly stored documents.

    3.Any relevant documents retrieved as a result of reasonable searches of the Lotus Notes Document Library maintained in respect of the Bushfire Mitigation Management Committee relating to the Murrindindi fire.

    4.Any design documents of SPI held on the electronic databases of SPI or in hard copy not yet discovered relating to:

    (a)assets on the feeder MDI-1 between the Murrindindi South Isolating Transformer known as “STH ISO” and the Murrindindi Mill;

28. Discovery by SPI in accordance with paragraph 55 is to be completed by 1 May 2014.

    A parting note

29. This proceeding will now be managed by the trial judge. Any discovery issues which may arise will be dealt with by Zammit AsJ. On the question of discovery, this application is a prime example of solicitors (for both Mr Liesfield and SPI) failing to comply with their obligations under the Act to cooperate and narrow the issues. Rather than sitting down and trying to resolve the fight over discovery, the parties exchanged salvos of emails with little, if any, apparent regard to conciliation or resolution of the issue – until the hearing was in progress. It is imperative, as the Act mandates, that in any form of litigation (and particularly highly complex and expansive cases) that the requirement to cooperate be adhered to in a meaningful way – on this application it was not.

SCHEDULE OF PARTIES

RODERIC LIESFIELD

Plaintiff

- and -

SPI ELECTRICITY PTY LTD (ACN 064 651 118)

First Defendant

ACN 060 674 580 PTY LTD

Second Defendant

SECRETARY TO THE DEPARTMENT
OF ENVIRONMENT AND PRIMARY INDUSTRY

Third Defendant

COUNTRY FIRE AUTHORITY           

Fourth Defendant

STATE OF VICTORIA   

Fifth Defendant

- AND -

SPI ELECTRICITY PTY LTD (ACN 064 651 118)

Plaintiff by Counterclaim

- and -

ACN 060 674 580 PTY LTD

First Defendant to Counterclaim

SECRETARY TO THE DEPARTMENT

OF ENVIRONMENT AND PRIMARY INDUSTRY

Second Defendant to Counterclaim

COUNTRY FIRE AUTHORITY

Third Defendant to Counterclaim

STATE OF VICTORIA

Fourth Defendant to Counterclaim

RODERIC LIESFIELD

Fifth Defendant to Counterclaim