Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 11)

[2012] VSC 497

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4788 of 2009

CAROL ANN MATTHEWS	Plaintiff
v
SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS	Defendants

SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Plaintiff by counterclaim
V
UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS	Defendants by counterclaim

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2012
DATE OF JUDGMENT:	23 October 2012
CASE MAY BE CITED AS:	Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 11)
MEDIUM NEUTRAL CITATION:	[2012] VSC 497

---

PRACTICE AND PROCEDURE – Class action – Amendments to plaintiff’s statement of claim.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Keogh SC Mr L Armstrong Ms M Szydzik	Maurice Blackburn Pty Ltd
For SPI Electricity Pty Ltd	Mr J Beach QC Mr D Farrands	Freehills
For USC	Mr R Ray QC Ms E Brimer	Holman Fenwick Willan
For the State parties	Mr P Zappia Mr M Rush	Norton Rose

HIS HONOUR:

1. Mrs Matthews seeks to make a series of amendments to the fifth amended statement of claim.  Two are opposed by SPI and USC.[1]  First, that of the group definition contained in paragraph 4 of the statement of claim; and second, that of certain particulars of negligence alleged against SPI.

   [1]Annexure A of “the plaintiff’s outline”.

1. In relation to the group definition, I have adjourned that application to enable the Commonwealth and the State of Victoria to determine their attitude to the proposed amendments which affect both bodies.

1. In relation to the amendment of the particulars, the plaintiff seeks to amend particulars (xii), (xvii),(xviii) and (xx) alleged against SPI. Each of the amendments was opposed by SPI and USC, although the standing of USC on the application was dubious.  The amendments relate to two discrete aspects of asset inspections of the Pentadeen spur line. The first group covered by (xii), (xvii) and (xviii) relates to training and instruction of asset inspectors.

1. Previous versions of the particulars of negligence have raised generally deficiencies in both training and instructions of asset inspectors. In my opinion, the new particulars do no more than identify with greater precision the case made against SPI on those points and should, prima facie, be allowed.  I do not accept that these amendments are made so late as to engage principles set out in Aon[2] or under the Civil Procedure Act 2010 (Vic) as applied by Croft J in Clarke v Great Southern Finance Pty Ltd (in liq) (Ruling No 1)[3]. Nor do I accept USC's argument that these are new allegations. In my view, these allegations identify with some precision the case mounted by Mrs Matthews against SPI rather than amounting to a new allegation.

   [2]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

   [3][2002] VSC 295 (Unreported, 29 June 2012).

1. Both SPI and USC, however, make a further point, that the consequences in terms of proving a loss attributable to the breach are not identified.  Prior to this proposed version of the statement of claim, no complaint had been made by either SPI or USC as to the lack of pleaded causation flowing from the variety of breaches described in the particulars of negligence alleged against SPI previously, or for that matter, against USC.  Notwithstanding that observation, I think SPI is entitled to know where the allegations lead to, in terms of causation. In some, if not most common law cases, allegations of omission are pleaded generally and the hypothetical steps to establishing loss are not pleaded out; but this case, as has become obvious, is not a typical common law case.  It is vital, in my opinion, that the parties know exactly what case is to be made at trial and are able to meet that case.  That extends to determining exactly how a case based upon hypothetical causation is to be maintained at trial, either by fact or by inference based on established facts.[4]

   [4]Of course a party is only required to plead the facts it will rely upon at trial, not the evidence: r 13.02(1) to be adduced in the Supreme Court (General Civil Procedure) Rules 2005.

1. Accordingly, I propose to grant Mrs Matthews leave to amend this group of particulars and order that she provide further and better particulars of the manner in which the asserted breach caused the alleged losses.  If SPI then wishes to take any further steps in relation to discovery, expert evidence or to the list of witnesses, that can be dealt with at an appropriate time.  

1. The second aspect of the amendments relates to particular (xx) concerning the failure of the asset inspection to detect major splitting of poles 38 and 39.  The genesis of this allegation surfaced in a report of an expert engineer, Mr Henry Hawes, in August of this year.[5]  This, I accept, is a new allegation. It matters not whether it falls within some broad particular; the simple fact is that it is an issue that has not been identified in the past.  It raises fresh issues for the trial over and above that of the allegations relating to the appropriateness of the helical fitting or the asserted fracture in the conductor. The fact that it is a new allegation, of course, does not mean that Mrs Matthews should be shut out from agitating the point at trial.

   [5]Report of 22 August 2012, p 35.

1. I do not accept, as argued by USC, that evidence should be put on to justify the allegation.  That is turning a pleading point into a trial.  In any event, Mr Hawes' report demonstrates that there will be at least some evidence to support the allegation if it is maintained at trial.  The real issue, as I see it, is whether three months out from the trial this amendment should be permitted and, particularly to ensure that, if permitted, it will not produce sufficient prejudice to derail the trial.

1. In my view, the amendment should be allowed.  I am not persuaded that the trial will be prejudiced, although SPI will have to be accommodated with any justifiable alterations to the trial process such as discovery, alterations to witness lists or the engagement of an expert witness.  The reality is, however, that the factual dispute on this point, as best I can tell, will be relatively limited to what was the condition of the two poles in or around 2008 and was there such a problem that it warranted work being carried out on the pole.  That said, I do not minimise the proposition that it will involve further work on the part of SPI to meet the allegation.

1. Allowing the amendment, of course, leads inevitably to the question of causation.  Here, as with the other group of amendments that I have identified, I think Mrs Matthews should provide further and better particulars of the link between the asserted breach and the loss.

1. As with the other amendments, SPI will have the opportunity to consider what, if any, steps it wishes to take in relation to the pre-trial processes that I have discussed consequential upon the amendments being granted and the further and better particulars being provided.

1. In summary, I propose to allow the amendments and order in addition that Mrs Matthews provide further and better particulars of the causal links between the alleged breaches contained in the new amendments and the loss allegedly sustained by Mrs Matthews.