Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 25)

[2013] VSC 392

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

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2013
DATE OF RULING:	30 July 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 25)
MEDIUM NEUTRAL CITATION:	[2013] VSC 392

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EVIDENCE – Credibility and reliability – Previous representation of a person who is not a witness – Evidence Act2008 (Vic) ss 55, 101A, 108A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Ms M Szydzik	Maurice Blackburn
For the First Defendant	Mr J Beach QC with Mr J Kirkwood	Herbert Smith Freehills
For the Second Defendant	Mr R Ray QC with  Ms E Brimer	Holman Fenwick Willan
For the Third, Fourth and  Fifth Defendants	Dr M D Rush	Norton Rose

HIS HONOUR:

1. Amongst the myriad of issues in this case are the questions of the maintenance of the Pentadeen Spur and the relationship between UAM, the asset inspection company, and SPI Electricity.

1. In August 2007 Mr Saman De Silva, an SPI senior lines engineer, wrote an email to Mr Dhammika Adihetty, an SPI Manager in Electricity Network Asset Engineering and Mr Andrew Randall, a senior SPI executive, in the following terms:

…

On another note also I have noticed that we and our contractors have a culture of not doing (avoiding) maintenance work to save on budgets.  For example contractors (say UAM) may believe that they are doing us a favour by avoiding maintenance work, so they are keen to push priorities from 2 to say 9.  As an example John C told me that while our inspectors classified some crossarms P2, UAM have reclassified them as P9.  We hear these types of comments whenever we go the field -‘we are not doing maintenance because we want to save money’. Some of field guys have given up on reporting problems due to frustration.  We need to change this culture.[1]

Mr Andrew Randall, responded by email:

Saman. Thanks for the feedback. On the other comment, UAM inspect first and have no incentive to defer maintenance, they are more likely to pick things up and aggressively prioritise them to cover their backs. It is our maintenance team that invariably pushes out the priority and say it will last a bit longer. I agree we are not doing enough maintenance, a situation we are changing as you speak, albeit on the most important sections of the network. Thanks, Andrew.[2]

[1]SPN.825.020.4711.

[2]SPN.825.020.4710.

1. In the course of the evidence at the trial, Mr Denis McCrohan, a senior maintenance engineer employed by SPI, was asked by counsel for SPI the following in relation to Mr Randall’s response:

COUNSEL: Can I take you to SPN.825.020.4710, another e-mail. This wasn't an e-mail that was copied to you. I just want you to read that first paragraph there. With your experience, given your position with maintenance, was there a practice to defer maintenance and if so, what was that practice?---No, there was no practice to defer maintenance. It's basically the inspector goes out and inspects. He records independent, he is out there by himself. Records it in the system straightaway. It's then assessed by a technical assessment officer and he too is making an independent assessment. That then becomes a work order to go straight out to construction. There's no deferring. We may target more and we may switch off some of that targeting but the core function of inspection and assessment is left up to the individual.  Ultimately they are the one that signs off on each work order.[3]

[3]T5784

1. So far so good. There can be no objection to that question and answer, and there was none.

1. Then counsel for SPI sought to ask of Mr McCrohan:

You have got reference here to Mr de Silva and Mr Randall. What experience did they have relative to your position, in terms of maintenance? [4]

[4]T5784 at lines 24-26.

Mr McCrohan answered as follows, before he was interrupted:

Andrew Randall is an economist.[5]

He was interrupted by me. I said as follows

Just before you go on with that, how is this point taken? Is it going to be attacking the credibility of Randall or de Silva, neither of whom are witnesses? If it is, I am not sure it survives the Evidence Act. You can have a think about that overnight if you like.[6]

[5]T5784 at lines 26-27.

[6]T5784 – T5785.

1. Counsel for Mrs Matthews then objected to the question. An argument ensued over the admissibility of any answer given in response to it. I reserved my position overnight, having heard helpful extempore argument from both counsel.

1. If the question and potential answer is properly characterised as going to “credibility,” then such evidence is prohibited under the Part 3.7 of the Evidence Act 2008 (Vic) (‘the Act’), unless an exception applies.

1. Section 101A of the Act defines “credibility evidence” as follows:

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that –

(a)is relevant only because it affects the assessment of the credibility of the witness or person; or

(b)is relevant –

i)because it affects the assessment of the credibility of the witness or person;

ii)for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

1. The Dictionary defines “credibility” as follows:

Credibility of a witness means the credibility of any part or all of the evidenced of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

1. Assuming for present purposes that an answer is received to the question from Mr McCrohan which demonstrates that Mr Randall and Mr De Silva had limited experience in maintenance in comparison to Mr McCrohan, it must, in my opinion, go to the reliability of Mr Randall and Mr De Silva's statements concerning SPI's attitude to maintenance, i.e. they are necessarily less reliable than those of Mr McCrohan given their asserted lack of expertise.

1. Accepting that proposition, I have reached the following conclusions:

(1)Such evidence is probative and relevant to an issue in the trial (s 55 of the Act).

(2)Such evidence ultimately is directed solely to the reliability of statements made by Mr Randall and Mr de Silva in the e-mail chain.

(3)Such evidence is credibility evidence within the meaning of Part 3.7 of the Act. I have reached this conclusion on the basis of both the terms of the Evidence Act and the Court of Appeal decision of last year of Dupas v R.[7]

[7][2012] VSC 328.

At [265] of the joint judgment the Court held:

Thus, the credibility of a witness expressly includes the credibility of the evidence of the witness. And the express reference to a person's 'ability to observe or remember facts and events' can only be a reference to reliability. In short, 'credibility' imports notions of both truthfulness and reliability. Section 102 provides that credibility evidence about a witness is not admissible. Thus, prima facie, evidence relevant to the reliability of a witness is not admissible.[8]

At [266]:

Adam v. The Queen established that the credibility rule was only engaged where the evidence was relevant solely to the witness' credibility; it was not engaged where it might additionally be relevant for proof of a fact in issue, or for some other purpose. To similar effect, McHugh J had earlier observed in Palmer v. The Queen: 'The credibility of evidence is locked to the credibility of its deponent.' Section 101A(a) was introduced as a direct response to Adams' case. As was observed in R v. Rivkin, the width of the definition makes plain - as was confirmed in R v. Milat - that the section applies both to evidence which bears generally on the reliability of a witness and to evidence that bears on the reliability of particular testimony of that witness. Thus, for the purpose of the credibility rule, the Act has removed any distinction between credibility and reliability, in relation to both the witness and to the witness's evidence.[9]

Therefore, evidence given by Mr McCrohan diminishing Mr Randall and Mr De Silva's reliability in comparison to his own the maintenance issue falls within the definition of credibility contained in the Act.

[8]Ibid [265].

[9]Ibid [266].

1. But that is not the end of the matter. Given Mr Beach's statements during the course of the trial, I have concluded that Mr Randall and Mr De Silva will not be called as witnesses, notwithstanding Mr Randall’s inclusion in SPI's witness list. This means that s 108A of the Act, rather than s 102 (“the credibility rule”)[10] is potentially engaged. It reads as follows:

If:

(a)evidence of a previous representation has been admitted in a proceeding; and

(b)the person who made the representation has not been called, and will not be called, to give evidence in the proceeding; credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.

[10]This provision related only to witnesses called at the trial.

1. The requirement of s 108A(1)(a) is satisfied by the tender of the email chain, as is the requirement in s 108A(1)(b) that the person who made the representation will not be called to give evidence.

1. The remaining issue in determining whether this line of questioning is admissible is whether the further requirement of s 108A(1)(b) is satisfied: could the evidence of Mr McCrohan substantially affect the assessment of Mr Randall or Mr De Silva's credibility; or in this case reliability.

1. In resolving this issue, it will be necessary to hear Mr McCrohan's evidence on the voir dire and then determine whether it substantially affects the credibility of Mr Randall or Mr De Silva on this issue.

1. Whilst it is, in my view, doubtful as to whether rebuttal evidence can be led by Mrs Matthews on this point, I will hear any submissions to be made by counsel for Mrs Matthews in relation to adducing rebuttal evidence and particularly, any obligation on SPI to make discovery of Mr Randall and Mr De Silva's personnel files and curricula vitae, if that be necessary.          

1. So, in summary, Mr McCrohan will, if counsel elects to continue with this line of questioning, be entitled to give evidence on the voir dire as to the comparison of his own experience as against that of Mr Randall and Mr De Silva.

1. I will allow cross-examination on that issue and then determine whether at the end of the day that evidence substantially affects the credibility of Mr Randall or Mr De Silva. If I am satisfied that it does and therefore is admissible, then I will allow counsel for Mrs Matthews the opportunity to make submissions in relation to whether any rebuttal evidence may be led on behalf of Mrs Matthews.