Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 7)
[2012] VSC 230
•5 June 2012
| 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) | Defendant |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by counterclaim |
| v | |
| UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS | Defendants by counterclaim |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2012 (submissions 11 May and 18 May 2012). | |
DATE OF RULING: | 5 June 2012 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 7) | |
MEDIA NEUTRAL CITATION: | [2012] VSC 230 | |
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PRACTICE AND PROCEDURE – Class Action – Part 4A of the Supreme Court Act 1986 (Vic) - Provision of particulars regarding the dissemination of information by the State parties – Identification of relevant issues for trial - Sections 47(3) and 48(2) of the Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For SPI Electricity Pty Ltd | Mr J B R Beach SC Mr D J Farrands Mr J H Kirkwood | Freehills |
| For the State parties | Mr C Caleo SC Mr M Rush | Norton Rose |
HIS HONOUR:
A minor skirmish has arisen between SPI and the State parties. It relates to the case against the State parties (CFA, DSE and members of the Victoria Police) concerning the provision of warnings (perhaps better described as the dissemination of information)[1] to Mrs Matthews and sample group members likely to be affected by the approaching fire.
[1]Which I have referred to as “the failure to warn” case.
Mrs Matthews and sample group members have, pursuant to my ruling of 14 March 2012,[2] provided particulars of their allegations of negligence against the State parties as well as details of their own knowledge as to the progress of the fire.
[2][2012] VSC 70.
This has prompted SPI (which has contribution proceedings against the State parties) to seek further particulars from the State parties in relation to their Defence.
I have concluded that the State parties should provide particulars of information disseminated to the communities in which Mrs Mathews and the sample group members resided and my reasoning is now set out.
Some background matters
The claim by Mrs Matthews on behalf of the group members was initially against SPI alone. Subsequently, SPI joined the State parties who were in turn added to the group proceeding as defendants.
The failure to warn case is only part of the claim made against the State parties and relates only to the personal injuries and death claims brought by Mrs Matthews and the group members. Claims for contribution as between SPI and the State parties have been made under Part IV of the Wrongs Act 1958 (Vic).
Mrs Matthews and three group members, Jennifer Clark, Sandra Lackas and Darrin Gibson have each provided comprehensive particulars of the alleged omissions on the part of the State parties as well as details of their own circumstances as the fire approached.
The claim made by Mrs Matthews and the group members in relation to the failure to warn case is, in effect, replicated by SPI in its claim for contribution from the State parties.
The list of common questions for determination of the trial includes the following in relation to the claim against members of the Victoria Police:[3]
33. Did the emergency response plan State Coordinator, Deputy Coordinator or the Kilmore Fire Emergency Response Coordinators owe a common law duty to the personal injury claimants to take reasonable care to issue effective and timely bushfire warnings to persons in the fire areas?
34. Did any of the identified members of the Victoria Police breach the common law duty?
35. If an identified member(s) of the Victoria Police breached the common law duty, was such breach a cause of any personal injury sustained by the claimants and/or class of claimants?
[3]Subsequently, in these reasons I have referred at times to the claim against the State (as opposed to State parties). This is the claim against members of Victoria Police for which the State of Victoria is alleged to be liable.
For the purpose of this exercise it suffices to extract parts of Mrs Mathews’ claim against the State and the particulars now provided by her.
Paragraph 208 of the Statement of Claim reads as follows:
Further, at all material times, the State Co-ordinator, the Deputy Co-Ordinator and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have known that specific warnings provided and referring to specific groups and/or communities and/or localities and/or local residents in areas threatened by bushfires, rather than generalised warnings addressed and referring to the general public, were necessary to enable persons in those areas to take steps to avoid the risk of personal injury and death.
The defence of the State to paragraph 208 is as follows:
(a)they say that, in some circumstances and at some times, the publication of specific rather than general information about the threat of bushfire might assist persons likely to be affected by such bushfire to decide what steps they may take to avoid the risk of personal injury or death:
(b)they say further that, by reason of the general, unparticularlised and hypothetical nature of the allegations, they cannot further plead to paragraph 208;
(c)they otherwise deny the allegations therein.
Paragraphs 216 and 217 of the Statement of Claim made the following allegations against the State:
216. At all relevant times, the State Co-ordinator, the Deputy Co-Ordinator and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have known of the matters in paragraphs 207 to 211 hereof, or their likelihood of occurring, by virtue of information available from the CFA and/or the DSE, information available at each relevant MERCC, DERCC, the SERCC, and from the information available at the Integrated Emergency Co-Ordination Centre established at Nicholson Street, Melbourne, Victoria (IECC).
Particulars
Such information included the specific information and predictions being collected, made and analysed by the CFA and DSE in relation to the Kilmore fire, its path, its spread and its speed, during the course of the afternoon of 7 February 2009 and thereafter, including the information and predictions referred to in paragraphs 235 and 273 below as collected and made by the CFA and the DSE.
217. Before and on 7 February 2009 the State Co-ordinator, the Deputy Co-ordinator and the Kilmore Fire Emergency Response Co-Ordinators breached the Victoria Police Duty to Warn in that they failed to take reasonable care to ensure that bushfire warnings were given to persons at risk so as to enable the persons at risk to take steps to avoid personal injury loss and damage to themselves and/or their dependents by reason of the Kilmore fire.
The further particulars of paragraph 217 provided by Mrs Matthews read as follows:
Failing to cause to be broadcast, either by load hailers, telephones, door knocks, radio or television announcements or local community networks, information:
(a)by not later than 2.30pm, alternatively at some time prior to the fire affecting the Matthews house, to the effect that:
(i)the fire had crossed the Hume Highway at Heathcote Junction at around 2.00pm and was running in a south easterly direction toward St Andrews;
(ii)the fire was running at a speed of 20 to 30 kilometres per hour, with erratic behaviour and heavy spotting;
(iii)the fire was not suppressed, was a major bushfire and was not likely to be suppressed on 7 February 2009;
(iv)St Andrews was at risk from the fire;
(b)by no later than 3pm, alternatively 3.30pm, alternatively at some time prior to the fire affecting the Matthews house, to the effect that:
(i)the fire had reached Mount Disappointment at around 15.00pm and was running in a south easterly direction toward St Andrews;
(ii)fire prediction mapping by fire behaviour analysts at the IECC had indicated the fire was likely to run south-east to St Andrews before a south-westerly wind change converted its eastern flank into a broadened fire-front running north east, including north east from St Andrews;
(iii)the fire was spreading rapidly with heavy spotting;
(iv)spot fires were occurring many kilometres ahead of the main fire front, some of which were turning into major fires.
(c)by not later than about 4.00pm, alternatively at some time prior to the fire affecting the Matthews house, to the effect that:
(i)the fire was at St Andrews;
(ii)the fire at St Andrews was spreading rapidly and was uncontrollable;
(iii)an incoming south-westerly wind change would mean that the fire, running south east before the change, would turn and become a wide fire front running north east.
Paragraph 218 of the Statement of Claim made the following allegation:
Further and in the alternative to paragraphs 8 to 145 inclusive above, by reason of the breaches by the State Co-ordinator, the Deputy Co-ordinator and the Kilmore Fire Emergency Response Co-ordinators of the Victoria Police Duty to Warn during the Kilmore fire the personal injury claimants suffered personal injury loss or damage.
Particulars
But for the breaches of duty referred to above, the persons at risk would have taken steps to avoid injury or death.
Particulars of causation in respect of a sample personal injury claimant will be provided prior to the trial of common questions in accordance with directions given by the Court. Particulars of causation in respect of other personal injury claimants will be given following the trial of common questions or otherwise as the Court may direct.
Further particulars of paragraph 218 provided by Mrs Matthews read as follows:
Sam (the plaintiff’s deceased son) and his sister (the plaintiff’s daughter, who was at the Matthews house until around 4.45pm on 7 February 2009) were informed by a neighbour at around 1.00pm on 7 February 2009 that there was a fire at Wandong. Sam and his sister thereafter made regular checks of the CFA website, and occasional checks of the Bureau of Meteorology website, during the course of the afternoon.
At around 1.30pm, Sam and his sister spoke with the plaintiff by phone and reported that there was a fire at Wandong, that they had been and were monitoring the CFA website and that the website showed that there was no risk to the Matthews’ home. The plaintiff said to the effect that Sam and his sister must call her if the alert messages changes to show that St Andrews was at risk, and Sam and his sister said they would do so.
Had the State Co-ordinator, the Deputy Co-ordinator and/or Kilmore Fire Emergency Response Co-ordinators disseminated the warnings as particularised at paragraph 217, Sam, his sister and/or the plaintiff would have received such warnings through family and/or community networks where persons becoming aware of the danger would have advised Sam, his sister and/or the plaintiff of that danger.
If Sam and his sister received the information particularised at paragraph 217:
(a)Sam and his sister in compliance with the assurance given by them to the plaintiff during the telephone conversation particularised above would have telephoned the plaintiff and reported that the fire was a major bushfire and St Andrews was at risk;
(b)the plaintiff would have instructed Sam and his sister to leave the Matthews house and go to a friend’s house or other location, the whereabouts of which would depend upon where the information indicated was safe;
(c)Sam’s sister would have insisted that Sam leave the Matthews house; and
(d)Sam would have left the Matthews house and travelled with his sister and thus avoided the fire.
If the plaintiff received the information particularised at paragraph 217:
(a)she would have instructed Sam and his sister to leave the Matthews house and go to a friend’s house or other location, the whereabouts of which would depend upon where the information indicated was safe;
(b)Sam’s sister would have insisted that Sam leave the Matthews house; and
(c)Sam would have left the Matthews house and travelled with his sister and thus avoided the fire.
In addition, in the case against each of the State parties, particulars of the manner by which such information should have been disseminated is set out. For instance, Mrs Mathews alleges against the CFA that the warnings should have been posted on its website, advised to the ABC, broadcast by telephone tree lists or advised in person.
The purpose of examining these slabs of the pleadings is to demonstrate that the claims of Mrs Matthews and the sample group members have been particularised comprehensively. The State parties now know precisely how the failure to warn case will be mounted against them.
The State parties’ defence to both Mrs Matthews claim and the SPI Counterclaim was, understandably not overly informative at the time. As has been seen, in relation to the Statement of Claim of Mrs Matthews, it asserted an inability to plead to the allegations regarding warning in the absence of further particulars,[4] as it did with the group members.[5] The State did, however, assert that information was provided to the public concerning the fire. For instance, in paragraph 201 of the Defence:
(ii) on 7 February 2009:
(A)information was disseminated to the media and general public about fires in the Kilmore East area from the Seymour RECC, the Kilmore ICC, the Kangaroo Ground ICC and the Integrated Emergency Coordination Centre (IECC);
(B)members of the Victoria Police provided information directly to the general public within the Kilmore East area about the fires, including assisting in the evacuation of persons within the fire area;
(C)the relevant FERC, the MERC for the Mitchell municipality, the DERC for the Seymour Division, and the State Emergency Response Co-ordinator (SERC), ensured that consideration had been given to alerting the public to existing and potential dangers arising from the fires in the Kilmore East area, either directly of through the media;
[4]See also State parties’ defence paragraphs 231(a), 237(f), 248(b), 250(c), 271(c), 278-282(b), 285(b) and 291(c).
[5]See also State parties’ defence paragraphs 211(b), 238(b), 244(b), 258(b) and 279(b).
No particulars of the information were provided.
The request for particulars
The particulars sought by SPI of the State parties’ Defence relate to three discrete categories:
(a)whether there was in fact dissemination of the information which Mrs Matthews and the sample group members assert should have been provided during the afternoon of Black Saturday;
(b)what other “alternative” information was disseminated; and
(c)whether, assuming the dissemination of such information, there were circumstances (such as road closures, fires or other impediments) that would have prevented Mrs Matthews or the sample group member from either leaving their properties or endeavouring to attend a different location.
Submissions
SPI contends that there is utility in the provision of further particulars of matters peculiarly within the State parties’ knowledge. Now that Mrs Matthews and the sample group members have provided comprehensive particulars as to how the case will be put at trial, it is appropriate to require the State parties to particularise their response, especially as the current pleading does nothing to assist in determining the State parties’ position on this issue. It contends that it is appropriate for it to raise the issue (acknowledging that Mrs Matthews has not yet taken the point) as it has contribution claims on foot and will, in effect, be running this case at trial against SPI.
The State parties respond by arguing that SPI has an abundance of information about the warnings case as a result of evidence given at the Victorian Bushfire Royal Commission[6] and that there needs to be a balance struck in determining what additional evidence or information should be provided to SPI prior to trial.
[6]“VBRC”.
Specifically, they argue that the provision of information concerning warnings or information disseminated by the State parties will be the subject of evidence in trial and no further particulars are required, particularly in the absence of Mrs Matthews either on her own behalf or on behalf of the sample group members. The second category, they argue, is essentially irrelevant as it is not the subject of the case particularised by Mrs Matthews or the sample group members. In relation to the third aspect of the request – as to the circumstances that would prevent Mrs Matthews and the sample group members from leaving their properties – the State parties contend that such a request is speculative and irrelevant given that neither Mrs Matthews nor the sample group members identify where they would have gone.
Analysis
Section 47(3) of the Civil Procedure Act 2010 (Vic) permits a court to give directions to ensure the civil proceeding is conducted promptly and efficiently. Section 48(2) of the Act gives the power to a court to make orders in relation to pre-trial procedures including, by sub-s 2(e) the “defining issues by pleadings or otherwise“ and to “take other steps to clarify questions.”
This will be a lengthy and complex trial and anything that can be reasonably undertaken to clarify the evidentiary contest so that the evidence led at trial is properly focused should be encouraged.
The Court has a general power to give directions, such as those sought by SPI, particularly if it will assist in identifying the issues at trial. Here, there are four specific matters which satisfy me that it is appropriate to accede to SPI’s request in relation to the first and second categories.
First, the case brought by Mrs Matthews and the sample group members is no longer hypothetical. The State parties now know the identities and location of the persons who assert that there should have been better dissemination of information. Central to the case against the State parties (be it by either the group proceeding or the contribution claim by SPI) is identification of what information or warnings were given by CFA, DSE or members of the Victoria Police as to the impending approach of the fire. It is clear from the pleadings that one or more of the State parties will assert that there was a dissemination of information, but it has not yet been ‘particularised’. Particulars of any warnings or information given to residents of St Andrews, Kinglake West and Upper Plenty (being the places of residence of Mrs Matthews and the sample group members) are fundamental to determining whether the information provided (if any) was adequate. It goes squarely to the question of breach, if that be reached and may also be relevant to the existence of a duty. That consideration alone, in my opinion, disposes of any argument by the State parties resisting the provision of particulars in the first and second categories.
Secondly, this trial will be conducted without the use of witness statements or synopses of evidence. In those circumstances it is in the interests of justice that both Mrs Matthews and SPI and, for that matter, the Court, know, by provision of appropriate particulars, the case that is put forward by the State parties. The provision of particulars by Mrs Matthews and the sample group members has now narrowed the issues. There is no reason not to extend this obligation to the State parties provided the request is reasonable.
Thirdly, SPI has a direct interest in ascertaining, prior to trial, exactly what the State’s position is in relation to the provision of information to Mrs Matthews and the sample group members. Provided it is relevant, it should not be left in the ether with the prospect that witnesses may have to be recalled after the State parties give their evidence. SPI by its claim for contribution is legitimately entitled to agitate the issue. Moreover, it is clear from what has been said at the directions hearings that the case against the State parties will be prosecuted by SPI, rather than Mrs Matthews and the group members.
Fourthly, if interrogatories had been permitted in this case it would have been open to SPI to interrogate the State parties as to its dissemination of information on the afternoon of Black Saturday to persons in the position of Mrs Matthews and the sample group members. There is no basis upon which the State parties could have refused to answer such an interrogatory.
I see no reason why the State parties should not provide the particulars sought in the first category. I do not accept that the evidence given at the VBRC is sufficient to inform SPI of the details of the communications made to residents. SPI are entitled to know what will be asserted at this trial. Indeed it is of considerable assistance to the Court to know the position of the State parties on this point, bearing in mind that it is the State parties which oppose the Court having access to the VBRC evidence.[7]
[7]I do not suggest that the opposition is not well founded, however, the Court should within the confines of the proceeding have, prior to trial, as much detail as is possible of the case put by each of the parties.
The second category is a little different, I suspect because of the wording of the request. As I follow, the request by SPI is directed to eliciting the details of the information or warnings provided by the State parties on the afternoon of Black Saturday to Mrs Matthews and the sample group members. I do not accept the State parties’ contention that any “alternative information” (perhaps a better description could have been used) is irrelevant as it is not the subject of particularisation by Mrs Matthews or sample group members. In determining both questions of the existence of duty and breach, the questions of exactly what information was and was not provided on Black Saturday are relevant. That is what, as I follow it, SPI’s request is directed to and that is what should be provided.
It is appropriate that the State parties provide particulars of any information which it is said was provided to Mrs Matthews or the sample group members in light of the particulars now provided. The particulars provided by the State parties should relate to information provided to the residents in the location of Mrs Matthews and the sample group members and set out the time, the place and the substance of the information provided.
I do not, however, accept that the State parties should provide the information contained in the third category. The State parties’ contention on this point should be accepted. The particulars provided by Mrs Matthews and the sample group members do not assert their likely destination, if it be assumed that a warning should have been given. No doubt this will be the subject of cross-examination of Mrs Matthews and the sample group members at trial. There will be ample time thereafter for SPI to determine whether there was, in fact, any obstacle to Mrs Matthews or the sample group members reaching a safe haven.
Conclusion
The State parties should, in the manner I have explained, provide particulars of information concerning the approach of the fire which was disseminated to Mrs Matthews and the sample group members.
Subject to any comment by the parties as to style, I propose to make an order along the following lines:
1 The State parties provide particulars of any warnings given or information disseminated by them on 7 February 2009 to:
(a)residents of St Andrews;
(b)residents of Kinglake;
(c)residents of Kinglake West; and
(d)residents of Upper Plenty
as to –
(a)the approach of the fire;
(b)the spread of the fire;
(c)the course or the likely course of the fire;
(c)any prospective wind change which might affect the course of the fire; and
(d)steps to be taken by residents in relation to the fire.
0
1
0