Matthews v SPI Electricity Pty Ltd (No 12)
[2014] VSC 131
•28 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2009 4788
| CAROL ANN MATTHEWS | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS (according to the schedule of parties) | Defendants |
AND BETWEEN:
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by Counterclaim |
| v | |
| ACN 060 674 580 & ORS (according to the schedule of parties) | Defendants by Counterclaim |
---
JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2014 | |
DATE OF JUDGMENT: | 28 March 2014 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity Pty Ltd & Ors (No 12) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 131 | |
---
PRACTICE AND PROCEDURE — Subpoena — Setting aside — Whether legitimate forensic purpose — Whether availability of a Jones v Dunkel inference which may be subject to an explanation to be revealed in the documents is a legitimate forensic purpose — Whether ‘on the cards’ that documents the subject of the subpoena will materially assist the plaintiff meet any explanation proffered for failing to call an expert witness — Whether subpoenas fishing — Legitimate forensic purpose found — Not ‘on the cards’ that documents the subject of the subpoena will materially assist the plaintiff meet any such explanation — Subpoenas fishing.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Richter QC with Mr L. Armstrong | |
| For the First Defendant | Mr B. Quinn SC with Mr L. Stanistreet |
HIS HONOUR:
Introduction
The first defendant (SPI) applies to set aside two subpoenas, the first addressed to Herbert Smith Freehills (HSF)[1] and the second to Mr Alexander Dunn (Mr Dunn). Each subpoena sought the production of the same documents, effectively described as follows:
(a) All correspondence between HSF and Mr Dunn in relation to these proceedings; and
(b) All documents, emails, notes, invoices, bills and other papers held by HSF and by Mr Dunn, recording or referring to the date, duration or content of any meeting, conversation or other communication between Mr Dunn and HSF.
[1]Including that firm under its former name of Freehills.
By order of J Forrest J made 13 March 2014 the plaintiff was granted leave to issue the subpoenas and SPI was granted liberty to inspect and copy the documents produced in answer by Mr Dunn. The order proceeded on the footing that SPI would inspect the documents and file any affidavit by which it objected to any other party inspecting any of the subpoenaed documents by 21 March 2014.
J Forrest J also referred the application to be made by SPI in relation to the subpoenas to me. The parties appeared before me on 17 March 2014 at which time SPI raised its claim to set aside the subpoenas. Directions were given that enabled the hearing and determination of SPI’s application to set aside the subpoenas at the same time as SPI’s application (assuming the subpoenas are not set aside) to restrict the inspection of the subpoenaed documents on the grounds of client legal privilege. I accordingly made orders to bring both applications on together on 25 March 2014 with outlines of submissions and affidavits to be filed progressively before that date.
Background
The application is made in a group proceeding commenced under Part 4A of the Supreme Court Act1986, in which Mrs Matthews, as representative plaintiff, brings claims against SPI, and others, for damages for personal injuries, property damage and economic loss suffered as a result of the Kilmore East/Kinglake bushfire on Black Saturday, 7 February 2009, in Kilmore East (the Kilmore East bushfire). The plaintiff alleges, among other things, that the bushfire was caused by breaches of duty by SPI in the management, inspection and engineering of the Valley Span, a conductor, or power line, strung between poles 38 and 39 of the Single Wire Earth Return (SWER) line that is alleged to have failed and to have started the Kilmore East bushfire. The Kilmore East bushfire destroyed a number of towns, including Kinglake, destroying 1,242 properties and killing 119 people.
The aspect of the negligence claim relevant to the present applications is the allegation that SPI was negligent in the management of assets constituting the electricity distribution network of which the Valley Span formed a part; and that such negligence was a cause of the Valley Span falling and starting the Kilmore East fire.[2] That allegation is denied by SPI.
[2]Plaintiff’s Eighth Amended Statement of Claim, [18]-[19], PLE.CAM.001.0001, .0013-.0016.
I have now dealt with 11 matters that have been referred to me by J Forrest J during the trial of this proceeding, which commenced on 4 March 2013. I refer to my first decision in Matthews v SPI Electricity Pty Ltd & Ors [2013] VSC 33 which gives greater background relevant to the applications before me. I will not proceed to deal with the issues in the proceeding any further save and except where they become relevant to the application by SPI either to set aside the subpoenas or to claim client legal privilege.
Mr Dunn was proposed, from as early as June 2012, to be an expert witness for SPI. His expertise is in relation to asset management. In August 2012 SPI filed a report prepared by Mr Dunn.[3] The plaintiff’s expert on asset management, Dr Hastings, also prepared a report that was filed in August 2012.[4] In September 2012, Dr Hastings filed a supplementary report.[5] Both Mr Dunn and Dr Hastings participated in an experts’ conclave (on 2 October 2012) and produced a joint report in October 2012.[6] By letter dated 12 March 2013, SPI notified the plaintiff and the other parties to the proceeding that it did not propose to call Mr Dunn, notwithstanding that they had delivered a report by him and that he had participated in an expert conclave and produced a joint Report with Dr Hastings.
[3]EXP.SPN.300.0001.
[4]EXP.CAM.011.0001.
[5]EXP.CAM.012.0001.
[6]EXP.JOINT.009.0001.
Setting aside the subpoenas
SPI claims that the subpoenas should be set aside because:
(a) Mr Dunn is no longer proposed to be called as an expert witness by SPI, the subpoenas serve no legitimate forensic purpose;
(b) There can be no reasonable possibility that the documents could materially assist the Plaintiff in the conduct of her case;
(c) The subpoenas constitute a classic fishing expedition; and
(d) The documents sought by the subpoenas are the subject of client legal privilege enjoyed by SPI, and as Mr Dunn will not be called by SPI to give evidence and his report will not be tendered, there can be no conduct inconsistent with the maintenance of privilege or productive of unfairness such that any waiver of privilege ought be implied.
Principles
SPI and the plaintiff agreed that the following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:[7]
[7]Commissioner of Australian Federal Police v Magistrates Court of Victoria & Ors, [2011] VSC 3 at [28], approved in Woolworths Ltd v Svajcer, [2013] VSCA 270 (Nettle, Ashley and Neave JJA).
(a)It is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;[8]
(b)The identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;[9]
(c)The applicant for the witness summons must also satisfy the court that it is “on the cards”,[10] or that there is a “reasonable possibility”,[11] that the documents sought under the subpoena “will materially assist the defence”;[12]
(d)A “fishing expedition” is not a legitimate forensic purpose and will not be permitted;[13]
(e)The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.[14] There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence;[15]
(f)A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied;
(g)In criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused;[16] and
(h)Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the witness summons.[17]
[8]R v Saleam (1989) 16 NSWLR 14, 18; R v Mokbel (Ruling No 1) [2005] VSC 410, [45]; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498, 504; R v Sergi [1998] 1 Qd R 536; NSW Commissioner of Police v Tuxford [2002] NSWCA 139, [22]; Re Don [2006] NSWSC 1125, [26].
[9]Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, 681; But see Woolworths Ltd v Svajcer, [2013] VSCA 270 (Nettle, Ashley and Neave JJA), at [40]-[47].
[10]Alister v The Queen (1984) 154 CLR 404, 414.
[11]DPP v Selway (Ruling No 2) (2007) 16 VR 508, [10]; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, [96].
[12]Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, [5], [62], [64]; R v Mokbel (Ruling No 1) [2005] VSC 410, [45]; R v Saleam [1999] NSWCCA 86, [11]; Alister v The Queen (1984) 154 CLR 404, 414; R v Saleam (1989) 16 NSWLR 14, 18.
[13]Alister v The Queen (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14, 17;, 414; Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 575; Re Don [2006] NSWSC 1125, [26].
[14]Attorney-General (New South Wales) v Chidgey (2008) 182 A Crim R 536 [59].
[15]Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 181.
[16]Sankey v Whitlam (1978) 142 CLR 1, 42, 62; Alister v The Queen (1984) 154 CLR 404, 414, 454-456; R v Saleam (1989) 16 NSWLR 14, 17; R v Mokbel (Ruling No 1) (2005) VSC 410, [40].
[17]R v Saleam (1989) 16 NSWLR 14, 18. See also R v Sergi [1998] 1 Qd R 536; R v Saleam [1999] NSWCCA 86, [11].
Further to the principle identified in paragraph 9(a), it has been held in several cases that it is the duty of the court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made.[18]
[18]Ali Tastan (1994) 75 A Crim R 498 at 504; Hunt J in R v Saleam (1989) 16 NSWLR 14 at 18.
In relation to the principle in paragraph 9(b), the observations of the Court of Appeal in Woolworths Ltd v Svajcer[19] need to be noted. In that case the primary judge did not inspect the documents in question. It is convenient to set the whole of what the Court said on this subject:
[19][2013] VSCA 270 (Nettle, Ashley and Neave JJA) at [40]-[47].
Finally it is necessary to comment on the fact that the judge reached his conclusion without inspecting the witness statements to which the applicant sought access. It may well be that this occurred because, before his Honour, counsel for both the applicant and the respondent accepted the correctness of J Forrest J’s statement in Messade v Baires Contracting Pty Ltd[20] that the Court should not inspect the documents prior to determining whether the applicant had a legitimate forensic purpose in seeking access to them. J Forrest J cited Attorney-General for New South Wales v Stuart[21] (‘Stuart’) as authority for that proposition.
[20][2011] VSC 56, [6].
[21]Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, 681.
Although nothing turns on it in this case, we regard that statement as being too broadly expressed. As the cases cited below reveal, the generally applicable practice is to the contrary.
In National Employers’ Mutual General Association Ltd v Waind and Hill[22] Glass JA said that:
[22][1978] 1 NSWLR 372.
In my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form.[23]
[23]Ibid, 385.
It will not usually amount to an error in the House v King[24] sense for a judge to decide whether access should be granted to documents without inspecting them. However except in cases where the subpoena is plainly too broad, and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether access should be granted. In this case it would have been unnecessary for the judge to inspect the documents because the material produced was based on a ‘bare unsupported assertion’ that there might be something in there that would assist the applicant.
[24](1936) 55 CLR 499.
In Stuart, cited by J Forrest J in support of his proposition (b), the central issue related to the process which should be followed when a party opposed the production of documents on the basis that they were protected by public interest immunity. Hunt CJ at CL said that a party had to establish a legitimate forensic purpose for seeing the documents before the judge considered the questions relevant to public interest immunity and that:
In order to determine whether there is such a legitimate forensic purpose, it is not appropriate for the judge to inspect the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused: Alister v The Queen (at 414, 439, 454). In Alister’s case, the documents were eventually inspected by the High Court because — applying the criterion suggested in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439 — the majority were satisfied that there was some concrete ground for a belief that the documents did contain information which would materially assist the accused, or (as Gibbs CJ put it, at 414) it was ‘on the cards’ that they would do so: see also R v Saleam (at 17‑18).[25]
[25](1994) 34 NSWLR 667, 676.
The point which his Honour was making in the italicised section is that in some cases there may be such a marginal relationship between the documents to which a party seeks access and the issues raised in the proceeding that it would be entirely unnecessary for a judge to inspect the documents on the off‑chance that something might turn up which could advantage the party seeking production (or inspection). In this proceeding, the documents to which Woolworths sought access were exactly of such a character.
In the earlier case of R v Saleam, a second authority to which J Forrest J referred,[26] Hunt J (as he then was) had referred to the legitimate forensic purpose requirement and said that before granting access to subpoenaed documents when a party has objected to that access:
the judge should usually inspect the documents (or those which the Crown may suggest are sufficiently representative) for himself, as it is unfortunately not unknown for the objection taken to be misconceived: see also the remarks of Brennan J in Alister’s case (at 455, 456).[27]
What Hunt J said is apposite to a case in which a legitimate forensic purpose referable to subpoenaed documents has been identified, and the question arises whether any of the documents are relevant to that purpose. But the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ that the documents will assist his or her case.
[26](1989) 16 NSWLR 14.
[27]Ibid, [14].
Before me neither party suggested I should inspect the documents for the purpose of identifying whether there was a legitimate forensic purpose for the inspection of the subpoenaed documents. Indeed, neither party took me to these observations of the Court of Appeal.
It has also been said, in relation to principles identified in paragraph 9(c) and 9(d) that there will be no legitimate forensic purpose if all the party is doing is trying to get hold of the documents to see whether they may assist them in their case. The Court must be satisfied that the documents are relevant to an issue and that there is something in the material then before the Court that makes it appear likely that the documents will materially assist the applicant.[28]
[28]Shaw v Yarranova Pty Ltd, [2011] VSCA 55, [26].
There is a two-part test for whether a subpoena should be set aside.[29] A party may only use the subpoena process if it will serve a legitimate forensic purpose and if it is “on the cards” that the documents will materially assist the party’s case.[30] To satisfy the test, some of the authorities refer to the need to establish that the documents have “apparent relevance” (in the adjectival rather than substantive sense)[31] and distinguish between establishing apparent relevance and the admissibility of the documents as evidence.[32]
[29]Oswal v Carson [2013] VSC 355, [18].
[30]Shaw v Yarranova Pty Ltd [2011] VSCA 55, [26]; R v Saleam [1999] NSWCCA 86, [11].
[31]Trade Practices Commission v Arnotts Ltd(1989) 88 ALR 90, 102–103.
[32]National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, 385; see also Woolworths Ltd v Svajcer, [2013] VSCA 270, [29].
Submissions- SPI
SPI submitted that where a party does not adduce oral evidence from an expert, nor tender his report, it is difficult to see how access to more “remote” documents (here, communications or documents referring to communications between the expert and that party’s lawyers) could have any relevance, serve any legitimate forensic purpose, or materially assist the other party’s case. If all that is asserted is that the documents in question might somehow, in some unspecified manner, assist the other party in the conduct of its case, that is not enough to justify the subpoenas standing.[33] SPI gave as an example the case of Oswal v Carson,[34] where the calculations and methodology used by a third party who is not called as an expert witness have been found to be “most unlikely” to materially assist a party’s case. Logically, more remote communications between a lawyer and an expert referring to an uncalled expert’s calculations and methodology would be even less likely to assist.
[33]SPI written Outline of Submissions dated 21 March 2014 at [12].
[34][2013] VSC 355, [23].
Submissions- plaintiff
The plaintiff put its legitimate forensic purpose as related to the Jones v Dunkel[35] inference it will seek to advance, namely that, by not calling Mr Dunn, the inference available to the plaintiff is that his evidence would expose opinions unfavourable to SPI, or at least not assist SPI. The plaintiff referred to a passage from the reasons of Windeyer J in Jones v Dunkel (but in fact a quote from Wigmore on Evidence) that:[36]
The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted. (emphasis added)
[35](1959) 101 CLR 298, 321.
[36]Ibid.
The plaintiff pointed to the present absence of any explanation for the decision not to call Mr Dunn and submitted that she cannot know whether SPI will seek to submit an explanation, or whether it will attempt some submission to persuade the trial judge that there is some interpretation of the circumstances which should dissuade his Honour from drawing the inference that SPI has declined to call its own longstanding expert because the expert had foreshadowed an opinion that SPI’s practices were materially deficient, relative to appropriate industry practices prior to February 2009.
The chronology, or chain of reasoning as Mr Richter QC, Senior counsel for the plaintiff, put it, that leads to the likelihood that the subpoenaed documents do contain communications or documents relevant to repel, rebut or meet any explanation for not calling Mr Dunn, is as follows:
(a) On 1 June 2012, pursuant to a pre-trial procedure directed by the docket judge, SPI delivered a list of the expert witnesses it intended to call. The list included Mr Dunn and identified him as an expert on asset management principles and identified his topic as SP AusNet’s asset management practices;
(b) In August 2012 SPI filed the expert report prepared by Mr Dunn.[37] At the same time, the plaintiff filed the first report of her asset management expert, Dr Hastings.[38] In September 2012, Dr Hastings filed a supplementary report;[39]
[37]EXP.SPN.300.0001.
[38]EXP.CAM.011.0001.
[39]EXP.CAM.012.0001.
(c) There is a significant difference between the two reports. Mr Dunn confined himself, in effect, to opinions on the question whether SPI’s asset management procedures as documented were consistent with good industry practice. He expressly refrained from opining on the further question whether the procedures as implemented in practice were likewise consistent with good practice. Dr Hastings did address that further question, in close detail;
(d) Following exchange of the written reports, Mr Dunn and Dr Hastings participated in an “expert’s conclave”. They produced a joint report in October 2012.[40] In summary, on questions of the documentation of SPI’s procedures the joint report disclosed little disagreement between the experts. On the further question of SPI’s implementation of those procedures (especially regarding its overhead power lines), Mr Dunn was prepared to comment on a range of matters beyond the scope of his original report. There were elements of agreement and disagreement between the experts in relation to those further questions concerning the implementation of SPI’s documented procedures;
[40]EXP.JOINT.009.0001.
(e) While the experts’ conclave processes were continuing SPI, in accordance with other directions given by the J Forrest J, foreshadowed various objections to Dr Hastings’ reports. They included both “qualification” objections as to whether opinions he expressed were truly matters for expert opinion, in that he made findings of fact (both primary and secondary findings), and objections going to the transparency of the reasoning set out in the two Hastings Reports;[41]
[41]SUB.SPN.006.0001 at 0036 and CRT.SPN.201.0044.
(f) The adjudication of the objections was raised in the course of an administrative mention on 28 January 2014. Directions were given for the hearing of the objections;[42]
[42]Trial day 146 - TRAN.001.146.0001 at 0042.
(g) On 31 January 2014, SPI notified the plaintiff that it had not briefed Mr Dunn with any documents, or any transcript of lay witness evidence in this proceeding, since the commencement of trial;[43]
[43]CRT.CAM.532.0001.
(h) The plaintiff had briefed Dr Hastings with transcript of testimony of a number of lay witnesses and each of the documents referred to during the course of that testimony;[44]
[44]CRT.SPN.084.0001.
(i) On 3 February 2014, the trial judge circulated among the parties a draft list of questions for the asset management concurrent evidence session.[45] The questions explicitly indicated that his Honour expected that Mr Dunn and Dr Hastings would address questions of SPI’s asset management practices as well as asset management documentation;[46]
[45]AID.001.013.0001.
[46]The plaintiff circulated her suggestions as to the draft questions on 5 February 2014.
(j) The qualifications objections were withdrawn on 11 February 2013;[47]
(k) The other objections were argued on 5 and 6 March 2014 and J Forrest J gave his decision and reasons on 21 March 2014 in Matthews v SPI Electricity & Ors (Ruling No 38);[48] and
(l) On 12 March 2014, between the argument of the objections and judgment, SPI notified the plaintiff that it did not intend to call Mr Dunn or rely upon his report or the joint expert report.[49]
[47]CRT.CAM.530.0001.
[48][2014] VSC 102.
[49]CRT.CAM.522.0001.
The plaintiff submitted that in summary, therefore, it is obvious that SPI in 2012 made a forensic decision to confine Mr Dunn to questions about the documentation of its procedures, not their implementation. Confronted with the reports from Dr Hastings which focused on that further question of implementation, its strategy was to seek to exclude Dr Hastings’ evidence rather than attempt to meet it with answering material from Mr Dunn. It decided not to provide Mr Dunn with transcripts which disclosed to him the manner in which SPI actually managed its overhead power lines. Within a very short time after the plaintiff disclosed that she had briefed her expert with further evidence about the manner in which SPI’s procedures translated – or rather, failed to translate – into practice, and after the Judge circulated draft questions to be answered by Mr Dunn and Dr Hastings, which addressed questions of SPI’s asset management practices, SPI withdrew Mr Dunn altogether.
The plaintiff also submitted that:
(a) The subpoenas are not “fishing”. The circumstances described above support an inference that Mr Dunn is available to give evidence but has given SPI cause to expect that his opinions will be seriously unfavourable to its defence, and SPI has withdrawn him for precisely that reason;
(b) Unless and until SPI concedes that the inference may be drawn, there is the potential for SPI to offer an explanation for not calling him later on. That has the effect of putting the plaintiff in a position where she has no answer to the explanation, and the answer may be found in the documents that evidence the communications between Mr Dunn and HSF. Thus the subpoenaed documents are relevant to an issue which has arisen in the course of the trial, namely whether the Jones v Dunkel inference should be drawn; and
(c) It is not the case that all the materials sought by the subpoenas will be hearsay, or could only be used for a hearsay purpose. To give one example, if Mr Dunn is recorded in a letter or file note as having expressed a particular opinion, or confirmed his availability to give evidence, then the fact of that record is relevant as evidence of information in the possession of SPI or HSF at the time the decision was made to withdraw Mr Dunn.
Thus, the plaintiff submitted that it was “on the cards” that the subpoenaed documents reveal the decision making leading to the decision not to call Mr Dunn and that material was relevant to meet any explanation “by circumstances which made some other hypothesis a more natural one than the party's fear of exposure”.
Submissions- SPI in response
In response, SPI submitted that:
(a) The plaintiff did not identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. Rather, it was a case of “something might turn up” in the documents as to why Mr Dunn is not to be called as an expert witness, or relied on;
(b) Unless the plaintiff can point to a real likelihood that the subpoenaed documents do contain information relevant to meeting any explanation for not calling Mr Dunn, then the subpoenas are a “fishing expedition”. To say that the answer may be found in the documents that evidence the communications between Mr Dunn and HSF is to concede that the subpoenas are fishing;
(c) The explanation for not calling a witness comes from the materials presently before the Court in the trial that have been properly adduced in evidence, coupled with the absence of the witness that they say ought to have been called. It is the absence of evidence that is the foundation for the inference. Nothing else. Not what one can glean from subpoenaed documents, which one may not be able to tender anyway;
(d) In the context of an independent expert, there is no inference available. In the decision of J Forrest J in Grinham v Tabro Meats Pty Ltd,[50] it was decided that no Jones v Dunkel inference can be drawn against the defendant in favour of the third party for failing to call two expert witness because, in the context of that case:
[50][2012] VSC 491 at [126]-[130].
(i) The experts signed the expert witness code of conduct provided by Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (Rules);
(ii) Compliance with the requirements of r 44.03 of the Rules, and particularly acknowledgment that a witness will be bound by the code of conduct, prima facie establishes that a witness is not in the camp of any party. Moreover, one of the experts was initially engaged by the plaintiff’s solicitors; and
(iii) The third party could, pursuant to r 44.04 of the Rules, have tendered each of the reports if so minded. Equally so, it would have been open to the third party to call the experts;
(e) The plaintiff is entitled, subject to any contrary order of the Court, to tender Mr Dunn’s report, and perhaps the joint report, under r. 44.04 of the Rules;
(f) The plaintiff is entitled to speak to Mr Dunn, there being “no property in a witness”;
(g) The explanation for the decision not to call Mr Dunn is evident from the Report he has prepared when compared with Dr Hastings Report. Mr Dunn was not briefed to deal with the implementation of the asset management procedures, so far as they concern what might be called the maintenance of the conductor and the circuit breaker (which are the two critical matters) and everything else is more or less common ground between Dr Hastings and Mr Dunn; and
(h) The documents sought by the subpoenas are the subject of client legal privilege enjoyed by SPI, and as Mr Dunn will not be called by it to give evidence and his report will not be tendered, there can be no conduct inconsistent with the maintenance of privilege or productive of unfairness such that any waiver of privilege ought to be implied. Where an expert witness is not called by the party who has retained him and that party does not seek to rely upon his report, privilege in documents that have not been disclosed and which underpin or influence the content of the expert’s report cannot be said to be lost by operation of s 122 of the Evidence Act 2008, or otherwise, because there has been no conduct inconsistent with maintenance of the privilege or resulting in any unfairness requiring rectification by recourse to the privileged material.
In relation to the plaintiff’s observations about the difference between the reports,[51] SPI submitted that the decision to brief Mr Dunn at a general systems level about the asset management system within SPI, and not to ask him to opine about the implementation of the asset management system on the ground, cannot be impugned. SPI had put at least five lay witnesses in the box to explain the asset management system because SPI saw it as a matter of factual evidence. Broadly speaking Dr Hastings and Mr Dunn were in agreement about the asset management system within SPI at the general systems level. The mismatch in the evidence will have the result that Dr Hastings will have all his evidence being given in respect of the implementation “on the ground”, as it were, of the procedures, and there will be no expert evidence from SPI in relation to that matter.
[51]Namely that Mr Dunn confined himself, in effect, to opinions on the question whether SPI’s asset management procedures as documented were consistent with good industry practice, whereas Dr Hastings addressed the further question, whether the procedures as implemented in practice were likewise consistent with good practice, in close detail.
What this means, in the context of the dispute before me, is that it is likely that at the end of the trial SPI will submit no Jones v Dunkel inference should be drawn because in relation to the evidence that might have been given by Mr Dunn, there is little dispute with Dr Hastings and in relation to the area covered by Dr Hastings, that is not the subject of Mr Dunn’s evidence.
Reasoning
The Rule in Jones v Dunkel
Cross on Evidence[52] states the rule in Jones v Dunkel, in part, in the following way:
First, unexplained failure by a party to give evidence, to call witnesses,[53] or to tender documents[54] or other evidence or produce particular material to an expert witness[55] may (not must)[56] in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.[57]
[52]Australian on line edition at par 1215.
[53]Australian Blue Metal Ltd v Hughes (1962) 79 WN (NSW) 498 at 513; op cit Cross on Evidence at [1215].
[54]Burke v LFOT Pty Ltd (2002) 187 ALR 612; [2002] HCA 17; at [134]; Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184; at [124]-[131].
[55]Jones v Multiple Sclerosis Society [1996] 1 VR 499 at 506 (FC), op cit Cross on Evidence at [1215].
[56]Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287 (FC), op cit Cross on Evidence at [1215].
[57]Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-1; Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582 ; O'Donnell v Reichard [1975] VR 916 at 929 (FC); Brandi v Mingot (1976) 12 ALR 551 at 559-60; 51 ALJR 207; (HC). This sentence was approved in R v Navarolli [2010] 1 Qd R 27; [2009] QCA 49; BC200901489 at [2], op cit Cross on Evidence at [1215].
The availability of the inference in the case of an independent expert who has agreed to abide by the expert witness code of conduct, as Mr Dunn plainly did, is seriously to be doubted for the reasons given by J Forrest J in Grinham v Tabro Meats Pty Ltd.[58] But there are other factors relevant to the availability of the inference in these proceedings as well, as follows:
(a) Failure to call an expert witness may not attract the principle where there is no issue on which the witness's evidence would assist;[59] and
(b) The rule only applies where a party is “required to explain or contradict” something.[60] What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts “requiring an answer”.[61]
[58][2012] VSC 491 at [126]-[130].
[59]Packer v Cameron, (1989) 54 SASR 246 at 253-4 (FC), op cit Cross on Evidence at [1215].
[60]Jones v Dunkel (1959) 101 CLR 298 at 321, op cit Cross on Evidence at [1215].
[61]Jones v Dunkel (1959) 101 CLR 298 at 322, op cit Cross on Evidence at [1215].
There are many other aspects of the rule that are not relevant here, save perhaps the often difficult matter to apply in particular cases, that the rule cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call the witness.[62]
[62]O'Donnell v Reichard [1975] VR 916 at 929 (FC), op cit Cross on Evidence at [1215].
Legitimate forensic purpose
Mr Richter QC contended (as I have related in more detail above) that there was a legitimate forensic purpose in the subpoenas because of the fact that there was a reasonable likelihood that the documents produced in response will contain some explanation for why Mr Dunn is not being called, or show that there is no proper basis to resist the Jones v Dunkel inference. The documents the subject of the subpoenas are predominantly concerned with communications between Mr Dunn and HSF in relation to the proceedings, including attendance and billing records concerned with meetings between Mr Dunn and the legal advisors to SPI.
The nature of the documents specified in the subpoenas thus has the potential to reveal communications that explain the decision not to call Mr Dunn to give evidence. But the relevance to the proceeding of that explanation is not certain. The availability of the Jones v Dunkel inference is difficult to predict. I think in an application of this kind I must take the plaintiff’s case at its highest, and conclude that despite the decision of J Forrest J in Grinham, it remains possible that a Jones v Dunkel inference may yet be available to the plaintiff. I reach that conclusion because the rule applies where a party is "required to explain or contradict" something.[63] What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. An inference can be drawn if evidence is given of facts requiring an answer. I see no reason in principle why, in the context of addressing expert opinion advanced by the plaintiff, the same principle cannot apply to expert evidence in the circumstances of this case.
[63]Jones v Dunkel (1959) 101 CLR 298 at 321, op cit Cross on Evidence at [1215].
Those circumstances are, in summary, that SPI has engaged an expert to give a report on a subject, limited though it is in the case of Mr Dunn, and after that has offered Mr Dunn as a proposed expert witness to participate in conclaves of experts, with the production of a joint report of himself and the expert engaged by the plaintiff being the result of the conclave. That joint expert report sets out to identify areas of agreement and disagreement between the experts, and in relation to the areas of disagreement, to set out detailed reasons for the basis upon which the experts are unable to agree on any matter.[64]
[64]Appendix A to the Joint Report dated 26 October 2012, EXP.JOINT.009.0001.
These circumstances are entirely distinct from those facing J Forrest J in Grinham. In that case, although reports of the expert medical practitioners may have been served, they had not been relied on in any way. The experts were simply not called. There was no information available as to their views on the issues before the Court. All that was known to the Court was that they were to be called to give evidence to support the adequacy of the treatment provided by the general practitioner third party to the plaintiff.
This case is significantly different. As I have said, Mr Dunn’s report is on the record. It has been pored over by the legal representatives of the plaintiff. It has been the subject of expert conclaves and lead to the production of the joint report.
I disagree with the submission of SPI that the plaintiff has not identified expressly and precisely the legitimate forensic purpose for which access to the documents is sought. The purpose, and the apparent relevance (not including any question of admissibility), is precisely demonstrated by the desire of the plaintiff to identify an explanation for the decision not to call Mr Dunn so as to enable it to be met, or dealt with.
In making its submission in regard to the existence of a legitimate forensic purpose, Mr Quinn SC, counsel for SPI, submitted that this was a case of “something might turn up” in the documents as to why Mr Dunn is not to be called as an expert witness, or relied on. It seems to me that in making this submission, SPI conflated the two stage test and applied to the first stage the test applicable to the second stage, namely the ‘on the cards’/fishing dichotomy. These are the matters that are decisive, to which I now turn.
On the Cards
In R v Saleam,[65] in relation to the determination of the question whether access should be granted to subpoenaed documents, Hunt J applied the criterion suggested by Gibbs CJ in Alister v The Queen[66] as the criterion which had to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made. That criterion is: the Judge must be satisfied that it is “on the cards” that the documents would materially assist the accused in his defence.
[65](1989) 16 NSWLR 14 at 18, Court of Criminal Appeal in NSW, Carruthers and Grove JJ agreeing.
[66](1984) 154 CLR 404 at 455-6.
In Saleam, Hunt J also pointed to the adoption by both Brennan J and Gibbs CJ in Alister v The Queen[67] as a starting point for fixing the criterion to be applied in such a task the test which was suggested by Lord Wilberforce in Air Canada v Secretary of State for Trade[68]—that, before a court inspects the documents for which a claim for public interest immunity has been made, there must be some concrete ground for its belief that ultimately access to the documents would be permitted, so as to take the case beyond a mere fishing expedition. Both the Chief Justice and Brennan J thought that, because it was a criminal case, special weight had to be given to the fact that the documents might assist an accused person whose liberty is at stake: Sankey v Whitlam (1978) 142 CLR 1 at 42, 61-62. Gibbs CJ (at 414) said that, although a mere fishing expedition could never be allowed, it may be enough in such a case that it appears to be “on the cards” that the documents would materially assist the accused.
[67]At 456 and at 414, respectively.
[68][1983] 2 AC 394 at 439.
Thus the requirement that it is “on the cards” that the documents sought will materially assist the prosecution of the plaintiff’s case at trial is, in a sense, the counterpart of a “fishing expedition”, which will never be allowed, and requires some concrete ground for the contention that the documents will assist in the legitimate forensic purpose advanced.
It seems to me that in this case the “chain of reasoning” or the chronology of events as advanced by Mr Richter QC, do not give rise to any concrete ground or reason to suppose that the subpoenaed documents contain some explanation for the decision not to call Mr Dunn. Indeed, I consider it most unlikely that some email, or some conference or telephone note, would be likely to reveal that Mr Dunn was told why SPI decided not to call Mr Dunn. That sort of decision, and the reasons for it, are likely to be closely held and not revealed so as not to reveal the legal strategy of SPI outside its senior officers and lawyers. The explanation is much more likely to be deduced, as Mr Quinn SC suggested, from the terms of the respective engagements of Mr Dunn and Dr Hastings, the content of their respective reports, and the differences between them outlined above, and from the other evidence called by SPI regarding matters of asset management.
Fishing
A fishing expedition is an attempt to find out whether the person to whom the summons is addressed has or has not any documents relevant to an issue and, if so, what those documents are. In The Commissioner for Railways v Small,[69] Jordan CJ described fishing as endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all, or to discover the nature of the other sides evidence.
[69](1938) 38 SR (NSW) 564, 575.
Perhaps the most descriptive metaphor is the one used by Owen J in Associated Dominion Assurance Society Pty Ltd v Sir John Fairfax & Sons Ltd:[70]
A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.
[70](1952) 72 WN (NSW) 250 at 254, see also Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114 at 130.
The essential basis of the plaintiff’s contention that the subpoenaed documents contain material relevant to explain the reason for not calling Mr Dunn is the chain of reasoning to which I have referred above (paragraph 18) and the supposition that because Mr Dunn has been involved for so long, there is a reasonable expectation that he would be told why he’s not to be called.
This seems to me, however, to be a case in which the plaintiff, although knowing that there were communications between HSF and Mr Dunn, does not know, and has advanced no basis for knowing or even suspecting, what are the contents of the documents. The plaintiff cannot claim to look at the documents merely to see whether they contained something which might be relevant or help her case.[71]
[71]Carroll v Attorney-General (NSW ), (1993) 70 A Crim R 162, 182; See also Woolworths Ltd v Svajcer, [2013] VSCA 270 (Nettle, Ashley and Neave JJA) at [32].
It is therefore plain that the plaintiff is on a fishing expedition, in the sense that she has no evidence or basis to suggest that fish of a particular kind are in the pool but want to drag the pool in order to find out whether there are any such fish there or not.
Inspection
I have not, I should emphasise, inspected any of the documents, although I have reviewed the index prepared by HSF of the documents, and I have read the affidavit of Ruth Elizabeth Overington sworn 24 March 2014 which seeks to substantiate the claims to privilege with respect to the documents, or most of them.
I have not inspected the documents because I consider this to be a case where the subpoenas are plainly too broad, and merit the description of a fishing expedition. In that situation, as the Court of Appeal said in Woolworths, it will ordinarily not be an error for the judge not to inspect the documents for the purpose of making a final decision as to whether access should be granted. That is, this is a case where it is unnecessary for me to inspect the documents because the material produced is based on a ‘bare unsupported assertion’ that there might be something in them that would assist the plaintiff.
Waiver
In light of my conclusions that –
(a) It has not been established that it is “on the cards” that documents of the kind sought to be inspected are contained in the subpoenaed documents; and
(b) Therefore the plaintiff is seeking to go “fishing” for documents that may assist its case in relation to the reasons for the decision not to call Mr Dunn,
it is unnecessary to decide the issue raised as to whether, in the circumstance where Mr Dunn is not to be called by SPI, the waiver that I decided had occurred in relation to the Vasey documents in my February 2013 decision (Matthews v SPI Electricity Pty Ltd & Ors [2013] VSC 33) does not apply in this case.
Conclusion
For the reasons given, I will order that the subpoenas to Mr Dunn and to HSF shall be set aside and the costs of the application be reserved.
8
12
0