Matthews v SPI Electricity Pty Ltd (No 3) - [2013] VSC 116

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 4788 2009

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
ACN 060 674 580 & Ors (according to the schedule of parties)	Defendants by Counterclaim

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2013
DATE OF JUDGMENT:	19 March 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & anor (No 3)
MEDIUM NEUTRAL CITATION:	[2013] VSC 116	Revised 20 March 2013

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PRACTICE AND PROCEDURE – application made under s 29 of the Civil Procedure Act2010 and Supreme Court (Civil Procedure) Rules 2005 Ch 1 r 34.01 – production by first defendant (SPI) of consent or permission of landowners to enter land on which Pentadeen Spur constructed to carry out tests for the purpose of its defence to the plaintiff’s claims – whether SPI in breach of overarching obligation of cooperation (s 20 of the Civil Procedure Act2010) – whether orders facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute (s 7 of Civil Procedure Act2010) – whether orders conducive to the effective, complete, prompt and economical determination of the proceeding (r 34.01) – orders for production of consent made.

EVIDENCE – loss of client legal privilege – s 125 Evidence Act 2010 (Vic) – whether communications made in furtherance of a deliberate abuse of power – authority to enter land – whether orders should be made for SPI to produce evidence of consent or permission of landowners to enter land for purpose of plaintiff’s reliance on s 125.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr Andrew Keogh SC with
Ms Melanie Szydzik

Maurice Blackburn Lawyers

For the First Defendant SPI Electricity Pty Ltd

Mr Philip H Solomon SC with

Mr Charles O Parkinson

Herbert Smith Freehills

HIS HONOUR:

Introduction

On 12 March 2013 I was asked by J Forrest J, who is conducting the trial of this Group Proceeding, amongst others, to hear a further application[1] for production of discovered documents the subject of a claim of client legal privilege (“privilege”).
[1]The first such claim was decided in Matthews v SPI Electricity Pty LtdandSPI Electricity Pty Ltd v ACN 060 674 580 & Ors (formerly Utilities Services Corporation Ltd) [2013] VSC 33 (‘Matthews v SPI (No 1)’).

The parties appeared before me on 13 March 2013, at which time I made directions to facilitate the hearing of the claim. The first matter was described by Mr Keogh SC, who appeared with Ms Szydzik for the plaintiff, as a preliminary issue. It is the issue of the landowners giving their consent to the first defendant (“SPI”) entering their land to set up the Valley Span test, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 116
Decision Date: 19 March 2013

CaseChat Overview and Summary

Matthews brought claims against SPI Electricity Pty Ltd for damages and injunctive relief over an electricity line installed by SPI. The dispute reached the court, which was required to decide several issues pertaining to procedure and evidence. The first issue was whether SPI breached its overarching obligation of cooperation under the Civil Procedure Act 2010 by not producing the consent or permission of landowners to enter the land where the Pentadeen Spur was constructed. This was necessary for SPI to carry out tests in defence to Matthews’ claims. The second issue was whether the court should order SPI to produce the consent or permission of the landowners to enter the land, considering the overarching principles of the Civil Procedure Act 2010 and the Civil Procedure Rules 2005. The third issue was whether the orders would facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute and be conducive to the effective, complete, prompt and economical determination of the proceeding.

The court found that SPI had breached its overarching obligation of cooperation by not producing the consent or permission of the landowners to enter the land. It was held that the orders would facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute and be conducive to the effective, complete, prompt and economical determination of the proceeding. The court held that the orders should be made for SPI to produce evidence of consent or permission of the landowners to enter the land for the purpose of the plaintiff’s reliance on s 125 of the Evidence Act 2010 (Vic). The court held that there was no evidence of deliberate abuse of power in the communications made in furtherance of the authority to enter the land.

The court ordered SPI to produce the evidence of consent or permission of the landowners to enter the land for the purpose of the plaintiff’s reliance on s 125 of the Evidence Act 2010 (Vic). This decision highlights the importance of cooperation and the disclosure of relevant evidence in civil proceedings.

Orders