Matthews v SPI Electricity Pty Ltd & Ors - [2011] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 04788

CAROL ANN MATTHEWS	Plaintiff
v
SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Defendant
(by original proceeding)
and between
SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Plaintiff by counterclaim
v
UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) and ORS	Defendants by counterclaim

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 10 & 16 August 2011
DATE OF JUDGMENT:	30 August 2011
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 401

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PRACTICE AND PROCEDURE – Discovery – Ediscovery – Application to extend discovery to documents created after the event – Whether a likely claim of privilege prevents discovery – Whether searches extending 40 years are oppressive – Collaborative approach to discovery – Overarching purpose – s 7 Civil Procedure Act 2010 (Vic) – Order 29 Supreme Court (General Civil Procedure) Rules 2005 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Armstong	Maurice Blackburn & Co
For the Defendant	Mr D Farrands	Freehills
For the Defendant by counterclaim	Mr W R Ray QC Ms E Brimer	Holman Fenwick Willan
For the Third Fourth and Fifth Defendants	Mr S O’Meara Ms A L Robertson	Norton Rose

HER HONOUR:

The applications

There were three discovery applications before the Court, directed to the first defendant, SPI Electricity Pty Ltd (“SPI”):

(1)The third, fourth and fifth defendants, (“the State Parties”), seek general discovery from SPI:
(a)in accordance with SPI’s July Proposal;[1]
[1]Affidavit of Nicole Joy Wearne sworn 1 August 2011, Exhibit NJW-9.
(b)including discovery for the period from January 2007 to 31 July 2010, of documents contained within:
(i)SPI’s Board papers and minutes;
(ii)the Audit and Risk Management Committee (a sub-committee of SPI’s Board);
(iii)the Bushfire Litigation Committee (a sub-committee of SPI’s Board);[2]
[2]The plaintiff also seeks discovery by SPI in the same terms as the third, fourth and fifth defendants as described in 1(b)(i), (ii) and (iii).

(2)the second defendant, Utilities Services Corporation Limited (trading as Utility Asset Management (“UAM”)) seeks discovery pursuant to r 29.01.1 or alternatively 29.05.2; 29.07; or 29.08 that SPI discover documents within the following classes:

Class 1 -

copies of any contracts, agreements and/or other documents in SPI’s possession, custody or power which within their scope deal with the inspection and/or field services and/or maintenance of the Pentadeen Spur (as defined in SPI’s defence and counterclaim) for the period 1994 onwards;

Class 2 –

copies of any inspection manuals in SPI’s possession, custody or power which pre‑date the Asset Inspection Manual (referred to in paragraph 19B(d) of SPI’s defence and counterclaim);

Class 3 –

copies of any records in SPI’s possession, custody or power of the inspection and/or maintenance of the Pentadeen Spur, including (without limitation) any aerial inspections prior to and subsequent to the time at which SPI took over ownership and operation of the distribution network in 1994.

(3)the plaintiff seeks discovery from…

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: [2011] VSC 401
Decision Date: 30 August 2011

CaseChat Overview and Summary

Matthews brought an action against SPI Electricity Pty Ltd and others seeking damages for personal injury. The dispute involved the discovery of documents relevant to the case, specifically those created after the event in question. The application was made in the Supreme Court of Victoria, highlighting the challenges in ediscovery and the scope of discovery in cases involving extensive document searches.

The court was required to decide whether a likely claim of privilege could prevent the discovery of certain documents. Additionally, it needed to consider whether the proposed searches, which extended back 40 years, were oppressive and whether the application of the overarching purpose under section 7 of the Civil Procedure Act 2010 (Vic) and Order 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) warranted an extension of discovery to include post-event documents.

The court found that a likely claim of privilege was insufficient to prevent discovery. It emphasised the importance of a collaborative approach to discovery and the need to consider the overarching purpose of facilitating just, efficient, and expeditious resolution of real issues. The court held that the searches, although extensive, were not oppressive given the relevance of the documents to the case. Consequently, the application to extend discovery to include documents created after the event was successful.

The court ordered that discovery be extended to include documents created after the event, subject to the parties' agreement on privilege and redaction where necessary. The court also directed the parties to adopt a collaborative approach to discovery, aiming to resolve the dispute efficiently and justly.

Orders