| 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…
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- Case
- [2011] VSC 401
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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