Matthews v SPI Electricity Pty Ltd [Ruling No 20]
[2013] VSC 197
•29 April 2013
| 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: | 10 April 2013 | |
DATE OF RULING: | 29 April 2013 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 20) | |
MEDIA NEUTRAL CITATION: | [2013] VSC 197 | Revised 6 March 2014 |
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PRACTICE AND PROCEDURE – Application to file and serve supplementary expert report – Late service of expert report – Failure to notify parties of information provided to expert in breach of Court orders – Adequacy of explanation for breach of orders – Prejudice – Prejudice avoidable by way of further orders – Leave to file and serve expert report granted subject to certain conditions and further orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Richter QC with Mr T Tobin SC Mr A J Keogh SC Mr L WL Armstrong & Ms M Szydzik | Maurice Blackburn |
| For SPI Electricity Pty Ltd | Mr J BR Beach QC with Mr P H Solomon SC Mr B F Quinn SC Mr D J Farrands Mr C O Parkinson & Mr J H Kirkwood | Freehills |
| For USC | Mr R Ray QC with Ms E M Brimer | Holman Fenwick Willan |
| For the State parties | Mr C M Caleo SC with Mr P E Anastassiou SC Ms W A Harris SC Ms S A O’Meara SC Mr P Zappia Ms A L Robertson Dr M D Rush Mr N McAteer & Mr A D Pound | Norton Rose |
HIS HONOUR:
Introduction
On 8 April 2013, without notice, Mrs Matthews’ solicitors served and filed an expert report prepared by Mr Henry Hawes, a consulting engineer, dated 5 April 2013 (“Hawes Supplementary Report”). This was supplementary to Mr Hawes’ report dated, filed and served on 22 August 2012 (“First Hawes Report”). Mrs Matthews now seeks leave to rely upon the supplementary report.
The exchange of expert reports was scheduled to conclude prior to the eleven expert conclaves meeting and producing joint expert reports. With one notable exception, this process has proceeded relatively smoothly. The exception is Conclave 3, one of three conclaves – the others being Conclaves 1 and 4 – which are directed (in different ways) towards the cause of the fracture of the Valley Span conductor,[1] a central issue in the case against SPI. Conclave 3 (which is comprised of experts with considerable expertise in metallurgy and fracture mechanics) has conducted a “quantitative” analysis of the impact of loads or stresses on strands of the conductor. It has been necessary to reconvene this conclave on two further occasions which, in total, has produced three separate reports – the latest on 21 March 2013.
[1]This is the name given to the conductor between poles 38 and 39 of the Pentadeen Spur which fractured at a point close to Pole 38.
Undoubtedly, the major factor that has prevented the experts in Conclave 3 addressing these issues expeditiously is a series of field tests set up by SPI on the Valley Span.[2] The field tests comprise three “dummy” conductors which have been erected in an effort to replicate the original conductor and to test the effects of the conditions on that span on the conductors. The tests were set up in around March last year and continue to the present time. There is considerable debate about their efficacy and much of the Hawes Supplementary Report is directed towards asserted deficiencies in the field tests.
[2]“the field tests”.
The results of the field tests have been considered primarily, if not solely, by the members of Conclave 3. Mr Hawes, who is not an expert in fracture mechanics or metallurgy, has not been part of that conclave. He is a member of Conclave 4, which dealt with “qualitative” analysis of the impact of loads or stresses on strands of the conductor. However, Mr Hawes’ lack of “quantitative” expertise does not prevent him, as an expert engineer with considerable experience in the power industry, from relying upon that expertise to comment upon the adequacy or otherwise of the field tests.
One of the problems with permitting the Hawes Supplementary Report to now be introduced into evidence is that it deals not only with the adequacy of the field tests but also with a variety of other items associated with his inspection of the top of pole 39 in February 2013.
The application by Mrs Matthews is strongly opposed by SPI and USC although USC is willing to consent to the admission of some parts of it. The primary argument against the application is that the report has been filed too late in the proceeding and in circumstances where Mrs Matthews’ solicitors have covered up the fact that Mr Hawes was preparing such a report. It is said that if Mrs Matthews were to be granted leave to rely upon the report, it would potentially re-enliven the conclave process, be extraordinarily disruptive and contrary to the spirit of various orders I have made in the course of this proceeding. SPI has adopted a fall-back position such that if leave is granted, then only parts of it should be admitted.
Whilst there is force in each of the submissions made by SPI and USC, ultimately the question is whether it is in the interests of justice to permit the Hawes Supplementary Report to be relied upon notwithstanding the inevitable disruption it may cause to what was thought to be a settled process. At times, there is a price to be paid to ensure a fair trial – in this case I think it is relatively modest.
For the reasons that I will set out now, I think that Mrs Matthews should have leave to rely upon the Hawes Supplementary Report. However, such leave should be subject to certain conditions that I will spell out at the end of this ruling.
Current status of the trial and anticipated date of expert evidence
The Hawes Supplementary Report was filed and served at the beginning of week five of this trial. The trial is set down to run until February 2014. We are now approaching the end of Mrs Matthews’ lay evidence with SPI to commence its case next week. Expert evidence is expected to commence in early October, some five months away. I anticipate the concurrent evidence sessions on the issues associated with the failure of the conductor will commence in early to mid-November.
Background
The background to this proceeding has been set out in previous rulings given by myself and others.[3] However, it is helpful to briefly set out those matters which are directly relevant to this ruling.
[3]In particular, I have utilised the history given by Derham AsJ in his ruling Matthews v SPI Electricity Pty Ltd & Ors and SPI Electricity Pty Ltd v ACN 060 674 580 & Ors [2013] VSC 33.
Mrs Matthews says that the Kinglake / Kilmore East bushfire was ignited as a result of the conductor strung on the Valley Span falling to the ground close to pole 39. Mrs Matthews alleges that the conductor’s failure and the consequential fire were caused by a breach of duty by SPI in the management, inspection and engineering of the Valley Span.[4]
[4]Plaintiff’s Eighth Amended Statement of Claim, dated 25 February 2013.
The Valley Span consisted of one conductor, of approximately 1050 metres in length, made of 3 strands of galvanised 12 gauge steel wire helically wound together. Although it seems to be agreed between the experts that some external factor (most likely lightning) caused the initial damage to two of the three strands of the conductor, Mrs Matthews says that these initial fractures would not have propagated to the point of conductor failure but for the incidence of Aeolian vibration.
Mrs Matthews alleges that the Valley Span fell into a high risk category for Aeolian vibration—high-frequency, low-amplitude vibration induced by wind —and that SPI should have installed spiral vibration dampers on the span to prevent or reduce vibration. Mrs Matthews asserts that the Valley Span failed on Black Saturday due to Aeolian vibration and would not have failed if a damper had been installed.
SPI denies that the conductor failed due to Aeolian vibration. The expert reports filed on behalf of SPI acknowledge that the fractures in the conductor propagated due to metal fatigue but say that the fatigue was caused by something other than Aeolian vibration. SPI’s defence on this point relies substantially upon the results of the field tests supervised by Mr John Vazey, one of the experts in Conclave 3. The detail of these tests is set out at [27]-[32].
A number of data sets have been obtained as a result of the field tests and provided to various experts. Some of the experts rely on the field test data in providing their opinions. The members of Conclave 3 have also spent much time considering this test data which has been the subject of further joint reports in 2013. Mr Vazey has also prepared two reports, dated 22 August and 19 October 2012. Notably, the field tests are ongoing and data is still being collected.
Orders made concerning expert evidence and the composition of the conclaves
Prior to the trial commencing, I made a number of orders concerning the filing of expert evidence, the composition of the conclaves, the exchange of material, and post-conclave exchange of reports. I summarise the relevant aspects of this history below.
On 16 December 2011, I made orders requiring that the parties file and serve all expert reports by 17 August 2012.
On 4 May 2012, I made orders requiring that the parties file and serve a final list of expert witnesses by 25 May 2012.
On 30 August 2012, I made a number of orders including:
2. Any supplementary reports of Prof. Hastings, Mr Hawes, Dr Gates, Mr Smith, Dr Marsden-Smedley, Mr Incoll and Prof. Barter be filed and served by 21 September 2012.
…
4. Each party identify to each other party any material provided or made available to an expert for the purposes of any supplementary or reply report, within 7 days after providing the material or making it available to that expert. [5]
[5]Matthews v SPI, Order of J Forest J dated 30 August 2012.
At the Directions Hearing on 30 August 2012, I also heard submissions regarding the composition and conduct of the conclaves of expert witnesses. Two proposed models were put to me (the “Maurice Blackburn Model” and the “Freehills Model”). On 3 September 2012, I made an order that the Freehills Model be adopted. My reasons for this decision are set out in Ruling 10, delivered on 4 September 2012.[6]
[6]Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No.10) [2012] VSC 379.
The Freehills Model provided for specific, issue-by-issue conclaves and, although it was anticipated at the time of that Ruling that there would be fourteen or so conclaves, ultimately there have been eleven. Of these, Conclaves 1, 3, and 4 go directly to the cause of the conductor failure.
In the course of that ruling, I made the following remarks:
Fifth, the provision of joint reports using the Freehills model does not determine the composition of the concurrent evidence sessions at trial. Once the reports are considered it may be appropriate to hold a concurrent evidence session involving experts from more than one conclave. This can be determined once the joint reports are received.
Finally the submission of Mrs Matthews misunderstands, I suggest, the role of the expert and that of the Court. This is not a trial by expert. It is for the Court to determine the issues having regard to all the evidence whatever the source. If the expert evidence, or for that matter the evidence generally, emerges in a piecemeal fashion then that is a problem Courts regularly meet and resolve.[7]
[7]Ibid [11]-[12].
The scientific / engineering issues
The parties have outlined the principal scientific/engineering questions relevant to the fracture of the conductor as follows:
Principal issues:
1. Why did the Valley Span conductor fail on 7 February 2009?
2.What was the role of the quench cracks at the base of the depressions in Strands 3 and 2 in the failure of the conductor?
3.On the balance of probabilities, was Aeolian vibration a cause the failure of the Valley Span conductor on 7 February 2009?
4.On the balance of probabilities, would the installation of spiral vibration dampers have prevented the failure of the Valley Span conductor on 7 February 2009?
Sub-issues:
(a)What magnitude and number of stress cycles was required to (i) initiate, and (ii) propagate, fatigue cracks from the quench cracks in Strands 3 and 2?
(b)What magnitude and number of stress cycles would have been produced in the conductor by Aeolian vibration?
(c)What magnitude and number of stress cycles would have been produced in the conductor by other (non-Aeolian) forms of vibration or load events?
(d)What would have been the effect of a spiral vibration damper on the failure of the conductor? Prevention? Delay? No difference?
(e)What was the relative timing and mode of failure of each of Strands 3, 2 and 1?
(f)What is the relevance of the 45 degree fracture plane observed on strands 3 and 2 to the mode of failure?
The general topics that were addressed by Conclaves 1, 3, and 4, as well as the members of each of the conclaves, are set out below:[8]
[8]A more detailed list of the issues for the consideration of each of these conclaves can be found in Matthews v SPI Electricity & Ors (Ruling19) [2013] VSC 180 [6]–[9].
(a) Conclave 1:
(i) issue – conductor failure;
(ii) members – Dr Gates and Mr Better for Mrs Matthews; Dr Barter for SPI; and Mr Gartner for USC.
(b) Conclave 3:
(i) issue - quantitative impact of loads and stresses on the primary fractures;
(ii) members – Dr Gates, Associate Professor Meehan, and Mr Better for Mrs Matthews; Dr Barter, Dr Potts, and Mr Vazey for SPI; and Dr Havard and Mr Gartner for USC.
(c) Conclave 4:
(i) issue – qualitative impact of loads and stresses on the primary fractures;
(ii) members – Mr Hawes, Professor Baitch, and Mr Better for Mrs Matthews; Dr Barter for SPI; and Mr Gartner and Dr Havard for USC.
As is evident, some experts are members of more than one conclave. I note again that Mr Hawes is a member of Conclave 4 (qualitative analysis) but not of Conclave 3 (quantitative analysis).
Despite the distinction that has been drawn between Conclaves 3 and 4, the division is porous and, to an extent, artificial. This artificiality is reflected in the content of the Hawes Supplementary Report which specifically responds to and comments upon the reliability of the field tests and opines on the Aeolian vibration theory as it affected the conductor. It also makes direct responses to the content of the third report of Conclave 3 and reports of two experts engaged by SPI, Dr Potts (member of Conclave 3) and Mr Barter (member of Conclaves 1, 3, and 4).
The field tests
In 2012, SPI engaged Mr John Vazey, Senior Mechanical Engineer of BMT WBM Pty Ltd, to design a field test involving the installation of three conductors on the poles supporting the Valley Span. He was also engaged to collect data from the field test once erected and to provide analytical reports regarding that data.
Having designed the test, Mr Vazey instructed SPI to install three “dummy” conductors spanning between poles 38 and 39. They were to be strung as per a “typical installation” with a similar level of tension and sag to the overhead live conductor. Each was strung under slightly different conditions with the aim of differentiating possible causes of the failure of the original conductor.
The dummy conductors have been strung such that there is a vertical distance of approximately 3.3 metres between the live conductor and the highest of the dummy conductors. There is then a vertical distance of approximately 350 millimetres between each of the dummy conductors. Below is a photograph of the set up at pole 39 showing those three conductors below the energised conductor now fitted with vibration dampers.
Photograph of the current pole 39 showing attached test equipment[9]
[9]Exhibit CAM.511.001.0044.
Raw data from the field tests has and continues to be collected. It has been provided to Mrs Matthews’ solicitors in tranches on 18 June, 3 August, 22 October and 3 December 2012 and 5 April 2013.[10] Mrs Matthews’ solicitors were also provided with additional data points on 25 January 2013.[11] The data initially provided by SPI was not in a format which was interpretable by Mr Hawes, a fact to which SPI was made aware of prior to the filing of the First Hawes Report. Mrs Matthews says that this issue was not fully rectified by SPI until the provision of data to Mrs Matthews’ solicitors on 25 January 2013.
[10]Affidavit of Mr Watson dated 10 April 2013 [20] and Exhibit.
[11]. Affidavit of Mr Watson dated 10 April 2013.
Mr Vazey has relied on the test data to prepare his two reports (dated August and October 2012).
Conclave 3 has utilised this data in its discussions during three separate sessions held in 2012 and 2013. These sessions have led to the production of three joint reports dated 3 February 2012, 15 February 2013 and 21 March 2013.
The First Hawes Report
The First Hawes Report, prepared before the separation of experts into conclaves according to topic and expertise, addresses the following topics:
(a) design and construction of the Valley Span, including relevant details and characteristics of the associated hardware and the tensioning of the conductor;
(b) maintenance of the Valley Span, including by reference to observations of pole 39 and its hardware made in March 2012;
(c) any departures from usual practice in the installation and maintenance of the Valley Span and their significance in relation to the conductor failure; and
(d) a number of issues relating to the design and function of the helical termination assembly on pole 39, the risks likely to arise if the assembly was not functioning correctly, and the significance of any misalignment of the helical termination.
The Hawes Supplementary Report
The Hawes Supplementary Report addresses the following topics:
(a) characteristics of the original conductor as compared to the dummy conductors and the relevance of this to assessing possible causes of conductor failure;
(b) tensioning of the original conductor as compared to the tensioning of the dummy conductors, including the relevance of this to assessing possible causes of conductor failure;
(c) the field test data, highlighting issues he identifies with the data;
(d) geographical and topographical features of the Valley Span site and their influence on the reliability of the field test results. These comments rely on the observations made on-site on 12 December 2012;
(e) the state of pole 39 and its components, relying on observations made on 11 February 2013 and any conclusions he says can be drawn from these observations as to the possible cause of conductor failure. Notably, Mr Hawes was accompanied by a Professor Crews, a wood technology expert during this inspection;
(f) various aspects of Dr Barter’s supplementary report (dated 23 January 2013);
(g) various aspects of Dr Potts’ first and supplementary reports (dated 25 January and 26 March 2013 respectively); and
(h) the third report of Conclave 3, dated 21 March 2013.
The Hawes Supplementary Report relies on, at least, the following information additional to that contained or relied upon in the First Hawes Report:
(a) field test data obtained after the preparation of his first report;
(b) field test data made available to Mr Hawes initially in a format which he was unable to use, and later provided to him in an accessible format;
(c) the two Vazey reports;
(d) the third report of Conclave 3;
(e) the first and supplementary reports of Dr Potts;
(f) the supplementary report of Mr Barter;
(g) the observations by him at a view made at the Valley Span on 12 December 2012; and
(h) the observations made of pole 39 and its hardware on 11 February 2013.
In particular the Hawes Supplementary Report deals with the following matters relevant to the field tests:
(a) Dummy conductor - materials and tension: Mr Hawes critiques the materials used in the tests and the tension at which the dummy conductors have been strung, forming a view that the test spans therefore cannot provide meaningful results from which inferences can be drawn in relation to the original conductor.[12]
[12]Hawes Supplementary Report, pt 3.1 at pp 7-9.
(b) Dummy conductor tension: Mr Hawes then uses information available to him about the original conductor and hardware, the conditions on the day, and what is known about the conductor failure, to model what he thinks would have been the tension of the original conductor. He forms a view that the original conductor must have been strung at a higher tension than the dummy conductors.[13]
(c) Stringing height of dummy conductors: Mr Hawes opines that the stringing of the dummy conductors at what he says is a height significantly below the live conductor compromises the relevance/reliability of the test results. He says this is because the lower stringing height modifies the wind conditions to which the conductors are exposed, thereby undermining the reliability of the Valley Span test results.[14]
(d) Test data: Mr Hawes makes a number of comments regarding specific aspects of data recorded by the field tests, including gaps he identifies in the data (i.e. dates where no data has been provided) and peak amplitude events which he says are “not realistic and appear to be instrument incursions”.[15]
[13]Hawes Supplementary Report, pt 3.2 at pp 9-11.
[14]Hawes Supplementary Report, pt 3.2 (sic) at pp 13-16.
[15]Hawes Supplementary Report, pt 3.1 (sic) at pp 11-12.
However, Mr Hawes also deals with matters unrelated to the field tests, such as:
(a) Pole and pole top hardware:[16] Mr Hawes says that, on 11 February 2013, he was able to undertake a closer inspection of pole 39 and its pole top assets than was possible during his initial inspection, on 20 March 2012. In his second report he considers the conductor attachment eye bolt and eye bolt hole, the back stay eye bolt hole, and the bridging conductor insulator cap assembly. He then appears to rely on what he says are further and more detailed observations to opine, in part 4.6 of this second report, as to the “Occurrence of Aeolian Vibration and Resonance of the Timber Pole”.[17]
[16]Hawes Supplementary Report, pt 4 at pp 17-34.
[17]Hawes Supplementary Report, pt 4.6 at pp 33-34.
(b) Design issues:[18]
[18]Hawes Supplementary Report, pt 5 at pp 34-40 - with comments on a number of the reports filed since the First Hawes Report.
(i) Supplementary report of Dr Barter: Mr Hawes questions several assumptions by Dr Barter regarding tension loading in the original conductor as well as evidence of torsional loading and their relationship to the conductor failure. Mr Hawes also opines that, due to the location of poles 38 and 39 on hill tops, they are particularly vulnerable to lightning damage and “can be expected to have a number of lightning strikes during their service life”.[19]
[19]Hawes supplementary report, pt 5.1 at pp 34-36.
(ii) Supplementary report of Dr Potts: Mr Hawes critiques Dr Potts’ findings concerning Aeolian vibration based on the fact that Dr Potts “presumably” relied upon the Valley Span test results which, for reasons described earlier in his report, are “inappropriate and misleading”. Mr Hawes also criticises some of Dr Potts’ “theoretical analysis” and his “interpretation of the wind climate relevant to the Valley Span site”.[20]
[20]Hawes Supplementary Report, pt 5.2 at pp 36-37.
(iii) Supplementary report of Conclave 3: Mr Hawes frames his criticisms of the supplementary report of Conclave 3 as being from a “line design perspective” and makes comments regarding:
i. the presence of 45 degree fracture planes in strands 2 and 3 of the conductor, stating that in his experience inclined fracture planes are not uncommon;
ii. that the conductor tension used in all reference studies is inappropriate and misleading;
iii. the self-damping properties of conductors, referring in particular to the relationship between age and self-damping. He appears to have indicated agreement with conclave 3 on these topics;
iv. the hypothesis that bird strikes may cause “impact events”;
v. the tension variations in the anticipated wind conditions that the conductor should have been expected to safely carry; and
vi. estimated conductor tension.
Relevant principles
I have previously set out the principles relevant to late service of an expert report in Thomas v Powercor Australia Limited (Ruling No 3).[21]I thought it appropriate to apply the Aon[22] principles in a general sense to such an application. I have no reason to change my mind on that score:
[21][2011] VSC 391.
[22]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, 217.
Aon demonstrates that there are a number of factors relevant to an application such as this. For instance:
(a) whether there will be a substantial delay caused by the amendment;
(b) the extent of any wasted costs;
(c) whether there is an irreparable element of unfair prejudice caused by the amendment;
(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;
(e) whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.
It is, however, to be remembered that the primary question still remains:
What do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed is wider than just that of the moving party.[23]
[23][2011] VSC 391 [12].
In Thomas v Powercor Australia Ltd (Ruling No.3) I declined to permit evidence to be adduced based upon a report on a specific issue (the manner in which a screw was fixed into a pole top) served immediately prior to the commencement of the trial. [24] This issue had been adverted to in the plaintiff’s statement of claim and was well and truly alive throughout the course of interlocutory proceedings and preparation for trial. The report was obtained from an expert who had not participated in the conclaves concerned with that issue. The primary basis for rejecting the application of Mr Thomas to rely upon the report was two-fold: the delay of the plaintiff’s legal advisors in filing the report (notwithstanding several orders of the Court concerning the need to file the reports by specified dates); and the risk of derailing the expert concurrent evidence sessions.
[24][2011] VSC 391 [3].
Considerations
The following matters count against permitting Mrs Matthews to rely upon the contents of the Hawes Supplementary Report.
First is the failure by Mrs Matthews’ solicitors to comply with Order 4 of 30 August 2013, requiring Mrs Matthews to notify the other parties of the delivery of any additional material to an expert witness.
I made this order so that the parties would have an understanding as to exactly what material was in the possession of each expert witness and when it had been provided to that witness. Between December 2012 and February 2013, Mrs Matthews’ solicitors delivered three tranches of material to Mr Hawes to enable him to prepare the supplementary report. They gave notification to the other parties of the delivery of this material an hour or so before the hearing of this application commenced on 15 April 2013. Simply put, this was nowhere near good enough, particularly in litigation of this size and complexity. Indeed it constituted a blatant disregard of the orders made by the Court.[25] Mr Watson gave evidence that the members of his team simply overlooked this obligation. I find this difficult to fathom given the number of complaints that each party has voiced about their opponents’ compliance with orders.
[25]Order 4 of 30 August 2012 in this proceeding.
Second, and consistent with the first proposition, is the suggestion that Mrs Matthews’ solicitors deliberately sought to hide the involvement of Mr Hawes in providing a supplementary report until they were confident that his conclusions would assist her case. Although this was denied by Mr Watson, it is clear that there was no indication to the other parties, at least in terms, by Mrs Matthews’ solicitors that Mr Hawes was in the process of producing a second report which would deal with the adequacy of the field tests. No notice was given of the provision of material to Mr Hawes and nothing was said at any of the directions hearings concerning the fact that Mr Hawes had inspected the span or was in the process of considering the efficacy of the field tests. This conduct, including the flagrant disregard of Order 4 of 30 August 2012, can only be said to invite the suspicion of a cover-up that SPI and USC have emphasised.
Third, Order 2 of 30 August 2013 required any supplementary report of Mr Hawes to be filed and served by 21 September 2012. Putting to one side the lack of candour on the part of Mrs Matthews’ solicitors, there is no adequate explanation for the delay in providing Mr Hawes’ opinion concerning matters unrelated to the field tests, namely, those involving his inspection of the Valley Span in December 2012 and his inspection of pole 39 and its hardware in February 2013. I acknowledge that Mr Hawes resides in Queensland and was overseas for some time prior to the conclaves in September 2012. Nevertheless this explanation (given for the late re-inspection of pole 39 – some eleven months after Mr Hawes’ initial inspection of it) is inadequate. Further, there is no satisfactory explanation as to why Mrs Matthews did not arrange for – or at least discuss with the parties the possibility of the provision of – an interim supplementary report going to matters unrelated to the field tests as soon as additional information was available. If this course had been taken, Mrs Matthews could then have arranged a further supplementary report on matters concerning the field tests (and, if necessary, the condition of pole 39 and its hardware) once further information had been made available.
Fourth is the potential disruption which the report would have upon the concurrent evidence process. The joint reports are now all in evidence, and if the Hawes Supplementary Report goes in then the process may unravel – at least to some extent. A number of the experts involved in Conclaves 1, 3, and 4 may wish to respond and it may even be necessary to reconvene a further conclave.
Fifth, and this is associated with the previous point, is the asserted prejudice alleged by SPI. It says it is inevitable that it will have to provide its experts with Mr Hawes’ report and seek from them further comments and opinions. They also say it would require the re-convening of Conclave 3. The solicitor for SPI, Ms Overington, estimates that this will involve the cost of around a quarter of a million dollars.
Sixth, also associated with the preceding two points, is the argument that the Hawes Supplementary Report goes beyond Mr Hawes’ expertise and, in particular, goes beyond the remit of Conclave 4 - the only conclave to which Mr Hawes is a member.
Seventh, and relating specifically to section 4 of the Hawes Supplementary Report, is that Mr Hawes does not fully explain the basis for some of his conclusions. SPI and USC contend that this compromises their experts’ capacity to respond to those parts of the report. In particular, it is said that the report does not clarify the extent to which opinions concerning pole 39, informed by the inspection in February 2013 were formed with the assistance of Professor Kenneth Crews who also attended that inspection. In addition, Mr Hawes refers to and appears to rely upon his experience investigating the cause of other bushfires on Black Saturday which have been the subject of litigation (at Coleraine and Horsham) but fails to set out the relevance of these matters to his opinion.
Each of these considerations has force in varying degrees, however, there are a number of competing reasons in favour of giving leave to Mrs Matthews to rely upon at least part, if not the whole, of the Hawes Supplementary Report.
First, whilst I accept that the solicitors for Mrs Matthews have been less than candid in their dealings with the Court and the other parties concerning Mr Hawes’ involvement, his supplementary report was not entirely unheralded. The First Hawes Report on several occasions mentions the desirability of provision of results from the field tests in order to inform his opinion. Admittedly it is surprising that there was no reference to Mr Hawes’ involvement after September 2012 particularly as both counsel and solicitors referred to other experts (and in particular Professor Crews) who were involved in ongoing investigations – presumably on the basis that such disclosure was consistent with, at the least, the spirit of the orders made by the Court.
Ultimately I accept, although after some hesitation, Mr Watson’s explanation that there was no ulterior motive for the lack of disclosure in the six months between September 2012 and April 2013. I repeat, however, my real concern over the failure of the solicitors to comply with what were fairly simple and straightforward orders that each party must have understood.
Second, it was SPI’s decision to instruct Mr Vazey to carry out the field tests which has, in large part, resulted in the current predicament. Those field tests, which are still ongoing, commenced in around March of last year, at which time the trial was set to commence in January 2013. It was inevitable that the experts engaged by Mrs Matthews would need time not only to review the data obtained from the field tests but also to consider whether the field tests were a proper replica of the conditions under which the Valley Span operated in the years preceding Black Saturday. Those tests underpin much of the consideration of the experts in Conclave 3 on a critical issue – the qualitative analysis of the cause of the fracture which is one of the critical issues in the trial.
Bearing in mind that the most recent report from this conclave was received in March of this year whilst the trial was underway it would be unjust in the extreme to prevent Mrs Matthews from introducing evidence relevant to the adequacy of those tests. It is not open to SPI to contend that the gate has now shut for all time on this issue when so little time has been given for consideration of the testing which is still continuing as the trial begins its ninth week. In my opinion, there was always a risk, well understood by SPI and its legal advisors, that the carrying out of the field tests would involve not only further consideration by the experts of Conclave 3 but also the allied risk that Mrs Matthews’ solicitors would need to obtain further expert opinion (from whatever source) as to the adequacy of those tests.
Third, it follows that any arguments concerning prejudice in relation to meeting Mr Hawes’ criticisms have little, if any, weight. Once SPI determined to carry out the field tests, it was inevitable that there would be tit-for-tat responses concerning their efficacy. Insofar as the submission relates to cost, this is something that SPI and its solicitors must have been aware of when it commissioned Mr Vazey. Insofar as the submission relates to the asserted need to obtain further expert reports in response to the Hawes Supplementary Report (from Mr Vazey, Conclave 3, and possibly Dr Barter and Dr Potts), this issue can be adequately addressed by providing the opportunity for the filing of such reports.
Fourth, the divisions between Conclaves 1, 3 and 4 are, as I have already mentioned, porous and to a large extent artificial. The issue of the failure of the conductor cannot be compartmentalised to such an extent that the opinions given in one conclave do not bear upon the opinions given in another. Bearing this in mind, I have (chiefly because of the discussion in the course of this application) taken the view that it will be necessary to hold one concurrent evidence session comprising the experts from Conclaves 1, 3 and 4 together so that I (with the assistance of an assessor) can get a handle on all the arguments relating to the failure of the conductor – not just that of the fracture mechanics and the reliability of the field tests.
On a related note, I emphasise my view that the conclave process and the production of joint reports was intended to enable the Court to determine what issues were agreed and not agreed between the experts and particularly, the basis for these disagreements. It is not intended to set in stone the composition of expert witness concurrent evidence sessions or to shut out, in an appropriate case, an opinion relevant to the issues in the trial. I repeat that in this case the field tests have made it difficult to manage the conclave process in an orderly fashion.
Fifth, I accept that, to a large extent, the delay in providing a response opinion concerning the field tests was inevitable. This is demonstrated by the fact that the members of Conclave 3 met on two separate occasions in 2013, one of which occurred after the trial had been in progress for two weeks. Mr Hawes did not receive the data until 11 February 2013 and it is not to be expected that he could have produced a report on the spot. Although I have made orders as to the final date for service of expert reports in September 2013, nine reports have been delivered by the experts between 22 September 2012 and 26 March 2013 – primarily on the issue of the cause of the fracture of the conductor.
There is no doubt that a number of Mr Hawes’ criticisms of the opinions of Dr Barter, Dr Potts and some of the matters opined upon in Conclave 3 are outside that of the field tests. But the reality is that these are all reports provided subsequent to the First Hawes Report. It is true that the response is out of time but that is to some extent understandable given the way in which this process has operated and the need to give the experts some flexibility.
Sixth, the issues relating to the asserted paucity of background information in part 4 of the Hawes Supplementary Report concerning any assistance provided by Professor Crews is a trial point and can be raised in the questioning of Mr Hawes in the concurrent evidence session. I have no idea what Mr Hawes means by his reference to his experiences in the Coleraine and Horsham bushfire litigation but this can be easily rectified by requiring Mr Hawes to, within a short time, explain this himself.
Finally, I think one has to be realistic about how an expert concurrent evidence session operates. Assuming Mr Hawes has the requisite expertise it is highly likely that the points he has adverted to in his supplementary report would have arisen in the discourse between the experts. Experts are invited to question each other about their methods of analysis and reasoning. That is part and parcel of the process in ensuring that each expert’s view is communicated to the Court and can be commented on by another expert. Now, the other experts know six months out what Mr Hawes is going to say. This can only be to the benefit of all the experts.
In the main, these considerations persuade me that I should give leave to Mrs Matthews to rely upon the Hawes Supplementary Report in its entirety. I should also, in completing these observations deal with a couple of other arguments that were put by SPI and USC which I do not accept.
First, SPI says that permitting Mrs Matthews to rely upon the report would be contrary to the overarching purposes of the Civil Procedure Act 2010 (Vic), specifically that the proceeding be conducted in a manner which facilitates a just, timely and cost efficient resolution of the real issues in dispute.[26] That act, it is to be noted, also requires the “just determination of the proceeding” as a means of furthering the overarching purposes of the Court in making any order.[27] Refusing the application of Mrs Matthews would be contrary to this overarching purpose.
[26]Section 1 of the Civil Procedure Act 2010 (Vic).
[27]Section 9(1)(a) of the Civil Procedure Act 2010 (Vic).
Second, USC contends that granting the application would lessen public confidence in the judicial system. I disagree emphatically. To the contrary, to shut Mrs Matthews out from relying upon Mr Hawes’ critique of the field tests would do far more to undermine confidence in the judicial system – which rates a fair trial at a far higher premium than incantations about public confidence and orderly and transparent processes.
Prejudice and how to remedy it
Any potential prejudice to either SPI or USC is ameliorated by taking the following three steps:
(a) requiring Mr Hawes to explain his references regarding his experiences in the Coleraine and Horsham bushfire investigations;
(b) permitting each party to file supplementary expert reports within 28 days; and
(c) asking the members of Conclaves 1, 3, and 4 to meet in conclave immediately prior to the combined concurrent evidence session concerning the fracture of the conductor to consider, in light of the Hawes Supplementary Report, questions along the lines of:
(i) Do the Valley Span field tests adequately replicate the conditions under which the conductor was strung prior to Black Saturday?
(ii) What, if any, inadequacies are there in the field tests and their use as a replication of the conditions prior to Black Saturday?
Conclusions
I will, after hearing from the parties as to matters of form, make orders to the following effect:
1. Leave will be granted to Mrs Matthews to rely upon the Hawes Supplementary Report in its entirety, providing Mr Hawes provides a further brief report explaining his reference to his experiences in the Coleraine and Horsham bushfire investigations and their relationship to his opinion.
2. USC and SPI will be permitted to file any supplementary report which they wish responding solely to the issues raised by Mr Hawes in his supplementary report within 28 days.
3. There will be a combined conclave of the experts from Conclaves 1, 3 and 4 prior to the commencement of the joint concurrent evidence session on the question of the cause of the fracture of the conductor, taking into account the content of the Hawes Supplementary Report including the issue of the adequacy of the field tests.
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