Matthews v SPI Electricity Pty Ltd (Ruling No 31)
[2013] VSC 575
•30 October 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) & ORS (According to the attached schedule) | Defendants |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 14, 15, 16 & 17 October 2013 | |
DATE OF RULING: | 30 October 2013 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) | |
MEDIA NEUTRAL CITATION: | [2013] VSC 575 | |
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EVIDENCE – Whether evidence was obtained illegally or improperly – Discretion to admit evidence where desirability to admit outweighs undesirability to admit – Evidence obtained for the purpose of defence of litigation – Evidence obtained by improper or illegal conduct – Assessment of probative value of evidence – Probative value high, desirability of admitting outweighs desirability of excluding – Evidence Act 2008 (Vic) ss 135, 137, 138.
PRACTICE AND PROCEDURE – Obligations of parties and their solicitors under Part 2.3 of the Civil Procedure Act 2010 (Vic) – Obligation to act honestly – Obligation to cooperate with the parties and the Court – Obligation not to engage in conduct which is misleading or deceptive – Obligation not to engage in conduct which is likely to mislead or deceive – Obligation to use reasonable endeavours to narrow the issues – Failure of Applicant and Defendant to narrow the issues – Failure of Applicant and Defendant to cooperate – Failure of Defendant not to act in a way that was likely to mislead – Civil Procedure Act 2010 (Vic) ss 16, 17, 20, 21, 23.
STATUTORY INTERPRETATION – Scope of statutory authority of Electricity Corporation to enter private property – Consent of landowners to Electricity Corporation entering private property – Electricity Industry Act 2000 (Vic) ss 1, 20, 21, 85, 88, 93, 95.
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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 W L Armstrong & Ms M Szydzik | Maurice Blackburn |
| For SPI Electricity Pty Ltd | Mr J Beach QC with Mr P H Solomon SC Mr B Quinn SC Mr D Farrands Mr C Parkinson Mr J Kirkwood & Mr L Stanistreet | Herbert Freehills Smith |
| For USC | Mr R Ray QC with Ms E Brimer | Holman Fenwick Willan |
| For the State parties | Mr C M Caleo SC with Mr P E Anastassiou SC Ms W A Harris SC Mr S A O’Meara SC Mr P Zappia Ms A L Robertson Dr M D Rush Mr N McAteer Mr A D Pound Ms J Firkin Mr J Heeley & Mr L Brown | Norton Rose Fullbright Australia |
Introduction
The application
The issues
The first issue: Was SPI authorised by the Electricity Industry Act to enter the properties of the landowners?
The purpose of the test conductors, their construction and their use
The landowners
The Electricity Industry Act and the Code
Proper construction of s 93(1)(e) – Did the EI Act authorise access to the landowners’ properties by SPI for the purpose of the field test?
The second issue: The consent of the landowners to the carrying out of the field test
Correspondence between Maurice Blackburn and HSF concerning the field test and the landowners’ consent
SPI access to and egress of the landowners’ properties for the purpose of the field test
The number of site visits
Mr Baumgarten’s general approach to contact with the landowners for the purpose of conducting the field test
Advice from HSF to SPI concerning contact with the landowners about the field test
Contact between SPI and the landowners regarding the field test
Mrs Beel’s evidence regarding contact from SPI about the field test
Analysis and conclusions
The third issue: Does the desirability of admitting the evidence outweigh the undesirability of admitting it?
Generally
Applications and rulings since March 2013
Expert reports filed since late March 2013
The probative value of the evidence (s 138(3)(a))
The importance of the evidence to the proceeding (s 138(3)(b))
The nature of the cause of action (s 138(3)(c))
The gravity of the impropriety or contravention (s 138(3)(d))
Was the conduct deliberate or reckless (s 138(3)(e))
Has any other proceeding been, or is one likely to be, taken in relation to the impropriety or contravention (s 138(3)(g))
The difficulty of obtaining the evidence without impropriety or contravention (s 138(3)(h))
Other factors: Impact of excluding the evidence on UAM
Other factors: The failure of Mrs Matthews to raise this point earlier
Synthesis of these considerations
Waiver/estoppel argument
Conclusions
Orders
HIS HONOUR:
Introduction
Mrs Matthews seeks to exclude the evidence obtained from a field test carried out by SPI in 2012 and 2013 on the Pentadeen Spur.
In 2012, SPI set up dummy conductors on the Valley Span intending to replicate the environmental and other conditions that affected the conductor prior to Black Saturday. Mrs Matthews says that the field test was carried out without obtaining the consent of the landowners whose properties were used to gain access to the Valley Span, therefore the results are tainted by illegality or impropriety on the part of SPI and this justifies their exclusion.
The field test was designed and overseen by scientific or engineering experts retained by SPI solely for the purpose of defending Mrs Matthews’ claim. Three dummy conductors were strung between two poles along the Pentadeen Spur: one on the Kilmore East property of Russell and Blanche Beel (pole 39) and the other on the property of Phillip Sullivan (pole 38). For the purpose of erecting and conducting the field test, SPI accessed the Beel and Sullivan properties by one or both of two routes, the first traversing the properties of Jenny Quinn (Mr Sullivan’s sister) and Omar Obeid, the second traversing the property of Peter and Liz Jackson.[1]
[1]Collectively referred to as “the landowners”. See SPN.843.010.0003; Affidavit of Mr Baumgarten at [18]-[22]. It is also possible that the property of Rob Dowell was accessed. The evidence on this is unclear and for the purpose of this Ruling I have not considered his position.
SPI will in early November 2013 seek to lead evidence of the results of the field test and have experts opine upon them. Relying upon the evidence of experts retained by her, Mrs Matthews disputes the efficacy of the test.
In precis the application by Mrs Matthews to exclude the results stems from the assertion that SPI employees and contractors were trespassers and therefore their entries onto the landowners’ properties were in contravention of Australian law thus engaging the operation of s 138 of the Evidence Act 2008 (Vic)[2]. That section permits a Court to exclude evidence obtained unlawfully or improperly.
[2]“the Act”.
SPI says it was authorised by the Electricity Industry Act 2000 (Vic)[3] to access and egress the landowners’ properties in order to carry out the field test. Alternatively it argues that it had the consent of the landowners to access their properties or that the landowners had acquiesced to its attendance. If SPI has to meet a s 138 argument it says Mrs Matthews’ application is brought in bad faith and that it is far too late in the context of the trial process to exclude highly probative evidence; finally, SPI says Mrs Matthews has by her conduct (in bringing this application at this late stage) waived her right to make a s 138 argument.
[3]“EI Act”.
SPI is supported in its response by UAM.
The application
On 24 September 2013, Senior Counsel for Mrs Matthews raised with me a prospective application by his client, pursuant to s 138 of the Act, to exclude all evidence derived from the field test.[4]
[4]T9203 and following. The application was made orally and, with my approval, without a summons.
On 26 September, I set down the hearing of the application for 11 October with affidavits to be filed by 4 October.[5] In fact, the application commenced on 14 October.
[5]T9289.
Central to the application is s 138 of the Act. The relevant parts read as follows:
(1) Evidence that was obtained-
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law-
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account-
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The evidence relied upon by the parties comprised:
(a)the affidavits (including exhibits) of:
(i)Mr Andrew Watson, solicitor for Mrs Matthews – one sworn on 4 October 2013[6] and a second sworn on 14 October 2013;[7]
[6]CRT.CAM.139.0001 (“First Affidavit of Mr Watson”).
[7]CRT.CAM.151.0001 (“Second Affidavit of Mr Watson”).
(ii)Ms Ruth Overington, solicitor for SPI – one sworn on 17 January 2013,[8] a second sworn on 5 October 2013[9] and a third sworn on 11 October 2013;[10]
(iii)Ms Irina Lubomirska, solicitor for Mrs Matthews affirmed on 15 March 2013;[11]
(iv)Mr Noel Baumgarten, sworn on 4 October 2013;[12]
(v)Mr Bill West, affirmed on 4 October 2013;[13]
(vi)Mrs Blanche Beel, sworn on 3 October 2013;[14]
(vii)Mr Peter Jackson, affirmed on 4 October 2013;[15] and
(viii)Mr Phillip Sullivan sworn on 10 October 2013;[16]
(b)the viva voce evidence of Mr Watson, Ms Overington, Mr Sullivan and Mrs Beel – all pursuant to requests for cross-examination; and
(c)any documents (including expert reports) referred to in, or annexed to, the parties’ written submissions.[17]
[8]CRT.CAM.150.0001 (“First Affidavit of Ms Overington”).
[9]CRT.SPN.042.0001 (“Second Affidavit of Ms Overington”).
[10]CRT.SPN.047.0001 (“Third Affidavit of Ms Overington”).
[11]CRT.SPN.046.0001 (“Affidavit of Ms Lubomirska”).
[12]CRT.SPN.043.0001 (“Affidavit of Mr Baumgarten”).
[13]CRT.CAM.140.0001 (“Affidavit of Mr West”).
[14]CRT.CAM.141.0001 (“Affidavit of Mrs Beel”).
[15]CRT.CAM.142.0001 (“Affidavit of Mr Jackson”).
[16]CRT.CAM.143.0001 (“Affidavit of Mr Sullivan”).
[17]Mrs Matthews’ two sets of submissions dated 13 and 14 October 2013 respectively; SPI’s two sets of submissions dated 11 and 13 October 2013 respectively; and UAM’s submissions dated 14 October 2013.
The issues
Mrs Matthews’ application requires determination of the following questions:
(a)Did SPI act illegally or improperly in constructing and conducting the field test?
a. Was SPI empowered by s 93(1) of the EI Act, and/or the Electricity Distribution Code,[18] to access and egress the landowners’ properties without obtaining their prior consent (“The first issue”)?
b. If no, did SPI have the express or implied consent or acquiescence of the landowners at the relevant time(s)? If not, did SPI act either illegally or improperly in accessing and egressing the landowners’ land for the purpose of the field test (“The second issue”)?
(b)If the answer to (a) is yes, then does the desirability of admitting the field test evidence outweigh the undesirability of admitting evidence that has been obtained in the way the field test evidence was obtained (s 138(1) of the Act)? In answering this question the Court is to undertake a discretionary exercise, taking into account the matters set out in s 138(3) of the Act, as well as any other relevant factors (“The third issue”).
(c)If Mrs Matthews is successful in her application under s 138, then is Mrs Matthews estopped from bringing this application because of the alleged delay in doing so and the impact on SPI and UAM that would follow exclusion of this evidence; alternatively, has she waived her entitlement to make this application?
[18]CAM.520.001.0079 (January 2011, version 6) (“the Code”). The Code was also exhibited to the First Affidavit of Mr Watson
Mrs Matthews carries the onus of establishing that the results of the field test were improperly or illegally obtained. If this is proved, it is for SPI to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way.[19] SPI carries the onus on the estoppel and waiver arguments.
The first issue: Was SPI authorised by the Electricity Industry Act to enter the properties of the landowners?
The purpose of the test conductors, their construction and their use
[19]Parker v Comptroller-General of Customs (2009) 252 ALR 619, [28] (French CJ).
In August 2011, Mr Graham Karutz, a Design Engineer employed by SPI,[20] prepared a Scope of Works proposal in relation to the Pentadeen Spur:
[20]Affidavit of Mr Baumgarten [3].
Aim
To support the investigations of Dr David Jones expert witness, retained by solicitors for SP AusNet in the upcoming Kilmore East/Kinglake bushfire class action.
Outline
The influence of wind, vibration, and the specific line construction on the likelihood and timing of failure of conductor at the above location is not known. To explore these issues, dummy spans of steel conductor will be erected beneath the existing in-service span so that the behaviours can be monitored and replicate, as far as is practically possible, the conditions of the original span. From this data, along with weather condition monitoring, Dr David Jones proposes to draw inferences about the performance of the original span in the context of historic weather records. Two test (dummy) circuits are proposed to mimic different conditions as detailed below.[21]
[21]SPN.839.008.0054. Although the original plan was for two dummy spans to be erected, ultimately three dummy spans were erected.
Mr Karutz instructed Mr Baumgarten, at this time a Design Engineer at SPI’s Benalla office, to implement the works. Between August 2011 and July 2012, Mr Baumgarten was involved in the design and assembly of the test spans. He described himself as being:
responsible for liaising with landowners over whose land the Valley Span and the test conductors are strung, and adjacent land, in order to arrange access to the land for the purpose of establishing the Field Test structure.[22]
[22]Affidavit of Mr Baumgarten [7].
Mr Baumgarten said his role was limited to carrying out the instructions given to him by his manager, Mr Karutz[23] – who did not give evidence on this application.
[23]T10492-3.
In email correspondence dated 10 August 2011 between SPI employees (including Mr Karutz and Mr Baumgarten), the Scope of Works and its implementation was described as “Test lines Pentadeen Spur to support bushfire class action”.[24] During cross-examination, Mr Baumgarten stated that this email was the first time he became aware of the class action; he said that he understood that the information that was to be derived from the field test would be used as part of the defence by SPI against the claims made against it.[25]
[24]T10483; SPN.839.008.0062.
[25]T10483-4; T10488-9. This email was one in a chain of emails, all with virtually the same subject header (i.e. Test lines at Pentadeen spur to support bushfire class action) dated between 2 and 30 August 2012 : SPN.843.007.0207 & SPN.824.005.1705.)
As the Scope of Works and the internal SPI correspondence demonstrate, the purpose of the test spans was to replicate the original conductor which was approximately 1050 metres in length and made of three strands of galvanised twelve gauge steel wire. The dummy conductors were fitted under slightly different conditions with the aim of differentiating possible causes of the failure of the original conductor.
During cross-examination, Ms Overington of Herbert Smith Freehills[26] (the solicitors for SPI) described the purpose of the test as follows:
The test was intended to gather the best available evidence about the likely loads on the incident conductor, the data regarding the loads then forming the input into analysis by other experts.[27]
[26]“HSF”.
[27]T10536.
It is clear from both the Scope of Works and the correspondence between Mr Karutz and Mr Baumgarten that instructions as to the nature of the construction of the dummy conductors came from an expert witness, Dr Lane, and/or the solicitors acting for SPI.[28]
[28]T10492. SPN.843.007.0207.
On 8 February 2012, the dummy conductors and supporting infrastructure were erected between poles 38 and 39 in accordance with the Scope of Works. As described in Ruling 20:
The dummy conductors have been strung so 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.[29]
[29]Matthews v SPI Electricity (Ruling No 20) [2013] VSC 197, [29].
These conductors have never been used for the supply, transmission or distribution of electricity; Mr Baumgarten confirmed that he “understood that they were never to be energised”[30] and the test “wasn’t used for the distribution of electricity”.[31]
[30]T10491.
[31]T10492.
The data obtained from the field test has been analysed by a number of the experts engaged by the parties. As I described and discussed in Rulings 10[32] and 20,[33] the experts have been grouped into various subject-matter conclaves. Of these, Conclaves 1, 3 and 4 go directly to the cause of the conductor failure. A list of the reports filed by members of these conclaves is contained in Ruling 29.[34]
[32]Matthews v SPI (Ruling No 10) [2012] VSC 379.
[33]Matthews v SPI Electricity (Ruling No 20) [2013] VSC 197.
[34]Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537, [8].
In particular, Conclave 3, which is charged with determining the “quantitative impact of loads and stresses on the primary fractures of the conductor,” has relied upon the various tranches of field test results. Its members have now met three times and produced three joint reports.
According to Mrs Matthews and SPI, there are at least fifteen expert reports that deal (in whole or in part) with the results of the field test.[35] Mrs Matthews has identified the following:[36]
[35]In the case of the solicitors for Mrs Matthews, a list of 15 reports is set out in the First Affidavit of Mr Watson [6]; in the case of solicitors for SPI, a list of 16 reports is set out in the Second Affidavit of Ms Overington [46].
[36]First Affidavit of Mr Watson [6].
(a) each of the Conclave 3 joint reports;[37]
[37]EXP.JOINT.003.0001, EXP.JOINT.003.0027, and EXP.JOINT.003.005.
(b) all four reports of Mr John Vazey;[38]
(c) the second supplementary report of Mr Harry Better as well as his initial “Comments on Valley Span Testing” document;[39]
(d) three of Dr Andrew Potts’ supplementary reports;[40]
(e) the second and third supplementary reports of Dr Andrew Gates;[41] and
(f) the (first) supplementary report of Mr Henry Hawes.[42]
SPI says the following reports are also relevant:[43]
(a) the first report, and the first and fifth supplementary reports, of Dr Simon Barter;[44] and
(b) the first report of Mr Henry Hawes.[45]
The landowners
[38]EXP.SPN.500.0001, EXP.SPN.510.0001, EXP.SPN.520.0001, EXP.SPN.530.0001.
[39]EXP.CAM.009.0001 and EXP.CAM.020.0001.
[40]EXP.SPN.260.0001, EXP.SPN.780.0001, EXP.SPN.790.0001.
[41]EXP.CAM.003.0001 and EXP.CAM.022.0001.
[42]EXP.CAM.017.0001.
[43]Second Affidavit of Ms Overington [46].
[44]EXP.SPN.100.0001, EXP.SPN.110.0001, EXP.SPN.150.0001.
[45]EXP.CAM.005.0001.
Pole 39 is located on the property of Mr and Mrs Beel. To reach the pole it is necessary to drive past the ruins of their house, which is roughly 100 metres from the pole (located uphill and to the north of the house). Until Black Saturday, the Beels’ house was supplied with power from a service line running off the Pentadeen Spur. Their house was destroyed by the fire on Black Saturday and the Beels subsequently relocated to Phillip Island.
Pole 38 is located on Mr Philip Sullivan’s property. It is bare land, with no dwelling and is not supplied by power from the Pentadeen Spur – although SPI has an easement over a portion of the land where the power line is located.[46] There has, in the course of the trial, been some confusion as to the ownership of this land; Mr Sullivan explained that the property was “in the family’s name at the time of Black Saturday and in 2010 the land was subdivided” with the portion on which pole 38 stands being allocated to him.[47]
[46]Although Mr Sullivan said he had not been aware of this prior to Counsel for SPI bringing it to his attention during cross-examination, he did not dispute that SPI has an easement over part of his land being the portion where the power line is located: T10396. The title documents are exhibited to the First Affidavit of Mr Watson, Exhibit AJW-6.
[47]T10395.
Mr and Mrs Jackson (via a family trust) own a strip of land on the northern side of Saunders Road which separates the Beels’ and Mr Sullivan’s properties. The dummy conductors pass over their block. They were not customers of SPI in relation to this piece of land; however their house, which is connected to SPI supply, is located on a block on the southern side of Saunders Road.
Ms Quinn (Mr Sullivan’s sister) and Mr Obeid each own separate parcels of land on the northern side of Saunders Road. A track runs through their land and provides all-weather access to Mr Sullivan’s property and, relevantly, pole 38.[48]
[48]Affidavit of Mr Baumgarten [18]-[20].
As will be explained later, I am satisfied on a combination of the evidence of the landowners and Mr Baumgarten that the following landowners’ properties were accessed and egressed by SPI for the purpose of the field test:
(a)Blanche and Russell Beel;
(b)Phillip Sullivan; and
(c)Peter and Liz Jackson.
In relation to access of the Jackson property by SPI, this conclusion relies on Mr Jackson’s affidavit in which he deposed that Mr Baumgarten told him, on 8 February 2012, that SPI “had needed to go into the valley” on the Jackson’s land (the accuracy of which was not challenged by SPI);[49] and, Mr Baumgarten’s account of a number of conversations with Mr Jackson.[50]
[49]Affidavit of Mr Jackson
[50]E.g. one conversation on 8 May 2012, in which he deposed that he said to Mr Jackson “Our personnel will be accessing power pole 38 through your property tomorrow”: Affidavit of Mr Baumgarten [95].
In the absence of direct evidence, I am not satisfied that SPI accessed and egressed the properties of Ms Quinn and Mr Obeid.[51] I note however that in Mr Baumgarten’s affidavit he refers to having contacted each of Ms Quinn and Mr Obeid on a number of occasions to advise them of site visits.[52]
The Electricity Industry Act and the Code
[51]As noted above at [3], I have not considered the position with respect to Mr Dowell.
[52]See, e.g., Affidavit of Mr Baumgarten [33], [44], [66], [86].
The EI Act recognises that in certain circumstances, electricity corporations may need to access land to carry out works or inspect distribution infrastructure. Section 93, which is within Part 5 (entitled “Powers of electricity corporations”), reads (in part) as follows:
93 Powers as to works etc.
(1) For the purposes of this Act, an electricity corporation, subject to this Act—
(a)may enter upon any lands and sink bores and make surveys and do any other acts or things necessary for sinking bores or making surveys; and
(b)may, with any equipment or devices, receive, store, transmit, or supply electricity, water, brown coal or products of brown coal over, or under, any land and may enter on any land upon either side of such equipment and fell or remove any tree or part of a tree or any obstruction which in the opinion of the electricity corporation it is necessary to fell or remove; and
(c)subject to the Water Act 1989 may divert water from any waterway, lake, lagoon, swamp or marsh, or alter the bed, course or channel of any waterway; and
(d) subject to the Road Management Act 2004, may enter upon any public or private land or roads and construct any works or place on under or over any such land or road any structure or equipment and may repair, alter or remove any such structure or equipment or any works under its control; and
(e) may do all other things necessary or convenient for constructing, maintaining, altering, or using any works or undertakings of, or under the control of, the electricity corporation.
…
(5) This section applies—
(a) to a distribution company, transmission company and a generation company holding a licence under Part 2; and
(b) to the holder of any other licence under Part 2 as if a reference in this section to an electricity corporation included a reference to the holder—
and so applies—
(c) subject to the conditions of the licence in relation to the exercise of powers under this section; and
(d) subject to any access code applying in relation to the exercise of powers under this section issued by the Commission.
(emphasis added)
SPI relies upon ss 93(1)(a), (d) or (e) as the basis upon which it was authorised to access and egress the landowners’ properties in circumstances which would otherwise be trespass.[53] SPI submits that subsection (a) is operative in relation to initial survey work undertaken in 2011 which was a necessary precursor to the field test;[54] subsection (d) “in terms of private land and constructing any works and altering or removing any structure”;[55] and subsection (e) in relation to all other work associated with field test.[56]
[53]Counsel for SPI submitting that “Section 93 is the express section which authorises an otherwise trespass”: T10631.
[54]T10632.
[55]T10632.
[56]T10632-3.
I did not understand Counsel for SPI to contend that any entry by SPI onto private property was authorised by these provisions. Rather, I understood the submission to be that, for an entry to be authorised, it must have a relationship to the business of the electricity corporation, making it “[f]or the purposes of this Act” and, specifically in relation to s 93(1)(e), a “thing” necessary for constructing or maintaining works under the control of the electricity corporation. Applying that analysis to the field test, it was submitted that entry onto the land for the purpose of the defence of litigation is associated with the supply of power and has the necessary relationship with SPI’s usual business to fall within the scope of ss 93(1)(a), (d) and (e).[57]
[57]I note that no argument was advanced by SPI on this application that the easement or the Code were relevant to its assertion that it had authority to enter the landowners’ properties.
Counsel for Mrs Matthews said this interpretation casts the net too wide and that the EI Act impliedly limits access or egress to matters related to the safe supply of electricity by an electricity corporation. Alternatively it was said that even if the works fell within s 93(1), s 93(5) was engaged and SPI’s works were outside the scope of SPI’s licence and the Code. The Code was issued by the Essential Services Commission and regulates activities undertaken by electricity distributors to maximise safety, efficiency and reliability. I describe the Code in more detail below at [43]-[45]).
If SPI’s contention that its works in setting up and maintaining the field test were authorised by the EI Act (and not outside the scope of the Code) is correct then the questions of consent and potential illegality/impropriety fall away. Conversely if the works fall outside the scope of s 93(1) then there is no need to examine the requirements of s 93(5) and the Code. In which case, the next question is whether the landowners’ consent was obtained by SPI.
I now return to the EI Act.
Section 1 provides:
The main purpose of this Act is to regulate the electricity supply industry.
“Electricity supply industry” is not defined.
Section 85 sets out the definitions which apply to Part 5, including “electricity corporation” which is defined as a “distribution company, a transmission company or a generation company”. Section 3 defines a “distribution company” to be a person who is the holder of a licence to distribute electricity. Sections 16 and 18 together require that a person who engages in the generation of electricity for supply or sale must hold a licence authorising the relevant activity.
Section 18(1) of the EI Act reads as follows:
A person may apply to the Commission for the issue of a licence authorising one or more of the following activities –
to generate electricity for supply or sale;
to transmit electricity;
to distribute or supply electricity;
to sell electricity.
Sections 20 and 21 of the EI Act govern the granting of a licence and provide that a licence is subject to such conditions as are decided by the Essential Services Commission. SPI holds such a licence and is therefore an electricity corporation for the purposes of the EI Act. No other definitions in s 85 of the EI Act assist in the construction of s 93, nor does the Second Reading Speech or explanatory material.
Pursuant to s 18(1)(c) of the EI Act, SPI was granted a licence to distribute or supply electricity to particular areas.[58] The following clauses of SPI’s distribution licence are relevant:
[58]SPN.600.001.1282.
2.1 Subject to the conditions set out in this licence, the Licensee is authorised to distribute or supply electricity.
2.2 Under this licence, the Licensee may only distribute or supply electricity to supply points located in the Licensee's distribution area.
…
22.2 As well as complying with this licence, the Licensee must comply with all applicable provisions of:
(a) any order;
(b) the following codes:
(1) the Electricity Distribution Code,
(2) the Electricity System Code;
(3) the Public Lighting Code;
(4) the Electricity Customer Metering Code; and
(5) the Electricity Customer Transfer Code;
(c) the Price Determination; and
(d) any guideline, if the guideline itself requires the Licensee to comply or the Commission has informed the Licensee that compliance is required by way of a communication given to the Licensee by the Commission.[59]
[59]SPN.600.001.1282.
The purpose of the Code is to regulate the following activities so that they are undertaken in a safe, efficient and reliable manner:
(a)the distribution of electricity by a distributor for supply to its customers;
(b)the connection of a customer’s electrical installation to the distribution system;
(c) the connection of embedded generating units to the distribution system; and
(d) the transfer of electricity between distribution systems.[60]
[60]Clause 1.1, the Code.
However, the Code does not purport to be exhaustive of all rights. Clause 1.8.1 states:
This Code does not set out comprehensively all rights and obligations of distributors, retailers, customers and embedded generators relating to the supply of electricity to a customer’s supply address or to or from an embedded generator’s supply address.
Relevantly, Clause 3.3.2 of the Code reads as follows:
Provided official identification is produced by the distributor’s representatives on request, a customer must provide to the distributor’s representatives at all times convenient and unhindered access:
(a)to the distributor’s equipment for any purposes associated with the supply, metering or billing of electricity; and
(b) to the customer’s electrical installation for the purposes of:
· the inspection or testing of the customer’s electrical installation for the purpose of assessing whether the customer is complying with this Code; or
· connecting, disconnecting or reconnecting supply,
and safe access to and within the customer’s premises for the purposes described in this clause 3.3.2.
In addition to the s 93 access rights, s 88 of the EI Act enables an electricity corporation to require the creation of an easement over land. Any such easement is limited in scope to the rights specified in the Schedule of the Act, including access “as may be required for the transmission of electricity” and
use ... for all purposes of and incidental to transmitting electricity safely and economically across such land at any time hereinafter and also to inspect maintain in good and efficient working order [sic].
So in summary, ss 93(1)(a), (d) and (e) of the EI Act are broad enough to enable an electricity corporation to enter upon land and carry out those works more specifically described in ss 93(1)(a) and (d), as well as, pursuant to s 93(1)(e), to do all “things” necessary for constructing and maintaining SPI’s works. However, exercise of those powers may only be for the “purposes of this Act” (as per the introductory words of s 93(1)) and is subject to the EI Act, including the conditions of a licence or any applicable “access code” (as per ss 93(5)(c) and (d)).[61] SPI’s licence[62] requires that it comply with the Code.
Proper construction of s 93(1)(e) – Did the EI Act authorise access to the landowners’ properties by SPI for the purpose of the field test?
[61]There is some uncertainty whether the Code is in fact an ‘access code’ for the purposes of s 93(5)(d). ‘Access code’ is not defined in the EI Act or Essential Services Commission Act 2001 (Vic), which authorises the making of the Code. The Essential Services Commission has not published any document titled ‘Access Code.’ Nonetheless, the Code (in part) deals with some forms of access and distributors are required to comply with it under their distribution licence.
[62]SPN.600.0001.1282.
The following principles are relevant to the interpretation of the EI Act in the context of this application:[63]
(a)In the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.[64]
(b)The task of statutory construction involves a search for the objective intention of Parliament and not the subjective intention of Parliament or of Ministers, if such an intention exists.[65]
(c)In interpreting legislation, the primary object is to construe the relevant provisions so that they are consistent with the language and purpose of all of the provisions of the statute.[66]
(d)The interpretation of legislation should occur on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where provisions are in conflict, the conflict must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve a result. The adjustment may require the Court to determine a hierarchy of provisions.[67]
(e)Where legislation may operate to restrict or inhibit long-standing common law rights, it will be construed strictly and only limit those rights if the legislature clearly intended to do so.[68]
[63]I have, in part, adopted the analysis of Garling J in Thiering v Daly [2011] NSWSC 1345 (11 November 2011) [50].
[64]Carr v Western Australia (2007) 232 CLR 138 [5]-[6] (Gleeson J); Interpretation of Legislation Act 1984 (Vic) s 35(a).
[65]Eastman v The Queen (2000) 203 CLR 1 [146]-[147] (McHugh J).
[66]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69] and [71] (McHugh, Gummow, Kirby and Hayne JJ).
[67]Project Blue Sky [70] (McHugh, Gummow, Kirby and Hayne JJ); Ross v The Queen (1979) 141 CLR 432 at 440 (Gibbs J); Wilson v State Rail Authority (NSW) [2010] NSWCA 198, [13] (Allsop P).
[68] Coco v The Queen (1994) 179 CLR 427. This basic ‘principle of legality’ has been well established in Australia since at least 1907, when the High Court referred to Maxwell on the Interpretation of Statutes (1905) and stated that it is extremely improbable that the legislature would overthrow fundamental principles or infringe rights “without expressing its intention with irresistible clearness” (Potter v Minahan (1908) 7 CLR 277 at 304). More recently the High Court in Monis v The Queen [2013] HCA 4 (27 February 2013) stated that the principle of legality is known to known to both the Parliament and the courts as a basis for the interpretation of statutory language [331].
For two reasons I have concluded that SPI’s powers under ss 93(1)(a), (d) and (e) do not extend to giving it the right to access and egress the landowners’ properties for the purpose of the field test.
First, the EI Act read in context does not give an unfettered right to SPI to access private land. It can be accepted that ss 93(1)(a), (d) and (e) give SPI the power to enter private property; however, such a power is confined to works carried out for the “purposes of the Act”. Accordingly the scope of these subsections in terms of access and egress to the landowners’ properties is necessarily limited.
I also accept, as SPI submitted, that the purpose of the EI Act, in regulating the “electricity supply industry”, involves more than the supply of power to customers; it includes matters such as price regulation, distribution licences, terms and conditions of the sale and supply of electricity, separation of the generation, transmission and distribution sectors, protection of critical electricity infrastructure, powers of electricity corporations, and electricity supply emergencies.[69]
[69]SPI submission [23].
Whilst the EI Act does not contain any express limitation upon the exercise of the power such as to exclude works which have no relationship to the supply of electricity, the absence of such a provision cannot authorise every conceivable activity that SPI employees or agents carry out on private property. There is nothing in the scheme of the EI Act which demonstrates that Parliament intended to confer an unrestricted right of access upon an electricity corporation by words as vague and general as those in sub section (e). There must be a logical limitation consistent with the scheme of the EI Act and in particular the licence held by SPI to distribute or supply electricity.
The powers given to SPI by s 93(1) are subject to the conditions of the licence: s 93(5). SPI’s licence granted under s 18 of the EI Act does not expressly place any limitations on the exercise of power conferred by s 93 (except by requiring compliance with the Code). However, the licence solely authorises SPI to distribute or supply electricity. In other words, on the issue of the provision of power to its customers, s 93(1) does not authorise activities except those which relate to the distribution or supply of electricity.[70]
[70]Refer to clauses 2.1 and 2.2 of the licence: SPN.600.001.1282. The other matters contained in the licence are all matters directly related to the distribution or supply of electricity (e.g. obligations to offer connection services; requirements for offers; and statements of charges).
I am not persuaded by SPI’s submission that preparatory works for, and the construction and undertaking of the field test, are part of the usual business of a distribution company and within the scope of ss 93(1)(a), (d) and (e). As has been demonstrated, the sole purpose of the field test was to assist SPI in its defence of this class action. Further, there is no supply of power to the field test spans – the whole setup was artificial. In my opinion such an indirect relationship falls outside the scope of the subsection which must be read in light of the EI Act as a whole and the licence conditions which as I have noted merely authorise the distribution or supply of electricity.[71]
[71]SPN.600.001.1281.
SPI’s right of entry and access is confined to the business it is licenced to operate. Such a right can only be exercised if it directly relates to the supply of electricity to its customers; not to litigation arising out of that supply. I accept that works which are directed to the safety of the electricity supply would fall within the power given to an electricity corporation “to do all other things necessary or convenient for constructing, maintaining, altering, or using any works or undertakings” but no more.
In summary, the entry onto land in preparation for and in order to construct and carry out the field test does not fall within scope of ss 93(1)(a), (d) and (e) which are impliedly limited to activities associated with the safe supply of electricity.
Second, and equally as important, is the “principle of legality” referred to at [48(e)]: Parliament is presumed not to have intended to limit fundamental rights unless it indicates this intention in clear terms.[72]
[72]Coco v The Queen (1994) 179 CLR 427; refer also to those cases listed at footnote [55].
In Coco v The Queen,[73] the High Court expressed the “legality principle” as follows:
The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.[74]
In Coco, the High Court held inadmissible evidence that had been obtained by a listening device that had been placed on private property under a warrant issued pursuant to a state Act which did not itself authorise entry onto private property. Other courts have made similar statements to the effect that when it comes to statutory interpretation, there is a rebuttable presumption that Parliament did not intend to authorise the commission of a tort[75] or interfere with vested property rights.[76]
[73](1994) 179 CLR 427.
[74]Coco v The Queen (1994) 179 CLR 427 at 437 (“Coco”).
[75]Clunies-Ross v Commonwealth (1984) 155 CLR 193, 199-200.
[76]Coco at 435-438.
This principle is as strong today as it has been in the past. As I noted earlier, the High Court held earlier this year in Monis v The Queen,[77] that it should be presumed that the legislature did not intend to infringe rights without expressing such an intention with “irresistible clearness.”[78]
[77]Monis v The Queen [2013] HCA 4 (27 February 2013).
[78]Monis v The Queen [2013] HCA 4 (27 February 2013) [331] (see above at [48(e)]).
Property rights have long been regarded as fundamental and of a kind deserving of particular protection. In R & R Fazzolari v Parramatta City Council,[79] French CJ said:
Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights.
…
The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights…
The terminology of ‘presumption’ is linked to that of ‘legislative intention.’ As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law.[80]
[79](2009) 237 CLR 603.
[80]R & R Fazzolari v Parramatta City Council (2009) 237 CLR 603, 618-19 (citations omitted).
In Plenty v Dillon,[81] the High Court emphasised that a person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises.[82] Plenty reiterates that, notwithstanding the number of statutes which confer power to enter land or premises without the consent of the occupier, the presumption remains that Parliament did not intend to authorise tortious conduct without an express indication of intending to do so.
[81](1991) 171 CLR 635 (“Plenty”).
[82]Mrs Matthews’ written submissions at [4.17], quoting Plenty, 648.
Notwithstanding the limitations imposed on the powers under s 93(1) by s 93(5), there is no “irresistible clearness” that the power under ss 93(1)(a). (d) and (e) was intended to provide close to an unfettered right to access and egress private property – conditional only upon a tenuous and artificial relationship to SPI’s business. I do not accept the submission of SPI that there is no ambiguity in the interpretation of s 93(1)(a), (d) and (e). Clearly the extent of the power under those subsections is ambiguous. In any event it is not a question of ambiguity but one of clarity: did the legislature intend with the requisite clarity to permit acts of trespass by an electricity corporation for purposes unconnected with the safe supply of electricity to its customers? The answer must be in the negative. An interpretation of the EI Act that avoids interference with landowners’ property rights and does not authorise the commission of a tort should be preferred. If the legislature had intended for electricity corporations to be able to access a landowners’ property for any and all purposes (including those which relate to the preparation or defence of litigation), it would have expressly said so.
In summary, the words of ss 93(1)(a), (d) and (e) are far too broad and imprecise to authorise an electricity corporation to enter private property for any purpose, or for a purpose unrelated to the supply of electricity.
Sections 93(1)(a), (d) and (e) of the EI Act did not authorise SPI’s entry onto the landowners’ properties for the purpose of the field test. It follows that it is not necessary to consider the effect of s 93(5) of the EI Act nor the application of clause 3.3.2 of the Code with respect to Mr Jackson.
It also follows that if SPI wished to access land for reasons solely connected with this litigation, it was incumbent upon it to obtain the consent of relevant landowners – otherwise its entry amounted to trespass.
The second issue: The consent of the landowners to the carrying out of the field test
SPI says that it had the consent of the landowners to access their land for the purpose of the test. Alternatively, the landowners acquiesced to its entry. Three of the landowners say otherwise: the Beels, the Jacksons and Mr Sullivan.
Mrs Matthews submits that SPI:
(a) acted illegally in that it trespassed onto the landowners’ properties for the purpose of erecting and conducting the field test. She says that if permission was obtained from the landowners, it was obtained on a false pretence; and
(b) acted with impropriety in cutting off the electricity supply to the Jacksons’ property on 8 February 2012.[83]
Correspondence between Maurice Blackburn and HSF concerning the field test and the landowners’ consent
[83]Mrs Matthews’ written submissions [4.26], [4.28].
The question of whether SPI obtained the landowners’ consent to enter their land for purposes related to the field test was first raised by Mrs Matthews’ lawyers, Maurice Blackburn, by letter to SPI’s lawyers, HSF, on 17 April 2012.[84] Between this date and 12 March 2013 (inclusive), over twenty letters were exchanged between Maurice Blackburn and HSF which raised this issue.[85]
[84]This is according to Derham AsJ in Matthews v SPI (No 2) [9]; Second Affidavit of Ms Overington Exhibit REO-3 (CRT.SPN.042.0001, 0130).
[85]First Affidavit of Mr Watson [6].
The landowners’ consent (or lack of it) to SPI’s entry was originally the basis for an ongoing discovery feud between the lawyers over SPI’s claim for privilege over communications surrounding the set-up and conduct of the field test. It had been agreed that the data from the test would be provided to Mrs Matthews but Maurice Blackburn wanted related correspondence as well as specific discovery of the files of Mr Baumgarten (the “Baumgarten materials”). The question of lack of consent went to an argument under s 125 of the Act.[86] This dispute was ultimately the subject of a number of hearings before Derham AsJ.
[86]“Loss of client legal privilege-misconduct”.
Below I have set out what I consider to be the important parts of the dispute between the solicitors over the question of consent.
On 11 April 2012, Maurice Blackburn (its lawyers having observed the test span on a view) wrote to HSF raising the issue of the test for the first time:[87]
We are advised that your client has recently undertaken works on the Valley Span, which appears to have involved the construction of three additional conductors between, the original, pole 38 and pole 39 on the Pentadeen Spur. We further understand that the configuration of the additional conductors are such that they are unlikely to be intended to distribute electricity along the Pentadeen Spur in the normal fashion.
Can you confirm whether or not your client has undertaken construction work on the Valley Span for purpose of undertaking experiments, testing or measurements. If so, please provide details as to the nature of any such experiments, testing and measurements including, the commencement and anticipate completion date and when your client intends to discover any documents relevant to same.
Mr Watson confirmed that the information regarding consent in this letter did not come from the landowners.[88]
[87]CRT.CAM.139.0001 at 0008.
[88]T10410.
On 13 April 2012, HSF responded and said:
We confirm that work is being undertaken on the Pentadeen Spur between poles 38 and 39 for the purposes of the current proceeding. To the extent that documents relevant to this work were located in the repositories the subject of our client’s discovery obligation, they have been discovered and are the subject of a claim of legal professional privilege.[89]
[89]CRT.CAM.139.0001, 0009.
By letter dated 17 April 2012, Maurice Blackburn raised (among other things) the question of the landowners’ permission for the works:
We would have considered it prudent for your client to have notified the other parties that it intended to undertake works on the original pole 38 and pole 39 for the purposes of the current proceedings prior to doing so.
…
We also seek the immediate production of the landowners’ authorisations for your client to conduct work on the Valley Span for the purpose of legal proceedings.[90]
[90]CRT.CAM.139.0001, 0011.
On 27 April 2012, Maurice Blackburn wrote to HSF:
… we repeat our request for immediate production of landowners’ authorisations for your client to conduct work on the Valley Span for the purposes of legal proceedings.[91]
[91]CRT.CAM.139.0001, 0013.
On 11 May 2012, Maurice Blackburn wrote to HSF:
Further, as previously requested in our letters of 17 and 27 April 2012, we again ask that you provide by way of discovery any notifications given to, or permissions received from, the owners of the land on which Poles 38 and 39 are located, in respect of your client’s entry onto the land to do the works which resulted in the installation of additional cables and other fixtures on each pole which your counsel confirmed are related to testing being undertaken of the Valley Span.[92]
[92]CRT.CAM.139.0001, 0016.
On 14 May 2012, Maurice Blackburn wrote to HSF:
Further, we again ask that you provide, by way of discovery, any notification given to, or permissions received from, the owners of the land on which pole 38 and 39 are located, in respect of your client’s entry on to the land to do the works which resulted in the installation of additional cables and other fixtures on each pole, which your Counsel confirmed are related to testing being undertaken by your client on the valley span.
We note that this is the fourth occasion upon which we have made this request and we would request the courtesy of a reply.[93]
[93]CRT.CAM.139.0001, 0021.
HSF eventually responded to Maurice Blackburn’s enquiry as to consent on 16 May 2012 and said:
5. Notifications / permissions regarding access to poles 38 and 39
We had understood our position on this matter was clear.
In any event, we confirm that in completing our review of documents in the Protocol Repositories, our approach was to treat any document relating to the Valley Span testing as relevant and discoverable. Following receipt of your correspondence regarding the Valley Span testing, we have run further searches to ensure that such documents, including documents recording or relating to notifications and/or permissions regarding access to poles 38 and 39 for the purposes of the Valley Span testing have been discovered. Those searches have revealed a small number of further documents (comprising emails and attachments to those emails) which relate to the Valley Span testing and are the subject of a claim for legal professional privilege. We propose to discover those documents by way of a supplementary list by the end of this week.[94]
[94]CRT.CAM.139.0001, 0026-7.
I interpose here that the position in relation to permission for access was anything but clear. The general responses by HSF did not in any way address the issue squarely. SPI’s position was as opaque after this letter as it had been before it.
In relation to the letter of 16 May 2012, Ms Overington said in her evidence:
My recollection is that we wanted to double-check that correspondence regarding land owner communications was captured because at the time I think we were unsure as to whether that would be relevant to matters in issue in the proceeding and given that it had been raised, we wanted to just go back and double-check that for the avoidance of any sort of confusion we had included them erring on the side of – that they were relevant rather than not relevant.[95]
[95]T10544.
During cross examination, I asked Ms Overington whether any of HSF’s earlier correspondence (not listed above, but during the same period) squarely addressed the question raised by Maurice Blackburn as to whether SPI had landowner consent. Ms Overington said the following:
I think in the earliest correspondence we confirmed that any document at all relevant to the test would have been discovered and would be discovered to the extent it was in the files we were required to review and that would extend to authorisations and evidence of consent, although the earlier correspondence may not have specified that that’s what documents relating to the field test would have captured.[96]
[96]T10542.
Maurice Blackburn responded to HSF on 18 May 2012 and said correctly:
The response provided in your letter of 16 May 2012 is far from clear but we shall defer our response until we have considered the supplementary list which you indicate will be provided today, 18 May.[97]
[97]CRT.CAM.139.0001, 0029.
Ms Overington confirmed that SPI made searches and discovery as a result of a discovery order made in August 2012 and that this included some of Mr Baumgarten’s correspondence – but not his personal files or those in his mail box.[98]
[98]T10545.
The issue of consent was next raised by Maurice Blackburn by letter of 23 November 2012:
We have previously asked your clients to produce permits pursuant to which it entered the Beale [sic] and Sullivan properties to set up the test. The request was made on several occasions and, but [sic] no documents were produced.
As you will be aware, your client is entitled to access its assets on a customer’s premises only for the purposes of supply, metering or billing of electricity (see 3.3.2 of Electricity Distribution Code). Setting up infrastructure to conduct a test to support its position in litigation is not one of such purposes.
In the absence of evidence of permission to access the properties, it may be inferred that your client entered the relevant properties without appropriate permission. Such action would be in breach of its statutory/regulatory obligations concerning right of access and would constitute an act of trespass. In such circumstances, no privilege may attach to documents concerning the Valley Span test.[99]
[99]CRT.SPN.042.0001, 0139; T10545.
HSF responded on 30 November 2012; stating directly (for the first time) as to landowner consent:
Finally, for the avoidance of doubt we also advise that all access to poles 38 and 39 has been conducted with the consent of the landowners.[100]
[100]CRT.CAM.139.0001, 0035.
I pause here to note that there is no ambiguity in this response: HSF did not assert that it had a right of access under the EI Act and that consent was not required; instead, HSF asserted, in direct response to Maurice Blackburn’s contention that SPI required the consent of the landowners, that it had such consent. This is to be contrasted with the submission it made on behalf of SPI to Derham AsJ in March of 2013:
Given that SPI sought to justify entry onto the land as authorised by the Code or the Easement and the Electricity Act, then the power there conferred may be argued to have been abused, deliberately, by entry without permission or consent. That is, if the lawyers advance the Code and the Easement as the relevant authority, it may be inferred that so too did SPI. But SPI as the electricity distributor could hardly have been in doubt about its powers under the Code and the easement. If, assuming there are no landowner consents, SPI entered the land in purported reliance on the Code, etc, there is the possibility that it did so in deliberate abuse of its power to enter the land for the purposes related to the supply of electricity, the installation of the test conductors having nothing to do with that.[101]
[101]Matthews v SPI Electricity Pty Ltd (No ) [2013] VSC 116, [24].
Returning now to the correspondence. By letter dated 19 December 2012, Maurice Blackburn said the following:
We have previously asked your client to produce permits pursuant to which it entered the Beale [sic] and Sullivan properties to set up the Valley Span Test. Despite this request being made on several occasions your client is yet to produce any such documentation.
We are instructed by the landowners of the Sullivan property to request details of any consent to access pole 38 provided within the last 12 months. We ask that you provide details of such consent, and any permits to set up the test and/or enter the Sullivan property, by Friday 4 January 2013.[102]
[102]CRT.CAM.139.0001, 0036.
By letter dated 9 January 2013, Maurice Blackburn said:
We refer to our letter of 19 December 2012 in which we advised of our instructions from the landowners of the Sullivan property to request details of any consent your client obtained to access pole 38 within the last 12 months.
We have not received a response. Please provide a response by no later than Friday 11 January 2013.
In absence of a satisfactory response, at the hearing on 22 January 2013 we will submit that your client’s entries onto land for the purposes of the Valley Span test were unlawful and consequently no privilege could exist in any documents pertaining to the test.[103]
[103]CRT.SPN.042.0001, 0143.
HSF responded by letter dated 11 January 2013 and said:
We refer to your letter dated 9 January 2013.
Please:
(a) explain the character of the unlawful conduct you propose to allege, namely criminal or civil, deliberate or inadvertent;
(b) outline the facts upon which the allegation is based;
(c) explain by reference to legal principles and authorities, the basis upon which you contend that the alleged unlawful conduct precludes our client from asserting a claim of legal professional privilege in relation to all communications and documents in any way related to the conduct of the field test.
None of these matters has been addressed by you in correspondence to date. Upon receipt of this information our client will consider its position.[104]
[104]CRT.CAM.139.0001, 0037.
Maurice Blackburn responded the same day and said:
We have informed you that we have instructions of the owners of the Sullivan property to seek from your client evidence of permissions to enter their land for the purposes of the Valley Span test, which you have asserted your client has.
We have asked you for evidence of such permission on several previous occasions. Please produce it without seeking to delay the matter further.
We do not propose to engage in a hypothetical debate…[105]
[105]CRT.CAM.039.0001, 0038.
In a letter dated 16 January 2013, HSF said:
No evidence has been filed in support of any allegation that our client has engaged in unlawful conduct. Nor has any proper basis for an allegation of this kind been given by you in your correspondence.
We have advised you of our instructions that the relevant access to poles 38 and 39 has been conducted with the consent of the landowners. In circumstances where you propose to allege unlawful conduct which is contrary to our instructions, it is incumbent upon you to identify an evidential basis for your position. None has been provided to date. In light of our communication of our instructions it is simply not open to assert an inference may be drawn of ‘unlawfulness’. Your ongoing failure to provide some substantiation of the allegation of unlawfulness is inconsistent with your obligations under the Civil Procedure Act 2010 (Vic), specifically your obligations under section 20, 22 and 23 of that Act.
We invite you again to put forward affidavit material by noon tomorrow.[106] (emphasis added)
This exchange took place in the context of an ongoing discovery dispute.
[106]CRT.CAM.139.0001, 0039.
On 7 February 2013, an agreement was reached between the parties concerning discovery before Derham AsJ so that a list of the documents would be provided to Mrs Matthews. This list was forwarded by way of letter dated 7 March 2013.[107]
[107]T10546; CRT.CAM.151.0001, 0096.
By letter dated 8 March 2013, Maurice Blackburn said:
We should be pleased if you would advise by close of business Tuesday 12 March 2013 whether your client had any specific consent of the relevant landowners to enter their property for the purpose of the construction of the Valley Test spans. If your client had such a consent please provide a copy of the same.[108]
[108]CRT.CAM.139.0001, 0049.
HSF replied by letter dated 12 March 2013 and said:
SP AusNet does not understand why in correspondence the issue of consent continues to be raised. For the avoidance of doubt, as set out in our letter of 30 November 2012, our client’s position is that all access to poles 38 and 39 has been conducted with the consent of the landowners.[109] (emphasis added)
[109]CRT.CAM.139.0001, 0050.
Again I note that this unequivocal communication (consistent with HSF’s advice since November 2012 when it finally responded) was premised upon the existence of consent and did not state that HSF considered SPI to be authorised to conduct the test under the EI Act.
In late March 2013, Maurice Blackburn received the Baumgarten materials which included considerable correspondence and internal memos (including records of communication with the landowners) concerning the steps taken by SPI to obtain the consent of the landowners to access and egress their land for the purpose of constructing and conducting the field test. The absence of any written request for permission by SPI or any written consent from the landowners was notable.[110]
SPI access to and egress of the landowners’ properties for the purpose of the field test
The number of site visits
[110]T10460.
Mr Baumgarten detailed in his affidavit each of the eight field test site visits carried out while he was involved with the test (i.e. between August 2011 and July 2012). This did not cover the site visits which have taken place since July 2012 and, at my request, Mrs Matthews filed a list of all SPI attendances at the Valley Span with supporting references. A total of thirteen were identified:
(a) 26 August 2011;[111]
[111]Affidavit of Mr Baumgarten [37]; T10520.
(b) 14 September 2011;[112]
[112]Affidavit of Mr Baumgarten [54] and [59]; T10521-10522.
(c) 12 January 2012;[113]
[113]T10520-1; T10530.
(d) 31 January 2012;[114]
(e) 8 February 2012;[115]
(f) 29 & 30 March 2012;[116]
(g) 9 May 2012;[117]
(h) 2 July 2012;[118]
(i) 6 September 2012;[119]
(j) 29 November 2012;[120]
(k) 15 January 2013;[121] and
(l) 3 June 2013.[122]
Mr Baumgarten’s general approach to contact with the landowners for the purpose of conducting the field test
[114]Affidavit of Mr Baumgarten [54], [59]. During cross-examination, by reference to photographs of pole 39 and persons around it (including, in particular, VAZ.501.006.4897), Mr Baumgarten agreed that SPI persons, including Mr Ambrose, attended pole 39 on 31 January 2012: T10524-5.
[115]Affidavit of Mr Baumgarten [69]; T10510, T10524.
[116]This visit was for the purpose of installing the weather station, video camera and other related equipment at pole 39 as well as adjusting the tension of the test spans: Affidavit of Mr Baumgarten [84]-[85], [88]-[90]; T10525.
[117]Mr Baumgarten then says that on 9 May 2012 SPI had planned to fit an Automatic Circuit Recloser on the Pentadeen Spur and that the opportunity was therefore taken to carry out works on the test spans on this day. He was not present for these works. Affidavit of Mr Baumgarten [91]-[93]; T10525.
[118]Mr Baumgarten attended the site of pole 39 on 2 July 2012; he was accompanied by SPI’s lawyers and Mr John Vazey as well as other SPI personnel: Affidavit of Mr Baumgarten [98]; T10526, T10537.
[119]VAZ.501.006.4542; T10526-27.
[120]VAZ.501.006.4559; T10527.
[121]VAZ.501.004.0413; T10527.
[122]EXP.SPN.530.0001, [47]; EXP.SPN.790.0001, [2580] and following; T10528-29.
Mr Baumgarten deposed that, prior to the site visits, his view (similar to that of Ms Overington) was that it was not necessary for him to obtain permission to enter the landowners’ properties for purposes connected with the field test. He says he formed this view in reliance on an internal SPI document as well as the provisions of s 93(1) of the EI Act (which I set out above at [32]).
The internal SPI document, which he received about five or six years ago, was titled SPI Electricity Pty Ltd – Rights to Enter Private Property to Maintain Power Lines.[123] Part of it reads as follows:
1.1 Under existing and past legislation … SPI …has right of access onto land to undertake certain works (including the right to construct and maintain power lines). In the past, SECV relied on Section 106 of the “State Electricity Commission Act 1958” for powers to enter land to construct and maintain electric lines and to transmit electricity. SPI … enjoys similar rights, in accordance with Section 93 of the Electricity Industry Act 2000.
It is therefore NOT necessary for SPI … to have a formal Easement Right to exercise its powers to enter private land to maintain its private assets.
…
3.1 As explained, under item 1.0 above, SPI does not necessarily need a formal easement right, for authority to enter a property to maintain SPI power distribution assets, including power lines. SPI does, however, endeavour to discuss issues with landowners, in advance of works, wherever possible.[124]
[123]Affidavit of Mr Baumgarten, Exhibit NWB-1.
[124]Affidavit of Mr Baumgarten [8] and Exhibit NWB-1.
By reference to this and his past experience, Mr Baumgarten deposed that:
I did not think it was legally necessary to obtain any landowner permission or consent to enter onto land for the purpose of the Field Test. In the period I was involved (August 2011 – July 2012), I did not doubt that SP AusNet had the right to go onto land for the purposes of carrying out works in relation to the Field Test. I did not discuss this (SP AusNet’s rights to enter onto private land for the Field Test) with my SP AusNet colleagues or anyone else during this period.[125] (emphasis added)
[125]Affidavit of Mr Baumgarten [11]-[12].
During re-examination, Mr Baumgarten said the following:
On my understanding of section 93, sections (d) and (e) was that we had the right to enter on private, public land or roads to install, to maintain, to place, to alter, to repair equipment on our structures and similarly, in section (e) was to do all other things necessary to maintain, construct, alter, et cetera, under section 93, yes.[126]
[126]T10533.
In this context, Mr Baumgarten swore that he followed his “usual practice” in relation to modifications to existing installations when contacting landowners (and other customers who may be affected) in relation to the field test. He described his “usual practice” as follows:[127]
…it has been my practice, as a matter of courtesy and good customer relations, to:
give advance notice to affected landowners and customers;
provide them with information about the timing and impact, so that SP AusNet works would have as little impact on their lives (or businesses) as possible; and
provide my contact details for any queries or concerns.[128]
[127]Affidavit of Mr Baumgarten [14].
[128]Affidavit of Mr Baumgarten [13].
Mr Baumgarten said on most occasions he provided advance notice – usually by telephone. He said that one of the reasons for his contacting the landowners by telephone rather than in writing was because:
telephone conversations present an opportunity for real-time, two way communications. The customer or landowner has the opportunity to raise concerns and ask questions and raise any specific issues or concerns such as livestock, locked gates, electric fencing and land impacts.[129]
Advice from HSF to SPI concerning contact with the landowners about the field test
[129]Affidavit of Mr Baumgarten [27].
Shortly after his first site visit, on 31 August 2011 Mr Baumgarten sent an email to Mr Karutz (copied to others) in which he said:
As I will need to co-ordinate with the landowners, do you have an idea of the level of detail or otherwise I can provide to these property owners.
They are very aware of our activities in the area and will quickly identify the changes (additional test spans & solar arrays, etc) to these structures; not to mention the planned outage & use of a helicopter to install these spans; I would suggest we are as open as possible without causing concern.
Please provide a few paragraphs.[130]
Of this email, Mr Baumgarten says:
I made this request because I wanted to maintain a good relationship with the landowners by being courteous and not causing them unnecessary anxiety or concern about the works being undertaken by SP AusNet. I wanted to understand what level of detail I could provide to them about the works.[131]
[130]SPN.824.005.1705 at 1705.
[131]Affidavit of Mr Baumgarten [39].
Arising out of this, Mr Karutz sent an email to Ms Overington on 2 September 2011 in which he said:
…our field installation guys have raised the following concern:
As I will need to co-ordinate access with the landowners, do you have an idea of the level of detail or otherwise I can provide to these property owners.
They are very aware of our activities in the area and will quickly identify the changes (additional test spans & solar arrays, etc) to these structures; not to mention the planned outage & use of a helicopter to install these spans; I would suggest we are as open as possible without causing concern.
Please provide a few paragraphs.[132]
Ms Overington replied:
Graham
As requested, set out below is a suggested message to be conveyed to the neighbouring landowners.
· SP AusNet is conducting a series of tests of its network equipment.
·The tests are designed to help identify the variety of variables which impact on the performance of network equipment.
· SP AusNet appreciates your co-operation as it undertakes these tasks. [133]
[132]As extracted in the Second Affidavit of Ms Overington [58]; referred to in Mr Baumgarten’s affidavit [37].
[133]Second Affidavit of Ms Overington [59]; SPN.835.001.1332.
Ms Overington accepted that the first two bullet points of this advice could have been construed to refer to SPI’s usual business but said that she meant it to refer to the field test.[134] I find this explanation difficult to comprehend, particularly when it would have been simple to state directly the true purpose of the field test; there is no reference to equipment failure on the Pentadeen Spur, let alone litigation, and only mention of network “equipment” and “performance”.
[134]T10554-5.
During cross-examination, Ms Overington said:
My understanding of the request that was made of me was to explain the level of detail about the test which could be disclosed as part of the performance by SP AusNet of its courtesy discussions with the land owners.[135]
Ms Overington later said:
My concern at the time of preparing my response was maintaining SP AusNet’s claim of legal professional privilege over all communications regarding the Field test. I was concerned to avoid linesmen disclosing details regarding the test which could lead to a general waiver of privilege.[136]
[135]T10549.
[136]T10549.
Ms Overington maintained this position in her affidavit and during cross-examination.[137] However, she also acknowledged that telling the landowners about the fact of the test itself would not have led to a waiver of privilege. She said:
I was concerned that in giving a number of points to linesmen that they could take a high level reference to a matter such a[s] that and expand upon it, so I was concerned that it would lead to a broader discussion about the detail around the test which would give rise to a waiver.[138]
[137]T10537 and T10549, confirming what was said in the Second Affidavit of Ms Overington [60]–[61].
[138]T10550.
During her evidence she also said the following of her note to Mr Karutz:
The note sort of gave guidance that the linesmen could disclose that it was a test. It was a test in the very same spot that there had already been a Victoria Police investigation, Energy Safe Victoria investigation, the class action was on foot. It’s a natural assumption to think that if there was a test it was possibly connected with this litigation and if that enquiry had come back, then that would have been confirmed. Also, the context for this was that the business understood that it had a legal right to pass through the land, the property of the land owners, to access its equipment for the purposes of putting up a test and so the contact that was being made was over and above that requirement and it was part of a practice that SP AusNet had, in terms of keeping good relations with the land owners and customers…[139]
and further,
I must admit, I had assumed that a test – and it was very clear it was a test and that was part of the message that I had recommended be conveyed. It was a test in the very same spot where there had been investigations regarding the failure of that line on 7 February 2009 so it wasn’t a large leap to then join the fact of a test with the ongoing investigations, particularly for this class action.[140]
[139]T10551-2.
[140]T10552-3.
On the question of what would have been done if any of the landowners had sought additional information, Ms Overington said:
Had they come back to me and said, “A land owner has asked whether this test is for the purposes of litigation,” then they would need to say that it was.[141]
And, if a landowner had raised concerns:
If we had received that sort of feedback, either directly from the linesmen or via a third party solicitor, I would expect that we would have sought to confirm or otherwise that the legal rights permitted SP AusNet to be doing this test and if the court determined that that wasn’t the case, then we would have sought an order that we be permitted to go on the land to conduct this test.[142]
[141]T10550.
[142]T10555-6.
Returning to the correspondence, Mr Karutz responded to Mr Baumgarten’s email on 5 September 2011 and provided him with Ms Overington’s three bullet points, stating:
Regarding information to be provided to property owners, the following brief dot points were provided by the solicitor and give nothing away.[143] (emphasis added)
However, Mr Baumgarten deposed that he “didn’t end up needing to use these responses” because he was never asked by the landowners as to why the work was being undertaken.[144]
[143]Affidavit of Mr Baumgarten [40]; SPN.844.001.0171.
[144]Affidavit of Mr Baumgarten [40].
During cross-examination, Mr Baumgarten made it clear that he perceived he was limited to these three points in what he could tell the landowners if asked:
…from my point of view, the information that I had there was suitable for what I needed to communicate with the landowners.[145]
His understanding that he could talk about the test spans was that:
they are conducting a series of tests and that was the scope of my responsibilities. If I had a question that was outside that scope, then I could refer it on to Graham Karutz.[146]
Contact between SPI and the landowners regarding the field test
[145]T10506.
[146]T10507.
I set out below a summary of the advice given by Mr Baumgarten to landowners in relation to the site visits in which he was involved. Before I do so, the following observation can be made: consistent with his instructions from Mr Karutz and his own understanding of SPI’s powers, Mr Baumgarten did not tell the landowners the purpose of the test nor did he ever, in terms, seek their consent to enter their properties.
In advance of the first site visit, on 26 August 2011, Mr Baumgarten swore that he contacted Mr Sullivan and Mr and Mrs Beel by telephone. To the best of his recollection, he said words to the effect of:
I would like to enter your property in Kilmore East in the next few days so that I can look at the overhead power lines and poles. If you have any concerns, please call me on my mobile, which is …[147]
He did not contact the Jacksons at this point (or, indeed, in relation to any of the site visits prior to 8 February 2012) because he was not aware that they were relevant landowners.[148]
[147]Affidavit of Mr Baumgarten [33]. These are the words Mr Baumgarten recalls using when speaking with Mr Sullivan; he deposed to having used effectively the same words when leaving a voicemail for the Beels: Affidavit of Mr Baumgarten [33]-[34].
[148]Affidavit of Mr Baumgarten [32].
In advance of the site visit on 14 September 2011, Mr Baumgarten deposed that he contacted Mr Sullivan and the Beels. He says, in essence, that his message was that SPI “needed access” to their land “to carry out works on the poles and power line”, that access was required “for heavy vehicles and equipment”, and that they “might want to make arrangements for livestock or horses to be moved”.[149]
[149]Affidavit of Mr Baumgarten [44], [48].
Mr Baumgarten’s affidavit does not refer to the site visit on 12 January 2012.
Ms Overington parried the suggestion that the information provided may have obscured the true purpose of the field test by stating that the landowners should have realised that the works were related to the litigation.[245] There are a number of responses to this proposition.
[245]See [108] above.
The obligation to act honestly and not to engage in conduct that was misleading or likely to mislead lay upon SPI and related directly to conduct concerned with this proceeding. This obligation demanded consideration and compliance when providing information about the purpose of the field test; this was particularly important in circumstances where SPI, as I just mentioned, should have been (and I have no doubt was) aware that some of the landowners were potentially group members (remembering that the class remained open until 22 March 2013).[246]
[246]The class closed at 4pm on 22 March 2013, pursuant to my Order of 24 January 2013.
To put it another way in circumstances where the landowners were potentially group members, I consider that its obligation not to engage in conduct which was likely to mislead extended to telling landowners the true purpose of the test. It was not appropriate to expect that the landowners would be canny enough to deduce the true reason for obtaining access – in the face of SPI’s communications which deliberately omitted any reference to the true purpose of the field test or associated litigation. SPI employees were under instructions to refer to “network performance” if asked the purpose of the test. Further, SPI knew some of the landowners were significantly affected by the fire. I refer in particular to the Beels, whose house was destroyed (leading them to re-locate to Phillip Island). As I said earlier, I unreservedly accept Mrs Beel’s evidence that she had no idea what was going on (insofar as the works related to the class action).
SPI was in a clear position of advantage vis-à-vis the landowners: it owned and controlled highly technical infrastructure; in usual circumstances, the attendance of SPI personnel on the landowners’ properties to undertake works would be authorised under the EI Act; it is reasonable to assume that the landowners would expect SPI to have a working understanding of its powers (and the limits upon them) and that it would not act outside its powers without consultation and consent. Moreover, because the field test works could easily be mistaken for works closely related to its usual business, it was patently not unreasonable for a landowner to reach this conclusion.
SPI knew precisely what was going on with the works on the Pentadeen Spur but chose not to share its knowledge with the landowners relying upon continuing obfuscation in its dealings with them. Its conduct, it can reasonably be inferred, resulted in the landowners having no real prospect of understanding the true nature of the field test. The article written by Mr West demonstrates powerfully the “give nothing away” approach taken by SPI.
SPI’s agent, HSF, also had obligations under the CPA concerning the issue of consent. In particular, it was obliged to cooperate in the conduct of the proceeding and to endeavour to “narrow the issues”.[247]
[247]See [200(d)] above.
When Maurice Blackburn became aware in April 2012 of the works on the Pentadeen Spur it immediately raised the issue of landowner consent with HSF. It is irrelevant as to whether the inquiry went to the question of discovery or to the application of s 138. The question was appropriate and HSF had an obligation to cooperate. Although I accept that the Maurice Blackburn correspondence was not ignored, it is patent that there was no specific or adequate reply to the request notwithstanding the follow up letters.[248] Eventually, HSF specifically stated inaccurately – on three separate occasions (30 November 2012, 16 January and 12 March 2013) – that SPI had the consent of the landowners.
[248]See [77]-[80] above.
I remain confused in light of Ms Overington’s evidence before me as to this repeated assertion. Ms Overington said (like Mr Baumgarten) that it was always her view that the EI Act (or the Code) authorised the entry. This was also the submission made to Derham AsJ in the discovery fight over access to the field test documentation. In other words, no consent was required.
As I have already said in relation to SPI, it would have been a simple task for HSF to reply to Maurice Blackburn, in the spirit of cooperation as mandated by the CPA, and advise that no consent was required as SPI had the authority to conduct the field test. I am afraid that I do not accept that HSF – a vastly experienced litigation firm – could have confused the concepts of authority and consent. If HSF was indeed relying on consent, it should have identified the basis of that consent promptly and in clear terms, early in the piece. Such a course would have been in furtherance of its obligations of cooperation and narrowing the issues in dispute early in the proceeding.
So in summary, in addition to the repeated acts of trespass, SPI breached its obligation to avoid conduct which was likely to mislead and acted inappropriately in its dealings with the landowners. Further, HSF, SPI’s agent, breached its obligations to cooperate and narrow the issues in dispute.
In light of all this, it may be thought that SPI’s conduct was, indeed, grave – particularly given my conclusion that it consciously suppressed information about the purpose of the field test. There are, however, a number of countervailing factors to be considered on the question of the consequences or prejudice to Mrs Matthews and/or the landowners resulting from SPI’s conduct.[249]
[249]See reference to R v Helmhout at [197], above.
First, no landowner has given evidence to suggest that the entries onto the land and the maintenance of the conductors caused inconvenience or damage. There is no suggestion of damage to property or injury to stock. The reality is that the comings and goings of SPI, probably with the exception of those of 8 February 2012, had little impact on the daily lives of the landowners; this is particularly so in relation to the Beels and Mr Sullivan who do not live on the properties they own. No landowner has pursued any civil remedy (be it injunctive or for damages) against SPI.
Second, the prejudice to Mrs Matthews arising out of SPI’s conduct as contended by her Counsel is illusory. It was said that if the landowners had been consulted by SPI and consent subsequently refused then Maurice Blackburn would have become involved in any SPI court sanctioned field test. This proposition, it seems to me, is speculative. It appears to be premised on the suggestion that Maurice Blackburn on behalf of Mrs Matthews would have played a part in dictating the manner in which the field test would have been carried out. I do not accept this proposition. It may well be that, in the event of such an application, a court would merely have approved the SPI test on the basis that all data and documentation concerning the test be passed on to Mrs Matthews’ lawyers so that it could be considered by the experts retained by her. As I understand it, this is what has transpired, albeit after a protracted guerrilla war.
Third, as far as I can discern there is no prejudice to the landowners. The Beels are the only landowners who remain group members and Counsel for Mrs Matthews will, in the course of cross-examination be able to thoroughly examine whether the field test results are truly probative on the question of causation.
Taking into account these factors, I think that the contravention and conduct associated with the unlawful entries is best characterised as lying somewhere in the middle of the spectrum identified by the Court of Appeal in R v Marijancevic.[250]
Was the conduct deliberate or reckless (s 138(3)(e))
[250][2011] VSCA 355.
The fifth factor is whether the conduct was deliberate or reckless.
In Parker v Comptroller-General of Customs,[251] Basten JA (with Mason P and Tobias JA agreeing) said:
What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individual’s civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.[252]
[251][2007] NSWCA 348. This decision was the subject of an appeal to the High Court in Parker v Comptroller-General of Customs (2009) 252 ALR 619 (referred to earlier); the High Court dismissed the appeal.
[252][2007] NSWCA 348, 592.
In R v Marijancevic,[253] the Court of Appeal said that conduct is reckless when there is
some advertence to the possibility of a breach of the obligation and a conscious decision or a “don‘t care” attitude to proceed regardless of that possibility.[254]
[253][2011] VSCA 355.
[254][2011] VSCA 355, [47] (Warren CJ, Buchanan and Redlich JJA).
The meaning of “reckless” was also considered in the decision of the New South Wales Court of Criminal Appeal in R v Helmhout in relation to the equivalent NSW provision. In that case, an Aboriginal person had been detained by police and the police failed, before obtaining evidence from him, to notify a representative of an Aboriginal legal organisation be notified as required by cl 28 of the Crimes (Detention) Regulation. The matter on appeal was whether the evidence ought to have been admitted. Hulme JA said the following:
It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term “reckless” in paragraph (e) of s138(3). In the context of “improperly or in contravention of an Australian law” the concept “reckless” must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a “don’t care” attitude generally … The mere failure to comply with clause 28 on one occasion cannot, without more, demonstrate these matters. There is no other evidence to suggest the failure was reckless …[255]
[255][2001] NSWCCA 372, [33].
In DPP v Nicholls,[256] Adams J said of s 138(3)(e):
“reckless” within the meaning of s 138(1)(3)(e) of the Evidence Act 1995 requires a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect will be substantially prejudiced.[257]
[256][2001] NSWSC 523.
[257][2001] NSWSC 523, [23].
Returning now to this case. Given my findings in relation to probative value and gravity, it seems to me that this issue is of some significance.
Both Ms Overington and Mr Baumgarten swore that there was no intention to deliberately infringe the landowners’ rights; each said they believed that access was authorised by the EI Act; and, each said that this informed the decision to conduct multiple entries without seeking consent.
That evidence needs to be contrasted against several matters.
First, the internal SPI document relating to rights to enter private property – which was Mr Baumgarten’s source of information – conveys to the reader that SPI had a right of access for the purpose of undertaking certain works, including constructing and maintaining power lines in the context of the supply of power; it says nothing about the construction and maintenance of a field test for the purpose of litigation. I accept, of course, that Mr Baumgarten (fortunately for him) could not be expected to have engaged in an analysis of the EI Act that this application has required.
The position with HSF (SPI’s agent and legal advisor) is a little different. I find it difficult to understand how such an experienced litigation firm, undoubtedly familiar with the EI Act and the access gained by SPI, could advise Maurice Blackburn on three separate occasions that SPI had the consent of the landowners; it could have responded directly to Maurice Blackburn’s assertion in its letter of 23 November 2012 and stated simply that it considered SPI to have authority under the EI Act and therefore it did not require consent.
Second is the failure to call Mr Karutz, the guiding mind of the project. It is clear that Mr Baumgarten was supervising the field test in accordance with Mr Karutz’s instructions. It could be reasonably supposed that Mr Karutz is the appropriate person to have deposed as to his belief concerning the authority provided by the EI Act rather than his adjutant. There being no explanation for Mr Karutz’s absence, I think that a Jones v Dunkel[258] inference can be drawn on this point against SPI. However, one has to be careful about the extent of such an inference. Here there is nothing in the evidence of Mr Karutz’s involvement (in the tendered correspondence) that indicates he had a different state of mind to Mr Baumgarten or any other SPI personnel. More importantly it would be wrong to speculate, particularly on an issue such as this, as to what he may or may not have thought.
[258](1959) 101 CLR 298.
Ultimately, after considerable reflection and notwithstanding the inference to be drawn by reason of the absence of Mr Karutz, I have determined that the evidence of Mr Baumgarten and Ms Overington should be accepted as to the state of mind of SPI concerning its authority to access the landowners’ properties.
Whilst I think that this was an unreasonable conclusion that sits uncomfortably with multiple references by HSF to landowner consent, I am not satisfied that SPI’s conduct was deliberate or reckless.
Has any other proceeding been, or is one likely to be, taken in relation to the impropriety or contravention (s 138(3)(g))[259]
[259]No party attributed any importance to the sixth factor, s 138(f).
The seventh factor is whether any other proceeding (whether or not in court) has been or is likely to be taken in relation to the impropriety or contravention.
None of the landowners have suffered any material loss as a result of SPI’s conduct. Nor have they brought or are likely to bring an action in trespass against SPI.
The difficulty of obtaining the evidence without impropriety or contravention (s 138(3)(h))
The eighth factor is the difficulty (if any) of obtaining the evidence without impropriety or contravention.
The answer to this question is clear: SPI could readily have approached the landowners and sought their consent. It did not.
In the event that the SPI had sought such consent and was met with refusal then SPI could have sought the aid of the Court. Either by reference to the CPA, (arguably ss 47 and 48) or (more likely) under the Supreme Court (General Civil Procedure) Rules 2004, Order 37.01, the Court could, if satisfied of its utility, have ordered that a field test be carried out on the Valley Span. Whilst such an application would have been cumbersome (e.g. each of the landowners would need to have been put on notice) no party suggested that it would have been futile. Indeed, if Mrs Matthews is successful SPI has indicated that it would seek such an order for further tests; UAM will support such a move.
Other factors: Impact of excluding the evidence on UAM
The field test has direct relevance to the case against UAM: amongst other things it is alleged that Mr Leech, the UAM inspector, should have identified a misaligned helical termination close to pole 39 when he conducted an inspection of the pole in February 2008. Mrs Matthews maintains that the failure of SPI to fix the misalignment bears a causal relationship to the ultimate failure of the conductor.
One of the field test spans has been strung with a misaligned helical termination. It is arguable that the results of the field test provide a basis for UAM to contend that the misaligned helical termination had no effect on the fracture of the conductor – as its expert Dr Havard opines. I refer also to the excerpts of the Conclave 3 joint reports above, at [173]-[184], specifically referring to the significance (or otherwise) of the misaligned helical termination.
In my view, this consideration is of some significance. UAM was not party to any misconduct concerning the field test. True it is that it indirectly obtains the advantage of SPI’s endeavours. Nevertheless, acceding to Mrs Matthews’ application would mean UAM, through no fault of its own, is deprived of the benefit of the test results.
Other factors: The failure of Mrs Matthews to raise this point earlier
Counsel for Mrs Matthews raised this challenge to the admissibility of the field test data under s 138 on 24 September 2013.[260] Mr Watson says that it was “very shortly” prior to this that Mrs Matthews received notice from SPI that Mr Baumgarten would not be called to give evidence[261] and that this advice prompted the application. Mr Watson said:
Since April 2012 we had been pursuing the issue of consent. We had been met with resistance at various points in time for any information about that. It was an evolving picture and we did not reach a position where we were clear about that picture until we were, or at least until we had any measure of clarity about that picture until March and we made a decision that we would seek further information in cross-examination of Mr Baumgarten when he was called.[262]
[260]As confirmed by Mr Watson: T10450-1.
[261]T10451.
[262]T10448-9.
Maurice Blackburn knew in April 2012 that some form of test had been set up on at the Pentadeen Spur.[263] It did not seek instructions from the landowners at that time as to their state of knowledge or whether they had given consent to SPI’s presence on their land for the purpose of such a test. On this, the following exchange took place between Counsel for SPI and Mr Watson:
But they would have been the first port of call, wouldn’t they: to speak with the people and ask them whether had they knew about this and whether they consented?---Well, plainly they were not, from our perspective, because we first asked your instructors but more fundamentally, no. We thought the obvious thing to do was to speak to your instructors and seek from them those documents.
But you have just given an answer to his Honour that you didn’t get a response to this so wasn’t your first point of call either to bring on a contested discovery application or do the obvious thing which was go and speak to the land owners themselves?---No. Our first port of call was to then ask for the courtesy of a response.[264]
[263]T10408-10.
[264]T10414.
During re-examination, as to why, in April 2012, Maurice Blackburn did not go directly to the landowners for evidence of consent Mr Watson said:
we were in a position where we anticipated that it would be a very simple and straightforward matter for SP AusNet to produce whatever records it had and indeed, we thought was a more likely – likely to be a a quicker way of dealing with the issue than approaching the landowners.[265]
This proposition is borne out by the letters Maurice Blackburn wrote to HSF. I accept that at this time their approach was a sensible and reasonable alternative to going straight to the landowners, particularly given HSF’s obligation to cooperate.
[265]T10455.
On the question of why Mrs Matthews did not raise a s 138 challenge earlier – specifically in November or December of 2012 – the following exchange took place between Counsel for SPI and Mr Watson:
There was no impediment to you writing and saying that none of the Vazey test data and the use that conclave 3 had made of It could be used because it was fruits from the poison tree?---There was no impediment … but we had been specifically advised in the correspondence at 30 November that there was consent and - - -
But you didn’t even believe that in your letter of 19 December, is that right?---No that is not right. We didn’t know – we had been specifically advised that there was consent. We had information which suggested there was not and we wrote to your instructors seeking to clarify it because we thought it might be a simple matter for your instructors to say, “Look, here they are”, in which case we would have known that notwithstanding the position that had been advised to us by the Sullivans and the Beels that there had been an error and in fact consent had been given.
But you knew at that stage from the discovery that had been given that there weren’t actually any written documents constituting written consents or authorisations and permits, put aside for the moment whether they were privileged or non-privileged. You knew that on 19 December 2012, did you not?---No. I don’t think we did know that at all.
You had the opportunity to find that knowledge by just looking at the lists of documents that have been given?---No, I don’t think that’s right at all, given that the list we were provided was expressly provided on the basis that searches would be conducted of relevant repositories and of course, what has subsequently emerged, is that Mr Baumgarten was not treated as a repository for those searches.[266]
[266]T10424-5. Mr Baumgarten’s documents were not treated as a repository for the purposes for discovery, hence those documents not being subject to discovery earlier: see e.g. T10426.
Counsel for SPI also put to Mr Watson that the Maurice Blackburn letter of 19 December 2012 should be read as indicating that Maurice Blackburn did not accept that SPI had consent. Although Mr Watson disagreed, saying: “What we actually wanted was details”,[267] by then if consent remained a real issue the time had arrived to contact the landowners and obtain instructions – indeed, that letter (of 19 December 2012) made it clear that by then that at least one of the landowners had been spoken with on the issue of consent.[268]
[267]T10427.
[268]Indeed it was said, incorrectly, that Maurice Blackburn had instructions from Mr Sullivan.
By mid-January 2013, Mr Watson was contemplating a possible s 138 application:
Was your mindset as at 17 January that you thought that you might use the absence of consent later down the track to rule inadmissible the Vazey test data and any expert material based upon that?---My mindset at that stage was that that was a possibility.
And not communicated to anyone at Freehills?---Not communicated to anyone at Freehills other than implicitly by a reservation of rights.
Nevertheless, Mr Watson maintained that, rather than relying upon the landowners’ evidence it was then necessary for Maurice Blackburn to continue to see what HSF produced in relation to the Baumgarten materials:
we were still … not clear about the nature and scope of Mr Baumgarten’s evidence. We had not had the benefit of any witness statement and we had not had the benefit of any discovery.[269]
[269]T10447.
On the basis of the above, I am satisfied that, in the period leading up to December 2012, Maurice Blackburn was entitled to regard the most appropriate and efficient source of confirmation regarding consent for the field test to be HSF. However, by January 2013, waiting and not acting – including failing to communicate explicitly to anyone (i.e. the other parties or the Court) was not an appropriate course, bearing in mind the CPA obligations to cooperate with the Court and the other parties (s 20).
If, contrary to my view, January 2013 was not the appropriate time to bring the application then, at the very latest, the receipt of the Baumgarten materials in late March should have triggered the application. Mr Watson gave the following explanation of why it did not take this course in the following exchange with Counsel for SPI:
your mind was set at March 2013 that you had it in mind to adopt this strategy of seeking to bring an application to adopt this strategy of seeking to bring an application to rule this test material inadmissable but you thought you would stay your hand until such time as Mr Baumgarten was called and Mr Richter started cross-examination? --- Well, a decision was made that it would be a preferable course to have the evidence of Mr Baumgarten and the opportunity to cross-examine him before an application was made.[270]
After I sought clarification, Mr Watson further said:
Well, it was still possible what Mr Baumgarten said might end up leading to a situation where an application might not be made, conceivably.[271]
[270]T10443-4.
[271]T10444.
Mr Watson stated that between 15 March 2013 and 24 September 2013, Maurice Blackburn’s approach was to:
await the cross-examination of Mr Baumgarten and assess whether or not an application would be made one that cross-examination had concluded. Now, when it was clear he was not going to be called we had to make the assessment without the benefit of understanding his answers in cross-examination.[272]
[272]T10454.
Mr Watson stated during cross-examination, and I accept, that Maurice Blackburn did not “seek to take any tactical advantage in relation to any element of surprise” (in the words of Counsel for SPI) by sitting on the application until late September.[273] But that does not mean that it was entitled to wait.
[273]T10453. This question directly followed a discussion regarding a hearing before Derham AsJ on 15 March 2013.
In my opinion the conduct of Mrs Matthews’ lawyers in making this application on day 94 of the trial was both unacceptable and unreasonable. Maurice Blackburn breached its obligation under s 20 of the CPA to cooperate with the Court. This conduct counts against acceding to Mrs Matthews’s application for the following reasons.
First, I am satisfied that by December 2012/January 2013 Maurice Blackburn, as Mr Watson conceded, had a s 138 application in mind. By that time the lawyers had spoken to at least one of the landowners and must have known that consent was a live issue – notwithstanding the assertions made by HSF. It well knew that planning for the case involved a set timetable for lay and expert evidence. It also knew that the process of expert evidence was ongoing with experts continuing to review the data with expert reports (including the third joint report of Conclave 3) being formulated or likely to be formulated.
The lawyers acting for Mrs Matthews (Counsel and Maurice Blackburn) must have understood that the longer the application was delayed the greater the risk that the conduct of this extraordinarily large piece of litigation would be disrupted and the greater the turmoil that would result if the application was successful. Particularly it must have been known that it would be nearly impossible for the concurrent expert evidence session involving the Conclave 3 experts planned for early November to continue as scheduled.
As has been seen, a significant number of the experts have relied upon the field test in formulating their views on various matters. If the application is successful not only would they need to reformulate their opinions (with the obvious problem of asking them to put the field test out of their collective minds) but their reports would need to be redrawn. This would mean a significant and time-consuming task for each and the process would involve an unrealistic degree of artificiality.
As Mr Watson conceded (as put by Counsel for SPI): he knew that making this application over six months into the trial would cause “a lot of expenditure, expense and inconvenience” to those parties relying upon the field test data.[274]
[274]T10433.
Second is the asserted rationale for delaying the making of the application. In response to questioning by Counsel for SPI as to why Mrs Matthews did not pursue a s 138 challenge earlier, Mr Watson said:
Well, you don’t challenge the admissibility of something as a rule until it’s actually tendered.[275]
This refers to, I think, the time at which evidence of the field test is to be adduced: immediately prior to the concurrent expert evidence session in early November. This is a confounding and disturbing explanation given the obligation upon Maurice Blackburn to cooperate with the Court and to narrow the issues. It is also patently incorrect. Where a party wishes to rely upon a point that if successful will potentially cause significant disruption to a trial then modern trial procedure, as reflected by the provisions of the CPA, requires that party to give notice to the Court as soon as reasonably practical – not to sit on its hands and wait until it thinks an opportune time has arrived. It is beyond the Pale to wait six months before alerting the Court to the prospective application.
[275]T10422.
The suggestion that it was reasonable to wait until Mr Baumgarten (who was on the SPI witness list but ultimately did not give evidence) was called and cross-examined on the question of consent is equally unacceptable. In any case, absent this issue being raised, cross-examination on this point was irrelevant to the determination of the case and the evidence would have been inadmissible.
Third is the proposition that SPI’s lawyers should have been aware of the possibility of this application. Mr Watson said: “I didn’t think they needed to be appraised of it. They seemed to be aware of it.”[276] This answer referred to a remark made by Counsel for SPI in a hearing before Derham AsJ. This suggestion goes nowhere. In any piece of litigation a party might suspect that an opponent may have in mind taking a particular course. That is part and parcel of adversarial litigation. However, until that action crystallises or can be reasonably anticipated, the opposing party is entitled to put it to one side. Even if SPI should have anticipated this application it does not assist Mrs Matthews. Her obligation to cooperate was also owed to the Court – to which I now turn.
[276]T10453-4.
Finally, there is the role of the Court in modern trial management. When asked whether Maurice Blackburn had considered notifying the Court that Mrs Matthews was contemplating this application, Mr Watson said that he did not feel this was necessary.[277] Nor did he accept the proposition that making the application at this time would “interrupt the orderly flow of the trial”.[278] I regard both responses as extraordinary and completely out of touch with the manner in which trials are conducted in this State. I should add, however, lest it be thought that I am unfairly criticizing Mr Watson alone that I was told by Mr Keogh, Senior Counsel for Mrs Matthews, that the decision to wait was made by Mrs Matthews’ legal team.
[277]T10454.
[278]T10433 (whilst accepting the point regarding expenditure, expense and inconvenience).
The CPA makes it abundantly clear that the Court has a fundamental role to play in modern trial management. A number of the obligations imposed upon parties and lawyers by the CPA relate directly to cooperation in ensuring that trials are managed efficiently – that is the very point of the obligations to cooperate and to narrow the issues. This is especially so given the repeated occasions upon which the question of the field test was raised in the course of the trial and before Zammit AsJ with not a murmur about the admissibility of the data. To treat the Court as a mere observer of a forensic contest is, simply put, wrong and, in the context of this trial, foolhardy.
I repeat what I said earlier – this trial has involved many months, indeed years, of planning – particularly in relation to the expert evidence. To not alert the Court that this application was in the wind was, to put it in the most favourable light, a serious error of judgment.
If the Court had been alerted at an earlier time that this was a live issue – say in the month before or around the time of the commencement of the trial – then measures could have been taken to manage the expert evidence appropriately in the event of the application being successful. Of course there would still have been problems in relation to the use of the field test data, individual and joint expert reports, and expert evidence generally. However, those may have been manageable at that time without significant disruption to the trial.
If this application is successful at this late stage in the trial then, depending upon consequential orders (such as the experts reconsidering the issues absent the field test or, alternatively, a new field test being set up and, in a year’s time, analysing the data – as SPI and UAM have suggested) it will mean that the trial will have to be halted. And the duration of such an interruption may be measured in years rather than months. Such a result is patently unacceptable.
Synthesis of these considerations
In my opinion, the evidence obtained from the field test should not be excluded. Whilst I regard the gravity of the contravention and associated misconduct as being mid-range and deserving of criticism, the potential probative value of the tests in resolving the question of causation in the case against SPI and UAM is significant and important to the resolution of critical issues in this proceeding. Added to this is my conclusion that SPI’s conduct was neither deliberate nor reckless and that UAM, innocent of any wrongdoing, would suffer considerable prejudice if this evidence was excluded.
I am satisfied on this basis that Mrs Matthews’ application should be refused. I should add that if I had any real doubt about the result on the grounds that I have mentioned (which I do not) the delay in making this application would have fortified my resolve to refuse it.
Waiver/estoppel argument
In essence, I have treated the failure of Mrs Matthews to make this application at an earlier point in time as going to the question of the exercise of my discretion under s 138 of the Act. Given my conclusion, it is not necessary to examine this matter further.
Conclusions
(a)SPI did not have the authority under ss 93(1)(a), (d) and (e) of the EI Act to access and egress the landowners’ properties for the purposes of erecting and conducting the field test.
(b)Nor did SPI have the consent of the landowners to do so.
(c)SPI’s access and egress of the landowners’ properties on multiple occasions without their consent constituted a contravention of Australian law and so s 138(1) of the Act is engaged.
(d)However, taking into account the factors contained s 138(3) as well as the other considerations I have identified, the desirability of admitting the evidence outweighs that of excluding it. It follows that evidence arising out of the field test should not be excluded.
Orders
Mrs Matthews’s application should be dismissed.
SCHEDULE OF PARTIES
BETWEEN
carol ann matthews Plaintiff
and
spi electricity pty ltd (ACN 064 651 118) First Defendant
Utility services corporation limited
(ACN 060 674 580) Second Defendant
SEcretary to the DEPARTMENT
OF SUSTAINABILITY AND ENVIRONMENT Third Defendant
COUNTRY FIRE AUTHORITY Fourth Defendant
state of victoria Fifth Defendant
and
spi electricity pty ltd (ACN 064 651 118) Plaintiff by Counterclaim
and
Utility services corporation limited
(ACN 060 674 580) First defendant to Counterclaim
SEcretary to the DEPARTMENT
OF SUSTAINABILITY AND ENVIRONMENT Second Defendant to Counterclaim
COUNTRY FIRE AUTHORITY Third Defendant to Counterclaim
state of victoria Fourth Defendant to Counterclaim
carol ann matthews Fifth Defendant to Counterclaim
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