Matthews v SPI Electricity Pty Ltd (Ruling No 33) - [2014] VSC 17

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
DATE OF RULING:	7 February 2014
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 33)
MEDIA NEUTRAL CITATION:	[2014] VSC 17

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PRACTICE & PROCEDURE – Application by plaintiff to re-open case and tender further documentary evidence – Potential prejudice to defendant – Overriding consideration of interests of justice – Civil Procedure Act 2010 (Vic) ss 1, 9, 49 – Evidence Act 2008 (Vic).

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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 L Brown Ms J Swanwick &	Norton Rose Fullbright Australia
Mr J Heeley

HIS HONOUR:

Introduction

Counsel for Mrs Matthews wants to tender a series of photographs taken by a police officer, Detective Senior Constable Kirton (“Mr Kirton”), who attended the Sullivan property on the morning of Sunday 8 February 2009 (i.e. the day after Black Saturday).[1]
[1]VPO.8000.2014.6295, 9296, 9299, 6300, 6301, 6316, 6317, 6319 and 6320.
The photographs taken by Mr Kirton were attached to a police statement given by him on 5 August 2009.[2] This statement does not appear to have been tendered during the Victorian Bushfire Royal Commission (“VBRC”) and Mr Kirton did not give evidence before the VBRC.[3]
[2]VPO.001.031.0190, referred to at 0191-4.
[3]See Affidavit of Mr Watson, dated 30 January 2014, [26]-[27].
According to Mrs Matthews’ lawyers, Mr Kirton’s statement was first produced by the State parties to Mrs Matthews’ lawyers in this proceeding in November 2011, in a tranche of 2,473 documents.[4] Mr Kirton’s photographs were not produced with the statement but in a later tranche comprising 100,394 documents in April 2012 – although Mr Kirton’s statement refers to and briefly describes the photographs.[5]
[4]Affidavit of Mr Watson, [25]. SPI’s lawyers say that the statement was produced in late October 2011 (SPI’s written submissions, [8(d)]); the timing difference is immaterial.
[5]Affidavit of Mr Watson, [25]; SPI’s written submissions, [8(d)]. SPI also notes that a duplicate set of Mr Kirton’s photographs was discovered by the State parties on 31 May 2012: SPI’s written submissions, [8(e)].
Whilst the photographs are clearly relevant…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2014] VSC 17
Decision Date: 7 February 2014

CaseChat Overview and Summary

The plaintiff, Matthews, applied to the court to re-open their case and introduce further documentary evidence in the proceedings against SPI Electricity Pty Ltd. The dispute centred around the interpretation and application of sections 1, 9, and 49 of the Civil Procedure Act 2010 (Vic) and the Evidence Act 2008 (Vic). Matthews sought to present new evidence that was not available at the time of the original trial, asserting that it was crucial for the determination of the case. SPI Electricity Pty Ltd opposed the application, arguing that allowing the new evidence would cause significant prejudice due to the delay in presenting it.

The court had to balance the potential prejudice to the defendant against the overriding consideration of the interests of justice. The legal issue was whether the court should permit the re-opening of the case under the circumstances presented. The court considered the principles established in previous cases, which emphasise that the interests of justice should be the paramount consideration. It also took into account the possibility of prejudice to the defendant, the importance of the new evidence, and whether the delay in presenting it was reasonable or excusable.

In reaching its decision, the court noted that the delay in presenting the new evidence was not entirely excusable, but the importance of the evidence in determining the case was significant. The court concluded that, despite the potential prejudice, the interests of justice required that the new evidence be considered. The application to re-open the case and tender the additional documentary evidence was granted, ensuring that the case could be fairly decided based on all relevant information. The court's ruling provided clarity on the application of the Civil Procedure Act and the Evidence Act in similar future cases.

Orders