Matthews v SPI Electricity Pty Ltd (Ruling No 33)

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 to the issues to be determined in the case, their tender (without calling the photographer) is sought months after Mrs Matthews’ factual case closed. At least initially, no explanation of any sort was proffered by Mrs Matthews’ lawyers as to why such potentially relevant material was adduced, in effect, at the end of the trial.
Counsel for SPI contends that it is too late in the trial to tender the photographs and that there will be a real prejudice to SPI if the tender is permitted.
Ultimately, I have decided to permit the tender of the photographs, subject to Mr Kirton being made available for cross-examination by SPI if so required. My reasons now follow.
Background
In the early morning of Sunday 8 February 2009, Mr Kirton inspected the area of the fire origin, particularly pole 38, and took a number of photographs of the pole and its various attachments, the conductor, and the surrounding area. Of these, Mrs Matthews seeks to tender nine photographs, each of which show at various angles and perspectives the position of the fallen conductor at pole 38. There seems to be no argument that these were the first photographs taken of pole 38 after the fire.
Mr Crowe, a CFA fire investigator, attended the Valley Span at the same time as Mr Kirton that morning.[6] Mr Crowe took numerous photographs of poles 38 and 39 and the surrounding areas as part of his fire investigation which have been tendered in this trial. Whilst in his oral evidence during the trial Mr Crowe referred to there being two police officers in attendance at pole 38 on 8 February 2009, he did not name the officers nor refer to them having taken photographs of the scene.[7]
[6]Mr Kirton specifically refers to Mr Crowe’s attendance in his police statement: VPO.001.031.0001, 0019.
[7]T1219-20 (Mr Leahy); T975 (Mr Crowe).
Later that day, Mr Leahy, an Energy Safe Victoria investigator, also attended the property and took a number of photographs of poles 38 and 39 and the surrounding areas – these have been tendered. In his oral evidence during the trial, Mr Leahy also referred to there being two police officers in attendance at pole 38 on 8 February 2009. In his police statement, dated 6 October 2009, Mr Leahy specifically names Mr Kirton as having attended.[8]
[8]VPO.001.031.0001, 0019.
A couple of weeks after Black Saturday Mr Costolloe, an SPI engineer, attended the property and also took photographs. These have been tendered.
As I mentioned earlier, on 5 August 2009, Mr Kirton completed his statement which referred to a number of photographs, including the nine photographs Mrs Matthews seeks to now tender.
Mr Kirton’s photographs are also referred to in two other police statements: they are attached to the police statement of Detective Sergeant Maas;[9] and, some of the photographs are mentioned in the police statement of Sergeant McDonnell[10] – although not attributed to him.[11] Mr Kirton is also mentioned in Sergeant McDonnell’s statement as having attended the scene.
[9]VPO.8000.2013.3981.
[10]VPO.8000.2013.4047.
[11]Affidavit of Mr Watson, [32]-[33]
Over the ensuing years, many of the experts engaged by the parties have visited the scene and taken photographs of the SPI assets, a large number of which have been tendered. There are now literally hundreds of photographs showing various aspects of poles 38 and 39 and their attached infrastructure.
The trial commenced on 5 March 2013 and Mrs Matthews closed her case on 6 May 2013, subject to the calling of one further witness as well as the evidence to be adduced from the various experts (including in concurrent expert evidence sessions).[12] There was no suggestion that Mr Kirton’s photographs would be tendered later in the trial.
[12]As noted in Matthews v SPI Electricity Ptd Ltd & Ors (Ruling No 28) [2013] VSC 523, [10]-[11] (“Ruling 28”).
On 28 January 2014, counsel for Mrs Matthews sought to tender Mr Kirton’s photographs. No application was made by Mrs Matthews to re-open her case and the tender was opposed by SPI.
The tendering of documents in this case
In the course of a trial, as a general rule, the documents to be relied upon by a party are tendered within that case. As part of the trial procedure in this case, each party has tendered (in digital form) documents it relies upon in the course of its case. The tender of such documents has been accompanied by brief remarks by counsel explaining their relevance, with counsel for other parties also being given the opportunity to comment.
Alternatively to tender in the course of a party’s case, at times a forensic decision is made to deploy documents in cross-examination in the course of an opponent’s case – and seek to tender the documents at that point of the trial. In each case, the tender of documents is governed by the provisions of the Evidence Act 2008 (Vic).
Not surprisingly in a case of this size, the forensic sands have shifted from time to time – particularly in relation to the calling of witnesses and ongoing discovery. This has necessitated special measures to accommodate the size and complexity of the trial. Here I refer to two categories.
The first is where a party has anticipated tendering particular documents during cross-examination of another party’s witness but that witness has not been called, despite being on the witness list. In these circumstances, the party has been permitted to tender the documents later in the trial. There has been no objection, understandably, by SPI to Mrs Matthews’ tender of documents in these circumstances.
A second category is the tender of documents which have emerged from further discovery after the closure of a party’s case. Understandably, this has also been permitted.
Mr Kirton’s photographs do not fall into either category: he was not on the witness list of either SPI or the State parties – so the lawyers for Mrs Matthews could not have anticipated tender in cross-examination; and, the photographs were in Maurice Blackburn’s possession at least a year before the closure of Mrs Matthews’ case.
The principles
In an earlier ruling in this trial, I considered an application by Mrs Matthews to reopen her case.[13] As I noted in Ruling 28, the relevant question is whether, on the whole, it is in the interests of justice that leave be granted for Mrs Matthews to re-open her case.
[13]Matthews v SPI Electricity Ptd Ltd & Ors (Ruling No 28) [2013] VSC 523 (“Ruling 28”).
Of relevance here, and referred to in Ruling 28, is the decision of the High Court in Smith v New South Wales,[14] concerning an application to re-open a case while the trial was still on foot:
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgement [sic] have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.[15]
[14](1992) 176 CLR 256.
[15](1992) 176 CLR 256, 266-7.
Also relevant are the broad powers of case management set out in the Civil Procedure Act 2010 (Vic).[16] One of the four listed “main purposes” of that Act is “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”.[17] Section 9 of that Act sets out a range of objects which a court is to have regard to in giving any order or direction in a civil proceeding. Among others, this includes:
[16]“CPA”.
[17]CPA s 1(1)(c)
(a) the just determination of the civil proceeding;
…
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
…
(f) the timely determination of the civil proceeding; of overarching powers
Further, s 9(2) states that for the purpose of s 9(1), a court may have regard, among other things, to:
…
(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
…
(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court.
Section 49(1) of the CPA also gives a court the power to “give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding” before a hearing commences or during a hearing.
Mrs Matthews’ position
The many experts who have been engaged for the purposes of this trial have been organised into subject-specific conclaves. Conclaves 6A, 6B and 6C deal with questions of breach and causation insofar as they relate to the oil circuit recloser (“OCR”) that was fitted to a pole on the Pentadeen Spur.[18] Mrs Matthews contends that these photographs are of probative value, specifically in relation to the matters under consideration by Conclaves 6A, 6B and 6C.[19]
[18]An OCR is a circuit breaking device. Where a fault current exceeds a minimum threshold, it cuts off electricity supply. Its distinguishing feature is that it is programmed to reconnect supply, with the view to avoiding permanent supply disruptions in the event of transient faults. The OCR protecting the Pentadeen Spur as at Black Saturday was programmed to complete three cycles of cutting and re-establishing power supply before finally “locking out” on the fourth trip.
[19]T14612.
One of the central issues in the debate is the role, if any, of the OCR in the ignition of the Kilmore East–Kinglake fire. A key question for the experts is: after it broke, what did the conductor hit first – the stay wire of pole 38 or the ground?
Mrs Matthews says Mr Kirton’s photographs are probative because they show angles and perspectives of the position of the conductor (as at 8 February 2009) which are not replicated in any of the photographs that have already been tendered.[20] She says it is in the interests of justice that the experts who have been engaged to consider the OCR issue be given the opportunity to review these photographs and, if necessary, update their opinions as a result.
[20]Mrs Matthews’ written submissions, [12].
Further, of all of the known photographs of pole 38 and its surrounds after Black Saturday, these photographs appear to have been taken first in time.
SPI’s position
SPI objects to the tender of the photographs on four main grounds:
(a)First, SPI says that there are already a large number of photographs of pole 38 and its various attachments in evidence and Mr Kirton’s photographs add little, if anything, to those already in evidence.[21]
(b)Second, SPI says that the photographs that are already in evidence – and the relevant photographers – have been the subject of detailed evidence in chief and cross-examination.[22] SPI says that if Mr Kirton’s photographs are tendered at this late point in time it would be prejudiced because it would be deprived of the opportunity to cross-examine Mr Kirton in relation to them. Further, it says that this may in turn require further cross-examination of Messrs Crowe and Leahy.[23]
(c)Third, SPI says that as Mrs Matthews intends to subject Mr Kirton’s photographs to expert analysis, this may result in an application to tender further reports. This may in turn result in substantial delay and disruption to the OCR conclave scheduling.[24]
(d)SPI says that Mrs Matthews ought to have called Mr Kirton and led the evidence through him while her case was still open.[25]
[21]SPI’s written submissions, [12(a)].
[22]T14614.
[23]SPI’s written submissions, [9]-[10].
[24]SPI’s written submissions, [11].
[25]SPI’s written submissions, [6]-[8].
In relation to the second point, counsel for SPI submitted that it is not possible for it to expound the questions SPI would need to put to Messrs Crowe and Leahy in cross-examination in response to Mr Kirton’s photographs – it would need to hear what Mr Kirton had to say of them first.
Why Mrs Matthews failed to call Mr Kirton and tender the evidence earlier
At no time prior to the proposed tender was there any effort by Mrs Matthews’ lawyers to explain their failure to produce the photographs during the course of Mrs Matthews’ case.
At my request, on 30 January 2014 Mrs Matthews filed an affidavit of Mr Andrew Watson, Principal of Maurice Blackburn, explaining the tender of these photographs at this stage of the trial. In the affidavit, Mr Watson:
(a)refers to the large volume of materials discovered in this trial and the costs and manpower associated with conducting a thorough discovery of them; and
(b)states that none of the lawyers at Maurice Blackburn “had any knowledge until 21 January 2014 that any person associated with Victoria Police other than Ms Noble[26] had taken photographs of the scene”.[27]
Mr Watson deposes that, according to internal sources at Maurice Blackburn, the total number of documents collectively discovered by the defendants is in the vicinity of 240,000 with a further approximately 320,000 documents produced in response to subpoenas.[28] Mr Watson attributes 184,388 of the discovered documents to the State parties, with the photographs taken by Mr Kirton discovered in the sixth tranche of documents in April 2012, that tranche comprising a little over 100,000 documents.[29] Mr Watson says that Maurice Blackburn employed between six and seven paralegals, as well as a supervising solicitor, to undertake discovery with the plaintiff’s discovery review process occupying approximately 7,000 hours of paralegal time between November 2011 and around June 2012.[30]
[26]Ms Rachel Noble is a forensic scientist at the Victoria Police Forensic Services Centre. Photographs she took of pole 38 and surrounds have already been tendered. Earlier in the trial Mrs Matthews intended to call Ms Noble to give evidence although ultimately she has not been called.
[27]Affidavit of Mr Watson, [16].
[28]Affidavit of Mr Watson, [5].
[29]Affidavit of Mr Watson, [7].
[30]Affidavit of Mr Watson, [8]-[9].
Because of this heavy burden on resources, Mr Watson made a decision to rely on the discovery efforts of SPI – which he assumed would be very careful – forming the view that SPI’s discovery would pick up anything of significance which would in turn be “identified by SPI either in instructions to the experts or by tendering in evidence at the trial”.[31] In justifying this decision, Mr Watson states that the cost of Maurice Blackburn undertaking a separate review of the documents would have been “disproportionate” and inconsistent with Maurice Blackburn’s obligation under the CPA to avoid unnecessary costs or duplication of costs.[32]
[31]Affidavit of Mr Watson, [11].
[32]Affidavit of Mr Watson, [13]. Section 24 of the CPA sets out an obligation to “use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate”.
Mr Watson states that Maurice Blackburn first became aware of Mr Kirton’s photographs on 21 January 2014 when they were discovered by a lawyer who was undertaking a document search for materials relating to a separate matter.[33]
[33]Affidavit of Mr Watson, [16], [24].
Mr Watson goes on to:
(a)note that neither of Ms Noble’s two police statements refer to Mr Kirton or to any other police officer who took photographs of the scene;[34]
(b)state that none of Ms Noble, Messrs Crowe or Leahy, nor CFA firefighters Messrs Court, Archer or Dixon (who were interviewed by Maurice Blackburn), mentioned that Mr Kirton or any other police officer had taken photographs;[35]
(c)state that Mr Kirton did not give evidence at the VBRC, his name was not mentioned in any of the VBRC transcript or on the VBRC website, and the website does not refer to Mr Kirton’s statement as having been tendered;[36] and
(d)state that neither of the witness statements of Messrs Maas or McDonnell are recorded on the VBRC website as having been tendered and neither gave evidence before the VBRC.[37]
[34]Affidavit of Mr Watson, [17]-[18].
[35]Affidavit of Mr Watson, [19].
[36]Affidavit of Mr Watson, [26]-[27].
[37]Affidavit of Mr Watson, [29]-[33].

However, Mr Watson accepts that the statements of Messrs Maas and McDonnell were read by lawyers of Maurice Blackburn while preparing for the trial – but notes that the references to Mr Kirton did not trigger a search for, or review of, the photographs at that time.[38]
[38]Affidavit of Mr Watson, [34].
Considerations
Mr Kirton’s statement and his photographs have been in Maurice Blackburn’s possessions for over a year and a half. Mr Kirton was the first police officer on the scene. In his oral evidence at trial, Mr Crowe referred to the presence of police officers when he attended the scene on 8 February 2009. Mr Leahy, who attended later the same day, specifically referred to Mr Kirton’s presence in his police statement.
If Mrs Matthews’ lawyers had chosen to look for the evidence of the first officer on the scene – which was a patently reasonable approach – they could have found Mr Kirton’s statement and photographs.
Whilst I accept Mr Watson’s explanation that the process of inspection was both massively time consuming and expensive, that is not a totally satisfactory explanation for what was a fundamental oversight of important evidence. However I am satisfied that the failure to adduce the evidence was not the result of a deliberate decision not to disclose or tender the evidence at an earlier stage.
The photographs are clearly probative: they are the first photographs of the scene of the origin of the fire and, therefore, they are potentially the best evidence available of the state of the conductor at pole 38 at the earliest point in time. In comparison to the photographs already in evidence, they show the location of the broken conductor relative to the ground, the pole and the stay wire in new and clear detail. This is of direct relevance to the question of the initial cause of the fire and the role of, if any, of the OCR.
The critical question then is, what prejudice, if any, will be caused to the progress of the trial or to the other parties by permitting the admission of the photographs into evidence at this time?
If the photographs are tendered they would need to be provided to the Conclave 6A, 6B and 6C experts for their consideration. This raises the issue, among others, of the efficient and timely resolution of this dispute. The experts are due to meet in conclave on 24 February and to give concurrent evidence on 25 – 28 February 2014. The time is short but, subject to one qualification, I do not think it inappropriate to provide the experts with the photographs and see whether, as a result, they wish to modify their opinions set out in their earlier reports. I do not think that SPI’s dire warnings of potential disruption of the concurrent conclave reflect reality; this is the most photographed SWER pole in the world (perhaps its only rival is pole 39) and I think the experts will be able to deal with any revelations arising out of these photographs expeditiously.
As a condition of any tender, Mr Kirton should be available to be cross-examined by counsel for SPI. Although the calling of Mr Kirton will necessarily extend the trial, taken in the context of the length of this trial, this is of no consequence. If Mr Kirton’s evidence raises any issue concerning the evidence of witnesses such as Messrs Leahy and Crowe, this can be addressed at that time.
Overall I am not satisfied that any real prejudice is occasioned by the tender of the photographs.
Conclusion
I am satisfied that it is in the interests of justice that the photographs be admitted into evidence, so long as SPI is given the opportunity to cross-examine Mr Kirton.

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 ENVIRONMENT AND PRIMARY INDUSTRIES  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

[2014] VSC 17

7 February 2014