Matthews v SPI Electricity Pty Ltd (Ruling No 6)

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	Defendants

SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Plaintiff by counterclaim
V
UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS	Defendants by counterclaim

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2012
DATE OF RULING:	14 March 2012
CASE MAY BE CITED AS:	Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 6)
MEDIA NEUTRAL CITATION:	[2012] VSC 70	Amended 16 March 2012.

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PRACTICE AND PROCEDURE – Application to amend pleadings – New claims alleged – Potential for a derivative liability under the proportionate liability provisions in Part IVAA of the Wrongs Act1958 (Vic) as a result of transfer of State liabilities – Amendments to particulars of breach – Principles relevant to an application to amend – Test for determining whether amendment futile – Meaning of ‘concurrent wrongdoer’ in section 24AH of Wrongs Act1958 (Vic) – Acts or omissions of concurrent wrongdoer must in fact have caused the relevant loss or damage – No reasonable prospects of success – Application allowed in part.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC Mr L Armstrong	Maurice Blackburn Pty Ltd
For SPI Electricity Pty Ltd	Mr B Quinn	Freehills
For USC	Mr R Ray QC Ms E Brimer	Holman Fenwick Willan
For the State parties	Mr C Caleo SC Mr M Rush	Norton Rose

HIS HONOUR:

Introduction

1. The background to this proceeding can be gleaned from my previous rulings. Four of the defendants rely upon the proportionate liability provisions of the Wrongs Act 1958[1] to limit their liability in claims involving property damage and economic loss.  Several of the defendants also seek contribution from each other in relation to any potential judgment arising out of  personal injuries or loss of dependency claims.

   [1]Part IVAA of the Wrongs Act1958 (Vic) (“Wrongs Act”) referred to as “the proportionate liability provisions”.

1. In October of last year, USC[2] advised the other parties (and the Court) that it would seek to amend its pleaded defences to both the claimants’ statement of claim[3] and SPI’s counterclaim.  After some discussion, the application came on before me on 10 February 2012. 

   [2]Utility Services Corporation Limited.

   [3]The fourth amended statement of claim referred to as “the statement of claim”. The representative plaintiff, Mrs Matthews, and the group members are referred to as “the claimants”.

1. The substantive amendments to the defences of USC involve an allegation that SPI is liable for the negligent acts and omissions of the SEC[4] and ESV[5] from which, in practical terms, it acquired the electricity distribution network for eastern Victoria in September 1994.[6] This affects the proportionate liability defence of USC (in respect of its allegations as to SPI’s liability) and its claim for contribution against SPI. It also raises…