Matthews v SPI Electricity (Ruling No 26) - [2013] VSC 415

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 HEARING:	7 August 2013
DATE OF RULING:	13 August 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity & Ors (Ruling No 26)
MEDIA NEUTRAL CITATION:	[2013] VSC 415

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PRACTICE AND PROCEDURE – Subpoena – Application to set aside subpoena – Legitimate forensic purpose – Whether “on the cards” that documents would materially assist the defence case – Expert opinion – Details of studies of electricity asset related fires other than Kilmore East–Kinglake sought to be produced.

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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	Freehills
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 Ms S A O’Meara SC Mr P Zappia Ms A L Robertson Dr M D Rush Mr N McAteer & Mr A D Pound	Norton Rose

HIS HONOUR:

Introduction

Mr Henry Hawes is an expert witness retained by Mrs Matthews. He has investigated a number of fires which occurred on Black Saturday arising out of the alleged failure of various electricity distribution assets, including the Kilmore East – Kinglake fire.

A critical part of this case is whether the failure of the Valley Span conductor at Kilmore East was caused by a phenomenon known as Aeolian vibration. In reaching an opinion concerning the role of Aeolian vibration in the Valley Span failure, Mr Hawes has relied in part upon his investigations of other electricity asset related fires that occurred on Black Saturday.

SPI[1] has issued a subpoena seeking production by Mr Hawes of a number of documents related to his investigation of these other fires. The question that has arisen is whether part of the subpoena should be set aside on the basis that it is too wide and is, in effect, a fishing expedition.
[1]SPI Electricity Pty Ltd (the First Defendant).

Standing

Although the subpoena is directed to Mr Hawes, Mrs Matthews has standing to seek to have the subpoena to be set aside. Rule 42.04(1) of the Supreme Court (General Civil Procedure) Rules 2005 states:

The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.[2]

[2]Supreme Court (General Civil Procedure) Rules 2005, r 42.04(1).

This…

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: [2013] VSC 415
Decision Date: 13 August 2013

CaseChat Overview and Summary

In the case of Matthews v SPI Electricity (Ruling No 26), the matter was before the Court which was required to determine whether a subpoena for documents should be set aside. The dispute centred on the admissibility of expert opinion and related studies concerning electricity asset-related fires, other than those at Kilmore East–Kinglake. Matthews, the defendant, sought to challenge the subpoena that sought these documents, arguing that they were not relevant to the proceedings and would not materially assist in their defence.

The primary legal issue before the Court was whether the subpoena served on SPI Electricity should be set aside, focusing on whether the documents sought had a legitimate forensic purpose and could potentially assist the defendant’s case. Matthews contended that the documents, which detailed studies of electricity asset-related fires other than those at Kilmore East–Kinglake, were not relevant to the specific circumstances of the case at hand and, therefore, should not be compelled. Conversely, SPI Electricity argued that the documents could provide valuable insights and context that might assist in defending against the allegations.

The Court assessed the necessity of the documents in question, considering whether it was "on the cards" that they would materially assist the defence case. The Court emphasised the importance of determining whether there was a legitimate forensic purpose for the documents, beyond mere curiosity or speculative relevance. Ultimately, the Court found that the documents did not meet the threshold of being likely to materially assist in the defence case, as the specific studies were not directly related to the Kilmore East–Kinglake fires. Consequently, the subpoena was set aside.

The Court ordered that the subpoena served on SPI Electricity be set aside, and no further documents related to electricity asset-related fires other than those at Kilmore East–Kinglake were to be produced. This decision underscored the necessity for subpoenas to be justified by a legitimate forensic purpose and the potential for the documents to materially assist in the defence of the case.

Orders