Matthews v SPI Electricity (Ruling No 36) - [2014] VSC 82

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) AND ORS	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2014
DATE OF RULING:	11 March 2014
CASE MAY BE CITED AS:	Matthews v SPI Electricity & Ors (Ruling No 36)
MEDIUM NEUTRAL CITATION:	[2014] VSC 82

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EVIDENCE – Recall of second defendant’s witness for cross-examination by plaintiff – Expert evidence – Admissibility – Limitations to cross-examination – Restriction on leading questions – Expertise – Evidence Act 2008 (Vic) ss 42, 79 – Civil Procedure Act 2010 (Vic) s 65H – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 44.

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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 the First Defendant	Mr J BR Beach QC with Mr P H Solomon SC Mr B F Quinn SC Mr D J Farrands Mr C O Parkinson Mr J H Kirkwood & Mr L Stanistreet	Herbert Smith Freehills
For the Second Defendant	Mr R Ray QC with Ms E M Brimer	Holman Fenwick Willan
For the Third, Fourth and Fifth Defendants	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 Ms J Firkin Mr A D Pound Mr J Brereton Mr L Brown Ms J Swanwick & Mr J Heeley	Norton Rose

HIS HONOUR:

Introduction

Dr David Havard, an expert engineer engaged by UAM, produced a report which addressed the question of the cause of the failure of the Valley Span on Black Saturday. He then gave evidence in a concurrent evidence session relevant to that issue in November/December 2013. Counsel for Mrs Matthews now seeks to cross-examine Dr Havard on issues relating to breach. SPI’s written submissions originally opposed any cross-examination, but in oral argument, senior counsel for SPI confined his submissions to the imposition of conditions on the questioning of Dr Havard by Mrs Matthews’ counsel.
I have decided that counsel for Mrs Matthews should be permitted to cross-examine Dr Havard. At the present time, this should not be subject to any limitations. My reasons follow.

Background

Dr Havard’s expertise and instructions

An outline of Dr Havard’s expertise is set out in his written report. Extracted in part, it states that Dr Havard:
… has over 50 years experience solving the mechanical and civil engineering problems of power delivery systems. His work involves analysis of problems and finding solutions, particularly those problems involving vibration, wear and fatigue. These problems have occurred on station structures, underground cables, overhead distribution and transmission conductors, hardware, and towers. …
Since establishing his own company, Dr. Havard continues to provide engineering services to utilities on control…

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 82
Decision Date: 11 March 2014

CaseChat Overview and Summary

Matthews v SPI Electricity (Ruling No 36) involved a dispute between the plaintiff and SPI Electricity over allegations of defamation. The case was heard in the Supreme Court of Victoria. The plaintiff sought to recall one of the defendants' witnesses, an expert, for cross-examination to challenge their opinion on the admissibility of certain evidence. The court needed to determine whether the plaintiff could recall the expert for cross-examination and, if so, what limitations, if any, applied to the cross-examination process.

The court examined the statutory provisions and case law concerning the recall of witnesses for cross-examination, particularly focusing on the requirements of the Evidence Act 2008 (Vic) and the Civil Procedure Act 2010 (Vic). The court also considered the relevant Supreme Court rules and the principles governing the admissibility of expert evidence. The primary issues were whether the expert's evidence was admissible, and if so, whether the plaintiff could cross-examine the expert on the basis of the evidence presented by the plaintiff. The court had to balance the need for a fair trial with the restrictions on leading questions in cross-examination.

The court concluded that the plaintiff could recall the expert witness for cross-examination, but the scope of the cross-examination was limited. The court held that the plaintiff could only ask questions necessary to test the reliability of the expert's evidence and could not lead the expert with questions that suggested a specific answer. The court emphasised the importance of ensuring that the cross-examination did not become a second examination-in-chief and that the expert's expertise and the basis of their opinion were appropriately challenged. The court also noted that the plaintiff's application for recall was made in good faith and that the expert's evidence was critical to the case.

The final orders of the court allowed the plaintiff to recall the expert witness for cross-examination under the specified conditions. The court directed that the cross-examination be conducted in a manner that adhered to the limitations set out in the Evidence Act 2008 (Vic) and the Civil Procedure Act 2010 (Vic). The court further emphasised the importance of ensuring that the expert's evidence remained reliable and relevant to the issues in the case.

Orders