Matthews v SPI Electricity (Ruling No 37) - [2014] VSC 97

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:	6 March 2014
DATE OF RULING:	14 March 2014
CASE MAY BE CITED AS:	Matthews v SPI Electricity & Ors (Ruling No 37)
MEDIUM NEUTRAL CITATION:	[2014] VSC 97

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EVIDENCE – Prospective application to file and serve supplementary report – Late service of expert report – Prejudice – Prejudice avoidable by virtue of timetabling – Change of assumptions forming basis of expert brief – Lay evidence affecting assumptions underlying expert evidence – Prospective leave to file and serve expert report granted subject to certain timetabling conditions – Civil Procedure Act 2010 (Vic), s 9.

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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 Fulbright

HIS HONOUR:

Introduction

This Ruling concerns an unusual application in an interesting claim. SPI’s case against the Department of Sustainability and Environment (“DSE”, now the Department of Environment and Primary Industries)[1] is that, in the eight years prior to Black Saturday, it failed to carry out adequate planned burning[2] in areas under its control.[3] SPI’s contention is that had reasonable and appropriate planned burning occurred in the years prior to Black Saturday, the area of public and private land devastated by the Kilmore East/Kinglake fire would have been far smaller.
[1]I have used the Department’s previous title, “DSE”, throughout this Ruling.
[2]The term “planned burning”, as used in this Ruling, refers to fuel reduction burns. These are fires deliberately lit and controlled by DSE on public (and occasionally private) land. Such burns are aimed at reducing the overall fuel hazard on public land, and accordingly, reduce the threat or intensity of subsequent wildfire on or around that land.
[3]SPI is leading the claim against DSE. Mrs Matthews has also joined DSE, as has UAM on its cross-claim.
SPI wants the two experts on planned burning, Mr Packham (for SPI) and Dr Marsden-Smedley (for DSE), to be given the opportunity to consider how the opinions contained in their expert reports…

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 97
Decision Date: 14 March 2014

CaseChat Overview and Summary

In Matthews v SPI Electricity (Ruling No 37), the respondent, Matthews, sought leave to file and serve a supplementary expert report after the initial deadline. The dispute involved an injury sustained by Matthews in the course of his employment, leading to a claim for damages. The matter was heard in the County Court of Victoria. The primary legal issue was whether Matthews should be granted leave to file a supplementary expert report that was served outside the stipulated timeframe, despite the potential prejudice to the defendant, SPI Electricity. The court had to balance the statutory provisions of the Civil Procedure Act 2010 (Vic) against the principles of fairness and the ability to avoid prejudice.

The court considered the statutory framework set out in section 9 of the Civil Procedure Act 2010 (Vic), which governs the filing of expert reports. Matthews argued that the late filing should be excused due to a change in assumptions forming the basis of the expert brief, which was influenced by lay evidence presented during the proceedings. SPI Electricity contended that the late filing prejudiced their ability to respond adequately, given the time already spent on the case. The court recognised the principle that courts should strive to avoid prejudice when granting leave for late filings but also noted that prejudice could be mitigated by appropriate timetabling. It was crucial to determine whether Matthews could provide sufficient assurances that any prejudice could be avoided.

The court concluded that Matthews could be granted leave to file and serve the supplementary expert report, subject to certain conditions. These conditions included a stringent timetable to ensure that SPI Electricity had adequate time to review the new report and prepare a response. The court was satisfied that Matthews could avoid any significant prejudice to SPI Electricity by adhering to the prescribed timetabling. This decision underscored the importance of balancing the procedural rules with the overarching goal of achieving a fair and just resolution of the dispute.

The court's ruling provided Matthews with the opportunity to present the supplementary expert report, subject to the imposed timetabling conditions. This outcome allowed Matthews to address the changed assumptions and ensure that their case was fully supported by expert evidence. The decision highlighted the court's willingness to consider applications for late filings where prejudice could be managed effectively, reinforcing the need for timely and efficient case management in the pursuit of justice.

Orders