Mercieca v SPI Electricity Pty Ltd (No 3)

[2012] VSC 6

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2010 01978

PAUL ANTHONY MERCIECA and AMELIA JANE COOMBES	Plaintiffs
v
SPI ELECTRICITY PTY LTD (ACN 064 651 118) and OTHERS (according to the attached schedule)	Defendants
No.  S CI 2010 01497
LENA BIRTI and JOSEPH BIRTI	Plaintiffs
v
SPI ELECTRICITY PTY LTD (ACN 064 651 118) and OTHERS (according to the attached schedule)	Defendants

---

JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 JANUARY 2012
DATE OF RULING:	3 FEBRUARY 2012
CASE MAY BE CITED AS:	MERCIECA & ANOR v SPI ELECTRICITY PTY LTD & ORS (No 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 6

---

Practice and Procedure – adjournment of trial – delay in compliance with trial preparation directions - whether prejudice to plaintiffs – application turns on discretionary considerations - Civil Procedure Act 2010 (Vic) ss 8, 9 – Supreme Court (General Civil Procedure) Rules  2005 (Vic) r 49.03.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Tobin SC with Ms L Armstrong of counsel for the plaintiffs in S CI 2010 01978	Nevin, Lenne & Gross, Maddens
Mr G Mellick SC and Mr C Thomson of counsel for the plaintiffs in S CI 2010 01497	Moyle Legal
For the first Defendant	Mr J Beach QC with Mr D Farrands of counsel	Freehills
For the second Defendant	Mr P Riordan SC with Mr C. Winneke of counsel	McCabe Terrill
For the Third & Fourth Defendants	Mr C Caleo SC with Mr P Zappia  of counsel	Norton Rose

HIS HONOUR:

The application

1. These two proceedings arise out of the Beechworth fire on black Saturday in February 2009. S CI 2010 01978 is a group proceeding under Part 4A of the Supreme Court Act1986 while the plaintiff in S CI 2010 01497, Mrs Birti, opted out of the group proceeding and maintains her own claim.[1] The class actions that have followed the events on black Saturday are important proceedings in which there is a wider public interest.

   [1]Birti v SPI Electricity Pty Ltd & Others [2011] VSC 566 (11 November 2011).

1. It is now three years since the fires. On 4 March 2011, the trial was fixed to commence in Wodonga on 20 February 2012. Since that time, the proceedings have been closely managed in case management conferences conducted under Practice Note No 9 of 2010 by the allocated trial judge and an associate justice. Trial preparation orders and directions were made on 20 June 2011 and since that time, the parties have been broadly working to those directions. There has been ample opportunity for proper preparation of these proceedings for trial. A royal commission was completed in 18 months.

1. Counsel for the plaintiffs informed me that the group proceeding plaintiffs were anxious that the proceedings be determined as soon as possible. That too is Mrs Birti’s attitude. There are further group proceedings concerning other fires scheduled for trial during 2012 and 2013 in which some of the parties to these proceedings are parties. Yet the group proceeding plaintiffs (for convenience I will just refer to the plaintiffs) ask that I adjourn the trial. The plaintiffs submit that a minimum of six weeks is necessary to enable their advisers to be properly prepared to conduct the trial. The defendants oppose any adjournment, contending that the trial ought commence as scheduled.

1. The period proposed by the plaintiffs means, having regard to the fall of Easter this year, effectively postponing the trial until mid-April 2012. Mrs Birti, having no practical alternative, broadly supported the application. This application follows on my ruling, on 19 December 2011, granting SPI Electricity leave to withdraw an admission by amending its defence.[2]

   [2]Mercieca & Anor v SPI Electricity Pty Ltd & Ors (No 3) [2011] VSC 656 (19 December 2011).

1. The application, as put by the plaintiffs, will be rejected. It appears that scheduling of court resources will permit me to defer the commencement of the trial for two weeks to 5 March 2012 and in all of the circumstances, I will do so. The further period may assist the parties to better understand the issues and possible outcomes, and allow the maximum opportunity for pathways to resolution of the proceedings to be identified and implemented. When the trial commences the parties will be better informed and prepared. However, I am not persuaded that if the trial is not adjourned for at least six weeks, there is a material risk for the plaintiffs that the trial will not provide a just, efficient, timely and cost effective resolution of the real issues between the parties in this proceeding. For the reasons that follow, I see no risk of an unfair trial in the circumstances but granting a further two weeks to the parties for trial preparation ought to alleviate many of the plaintiffs’ perceived concerns, while providing appropriate balance of other relevant considerations.

Principles applying

1. The court has an unfettered discretion to adjourn a trial on such terms as it thinks fit.[3] In exercising or interpreting any of its powers, whether those powers are part of the court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction the court must, by s 8 of the Civil Procedure Act 2010 (Vic), seek to give effect to the overarching purpose of the Act. In so doing, I will have regard to the objects set out in s 9(1), which requires that in making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose, which is to facilitate the just, efficient, timely, and cost effective resolution of the real issues in dispute, by having regard to objects including, relevantly:[4]

   [3]Rule 49.03, Supreme Court (General Civil Procedure) Rules 2005 (Vic).

   [4]the sub-paragraph references follow the relevant sub-paragraphs of the section.

(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;

(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—

(i)the fair and just determination of the real issues in dispute; and

(ii)the preparation of the case for trial;

(f)       the timely determination of the civil proceeding;

(g)       dealing with a civil proceeding in a manner proportionate to—

(i)the complexity or importance of the issues in dispute; and

(ii)the amount in dispute.

1. Section 9(2) provides that the court may have regard to certain matters and a number of those matters are relevant on this application:

(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;

(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(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;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h)The extent to which the parties have had the benefit of legal advice and representation.

1. As I have elsewhere stated,[5] the evident tension in the provisions of the Civil Procedure Act requires the court to strike a balance between case management considerations and the dictates of a fair trial. The court cannot lose sight of the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness.

   [5]Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 2) [2011] VSC 518 (20 October 2011).

Basis for the application

1. The plaintiffs submit that they cannot be properly prepared for the trial, unless its commencement is delayed until mid–April. If the plaintiffs are not properly prepared, the trial will not be fair. The relevant issues touching preparation for the trial were set out in an affidavit sworn by Ms Veronica Haccou, an associate solicitor on the plaintiff’s team. That team consists of two senior counsel, at least two junior counsel and two firms of solicitors.

1. On several occasions counsel for the plaintiffs urged me to accept an assurance, on behalf of the plaintiffs’ team, that it was impossible for the plaintiffs to be adequately represented without further preparation time. Bearing in mind that my task is doing justice between the parties, my discretion is to be exercised on a proper basis.[6] Assurances from counsel, that a state of affairs exists, may in appropriate circumstances be received in the administration of justice, but are no substitute for evidence that demonstrates a transparent and verifiable connection between the disadvantage being asserted and the circumstances that give rise to the application. I do not doubt that the application is brought in good faith, and if that were the context in which the assurances are given, they are accepted. The defendants did not suggest otherwise, but did question whether the consequence, that a fair trial was compromised, followed on the particular circumstances on which the plaintiffs relied. In the latter context, counsel’s assurances carry little weight, as the competing considerations that inform the exercise of the discretion must be appropriately identified in context and weighed against the objectives to be considered in exercising the discretion. This exercise is properly based in evidence.

   [6]Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175.

1. The circumstances identified by Ms Haccou were disputed, or explained, by affidavits filed for the defendants. SPI Electricity relied on the affidavit of Mr Ken Adams, the partner with conduct of the proceedings, and the State Parties relied on the affidavit of Ms Nicole Wearne, the partner with conduct of the proceedings. There was no cross-examination on the affidavits.

1. The plaintiffs contended that the application was occasioned by a number of events under two broad headings that in summary are expert evidence issues and discovery issues. The plaintiffs invite me to accept that their trial preparation is compromised by:

(a)the need for substantial further expert evidence because of the withdrawal by SPI Electricity of the admission;

(b)late disclosure by SPI Electricity of the questions and materials to be provided to its electrical experts;

(c)late disclosure by SPI Electricity of an additional electrical expert;

(d)late service of SPI Electricity’s principal expert report by Professor Russell;

(e)recent delayed disclosure by SPI Electricity that relevant sections of the conductor had been removed from the site to a CSIRO laboratory; and

(f)discovery issues, particularly the provision by the State Parties of what was described as the majority of its discovery just before Christmas 2011.

The plaintiffs contend these considerations warrant the conclusion that a fair trial is not possible for the plaintiffs without at least a further six weeks of preparation time.

Expert evidence issues

1. It was clear that the plaintiffs appear to regard the admission made by SPI Electricity as being an admission as to the cause of the fire. The meaning of the admission appears debatable, but it is now withdrawn. The question of prejudice to the plaintiffs from the amended defence withdrawing the admission was then considered, and although a party is able to seek a discretionary consequence on the prevailing considerations, what is now put are, in part, matters which could, but were not, put to me on that application. The first example is that the plaintiffs contend that it is necessary, because of the withdrawal of the admission, to put a brief to an electrical networks engineer, Mr Hawes, to respond to issues raised by an expert, Mr Donohoo, about the mechanical loads that might be imposed on a conductor and insulators by a falling tree.

1. I am not persuaded that this is so. If the plaintiffs’ advisers now need to respond to this expert evidence, I will consider at the appropriate time whether reliance on evidence from Mr Hawes should be permitted. But this issue neither imperils the commencement of the trial nor does it flow from the withdrawal of the SPI Electricity admission. The former conclusion follows because Mr Hawes has been briefed. His report is to be served by 10 February 2012. No impediment to that report being considered by other relevant experts and the parties is identified by Ms Haccou, Mr Adams or Ms Wearne. It had already been acknowledged that the expert conclave in which Mr Hawes will participate may not have reported when the trial commences and appropriate directions have been made. There is nothing stated in the affidavits that persuades me that a joint conclave of the experts dealing with electrical engineering and materials failure issues cannot be completed by 5 March, 2012, particularly if due regard is paid to the obligations upon the parties and their advisers, including their expert witnesses, that are described in ss 20, 23 and 25 of the Civil Procedure Act.

1. In any event, directions have been made under s 49 of the Civil Procedure Act as to the order in which issues will be dealt with, and witnesses are to be grouped, at trial. On present indications, more than 50 witnesses will be called before expert evidence is taken, optimistically, in early April. Should it become necessary, the time available for the parties to finalise their experts’ positions for concurrent evidence sessions could be extended beyond the start of the trial, without irretrievably compromising the arrangements and structure currently proposed for the trial.

1. The State Parties, not SPI Electricity, will call Mr Donohoo and rely in his evidence in support of the State Parties’ theory of the cause of the fire. I was informed by counsel that Professor Russell, whose report I have not yet seen, does not accept the State Parties’ theory of the cause of the fire and that his analysis is predicated on the fall of the tree applying a dynamic load to the conductor. The plaintiffs cannot reasonably contend they are forced, by the withdrawal of the admission by SPI Electricity that the tree fell onto the east-side conductor on the power line and that event led to the ignition of the Beechworth fire, to retain an expert to engage with Mr Donohoo’s evidence when the State Parties have always denied that the tree played any part in the ignition of the fire.

1. The State Parties’ position has not been recently developed. The plaintiffs were informed, by correspondence dated 13 September 2011 and 4 November 2011 as part of the timetabled regime for the development and disclosure of the expert evidence, of the questions and assumptions on which Mr Donohoo was instructed. The nature and extent of the evidence that the State Parties intend to adduce is sufficiently clear for the plaintiffs to consider whether a responding expert ought to be engaged.

1. It is plain that the plaintiffs have never simply relied on the admission now withdrawn. That is clear from the expert evidence the plaintiffs have already served. From what I have been told I am satisfied that the plaintiffs’ advisers have made strategic decisions about their response to the defensive issues in their case. The consistent reference by the plaintiffs to SPI Electricity as the ‘target defendant’ reveals that strategic decision - to focus in the defensive aspects of its case on the defence of SPI Electricity not that of the State Parties. The presence of the State Parties is a consequence of the defence taken under Part IVAA of the Wrongs Act 1958 (Vic) by SPI Electricity. While it has long troubled plaintiffs that proportionate liability forces proceedings by them against defendants that the plaintiffs may, for legitimate reasons, prefer to avoid, that is the legislative consequence.[7] The plaintiffs’ reconsideration of that strategy appears to recognise that the pleaded claims against  and by the State Parties must be dealt with. The plaintiffs’ changed approach to the evidence of Mr Donohoo follows, I consider, a strategic decision to contest the State Parties’ theory about the ignition of the fire. It is evident that the present assertion that the need for evidence from Mr Hawes follows from the dilatory withdrawal by SPI Electricity of the admission, is not sustainable. There are other indications of this change in approach that I will note.

   [7]Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd & Anor; FCH Consulting Pty Ltd v Wimmera-Mallee Rural Water Authority & Anor [1999] VSCA 66 (20 May 1999).

1. Some of these considerations are relevant when assessing the plaintiffs’ contentions about Professor Russell’s evidence, but there are further considerations. First, SPI Electricity did not serve the report of Professor Russell in accordance with my directions. It was significantly late, by almost two months. The other parties are necessarily constrained in their review of that evidence in the remaining time to trial. This matter favours granting the adjournment, as the spectre of a defendant producing its evidence late and in breach of court directions to the possible detriment of the plaintiffs is not to be encouraged.

1. SPI Electricity offers an explanation and an apology for its non-compliance. All parties understand that Professor Russell is an American expert, based in Texas. SPI Electricity provided an outline of the information being provided to, and the matters being addressed by, Professor Russell in early October 2011. At the case management conference on 19 October 2011 that dealt with the proposed amendments to the defences of the State Parties, SPI Electricity explained that the proposed amendments would affect the finalisation of Professor Russell’s brief. It appears that in the latter part of 2011 Professor Russell had a number of competing professional commitments and limited availability to complete his brief. When finally he reached it, during the preparation of his report, Professor Russell requested further information, which he had not obtained during his visit to Australia, be now obtained by examination of the conductor. SPI Electricity then engaged Professor Clark to undertake that inspection and the conductor was removed from the pole tops, a matter to which I shall return.

1. I accept this explanation for the delay in compliance with the court’s directions, but there is a further issue. Although these events were in train on 13 December 2011, at the case management conference SPI Electricity did not inform either the court or the other parties of them and of the delays that were likely. It seems that the belief of other parties that Professor Russell’s report was imminent, engendered by SPI Electricity’s advisers, focussed the issues at that case management conference on future process rather than procedural non-compliance. Had SPI Electricity frankly disclosed Professor Russell’s request and Professor Clark’s activities, its procedural non-compliance may have been differently regarded.

1. For SPI Electricity, Mr Adams attributed its inadequate communication to the court and the other parties of these developments to his urgent commitments in other litigation that led into the Christmas break. This specious explanation provides no justification, nor any real excuse, for circumstances that now aggrieve the plaintiffs. Mr Adams is not a sole practitioner. He is the leader of a team of lawyers, many of whom are capable of responsible independent decision making to ensure proper communication and co-operation between the parties and with the court. A personal mea culpa is insufficient. In these circumstances, the somewhat limited concession that SPI Electricity is prepared to bear costs it may incur on a short adjournment of the trial was appropriately made.

1. I am left to examine the assertions of the plaintiffs that SPI Electricity in reality seeks by this conduct some forensic advantage. Looking beyond the interplay between legal teams, the plaintiffs submit there are two issues that support their assertion of unfair forensic advantage. The first is that Professor Clark, for Professor Russell’s purposes, on 27 November 2011 took down for non-destructive analysis the conductor between poles 169 and 170 on the MYT-7 feeder. The process excluded other parties, unlike the procedure for the segmenting of the tree for dendrochronological analysis. The other parties sought on 13 December 2011 to be involved in any further examination of the electricity assets, but only learned of events on service of Professor Clark’s report on 13 January 2012. On 20 January 2012, SPI Electricity served Professor Russell’s report. Although the plaintiffs raise the spectre of destruction of, or interference with, evidence or an inappropriate exclusive handling of relevant evidence by Professors Russell and Clark, I will not proceed on the basis of idle speculation. Ms Haccou might have discussed such concerns by telephone with the plaintiffs’ experts and provided a further affidavit to the court. This did not happen. I do not assume any impropriety can be presently asserted against Professor Clark, when, if there was some legitimate basis for concern, some evidence could have been put on affidavit.

1. Further, the practical consequences are obscure. The experts for the other parties inspected the dismantled conductor on 1 February 2012. I will make provision that any further expert reports on behalf of the other parties arising out of that inspection be filed and served by 17 February 2012. Whatever criticism might justly be directed at SPI Electricity’s inadequate communication, the consequences of this episode appear insignificant.

1. To my mind, there is a further relevant consideration. The relevant conductor was the obvious source of electricity for any arcing that may have contributed to the ignition of the fire. The precise mechanism of such arcing as may have occurred has always been relevant. Complying with the Expert Code of Conduct, other experts certified that they had made all inquiries that are desirable and appropriate. So it is curious that none of the experts sought to examine the conductor closely and carefully, until Professor Russell’s afterthought. The further examination of the conductor, following Professor Russell’s report, suggests a reconsideration of what inquiries are necessary.

1. One of the experts who will examine and report upon the dismantled conductor for the plaintiffs is Mr Rowlands, a materials engineer and it was put that this opportunity is unfairly constrained by the withdrawal of the admission and late service of the SPI Electricity reports. The affidavits show that plaintiffs contemplated Mr Rowlands’ engagement in September 2011, because of the materials issues arising out of the pleading amendments made by the State Parties that raised its theory of the cause of the fire. In the absence of an explanation from the plaintiffs’ experts about why they did not consider it necessary to examine carefully the conductor until they saw Professor Russell’s report, the circumstances that have led to this application suggests a want of attention to relevant detail by all parties. The significant question is whether the conduct of a fair trial is now compromised. Having regard to the process that is now in place, the extension of the trial date for two weeks and the direction that other issues in the proceeding be dealt with before these questions are examined, I see no risk of unfairness to the plaintiffs on the material presently before the court.

1. The plaintiffs contend a second aspect of unfair forensic advantage arises from Professor Russell’s report. The aspect of Professor Russell's theory that has raised concern is his contention that the fire had been burning for some period of time, perhaps minutes, and prior to the power going off. The energised conductor, dislodged by the impact of the tree (apparently accepted if no longer admitted), ignites the fire by contact between the conductor and vegetation to the south of pole 170. An escape of electricity to that vegetation dries out any remaining moisture resistance to ignition, resulting, ultimately, in ignition. The conductor remains energised and, as the fire back-burns to pole 170, the smoke, containing particles of carbon, provides a pathway for earthing out to vegetation, at or near the bottom of pole 170. Prior to that earthing out event, no arc shorting tripped the ACR system.

1. The plaintiffs contend that this theory brings into play different considerations about vegetation, other than the tree, near the power lines and about the timing of the ignition of the fire in relation to the record generated by the operation of the ACR mechanism. These considerations warrant further inquiry of eyewitnesses to events on the day in the vicinity of pole 170 and further expert opinion, for example, about fire burning behaviour and the nature of the vegetation at a newly identified possible point of ignition. If accepted, this theory that ACRs did not play any role in igniting this fire may answer the plaintiffs’ case in relation to ACR operation, thus a further opportunity to respond to it is required. The proposition put by the range of experts that have previously reported, apart from Professor Sweeting, is that the fire starts from a conductor scraping down the eastern side of pole 170 activating the ACR by arcing at more than one time and at critically different distances from combustible vegetation resulting in ignition of the fire.

1. It is hardly surprising that there is some different aspect or emphasis in the analysis of the possible mechanism for ignition arising from the principal electrical expert for SPI Electricity. The experts relevant to the electrical engineering and materials engineering theories are yet to jointly confer and, as I have noted, opportunity is being provided for these experts to inspect the dismantled conductor and file further reports. I see no threat to a fair trial in that continuing process, particularly as it remains under close management. It is less clear why lay witnesses must be re-interviewed. The evidence of lay witnesses must have been prepared in the context of the allegations pleaded by the plaintiffs, which include that ‘the conductor, as it fell, arced … alternatively [with] vegetable matter near the base of the pole’.  It cannot be gainsaid that the mechanism of the fire was always an issue to explore with any eyewitness.

1. No unreasonable impediment to another opportunity for the plaintiffs to confer with present or potential witnesses is identified. Ms Haccou provides no information about the extent of the task of preparing the lay evidence in the light of these developments. Counsel informed me during argument that up to eight witnesses may be involved. However, the plaintiffs have the benefit of two firms of solicitors and a team of at least four counsel and I do not accept that eight witnesses cannot be interviewed or re-interviewed in the available time. The plaintiffs suggest that the evidence of some of these witnesses was not relevant because of the withdrawn admission. I am not persuaded that this is so, particularly as Professor Russell’s theory about the ignition of the fire is predicated upon the conductor being brought down by the tree and ignition occurring on other vegetation near the base of pole 170, which possibility the plaintiffs allege in their pleading.

Discovery issues

1. I referred earlier to the implications, of the apparent strategic decision by the plaintiffs to target SPI Electricity, regarding the claims they have pleaded against other parties as an incidental obligation necessitated by Part IVAA of the Wrongs Act 1958. This factor again becomes relevant when considering the plaintiffs’ other ground for the adjournment. On 21 December 2011 and 9 January 2012, the State Parties made discovery of what the plaintiffs describe as a very large volume of documents, in numerical terms, amounting to approximately 65% of the State Parties’ total discovery. Ms Haccou states in her affidavit that until mid December 2011 the plaintiffs were focussing on reviewing the discovery of SPI Electricity. The plaintiffs contend that the late influx of a large volume of documents from the State Parties has caught them short in the allocation of their resources. Nevertheless, Ms Haccou informs the court that review of that discovery is likely to be completed by the end of February 2012.

1. That the plaintiffs have only recently taken an interest in the discovery made by the State Parties and have been surprised by the extent of that discovery is, I consider, the consequence of the attitude, or strategic position, that the plaintiffs have taken. At the first case management conference on 4 March 2011, counsel for the plaintiffs told the court that the plaintiffs were not interested in discovery from the State Parties. Consistently, when the protocols and procedures for discovery by the State Parties were negotiated, the solicitors for the plaintiffs simply requested that ‘in time’, the plaintiffs be provided with a copy of documents discovered by the State Parties to other parties. The plaintiffs consented to orders to this effect. The agreed discovery regime contemplated that discovery by the State Parties would not be completed until 16 December 2011. The obligation on the State Parties was for timely provision to the plaintiffs of copies of the discovery made to SPI Electricity and Eagle. The plaintiffs were offered copies of discovery at the same time as other parties.

1. That the final tranche of discovery, due in December 2011, was delivered five days late is of little consequence in the context of the explanation, which I accept, provided by Ms Wearne of the process that the State Parties had to undertake to identify relevant documents. However, the plaintiffs complained that the State Parties did not observe the discovery regime and that a significant proportion of the documents discovered in December 2011 ought to have been discovered in earlier tranches as had been agreed. Leaving aside the fact that the State Parties, when making discovery in earlier tranches revealed that their discovery did not include all of the categories contemplated and that such documents would be provided in due course, I am satisfied that this is not a relevant circumstance. Ms Haccou’s states that the plaintiffs only turned their attention to the State Parties’ discovery in mid December 2011.

1. What had earlier occurred could not be relevant. The apparent breach of the protocol was not discovered by the plaintiffs when it might have mattered. There was a debate in the solicitors’ correspondence whether a disc with images of earlier tranches of discovery had in fact been provided to the plaintiffs. Whether it had been provided is not a matter I need consider. What is significant is that it is only in correspondence in January 2012 that the apparent absence of the disc from correspondence three months earlier is raised by the plaintiffs’ solicitors. A change in strategy to now considering the defensive issues raised by the State parties is again evident.

1. Nonetheless, the plaintiffs contended that it is impossible to review this discovery unless the trial is adjourned for at least six weeks. The plaintiffs’ legal representatives contend they are obliged to consider this discovery and form their own judgment of the significance of it.[8] The plaintiffs again submit the defendants have taken an unfair forensic advantage because they cannot allocate the resources to review discovery in the available time. However, that argument was advanced by comparison of their task with the process undertaken by the solicitors for the State Parties when reviewing a substantially greater number of documents to identify those relevant for discovery. That is not an appropriate comparison.

   [8]Citing TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693, 704.

1. I readily accept that the plaintiffs’ legal representatives must determine for themselves the degree of importance that documents, assessed by the discovering party as relevant for discovery, may have upon the outcome of the case. I am not satisfied that this task is either an oppressive burden beyond the scope of the resources presently available to the plaintiffs within the time remaining or a consequence that is attributable to default on the part of the State Parties. Ms Haccou deposes that review of that discovery is likely to be completed by the end of February 2012. Ms Haccou does not say whether the plaintiffs, applying additional resources, could complete that review earlier.

Other factors

1. Parties to a civil proceeding, particularly a large complex proceeding that is subject to close case management, have an obligation to cooperate with each other and the court in connection with the conduct of the proceeding. Further, the parties have an obligation to narrow the issues in dispute and to ensure the prompt conduct of a civil proceeding by using reasonable endeavours to act promptly and minimise delay. Part 2.4 of the Civil Procedure Act provides sanctions for contravening the overarching obligations under the Act and if the court is satisfied that on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order that it considers appropriate in the interests of justice including an order that the person pays some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation.

1. The plaintiffs have not shown the court examples of the discovery made by the State Parties. I am not in a position to assess the plaintiffs’ claim that it is impossible to review properly this discovery within the available time. This is necessarily a question of the resources applied to the task. Counsel for the plaintiffs invited me to accept that additional resources could not be usefully employed. I disagree. There are many competent junior barristers well able to undertake such a task, cost effectively, and the expense to the parties would be insignificant when compared to the cost to the court system generally from a major adjournment of the trial. SPI Electricity, which has also received this discovery at the same time, and which, having regard to the attitude of the plaintiffs, appears to bear primary responsibility for making out the plaintiffs’ case against the State Parties, makes no complaint that further time is necessary to review this discovery.

1. The court cannot conduct an independent assessment of the adequacy of the resources being applied to trial preparation by the parties, particularly on the available evidence. If the plaintiffs apply extra resources to this task, and can later show that the cost of those resources was occasioned by contravention of an overarching obligation by one or more defendants, a remedy may be available. Without assuming that the parties are not aware of the provisions of the Civil Procedure Act, it is perhaps timely to draw attention to them.

1. During the course of the case management conference, I referred to other claims made upon the court’s resources, particularly the courthouse and supporting facilities at Wodonga. It should come as no surprise that other litigants anticipate those resources being available to them in civil and criminal circuits of both this court and the County Court. A six week adjournment necessarily affects the resources available to other litigants adding to delays. In exercising my discretion, I am entitled to take account of the efficient use of judicial and administrative resources. However, having regard to the view I have formed about the proper balancing of the factors particular to these proceedings in exercising my discretion, and also to an expectation that some further trial preparation time can be provided for the parties without comprising the expectations of other litigants, I have not in the result been influenced against the prospect of adjournment by this question of resources.

1. I will order that the trial of the proceeding commence on 5 March 2012 at Wodonga. I will adjourn the case management conference to 21 February 2012 at 10.00 am and I will reserve the costs of the plaintiffs’ application to adjourn the trial to that case management conference.

---