Perry v Powercor Australia Ltd

[2011] VSC 308

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 330 of 2009

TRACEY JOANNE PERRY

TERRENCE RAYMOND SAGAR

Firstnamed Plaintiff

Secondnamed Plaintiff

v

POWERCOR AUSTRALIA LIMITED (ACN 064 651 109)

Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2011
DATE OF RULING:	4 July 2011
CASE MAY BE CITED AS:	Perry v Powercor
MEDIUM NEUTRAL CITATION:	[2011] VSC 308

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PRACTICE AND PROCEDURE – Application for inspection of discovered reports on cause of fire at Coleraine on Black Saturday – Defendant’s solicitor informed that fire allegedly caused by defendant’s power line – Solicitor anticipated litigation against defendant - Solicitor consults CEO of defendant and instructed to carry out investigation – Solicitor seeks reports on cause of fire allegedly caused by defendant’s power line – Solicitor says purpose of reports was to give legal advice to defendant - defendant needed information in reports for a range of purposes – Duty of defendant to report defendant’s part in cause of fire to Energy Safe Victoria under the Electricity Safety Act 1998 – Duty of officers of defendant to act with reasonable degree of care and diligence under s 180 Corporations Act 2001 to ascertain defendant’s part in cause of fire - Failure of defendant to prove dominant purpose was covered by legal advice or legal litigation privilege – Inspection ordered – Section 180 Corporations Act 2001;  Electricity Safety Act 1998; and ss 119 and 120 Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P J Riordan SC with Dr S B McNicol	Maddens
For the Defendant	Mr A J Kelly SC with Mr D G Guidolin	Wotton + Kearney

HIS HONOUR:

INTRODUCTION AND SUMMARY

1. On Black Saturday in February 2009,[1] devastating bush fires ravaged Victoria causing death and destruction on a massive scale.  One of theses fires occurred to the north west of Coleraine causing damage to approximately seven hundred hectares of farming land and severely injuring a farmer.[2]  Powercor is the distributor of electricity to Western Victoria and the operator of an electricity network through which it delivers electricity to domestic or residential and business consumers, including in and around Coleraine.[3]

   [1]7 February 2009.

   [2]The injury to the farmer is referred to in Powercor’s report to Energy Safe Victoria of 8 February 2011, exhibit JFM-4B.

   [3]Affidavit of Kaye-Frances Rands of 28 April 2011 (Rands 28 April affidavit).

1. Tracy Perry and Terrence Sagar, as representative of a class of property owners, have taken proceedings against Powercor[4] claiming damages for breaches of statutory duties and general duties of care in relation to loss and damage to property as a result of the bushfire at Coleraine.  They allege that a faulty Powercor power line that passed over a farming property started the bushfire and Powercor was negligent in its maintenance of the powerline.

   [4]13 March 2009.

1. In this proceeding, Powercor discovered several reports on the cause of the fire at Coleraine.  Powercor claims legal privilege for these reports.  It claims…