Rowe v AusNet Electricity Services
[2014] VSC 553
•29 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 4538
| KATHERINE ROWE | Plaintiff |
| v | |
| AUSNET ELECTRICITY PTY LTD (ACN 064 651 118) (formerly SPI Electricity Pty Ltd) AND OTHERS (according to the attached schedule) | Defendants |
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JUDGE: | ZAMMIT AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2014 |
DATE OF JUDGMENT: | 29 October 2014 |
CASE MAY BE CITED AS: | Rowe v AusNet Electricity Services |
MEDIUM NEUTRAL CITATION: | [2014] VSC 553 |
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PRACTICE AND PROCEDURE – Conclaves – Composition of conclaves – Questions for the expert conclaves.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Szydzik | Maurice Blackburn Pty ltd |
| For the 1st Defendant | Mr J Kirkwood | Herbert Smith Freehills |
| For the 2nd Defendant | Ms E Brimer | Holman Fenwick Willan |
| For the 3rd, 4th and 5th Defendants | Mr A Pound | Norton Rose Fullbright Australia |
HER HONOUR:
The parties appeared in relation to resolving the following issues concerning the expert conclaves:
(i) composition of conclaves;
(ii) questions for expert conclaves.
The plaintiff and the first defendant have been able to resolve most of the critical issues relating to the composition of the expert conclaves and questions for expert conclaves. The second defendant supports and agrees with the first defendant’s submissions. The third to fifth defendants make no submissions.
There remain as between the plaintiff and the first defendant the following areas of disagreement in relation to the composition of the conclaves:
(a) should there be a separate arcing conclave?
(b) should Dr Lautenberger be included in a session with Professors Blackburn and Russell in an electrical engineering and current transfer conclave?
(c) should the fire investigation and ignition conclave be held as two separate conclaves and what should be the composition of those conclaves?
There is also disagreement about the questions to be considered by each conclave.
In summary, the plaintiff proposes four conclaves:
(a) fire investigation and ignition -
Participants:
Mr Cole (plaintiff);
Mr Allen (first defendant);
Dr Colwell (first defendant); and
Dr Lautenberger (plaintiff);
(b) metallurgy –
Participants:
Dr Clegg (plaintiff); and
Dr Barter (first defendant);
(c) arcing –
Participants:
Professor Blackburn (plaintiff);
Dr Barter (first defendant);
Professor Russell (first defendant); and
Dr Clegg.
(d) electrical engineering and current transfer –
Participants:
Professor Blackburn;
Professor Russell; and
Dr Lautenberger.
The first defendant submits that:
(a) there should not be a separate arcing conclave;
(b) Dr Lautenberger should not participate in the electrical engineering and current transfer conclave;
(c) the fire investigation and ignition conclave proposed by the plaintiff should be divided into two separate conclaves:
(iii) origin of fire –
Participants:
Mr Cole; and
Mr Allen;
(iv) cause of fire –
Participants:
Mr Allen;
Dr Lautenberger;
Mr Colwell; and
Mr Cole.
Fire Investigation Conclave
The first defendant submits that only Mr Allen and Dr Colwell have given opinions on the origin of the fire and as such the fire investigation conclave should be divided into two sessions, the first dealing with the origin of the fire and the second dealing with the cause of the fire. All four experts would participate in the second session.
The plaintiff agrees that the experts who have not considered the topic of origin of fire in their reports should not opine on the issue in the conclave. However, the plaintiff submits that the conclave should proceed as one conclave session of four experts and that the experts who have not considered the area of origin should be instructed not to opine on that area. The plaintiff submits that those experts should, however, be aware of discussions surrounding that issue as those discussions may impact on their opinions as to the cause of the fire.
In circumstances where Dr Lautenberger and Dr Colwell have not been asked to opine on the origin of the fire, I consider that they should not participate in a conclave which is specifically targeted at this discrete issue. The conclaves will operate more efficiently and in the most timely manner if the experts included in a conclave have given an opinion on the topic. It is inevitable that even if experts are given a direction not to give an opinion but in effect are to be passive observers, they will want to contribute and their presence is likely to delay the process. The two experts who will participate in the first session dealing with the origin of the fire will be able to adequately address and bring up to speed the two experts who will participate in the second session, dealing with the cause of the fire.
In this instance, both parties are represented at the first session. The second conclave will include all four experts and given the nature of the questions, they will always be able to proffer a view on any matter they consider relevant.
The plaintiff’s model for the fire investigation conclave has the potential to lead to the production of a joint report where there are issues about the capacity of the authors to express the opinion contained in the report. As J Forrest J said in Matthews v SPI Electricity (Ruling No 10),[1] the composition of conclaves is not a ‘battle of numbers’. Experience from the expert witness conclaves in the Kilmore East class action is that the smaller the conclave, the more efficient it was in producing the joint report and the less likely the conclave would be distracted by experts who had not proffered an opinion on a specific topic. I note Forrest J’s comments at paragraph nine of Ruling No 10 that the provision of joint reports with specific and discrete issues will help refine the issues and has a greater prospect of leading to clear identification of the issues that are in dispute and those that are not.
[1][2012] VSC 379, [8].
Given the conclave dealing with fire investigation will be divided into two sessions, there will be scope in the second session with the four experts all present to expand, if the experts consider it necessary and relevant.
The composition of a conclave does not determine the composition of the concurrent evidence at the trials. This can be considered once the joint reports are received.
I consider that it is appropriate that the fire investigation conclave should be divided into two separate conclaves as submitted by the first defendant.
Questions for the Fire Investigation and Ignition Conclave
For the fire investigation conclave, the plaintiff proposes nine questions with sub-parts. The questions at first blush appear to invite the experts to prepare a fresh report which considers each question and sub-part.
There is no doubt given past experience in the management and conduct of expert conclaves that the provision of something more than a broad agenda will be positively beneficial as it will assist the experts to keep on track. Having said that, there is equally as much danger in providing questions with sub-issues in circumstances where the experts have already provided detailed reports. The purpose of the conclave is for the expert witnesses to meet and discuss their reports and identify the areas of agreement and disagreement. It is for the experts to identify the areas that they consider to be relevant and which require discussion in the conclave.
The purpose of the joint report is to hopefully reduce the number of issues before the Court due to agreement and disagreement of the experts and the joint reports.
I consider it is preferable that the experts be provided with a high level framework, targeted to issues raised in the expert reports. The questions will not limit the experts to structure their responses as they see fit. Having said that, I agree with the amendments suggested in paragraph 27(a) to (c) of the plaintiff’s submissions dated 28 October 2014. I do not consider the proposed amendment at paragraph 2(a) of the plaintiff’s submissions should be included.
Paragraph 2(a) of the first defendant’s proposed question asks:
What are all of the causes of the Murrindindi Fire that you consider to be possible causes?
(v) areas of agreement
(vi) areas of disagreement
The plaintiff proposes an addition in the following terms: ‘for each possible cause, identify the presence or absence of evidence relied upon in your analysis, and the strength of that evidence or impact of its absence.’
The plaintiff’s proposed addition goes beyond the review by the experts of their expert reports and the areas of agreement and disagreement. It positively asks the experts to assess the strength of evidence and potentially asks them to make an assessment. It may well be that the experts make such comments but posing the question makes this issue take on some significance beyond what the experts may have given to it.
The questions should be designed as a guide for the experts. Where possible, the questions should be drafted at a higher, broader level. It is ultimately for the experts to consider the issues which they consider are relevant. The questions serve as guidance, not a second chance to put questions to the experts and particularly not to put loaded questions to the experts which may influence the importance attributed to a particular issue or topic.
Should there be a separate arcing conclave?
The plaintiff submits that there should be a metallurgy conclave and a separate arcing conclave. The first defendant submits that there should just be the one metallurgy conclave and that the arcing issues should be dealt with in the metallurgy and electrical engineering conclaves.
There is an issue as to expert expertise and admissibility of certain expert evidence which will be dealt with by Dixon J on 30 October 2014. The plaintiff proposes that the arcing conclave involve Dr Clegg and Dr Barter (metallurgists) and Professor Blackburn and Professor Russell (electrical engineers). If the plaintiff’s objections are upheld there will be no need for a separate arcing conclave.
A review of the first defendant’s proposed questions in relation to the metallurgy and electrical engineering conclaves reveals that the arcing issues are raised. In particular, the arcing issue is squarely raised in the metallurgy conclave proposed questions, which were not disputed by the plaintiff.
I consider that having a separate arcing conclave will lead to inevitable duplication of issues which are considered in the metallurgy and electrical engineering conclaves. I do not accept that Dr Barter’s opinions on arc behaviour and arc testing are not exposed to conclave scrutiny. Each expert’s report will undergo scrutiny in the conclave process. The experts will be required to formulate a joint report which includes areas of agreement and disagreement. Not having a separate arcing conclave does not mean the topic and/or Dr Barter’s report, testing and literature review will not be considered in the metallurgy and electrical engineering conclaves.
There is no real benefit in having a separate arcing conclave and I consider it will inevitably lead to duplication and fragmentation of the issues.
Electrical Engineering and Current Transfer Conclave
The first defendant submits that the electrical engineering and current transfer conclave should be divided into two sessions:
(a) Session one – to be attended by Professor Blackburn and Professor Russell; and
(b) Session two – to be attended by Professor Blackburn, Professor Russell and Dr Lautenberger.
Session two is to deal specifically with current transfer to vegetation.
The plaintiff agrees that Dr Lautenberger should only opine on the session two topic, but submits that Dr Lautenberger should participate in session one and be directed as to his involvement. Dr Lautenberger is not an electrical engineer and he has not given in-depth consideration to the issues and topics to be canvassed in session one. I can see no benefit in Dr Lautenberger participating in or commenting on the session one topics.
Questions – Electrical Engineering and Current Transfer
The questions proposed by the first defendant are again drafted at a higher level, leaving the focus and specifics to the experts to determine. There is considerable overlap between the plaintiff’s proposed questions and the first defendant’s proposed questions. However, I consider the first defendant’s questions are drafted with appropriate generality.
Conclusion
In summary, I consider:
(a) the first defendant’s proposed questions for the fire investigation and ignition conclave; metallurgy conclave; and electrical engineering conclave should be adopted and provided to the experts in each of the conclaves. I consider that the questions should be provided to the experts in the format suggested by the plaintiff; that is, with the instructions for drafting joint reports and obligations of experts;
(b) Dr Lautenberger is not to participate in session one of the electrical engineering and current transfer conclave;
(c) there should not be a separate arcing conclave;
(d) the fire investigation conclave should be conducted over two sessions. Mr Cole and Mr Allen are to participate in the first session and Mr Allen, Mr Cole, Dr Lautenberger and Dr Colwell are to participate in the second session.
Subject to any submissions, I consider an appropriate costs order is that the costs be reserved.
Finally, I consider that there would be some benefit in the experts receiving all materials, including lists of documents, by 4.00pm on the day before the conclave. There should not be any discussion with the experts about the proposed questions with the legal representatives. Any questions the experts may have about the questions or documents can be dealt with in the conclave itself.
SCHEDULE OF PARTIES
S CI 2012 04538
| KATHERINE ROWE | Plaintiff | |
| - and - | ||
| AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) (FORMERLY SPI ELECTRICITY PTY LTD) | First Defendant | |
| ACN 060 674 580 PTY LTD (ACN 060 674 580) | Second Defendant | |
| SECRETARY TO THE DEPARTMENT OF ENVIRONMENT AND PRIMARY INDUSTRIES | Third Defendant | |
| COUNTRY FIRE AUTHORITY | Fourth Defendant | |
| STATE OF VICTORIA | Fifth Defendant | |
AND BETWEEN: | ||
| AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) (FORMERLY SPI ELECTRICITY PTY LTD) | Plaintiff by Counterclaim | |
- and - | ||
| ACN 060 674 580 PTY LTD (ACN 060 674 580) | First Defendant by Counterclaim | |
| SECRETARY TO THE DEPARTMENT OF ENVIRONMENT AND PRIMARY INDUSTRIES | Second Defendant by Counterclaim | |
COUNTRY FIRE AUTHORITY | Third Defendant by Counterclaim | |
STATE OF VICTORIA | Fourth Defendant by Counterclaim | |
KATHERINE ROWE | Fifth Defendant by Counterclaim | |
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