State of Victoria v SPI Electricity Pty Ltd
[2012] VSC 470
•12 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2012 02050
| STATE OF VICTORIA AND OTHERS | Plaintiffs |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | First Defendant |
| UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) | Second Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2012 (Written submissions 31 August 2012) | |
DATE OF RULING: | 12 October 2012 | |
CASE MAY BE CITED AS: | State of Victoria v SPI Electricity Pty Ltd & anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 470 | Amended 15 October 2012. |
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiffs | Mr M Wheelehan SC Mr P Herzfeld | Middletons |
| For SPI Electricity Pty Ltd | Mr J Beach QC Mr P Solomon SC Mr D Farrands | Freehills |
| For USC | Ms E Brimer | Holman Fenwick Willan |
| For the plaintiffs in SCI 4788 of 2009 | Mr T Tobin SC Mr L Armstrong Ms M Szydzik | Maurice Blackburn Pty Ltd |
| For the State parties in SCI 4788 of 2009 | Mr C Caleo SC Mr M Rush Mr A Pound | Norton Rose |
HIS HONOUR:
Introduction
This time, Mrs Matthews and SPI are arguing about the provision of documents or material adduced in this proceeding which may be used in Mrs Matthews’ class action.
Mrs Matthews is not a party to this proceeding. The defendants here are defendants in the class action. These two proceedings are to be heard together. Each of the parties in this case agree that such material may be deployed in the class action, if relevant.
I remain at a loss to understand why Mrs Matthews wants to exclude documents or information from this case which may be germane to the determination of the issues in dispute in the class action. Other than arguing that there is a potential to disrupt the trial process of the class action, no good reason has been advanced by Mrs Matthews to support her resistance to what is a common sense approach to two inextricably entwined pieces of litigation. My reasoning for making, in general terms, the orders sought by SPI are as follows.
The two proceedings
Mrs Matthews’ class action (No.4788 of 2009) brought under Part IVA of the Supreme Court Act 1986 (Vic)[1] identifies five defendants: SPI, USC, DSE, CFA and the State of Victoria (in a representative capacity on behalf of members of Victoria Police).
[1]“SCA”.
The class action is set down for trial commencing on 29 January 2013. Discovery has been completed with the delivery of joint expert reports and mediation still outstanding. Assuming the class action proceeds to conclusion, the trial will take six months.
In April of this year, a number of State of Victoria related entities – the State of Victoria (in effect on behalf of the Department of Education and Early Childhood Development),[2] DSE, Parks Victoria and the Roads Corporation[3] – issued this proceeding against SPI and USC in relation to property damage sustained by them as a result of the Black Saturday fires. Those entities are, by reason of s 33F(2) of the SCA, prima facie excluded from class membership.
[2]“the Department of Education”.
[3]“the State parties”.
The claims in this proceeding by the State entities against SPI and USC effectively mirror the claims brought by Mrs Matthews and the group members against those two companies in the class action.
Orders made to date
On 3 May 2012, I ordered that the two proceedings be heard together and on 31 August 2012, I ordered that the evidence in the class action stand as evidence in this proceeding.
At the directions hearing on 30 August 2012, the parties in the class action agreed that the following orders in relation to the use of the material obtained in the course of that proceeding should be made:
1.That the parties be given leave to use in proceeding number SCI 2012 02050 any document filed and/or served in this proceeding including witness statements (whether expert or lay), documents discovered by any party, and documents produced under subpoena.
2.The parties be given leave under section 27(3) of the Civil Procedure Act 2010 (Vic) in relation to the documents referred to in paragraph 1 of this order for those documents (if any) to which that provision applies.
This application
In this proceeding, SPI seeks a mirror of the order I have set out at [9] so that any material obtained in the course of this case can be utilised in the class action and thus overcome any potential Home Office v Harman[4] and/or s 27(1) of the Civil Procedure Act 2010 (Vic)[5] problems.
[4](1983) 1 AC 280.
[5]“CPA”.
Each of the parties in this proceeding has an obligation, recognised in Hearne v Street[6] and now by statute in s 27(1) of the CPA, not to use documents or information obtained in the course of the proceeding for any other purpose. In this proceeding, that obligation extends to documents obtained by discovery, subpoena and to expert witness statements – unless one of the exceptions to the obligation is made out. Each party is entitled to insist upon confidentiality of the documents or material disclosed in this proceeding , however, none wishes to do so.
[6](2008) 235 CLR 125.
Now this is where Mrs Matthews’ resistance to the application becomes curious. She, of course, could not insist upon any obligation of confidentiality in a proceeding to which she is not a party and has not been subject to the Court’s process. Rather, Mrs Matthews’ counsel asserts that it is inimical to trial management of the class action to permit the release of such information. I turn now to submissions by the two combatants.
The submissions of the parties
SPI
SPI made the following submissions:
· in the absence of a Harman release, information (such as discovered documents and expert evidence) cannot be deployed in the recovery proceeding notwithstanding significant overlaps in the issues and the identity of parties;
· given that a release will be made of material in the class action into the recovery proceeding, it is common sense that a counterpart release be given in respect of the recovery action. There is no logical reason for such asymmetry; and
· any risk of new information which might constitute an ambush can be cured by appropriate orders and, in any event, given the identity of the parties, the likelihood is low.
Mrs Matthews
Mrs Matthews made the following submissions:
· SPI has not justified the order it now seeks and a blanket order is plainly wrong;
· there is potential for material being disclosed or deployed from the recovery proceeding in the class action which has no relevance to the real issues in dispute in the class action;
· SPI should identify the material it wishes to utilise from the recovery proceeding in the class action before any order is made; and
· there will be an inappropriate diversion of resources if the application is allowed.
Analysis
These two claims are inextricably interwoven both in terms of the identity of the parties and the subject matter of the two claims. Both claims arise out of the Kilmore East Black Saturday bushfire and involve identical criticisms of the conduct of SPI and USC. SPI is right when it says that it is illogical to encumber the use of relevant material adduced in this proceeding from its use in the class action and vice versa.
It is, as authority demonstrates, important that any release of the parties from the obligation of confidentiality be closely scrutinised. But this is an unusual case – as I have just mentioned, none of the parties in this proceeding contend that their right to confidentiality or privacy requires court protection. Each would appear to recognise that one of the ultimate purposes of both pieces of litigation is to determine the liability, if any, of SPI and USC and that relevant additional documents or material adduced in this proceeding will be utilised for exactly the same purpose in the class action.
I do not accept the contention on behalf of Mrs Matthews that there is potential to derail the trial of the class action. For practical purposes, four of the seven parties in this proceeding are parties to the class action and it can be assumed that no fresh documents or material will emanate from those sources. That leaves, at least in terms of disclosure these potential new sources of information – the Education Department, the Roads Corporation, Parks Victoria and any material obtained under subpoena. It would be surprising, to put it mildly, if a tsunami of information concerning the liability of any of the parties to the class action emerged from these sources. Simply put, I cannot see how the provision of such information poses the threat perceived by counsel for Mrs Matthews.
There is some force, however, in Mrs Matthews’ contention that the Court should resist making a blanket order for the release of documents from one trial into another. But, subject to a rider which I will deal with in a moment, that proposition ignores the reality of the close connection between the two pieces of litigation. It is not necessary that there be specific identification of documents at this stage which is to be contrasted to the position where a party resists the disclosure of information confidential to a particular piece of litigation.[7]
[7]See Visy Board Pty Ltd vD’Souza [2008] VSC 572.
As for Mrs Matthews’ argument about the potential relevance of these documents, that can be dealt with by pre-trial disclosure. Almost certainly, if a document is not relevant to liability in this proceeding it will be irrelevant in the class action. I see no basis upon which to conclude that there will be a disruption of the trial processes or a diversion of resources caused by what, on the face of it, are sensible and practical orders which will assist in ensuring a fair determination of the issues in both proceedings.
Notwithstanding my views as to the utility of making the order I think that there is one specific condition that needs to attached to the use of such information: any documents or information disclosed (or subpoenaed) in this proceeding by the State parties and sought to be deployed in the class action must be the subject of identification and disclosure by the party wishing to rely upon such material. Each of the other parties to the class action must be provided with details of that information and, where necessary, copies of any documents sought to be adduced in the class action trial.
Appropriate orders
Subject to hearing from the parties, I propose to make the following orders:
1.That the parties be given leave to use in proceeding number SCI 04788 of 2009 any document filed and/or served in this proceeding including witness statements (whether expert or lay), documents discovered by any party, and documents produced under subpoena.
2.The parties be given leave under section 27(3) of the Civil Procedure Act 2010 (Vic) in relation to the documents referred to in Order 1 for those documents (if any) to which that provision applies.
3.Subject to further order, the party wishing to use the documents described in Order 1 shall, by 9 January 2013, file with the Court and serve on the other parties to proceeding SCI 04788 of 2009 a list of documents and, if requested, copies of such documents.
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