Thomas v Powercor Australia Limited (Ruling No 3)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT HORSHAM
COMMON LAW DIVISION

No. 9166 of 2009

LAURENCE PETER THOMAS	Plaintiff
V
POWERCOR AUSTRALIA LIMITED (ACN 064 651 109)	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Horsham
DATE OF HEARING:	5, 6,  7 and 8 September 2011
DATE OF RULING:	8 September 2011
CASE MAY BE CITED AS:	Thomas v Powercor Australia Limited (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2011] VSC 391

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Late service of an expert report – Order 44 of Supreme  Court Rules – Prejudice – Adequacy of explanation for delay. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr L Armstrong and Mr A Fraatz	Maddens
For the Defendant	Mr D Curtain QC with Mr D McWilliams and Mr D Wallis	Wotton & Kearney

HIS HONOUR:

The application

1. The claim of the representative Plaintiff, Mr Thomas, relates to destruction and damage of parts of his farming property as a result of the Black Saturday Horsham bushfire (7 February 2009).  It is not in issue that the fire commenced as the result of a conductor falling from a pole on a SWER power line known as the Remlaw Spur Line. 

1. The contest between the parties relates, in part, to the maintenance and inspection of the  pole and the adequacy of its accompanying pole top assembly.  Of significance is the manner in which the assembly was affixed to the pole.  At the time of its construction in 1964, three coach screws were used to secure the assembly to the pole. 

1. On the eve of the trial, 2 September 2011, Mr Thomas’ solicitors served a report of that date of Dr John Price, a metallurgist.  The report detailed observations and an opinion of Dr Price relating to a coach screw which he had examined during the week.  It is said to come from Pole 15 – the pole from which the conductor fell.  In particular an opinion Dr Price expresses the manner in which the coach screw had been fixed to the pole. 

1. On 7 September 2011 (the third day of the trial), an Order 44 statement of Dr Price was served by Mr Thomas’ solicitors.  Notwithstanding that no application had been made at any time prior to the trial or during it, in relation to Dr Price’s evidence, I was told by Mr Thomas’ counsel that he now sought leave to call Dr Price as an expert  witness on the issue of liability.  It was not in contest that Dr Price’s opinion went to a material matter – as I have said:  the manner in which the coach screw had been fixed into the pole when constructed in 1964.

Submissions of the parties

1. Mr Curtain QC, who appears with Mr McWilliams and Mr Wallis for Powercor, argues that the report should not be allowed in; it has been served far too late and in breach of the requirements of Order 44 with the trial now well underway.  He contends that the question of…