Thomas v Powercor Australia Limited (Ruling No 4) - [2011] VSC 481

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
DATES OF HEARING:	5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19 and 20 September 2011
DATE OF RULING:	20 September 2011 (Reasons 27 September 2011)
CASE MAY BE CITED AS:	Thomas v Powercor Australia Limited (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2011] VSC 481

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EVIDENCE – Exclusion of evidence contrary to agreement reached as to loss.

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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:

A brief resume of this proceeding is set out in my previous published ruling (No. 3).[1]
[1][2011] VSC 391.

On the eleventh day of the trial (20 September 2011) Mr Laurie Thomas, the plaintiff, was in the process of giving evidence-in-chief as to the extent of the damage to his property caused by the Black Saturday Horsham bushfire.

I was called upon to rule as to whether Mr Thomas should be permitted to give evidence of calculations he made on Sunday 18 September 2011 as to the length of fencing damaged or destroyed by the fire. Counsel proposed to tender, through him, a summary of the measurements he made, using his vehicle, of the distance of fencing damaged by the fire. This was said to be 8,100 metres.

I determined that he should not be permitted to give this evidence as it was, in effect, an ambush and I now provide my brief written reasons for doing so.

Background to the evidence concerning the damage to the fencing

Both Mr Thomas and Powercor engaged agricultural experts to provide opinions as to the amount of fencing destroyed and the cost of the loss of such fencing. The two experts, Mr Ian Aberdeen, on behalf of Mr Thomas and Mr Tony Hartley, on behalf of Powercor, provided their reports in February and March respectively. A report was also obtained by Mr Thomas from Mr Nigel McGuckian (in February 2011), an agricultural consultant, which in effect, confirmed the calculations and opinion of Mr Aberdeen.

In their respective reports, both Mr Aberdeen and Mr Hartley differed as to the amount of fencing affected by the fire. Mr Aberdeen, determined the loss as 7,300 metres and valued it as $83,836. Mr Hartley adopted a quotation provided to Mr Thomas provided by a local contractor, under Mr Thomas’ instructions, of 6,190 metres of fencing and made his calculations accordingly.

Pursuant to my directions, the three experts met in conference on 13 April 2011 and produced a joint report dated 6 May 2011[2].
[2]Exhibit 1 B 037.

In that report the experts agreed, after taking into account joint fencing that the distance of fencing for the purpose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 481
Decision Date: 20 September 2011 (Reasons 27 September 2011)

CaseChat Overview and Summary

The case involved Thomas, the plaintiff, and Powercor Australia Limited, the defendant, in the Federal Circuit Court. Thomas claimed damages from Powercor due to a power outage that allegedly caused damage to his property. Powercor contested the claim, arguing that the damage was not caused by their actions. The court had to determine the admissibility of evidence regarding the loss incurred by Thomas.

The central issue before the court was whether evidence of the loss claimed by Thomas was admissible, given that the parties had reached an agreement on the amount of the loss. The court had to decide if the terms of the agreement precluded the introduction of evidence concerning the specifics of the loss. This was crucial in determining the credibility of Thomas's claim and the extent of damages he could claim.

The court found that the agreement between the parties regarding the amount of the loss precluded the introduction of evidence about the specifics of the loss. The court ruled that such evidence was irrelevant and could not be used to support Thomas's claim. This decision was based on the principle that once parties have agreed on the amount of the loss, evidence of the specifics of the loss is not admissible, as it would be redundant and potentially misleading. The court concluded that the evidence of the loss should be excluded from the proceedings.

The court ordered that evidence concerning the specifics of the loss incurred by Thomas was to be excluded from the case. The court also noted that this ruling did not affect the overall assessment of the claim, as the amount of the loss was already agreed upon by the parties. This decision reinforced the importance of adhering to agreements made between parties in dispute resolution proceedings.

Orders