Thomas v Powercor Australia Limited (Ruling No 5) - [2011] VSC 482

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, 20 and 21 September 2011
DATE OF RULING:	21 September 2011 (Reasons 27 September)
CASE MAY BE CITED AS:	Thomas v Powercor Australia Limited (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2011] VSC 482

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PROCEDURE – Application to call expert witness without O.44 report provided – No basis established – Application refused.

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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:

I have in my previous rulings[1] set out some of the background to this claim and the procedural steps involved with the adducing of expert evidence.
[1]2011 VSC [391] and 2011 VSC [481].

The Black Saturday bushfire destroyed some 35 trees and shrubs surrounding Mr Thomas’s house. It was not in issue that these trees provided real amenity from adverse climatic conditions encountered on the Wimmera plains, including heat, dust and wind, as well as being of aesthetic value.

The issue of the valuation of the loss of amenity was primarily the subject of expert evidence given by Ms Lisa Stafford, a horticulturist, engaged on behalf of Mr Thomas. The expert called on behalf of Powercor, Mr Tony Hartley, did not have horticultural expertise and did not express an expert opinion on horticultural matters.

At the conclusion of the concurrent expert evidence session dealing with loss of amenity of the house as a result of the destruction of trees and shrubs surrounding it, senior counsel for Mr Thomas made application to call Dr Moore, a highly experienced horticulturalist. Dr Moore is the designer of what is known as the “Revised Burnley Method”(“RBM”) which was utilised by Ms Stafford in calculating her valuation of loss of amenity.

No expert report had been provided by Dr Moore, nor had he participated in the joint experts’ meeting. It was proposed to call Dr Moore to, in effect, validate the RBM as an appropriate form of calculation of loss of amenity.

Ultimately, I determined, after hearing argument, that Dr Moore should not be permitted to give evidence on this topic. Now, as promised, I set out my reasons.

Background

After the exchange of expert reports, it was clear that Mr Thomas proposed to rely upon the assessment of amenity based upon RBM and referred to in Ms Stafford’s report. Mr Hartley, in his original report, took no issue with this method of analysis.

However, after the meeting of experts in May 2011, the joint report noted:

The value of $78,330.00 is comprised of $68,430.00 for the value of trees and shrubs as determined by the Revised Burnley Method which is…

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 482
Decision Date: 21 September 2011 (Reasons 27 September)

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Thomas, sought to call an expert witness in their proceedings against Powercor Australia Limited, a corporation involved in the supply of electricity. The dispute arose from an incident involving an electrical fault, which the applicants claimed resulted in significant damage to their property. The matter was before the Court, which was tasked with determining whether the applicants could proceed with their intended expert witness without having first submitted a report in accordance with Order 44 of the relevant rules. The central legal issue before the Court was whether the applicants had established a sufficient basis to justify the call of an expert witness without a prior report. The Court had to consider whether the applicants had demonstrated a necessity for the expert's testimony and whether they could show that the report was not necessary or had been prepared but was not yet available. In its ruling, the Court found that the applicants had not provided any evidence or justification to support the need for an expert witness without a prior report. The Court held that the absence of such a report was a significant procedural oversight and that the applicants had not established a sufficient basis for the exception to the usual requirement. Consequently, the Court refused the application to call the expert witness without the requisite report. The Court's decision emphasised the importance of adhering to procedural rules and the necessity for applicants to provide adequate justification when seeking to deviate from established practices. The Court's refusal of the application underscored the requirement for applicants to comply with procedural obligations to ensure the fairness and efficiency of the judicial process.

Orders