Ventia Utility Services Pty Ltd (ACN 010 725 247) (formerly known as Thiess Services Limited) v Electricity Networks Corporation t/as Western Power

[2023] WASC 381

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   VENTIA UTILITY SERVICES PTY LTD (ACN 010 725 247) (FORMERLY KNOWN AS THIESS SERVICES LIMITED) -v- ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER [2023] WASC 381

CORAM:   ARCHER J

HEARD:   28 SEPTEMBER 2023

DELIVERED          :   28 SEPTEMBER 2023

FILE NO/S:   CIV 1195 of 2023

BETWEEN:   VENTIA UTILITY SERVICES PTY LTD (ACN 010 725 247) (FORMERLY KNOWN AS THIESS SERVICES LIMITED)

Plaintiff

AND

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER

First Defendant

NOREEN MERLE CAMPBELL

Second Defendant

Catchwords:

Application for preliminary determination of issues - Obstacles to settlement

Legislation:

Nil

Result:

Application granted in part

Category:    B

Representation:

Counsel:

Plaintiff	:	S C M Wong
First Defendant	:	M J Sims
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Wotton + Kearney
First Defendant	:	DLA Piper Australia
Second Defendant	:	Not applicable

Case(s) referred to in decision(s):

Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47

Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S2)

Herridge v Electricity Networks Corporation t/as Western Power [2019] WASC 94 (S)

Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94

Landsdale Pty Ltd v Moore [2009] WASCA 176

Palmer v Citic [No 2] [2019] WASC 14

Woodley v Woodley [2014] WASC 377

ARCHER J:

(This judgment was delivered extemporaneously on 28 September 2023 and has been edited to correct matters of form, add formatting, and include complete references.)

Introduction

1. These reasons deal with an application by the plaintiff (Ventia) that four issues be determined separately (and before) the trial of the action.  The first defendant (Western Power) consents to three of the issues being determined separately.  It opposes the separate determination of the fourth.  Ventia's claims against the second defendant (Mrs Campbell) have been settled. 

2. An order that issues be tried separately (and before) the trial of an action will only be made if particular criteria are met.  In this case, Western Power contends, in short, that, unlike the first three issues, the fourth issue involves complex mixed questions of fact and law.  It contends that the fourth issue should therefore not be determined before the trial of the action.  Ventia contends that the fourth issue gives rise to substantially the same issues as the third issue.  Ventia contends, in effect, that if the third issue is suitable for determination prior to the trial, so too is the fourth.

3. Regardless of my findings in relation to the fourth issue, I will also need to consider whether I am satisfied that the first three issues should be determined prior to the trial.  Although the parties agree that they should be, it is necessary for me to form my own opinion as to that.

Background

1. On 12 January 2014, a jarrah pole supporting electrical cables fell to the ground causing electrical arcing.  This ignited dry vegetation around the base of the pole.  The fire spread and became what is known as the Parkerville bushfire. 

2. The pole was owned by, and on the property of, Mrs Campbell. 

3. Western Power is the network operator which distributed electricity from its network to Mrs Campbell by a service cable attached to the jarrah pole.

4. Western Power engaged Ventia, then known as Thiess Services Pty Ltd, to carry out works on the jarrah pole.

5. People whose property had been destroyed or damaged by the fire sued Ventia, Western Power and Mrs Campbell.  The plaintiffs alleged that they had suffered loss due to the negligence of, or the nuisance created by, each of the defendants.

6. The numerous actions were subsequently tried together before his Honour Justice Le Miere (Original Actions).  The Original Actions were limited to issues of liability except in relation to the actions of the lead plaintiffs (Mr and Mrs Elwood).  In the lead actions, the quantum issues were also tried.  His Honour found that both Ventia and Mrs Campbell were liable.  His Honour found that Western Power was not.  His Honour apportioned liability between Ventia and Mrs Campbell, 70% to Ventia and 30% to Mrs Campbell.[1]  His Honour also ordered Ventia and Mrs Campbell to jointly and severally pay 80% of the plaintiffs' costs.  His Honour expressly declined to make a costs order apportioning liability for the plaintiffs' costs on the basis of fault.[2]  I will refer to the orders made by Le Miere J as the 'Primary Orders', and the costs order within those orders as the 'Primary Costs Order'.

   [1] Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94 and Herridge v Electricity Networks Corporation t/as Western Power [2019] WASC 94 (S) (Le Miere J's Orders Decision).

   [2] Le Miere J's Orders Decision [52] ‑ [53].

7. The plaintiffs appealed.[3]  The Court of Appeal allowed the appeal in part.  The Court re‑apportioned liability as being 50% to Western Power, 35% to Ventia and 15% to Mrs Campbell.[4]  The Court of Appeal ordered that the defendants jointly and severally pay the plaintiffs' costs of the Original Actions to 20 September 2019 (Court of Appeal's Costs Order). 

   [3] Western Power notes, in its Amended Defence dated 7 July 2023 (Defence) [13], that the costs order was not appealed.

   [4] Statement of Claim dated 23 February 2023 (Statement of Claim) [14]; Defence [14].

8. Prior to the Court of Appeal's decision, Ventia had made payments to the plaintiffs in accordance with Le Miere J's Primary Orders (Payments).  After the Court of Appeal's decision, Ventia sought restitution orders in respect of the Payments from the Court of Appeal.  The Court of Appeal dismissed the application, but did not preclude Ventia from bringing new proceedings in the general division to seek such orders.[5] 

   [5] Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S2) [31].

9. Following the Court of Appeal's decision, Western Power made a number of payments to Ventia.  Mrs Campbell did not make any payments. 

10. Western Power paid 50% of the sums that had been paid by Ventia purportedly pursuant to the Primary Orders in relation to damages, plus interest on those sums.  However, Western Power denies this was by way of restitution and says, in effect, that this was simply a pragmatic method of meeting its liability to the plaintiffs.  Western Power notes that the sums not assessed by Le Miere J and not referred to in the Primary Orders were not the subject of agreement between the plaintiffs and Western Power.[6] 

    [6] Defence [17].

11. Western Power paid only one third of the sums that had been paid in relation to costs.  It submits that, as the defendants' liability to pay costs is joint and several, it should only have to pay one third of the costs.  Western Power further submits that, in relation to the costs payment pleaded in the Statement of Claim [17.3], it is not possible to know if Ventia has paid more than its pro‑rata share of the defendants' joint and several costs liability.[7]

    [7] Defence [17].

Current Action

1. On 23 February 2023, Ventia commenced the current proceedings against Western Power and Mrs Campbell seeking restitution.  On 20 July 2023, Ventia informed the court that the proceedings against Mrs Campbell had been resolved. 

2. In these proceedings, Ventia seeks that Western Power make payments additional to the money it has already paid to Ventia.  The additional payments sought fall into five categories (Categories):[8] 

   1.'Western Power's Unpaid Interest' - $527,888.15;

   2.'Western Power's Unpaid Liability Costs' - $3,982,481.00;

   3.'Western Power's Unpaid Damages Assessment Costs' - $745,079.94;

   4.'Western Power's Unpaid Krepp Proceedings Costs' - $67,500.00; and

   5.'Western Power's Unpaid Expert Costs' - $289,136.97.

   [8] Statement of Claim [18] ‑ [21].

Application for preliminary determination

1. The parties have been engaged in settlement negotiations.  Those negotiations have been hampered by disputes as to issues of principle.

2. Western Power submits that a (or the) critical issue in dispute on the pleadings is whether Ventia is entitled to restitution from Western Power at all in respect of amounts Ventia has paid as damages, interest on damages, or to experts.  It does not contest, however, that the two issues hindering the settlement discussions are as deposed to by Mr Shute in his affidavit filed 3 July 2023.  These are: [9]

   1.the calculation of interest payable on restitution of payments Ventia made; and

   2.whether the appropriate share of costs to be paid by Western Power should be one‑third (equally) or one‑half (by liability).

   [9] Affidavit of Robin Maurice Shute sworn 3 July 2023 [10].

3. Ventia seeks that the following questions be tried as preliminary issues:

   1.Is Ventia entitled to restitution from Western Power, by way of contribution, recoupment or otherwise, in respect of amounts pleaded in paragraphs 10.1, 10.2 and 10.5 of the Statement of Claim dated 23 February 2023 paid to the plaintiffs in the proceedings listed in paragraph 5 of the Statement of Claim for damages and interest on damages under:

   (a)the judgments pleaded in paragraph 7.1 of the Statement of Claim; and/or

   (b)the settlement agreements pleaded in paragraph 9 of the Statement of Claim?

   2.Is Ventia entitled to restitution from Western Power, by way of contribution, recoupment or otherwise, in respect of amounts it has paid to experts in relation to the assessment of damages of non‑lead plaintiffs in the proceedings listed in paragraph 6 of the Statement of Claim?

   3.Assuming (without deciding) that the joint and several liability of Ventia, Western Power and Mrs Campbell under the costs order pleaded in paragraph 14.7 of the Statement of Claim was discharged in full, would Ventia, Western Power and Mrs Campbell be bound, as amongst themselves, to contribute to the discharge of that liability:

   (a)equally; or

   (b)50% as to Western Power, 35% as to Ventia and 15% as to Mrs Campbell?

   4.Assuming (without deciding) that Ventia is entitled to restitution from Western Power and Mrs Campbell in respect of the amounts pleaded in paragraphs 10.4, 10.5 and 11 of the Statement of Claim, would Ventia, Western Power and Mrs Campbell be bound, as amongst themselves, to contribute to the discharge of that liability:

   (a)equally; or

   (b)50% as to Western Power, 35% as to Ventia and 15% as to Mrs Campbell?

4. Western Power formally accepts that if the answer to question 1 is 'Yes', then it follows that Ventia would be entitled to simple interest at 6% per annum on each outstanding sum to which Ventia is entitled as restitution from the date or dates on which Ventia's entitlement to restitution accrued until the date or dates on which each such sum is or was paid. 

Law

1. Under O 32 r 4 of the Rules of the Supreme Court 1971 (WA), the court has the power to order that any question or issue be tried separately from any other question or issue whether before or after the trial of the proceedings.

2. The starting point is that ordinarily all issues arising in an action will be dealt with together in the trial of an action.  A decision to determine some issues prior to the trial should only be made where the utility, economy and fairness of doing so is established.[10]  

   [10] Landsdale Pty Ltd v Moore [2009] WASCA 176 [20] ‑ [22].

3. In Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd,[11] McKechnie J summarised the relevant principles as follows:

   [11] Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 [4].

   •A separate trial of issues is only appropriate in clear and simple cases.

   •Separate trials of issues should only be embarked upon when the utility, economy and fairness are beyond question.

   •The fact that the resolution of a separate trial may determine the litigation is relevant.

   •Separate trials of issues may be appropriate where it is likely to save expense and inconvenience.

   •There is a focus in the Rules of the Supreme Court on the expedition of determination of matters before the Court and separate trials of issues may advance the expedition.

   •A possibility that the determination of issues tried separately may lead to settlement should be taken into account even though the issues may not finally dispose of the action.

   •In many cases the formulation of specific questions to be tried separately, from and in advance of other issues, will assist in the resolution of the matters in issue if the questions are capable of final answer in accordance with the judicial process.

   •Separate trials are inappropriate where the result depends on complex issues of fact or when a preliminary question is one of mixed fact and law.

   •The procedure should be confined generally to cases where facts are complicated and the legal issues short, otherwise it can be a treacherous shortcut.

   •Separate trials may be productive of delay, extra expense and uncertainty of outcome, which they are intended to avoid. Saving some time is often illusory when the parties have the necessity of making full preparation and factual matters relevant to one issue are relevant to others which overlap.

   •There is potential for further appeals.

4. The ultimate question is whether the court is satisfied that it is 'just and convenient' for an order for a separate trial to be made.[12]

   [12] Woodley v Woodley [2014] WASC 377 [11].

Analysis

Proposed questions 1, 2 and 3

1. Western Power consents to an order that the first three questions be determined prior to trial.  Both parties contend that determining the first three questions prior to trial, on the basis of the matter formally accepted by Western Power,[13] is likely to lead to a settlement of the remaining disputes between the parties. 

   [13] See above at paragraph 20.   

2. Although there is no dispute that the first three questions should be determined prior to the trial, it is necessary for me to form my own opinion as to whether I am satisfied of this. 

Question 1

1. Question 1 refers to paragraphs 10.1, 10.2 and 10.5 of the Statement of Claim.  Those paragraphs assert that Ventia made the following payments to the plaintiffs in the Original Actions:

   10.1the actionable damages suffered by the lead Plaintiffs, Mr G Elwood and Mrs S Elwood, in the amount of $542,313.25, together with interest of $165,048.36;

   10.270% of the actionable damages suffered by the non‑lead Plaintiffs in the [Original Actions] as a result of the Parkerville Bushfire, together with interest at 6% per annum from the date of the fire;

   …

   10.570% of the amounts of damages claimed in the Pontague Proceedings and in the Krepp Proceedings and costs of $135,000 claimed in the Krepp Proceedings.

2. Western Power paid to Ventia 50% of the amounts pleaded in those paragraphs to have been paid by way of damages.[14]  Category 1, 'Western Power's Unpaid Interest', is Ventia's claim for interest on the sums referred to in those paragraphs of the Statement of Claim.[15]  Currently, the Statement of Claim claims that Western Power should pay interest on all of the sums paid by Ventia.  During the hearing, Ventia confirmed that this was an error, and that it claimed interest on 50% of what had been paid.

   [14] Statement of Claim [17.1], [17.2] and [17.5] and Defence [17(a)], [17(b)] and [17(e)].

   [15] Statement of Claim [18.1] and [19].

3. Western Power says that Ventia is not entitled to restitution.  In broad terms, it relevantly pleads that:[16]

   1.its liability to the plaintiffs is a distinct and several liability of Western Power and is not common or coordinate with any liability of Ventia to the various plaintiff groups; and

   2.payments Ventia has made to the various plaintiff groups for damages and interest on damages under settlement agreements made by Ventia and those plaintiff groups have not, as a matter of law, discharged any liability of Western Power to those plaintiff groups.

   [16] Defence [18(a)(i)‑(ii)].

4. I am satisfied that it would be just and convenient to order that question 1 be determined prior to trial.  I accept that determining this question may lead to the resolution of some matters in issue.  Question 1 is a question of law, and does not require any issue of fact to be resolved.  Western Power does not assert that none of the payments were made, and simply does not admit that they were.[17]  The question can be answered on the assumption that they were made.  Assuming, as seems reasonable, that Ventia will prove at least one such payment was made, the question is not hypothetical.  

Question 2

[17] Defence [10].

1. Question 2 refers to payments made to experts.  Those payments are pleaded in paragraphs 11 and 12 of the Statement of Claim.

2. Category 5, 'Western Power's Unpaid Expert Costs', claims 50% of payments Ventia says it made to experts in defending and settling the assessment of damages of the non‑lead plaintiffs in the Original Actions and resolution of the Krepp and Pontague Proceedings.[18]

   [18] Statement of Claim [18.5].

3. Western Power simply denies it is required to reimburse Ventia for these payments.[19]

   [19] Defence [18(e)].

4. I am similarly satisfied that it would be just and convenient to order that question 2 be determined prior to trial.  I accept that determining this question may lead to the resolution of some matters in issue.  Question 2 is a question of law, and does not require any issue of fact to be resolved.  Again, Western Power does not assert that none of the payments were made, and simply does not admit that they were.[20]  The question can be answered on the assumption that they were made.  Assuming, as seems reasonable, that Ventia will prove at least one such payment was made, the question is not hypothetical. 

Question 3

[20] Defence [11] ‑ [12].

1. Question 3 refers to payments made pursuant to a costs order pleaded in paragraph 14.7 of the Statement of Claim.  This was the costs order made by the Court of Appeal, in varying the Primary Orders, which I refer to as the 'Court of Appeal's Costs Order'.  By that order, the defendants were ordered to jointly and severally pay the plaintiffs' costs of the Original Actions.

2. Categories 2, 3 and 4 all relate to sums paid by Ventia in relation to the plaintiffs' costs.  Western Power paid one‑third of those sums.[21]  Ventia asserts, in effect, that as Western Power was found to be 50% liable by the Court of Appeal, and Ventia's liability was halved, Western Power should pay half of the sums that Ventia paid. 

   [21] Statement of Claim [17.3], [18.2], [18.3] and [18.4] and Defence [17(c)].

3. Western Power relevantly says that the Court of Appeal's Costs Order expressly made all three defendants jointly and severally liable for the plaintiffs' costs.  It also notes that, by the Primary Costs Order, Le Miere J had made the two defendants he found to be liable for the damages (Ventia and Mrs Campbell) jointly and severally liable for the costs.  Western Power further notes that, in making the Primary Costs Order, Le Miere J expressly refused to apportion costs.  Finally, Western Power notes that Ventia did not appeal the Primary Costs Order.[22]  

   [22] Defence [18(b)] in relation to Category 2.  Western Power at Defence [18(c)] ‑ [18(d)] pleads a blanket denial of the pleading in relation to Categories 3 and 4.

4. Question 3 proceeds on the assumption that the joint and several liability under the Court of Appeal's Costs Order has been discharged in full.  This is disputed on the pleading.  Western Power pleads, in effect, that the actual costs have not been assessed or agreed by it.[23]  Nevertheless, it is reasonable to assume that, if it has not yet been discharged in full, it will be eventually.  Therefore, question 3 would not be hypothetical.  In any event, I am satisfied that determining question 3 may lead to the settlement of the proceedings or at least the resolution of some matters in issue. 

   [23] Defence [17].

1. Question 3 raises whether, on the discharge of the joint and several liability, a defendant paying more than the proportion of that defendant's liability for the damage would have an equitable right of contribution from the other two defendants (Proper Proportion Issue).  

2. Ventia notes that, in theory, questions of appropriate levels of contribution will depend on all of the relevant facts and circumstances.  However, Ventia submits that, in this case, the Proper Proportion Issue is to be determined solely in light of the Court of Appeal's finding as to the respective fault of the defendants. 

3. Western Power submits that two additional circumstances are relevant:[24]

   1.Le Miere J expressly declined to make a costs order apportioning liability for the plaintiffs' costs on the basis of fault; and

   2.The Primary Costs Order was not challenged in the appeal and the Court of Appeal was not asked to, and did not, vary the Primary Costs Order so as to apportion liability for the plaintiffs' costs on the basis of fault.

   [24] Defence [7] and [13].

4. Either way, the Proper Proportion Issue would not require any issue of fact to be resolved. 

5. Western Power also pleads that Ventia's claim for these sums is an impermissible collateral attack on the judgment in the Action (Abuse of Process contention), based on the same two circumstances.[25] 

   [25] Defence [7], [13] and [18(b)(iv)].

6. There is no evidence that the Abuse of Process contention is an obstacle to the settlement discussions.  For these reasons, I am not satisfied that it would be just and convenient to order that the Abuse of Process contention be determined prior to trial.  

7. By contrast, the Proper Proportion Issue is an obstacle to the settlement discussions.  In addition, even if the Abuse of Process contention was upheld at trial, it would still be necessary to resolve the Proper Proportion Issue.  Further, if the parties are right about the extent of the circumstances that could be relevant, I would be satisfied that it would be just and convenient to order that the Proper Proportion Issue be determined prior to trial.  I am concerned, however, that after the parties have conferred as to the manner in which the preliminary issues are to be determined, it may become apparent that the Proper Proportion Issue cannot be determined on the basis of the circumstances identified by the parties.  To cater for that possibility, I would make the order that the Proper Proportion Issue be determined prior to trial subject to further order. 

8. It may be that, if it does transpire that the Proper Proportion Issue cannot be determined on the basis of the circumstances identified by the parties, the parties may nevertheless ask that it be determined prior to trial on the basis of agreed facts or narrowly confined disputed facts or even an exhaustive list of assumed facts.[26]  I do not wish to foreclose that possibility, but would need to consider whether, in the light of the manner in which it was proposed the issue be dealt with, it would be just and convenient to deal with it prior to trial.

Proposed question 4

[26] As to the last, see Palmer v Citic[No 2] [2019] WASC 14 [15].

1. The parties disagree about the fourth question.  Western Power opposes the separate determination of the fourth question, as it contends that the assumption upon which it is premised 'is a complex and disputed assumption of mixed fact and law, and it is inappropriate to determine a preliminary question premised upon such an assumption because the answer given will be hypothetical'.[27]

   [27] Western Power's Submissions filed 12 September 2023 [7(d)] and [20] ‑ [27].

2. Question 4 refers to the amounts pleaded in paragraphs 10.4, 10.5 and 11 of the Statement of Claim.  Paragraph 10.4 asserts that Ventia made payments to the plaintiffs for the costs recoverable by the non‑lead plaintiffs in the Original Actions for the assessment of damages ($4,036,506.17).  Paragraph 10.5 is referred to in question 1, and is extracted above.  Paragraph 11 is the pleading of the payments to experts, referred to in question 2. 

3. Western Power paid one‑third of the costs recoverable by the non‑lead plaintiffs, and Ventia asserts it should pay half.[28]  Western Power did not pay any amount of the costs referred to in paragraph 10.5 or the payments to the experts.  Ventia asserts it should pay half.[29]  Western Power denies this.[30]

   [28] Statement of Claim [17.4] and [18.3].

   [29] Statement of Claim [17.5], [18.4] and [18.5].

   [30] Defence [18(c)] ‑ [18(e)].

4. Ventia's reasons for seeking that question 4 be answered are, in short, because it is concerned that question 3 could be answered in a way that does not answer the Proper Proportion Issue.  Ventia is concerned that question 3 could be answered on the Abuse of Process contention.[31] 

   [31] Ventia's Submissions filed 24 August 2023 [34] ‑ [37].

5. However, for the reasons I have already given, I would limit question 3 to the Proper Proportion Issue. 

6. Further, I am not persuaded that it would be just and convenient to order that question 4 be determined prior to trial.  In my view, it could raise numerous complex issues.  For example, question 4 could require an assessment of the reasonableness of the settlement terms. 

Conclusion

1. For these reasons, I would order:

   1.that there be a preliminary determination of questions 1 and 2;

   2.that, subject to further order, there be a preliminary determination of the Proper Proportion Issue.

2. I would not order that question 4 be determined prior to the trial.

3. I will hear from the parties as to the form of the orders and as to costs, and as to programming the next steps.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KH

Associate to the Honourable Justice Archer

4 OCTOBER 2023