Liesfield v SPI Electricity PTY LTD & Ors

2 The plaintiff contends that the Murrundindi fire was started when a conductor failed as a result of an inadequate clearance that permitted clashing or arcing to occur between that conductor (the northern conductor) and the adjacent stay wire that stabilised the pole (pole 6). The northern conductor broke at a point very close to that stay wire and then fell to the ground. Part of the conductor, which was live, draped across and electrified a fence and the fire ignited under or near the electrified fence several hundred metres to the north.

3 SPI admits that the conductor fell, but denies the alleged mechanism of its failure. SPI also denies the pleaded theory of the ignition of the fire. A critical question in this case is the reason for the conductor breaking. A key piece of evidence would have been the two fractured ends that are no longer available for expert examination by specialist metallurgists and electrical engineers. The conductor was repaired in the days after the fire. The short length of conductor hanging from pole 6 was removed and the long length of conductor attached to pole 7 was trimmed. The conductor was then repaired with an extension piece and restrung. The circumstances in which the conductor ends were discarded is not presently relevant except that the plaintiff contends that SPI is responsible for the fact that critical evidence is unavailable.

4 All that the experts have for forensic examination is the stay wire and the repaired conductor absent the pieces of critical interest. The plaintiff has a statement from a CFA fire investigator, Fabian Crowe, who examined the ends at the time and said: "A close examination of the line revealed that two strands of wire had fused together as a result of grainy heat". There are also a number of photographs of the conductor ends. The plaintiff's experts have instructed the plaintiff's solicitors that they are very interested in learning what observations personnel made of the conductor ends, particularly those personnel who repaired the conductor but also those who were on the site or in a position to make observations before the conductor ends were discarded. There are other aspects of the competing pleaded theories about ignition of the fire that may be informed by the observations of persons at the site on the days following the fire.

5 SPI states that two employees - Kevin Mitchell and Ronald Sullivan - of Australian Powerline Consultants, an SPI contractor, carried out the repair and restringing of the northern conductor. They were supervised by an SPI employee, Mr Anthony Nachtigal, who apparently was not involved in the actual repair. Nachtigal's instructions to Mitchell and Sullivan were oral and undocumented save for an entry in a spread sheet. The removed parts of the conductor were placed on the back of the truck or trucks used by the crew attending to the repair, together with the parts that had been removed and replaced from other repair jobs undertaken by that crew, and they were put in the skip at a depot. Sometime before 19 February 2009, the skip bin was collected and disposed of in the usual waste disposal cycle. Sixteen other people have been identified as present at the site on the relevant days, that is 7, 9 and 10 February 2009. Pursuant to my direction, the parties have exchanged lists of proposed witnesses and presently no party intends to call Mitchell, Sullivan and Nachtigal. Of the 19 persons identified only two are presently to be called. The plaintiff asserts they are each in SPI's camp but there is no evidence of attempts by the plaintiff to take statements from any of these witnesses.

6 Many, but not all, of these 19 witnesses were interviewed by police who investigated suspicions that the Murrundindi fire was caused by a person or persons unknown as an act of arson. I was informed that, because of their focus, investigating police did not make inquiries that are now considered relevant, including inquiries about the fallen conductor and the post-fire repair works. Police did not investigate other relevant matters such as whether observations were made of the ground on which the conductor lay. None of the police statements were put before the court but I was invited to accept, and I do, that although the statements were both detailed and directed to the matters of interest to police, many of the witnesses potentially have more to say, if asked the appropriate questions. Information earlier provided by SPI's solicitors to the plaintiff was obtained by a review of these police witness statements and not from any enquiries undertaken by the solicitors of the employees or contractors. SPI had earlier stated that the plaintiff's issues would be addressed in evidence at trial. As the witness lists presently stand, it appears that no party intends to call these possibly significant witnesses and a critical part of the conductor is no longer available to the experts. There is a prospect that a careful expert, adhering to the Expert Code, might state that further inquiries of persons at the site, such as some or all of the 19 identified persons, about observations they might have made may assist in forming an expert opinion.

7 It is not in doubt that some or all of these witnesses may be able to contribute material observations relevant to facts in issue and those observations may inform forensic experts. Apart from observations of the fractured ends of the damaged conductor, observations of the surrounding site conditions may be relevant. There is a contest as to whether the conductor fell after the fire had passed through or whether the fall of the conductor passed an electrical current into a fence and the fire ignited under the fence some distance from the fallen conductor. Other observations about the surrounding circumstances may assist fire investigation experts. Interrogatories 31 - 39 are directed to these various issues.

8 The conductors attach to insulators that are fixed to cross-arms attached to the power pole. The supporting stays for the pole run to the ground diagonally from the top of the pole pinched together into a loop around the top of the pole by a ceramic insulator. The proximity of the northern conductor to the stay wire on 7 February 2009 is a critical question. The plaintiff contends that rotation of movement of the cross-arm after its construction may have changed the clearances originally constructed between the conductor and the stay wire. Further, there were repairs post fire to the pole and the conductor and observations of the configuration after 7 February 2009 must be appropriately qualified. Those repairs and alterations included changes to the positioning of that lowest cross arm that changed the clearance between the northern conductor and the northern stay. On the stay, close to the top ceramic insulator, a piece of spag or insulation was added. A field survey suggests that there may have been some movement in the alignment of the conductors and the stay wires. There is limited documentation discovered of the post-fire work. All that has been turned up by the plaintiff from discovery is an entry in a spread sheet, stating that the pole needs attention. The plaintiff suggests there is evidence of a practice of documenting repair and rectification work in greater detail that the spread sheet entry for the pole 6 post-fire work. The plaintiff seeks information, by interrogatories 1 - 5 that will permit its experts to best identify the configuration of the cross-arms, conductor, and stay wire.

9 Another aspect of the interrogatories are questions that seek information about the construction and augmentation of the feeder line and the protective devices utilised. These questions, interrogatories 6 - 31, are relevant to the fire ignition issues and are also said to be relevant to the claim against UAM which alleges that it should have picked up in its inspection regime that the northern stay was too close to the northern conductor. In this context, the plaintiff has sought to identify the pre-fire design and construction documents for pole 6, and most importantly those documents relating to the installation of the 22kV cross arm and conductors in 1993-1995. An undated field design document relating to pole 6 states, 'Needs design for 20kV to miss stay'. The plaintiff contends that interrogatories will assist him to gain a proper understanding of what was intended and constructed in terms of the clearances between the stay and the conductor, and what was taken into account in the design and installation of the cross arm. A route plan for the line from 1993 shows the line running to pole 6 at an angle and from that pole in a straight line to poles 6A, 7 and 7A near the mill. Authority to proceed with that design was issued in July 1993.

10 Discovery has not revealed a number of pieces of information that are sought by the interrogatories. The configuration of the pole top assets on pole 6, either as designed or as constructed, is not known and whether there were changes made to the configuration after construction and prior to the fire is a further issue. SPI has discovered a detailed route plan proposal in 1997 to relocate a pole south of pole 6. Photographs show that the pole was moved but discovery has not revealed when that occurred. Photographs also show spag on the western stay wire and a compression joint in the western conductor. The plaintiff contends that movement of the line of the conductor by works to poles 6A or 7 is likely to have changed the configuration angles at pole 6 and affected the relationship between the northern conductor and the stay wire. When that may have occurred is also significant because UAM inspected in 2005 and 2008, but the 2005 inspection may not presently be relevant. The plaintiff's pleaded case is based on the 2008 inspection and a reference to a March 2005 inspection in its most recent amendment of its statement of claim remains controversial. If configuration changes resulted from works on the line prior to the 2005 inspection, the case against UAM is likely to be expanded.

11 I am not persuaded that I should refuse the plaintiff leave to interrogate in respect of these matters. The implications for pleading amendments and for further discovery being required, which have been raised in case management, are likely to inconvenience other parties, although I do not expect any delay in commencing the trial as a result. Nevertheless, the parties have been encouraged to correspond directly on this issue and, since this application was argued, have done so. The addition of further allegations about an earlier inspection by UAM may affect SPI's claims against UAM as well. I expect that further delay in the plaintiff's consideration of the need for pleading amendment can be avoided, either through further direct communications between solicitors or through answers to interrogatories.

12 The bulk of the proposed questions relate to protection devices on the feeder line. The plaintiff alleges that the protection systems on the feeder line include high voltage fuses and other protections known to SPI but not known to the plaintiff. The plaintiff alleges that the protection devices were such that in the event of conductor failure there was a material risk that current could continue to be transmitted through the line. The plaintiff expects the evidence at trial will show the conductor was live when it came down onto the fence, which may have contributed to the ignition of the fire. Thus, it is critical to fire investigation experts to understand with what current and for what duration the fence was electrified.

13 By its defence, SPI reveals that the relevant protection devices were three high voltage boric acid fuses. On 7 February 2009, SPI contractors checked the line and reclosed one of those fuses, making the line live again, but without identifying the cause of this blown fuse. After the fire had ignited, two of these fuses including the red phase fuse and the fuse reclosed earlier that day had blown. The plaintiff seeks to establish what other protections on the line, possibly including an automatic circuit recloser, were operative and how they operated to shut off the power. The plaintiff also seeks to understand the relevant settings so as to understand the flow of electrical current and the period of that flow through the fence. The plaintiff has pleaded that there were frequent outages on this particular line from 2002 to 2009 and that there was a material risk that some or all of those outages were caused by arcing between the relevant assets. The defence states that the SPI database reveals there were four 'unplanned' outages.

14 The plaintiff contends, and I agree, that the expeditious and just preparation of a large complex trial such as this requires that critical information about the repair or rectification work on pole 6 not emerge for the first time at trial. I accept that answers to interrogatories directed to the issues that I have described may potentially influence the assumptions experts are instructed to make or the views that they express. It would be most undesirable for the particulars of the protection devices, critical for the deliberations of expert witnesses, to emerge at trial.

15 I am satisfied that these matters are proper for interrogatories and that information discovered by the plaintiff through interrogatories is likely to promote the overarching purpose of civil litigation.

16 SPI contended that leave to interrogate should be refused for a number of reasons. However, it conceded the obvious relevance, and in some cases, central importance of the issues identified in the interrogatories. SPI disputed that efficiency in briefing experts would be achieved through interrogation as proposed. It submitted that the plaintiff has the assumptions and questions SPI is asking its experts providing significant protection and, separately, comfort, that in relation to common areas of expertise, the plaintiff is able to see the way in which SPI is briefing its own experts. I am unable to see how a defendant's response to the pleadings provides any protection or comfort for the plaintiff in seeking to make out its pleaded case and meet the defences pleaded against it.

17 SPI also contended that the plaintiff had not nominated on its proposed witness list any of the 19 'witnesses' identified in its interrogatories. SPI contended that the plaintiff could obtain evidence from them and call it at trial, obviating the need for interrogatories. However, that contention was not based on evidence and may not be realistic. I was informed that 2 witnesses approached by the plaintiff's solicitors were not helpful and, on first blush, I would suspect that SPI's solicitors would enjoy easier access to information from these persons. By its draft witness list, SPI limits its evidence, for the purposes of interlocutory processes, to two witnesses, Lewis and Johnston. SPI submitted that what might be said by any of the other 17 'witnesses' could not inform the assumptions to be made by experts because those persons are not to give evidence at trial, and assumptions based on what they might say would not be proved. Closely related to this objection was another point, an objection to the form of the interrogatories.

18 The former point is without merit because the trial directions permit the parties to deliver amended witness lists after the experts have completed reports and participated in conclaves to produce joint reports. There is no impediment to any party adding whomever it desires to their amended list by 14 December 2014. I have no reason to assume that any party is not honouring its overarching obligations, despite the curiosity of the absence of apparently relevant witnesses from these lists. It is premature to consider who is in any particular party's camp and whether inferences will be available from the failure to call any particular witness. Further, the fact that a present or former employer of SPI or of its contractors is not presently scheduled to give evidence is not relevant to the issue of whether the plaintiff is entitled to discovery by interrogatories against a defendant. I am satisfied that procedural case management considerations favour leave to interrogate being granted.

19 There is substance in the latter point that perhaps renders otiose further consideration of the witness list issue. SPI's objection to the form of the interrogatories is that the questions are not directed to the proper officer of SPI.

(1) Interrogatories shall be answered -

(a) where the party interrogated is -

(i) a natural person, by the party;

(ii) a person under disability, by [but] that person or his or her litigation guardian, whichever is appropriate;

(iii) a corporation, by an officer of the corporation or by any person duly authorised by it to answer; or

(b) by such person as the Court may direct.

(2) The answers of a person made in accordance with a direction given under paragraph (1)(b) shall be as effective and binding in all respects as if made by the party interrogated.

When I use the expression 'proper officer', I am referring to any person who meets the description in R 30.08(1)(a)(iii).

21 The plaintiff seeks a direction that interrogatories 1-5 be answered by SPI's network asset manager. He seeks a direction that interrogatories 6-30 be answered by SPI's chief protection engineer, in each case to the best of his/her knowledge after making all due and proper enquiries of SPI's servants and agents. There is no evidence that the network asset manager or the chief protection officer are 'proper officers' to answer interrogatories.

22 More controversial is the plaintiff's request that interrogatories 31-39 be answered by the persons named or otherwise identified in those interrogatories. Again, those persons are directed to answer to the best of his/her knowledge after making all due and proper enquiries of SPI's servants and agents. The capacity of any of the nominated persons to made such inquiries, which is open to doubt, was not the subject of evidence.

23 Interrogatory 31 is directed to Paul Lewis and Glen Johnstone, each of whom was at the relevant time an SPI employee who is on SPI's proposed witness list. Interrogatory 32 is directed to Lewis. Interrogatory 33 is directed to Lewis and Phillip Moffatt. Moffatt was an SPI employee at the relevant time but he is not on a witness list. Interrogatory 34 is directed to Tim Wall, Lewis and Johnstone. Wall's employment status at the relevant time was not revealed and he is not on a witness list. However, an access permit shows that he attended the site on 20 March 2014 and I infer from that fact that he has voluntarily been in recent communication with SPI. This inference is open with some other persons referred to in the interrogatories. Interrogatory 35 is directed to Wall, Lewis, Johnstone, Mark Brett, and Jason Kaak. Kaak's position is like that of Wall and I draw the like inference. Brett's employment status at the relevant time was not revealed and he is not on a witness list. There is no evidence of any recent communication between Brett and SPI.

24 Interrogatory 36 is directed to Anthony Nachtigal and Eammon Mannix. Nachtigal was at the relevant time an SPI employee but he is not on the SPI proposed witness list. Mannix's employment status at the relevant time was not revealed and he is not on a witness list. Interrogatory 37 is directed to Nachtigal, Kevin Mitchell, Ronald Sullivan, Robert Bird, Gary Frye, Mark Nankervill, Adrian Kalms, Adrian Hickey, Keith Seeber, and Scott Seeber. Apart from Nachtigal, mentioned above, Mitchell and Sullivan, who were employees of the SPI contractor that completed the post-fire rectification work, and Sullivan, who also attended the site in March this year, the employment status at the relevant time of the other nominated persons was not revealed and they are not on a witness list.

25 Interrogatory 38 is directed to Keith Seeber, Scott Seeber, Kaak and Mannix. Interrogatory 39 is unclear, appearing to contain a cross-referencing error and I assume it is directed to the persons referred to in interrogatories 31-38 inclusive.

26 This form of the draft interrogatories is most unusual. Directions that only some nominated interrogatories out of the set served be answered are usually made where the interrogatories are to be answered by two or more parties when r 30.03 applies, which is not this case. Although r 30.08 gives the court a discretion to direct that a nominated person answer an interrogatory, the primary requirement is that interrogatories directed to a corporation shall be answered by an officer or an authorised person. 'Officer' is more narrowly defined under r 1.13 than under s 9 of the Corporations Act 2001 (Cth). There is no evidence that any of the persons nominated to answer any interrogatory is a proper officer of SPI and the contrary proposition can be safely assumed.

27 There is good reason for this primary requirement and it is found in r 30.11.

30.11 Answers as evidence

(1) On an application in or at the trial of a proceeding a party may tender as evidence -

(a) one or more answers to interrogatories given by another party without tendering the others;

(b) part of an answer to an interrogatory without tendering the whole of the answer.

(2) Upon the tender of the whole or part of an answer to an interrogatory, the Court may look at the whole of the answers and if any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part, the Court may reject the tender unless that other answer or part is also tendered.

(3) Where the answer of a party interrogated is stated to be given on the basis of belief, and the answer is received into evidence, the Court or the jury, as the case may be, shall give the answer such weight as the circumstances require.

28 The practice in respect of answering interrogatories is now comprehensively laid out in Order 30. Rule 30.05(1)(g) provides the person answering interrogatories on behalf of a corporation has no less an obligation than is applicable to an individual party. Rule 35.05 sets out the obligations to be met in responding to interrogatories. Those obligations include making all reasonable inquiries to determine whether any person has knowledge of the fact or matter inquired after which was acquired by that person in the capacity of the corporation's servant or agent or former servant or agent; and if that is the case, what that knowledge is.[1] In modern parlance, the reference is to SPI's employees and contractors. It was not suggested that the interrogatories inquire as to the knowledge of an employee or contractor that was acquired outside the course of the employment by, or contract with, SPI. It is likely that the plaintiff's draft interrogatories identify the present and former employees and contractors from whom the proper officer of SPI may be obligated to make enquiries when answering the interrogatories.

29 In 1986, Order 31 was added to the Rules permitting discovery by oral examination. The procedure is only available if the party to be examined consents, but r 31.08 provides that where the party examined is a corporation, an officer of the corporation; or by agreement of the party examined and the examining party, a person who is not an officer, shall be examined and any answer given shall be taken to be the answer of the corporation. This rule seems consistent with an intention on the part of the rule-maker that the discretion would not ordinarily be exercised to permit direct written interrogation of present and former employees and contractors of SPI. I am not persuaded that the discretion under r 30.08(1)(b) to direct that interrogatories directed to a party that is a corporation be answered by a person other than a proper officer should be exercised so as to require potential or possible witnesses to submit to a written cross-examination.

30 The circumstances in which the court ought to exercise its discretion to direct that interrogatories not be answered by a proper officer but by a present or former employee or contractor will, in my view be exceptional in the sense of being circumstances outside of those in which a proper officer should answer interrogatories. The plaintiff needed to show that the process of discovery under Order 30, following the primary procedure specified, may not give effect to the overarching purpose in relation to civil proceedings. That inquiry has regard to the matters in s 9, 47 and 48 of the Civil Procedure Act 2010. I have not been persuaded by the plaintiff that the process of interrogation in accordance with the draft interrogatories submitted would not be effective unless the court directs under r 30.08(1)(b) that the persons nominated by the plaintiff answer the interrogatories.

31 SPI makes a related point that the plaintiff seeks, in effect, affidavits from persons who are not presently witnesses to be provided to him by SPI through the interrogatory process. SPI submits that the plaintiff could investigate for itself whether these persons might give evidence that supports his case or challenges SPI's case. That course remains open to the plaintiff. I was informed from the bar table that two witnesses have been approached and were unhelpful, but that is not the point. If I were to order interrogatories in that form, the answers could constitute evidence that the plaintiff might tender against SPI, as Rule 38.08(2) might make such answers, which are provided other than by an officer or authorised person of SPI, effective and binding on SPI as the party interrogated. Use of any answers at trial was not argued on this application and I reserve that question until a later time.

32 However, that possible consequence supports my conclusion that this is not a proper occasion to direct that interrogatories be answered by a person other than a proper officer of the party interrogated. No case has been made that the interrogatories cannot properly be answered by a proper officer and no circumstances exist that weigh in favour of the exercise of the discretion. The relevant issue, and the issue that I have considered, is whether admissions and information, if given by a proper officer of SPI after making all due and proper inquiries, might be sought from SPI by interrogatories. The question whether the persons from whom the answering deponent makes such inquiries will later give evidence at trial is not a relevant consideration. There is no occasion on this application to discuss what other considerations may influence the discretion available under r 30.08(1)(b).

33 For these reasons I accept SPI's objection to the form of the interrogatories, which should be directed to the proper officer of SPI and not to the nominated individual present and former employees and contractors of SPI, or to the holders of particular job descriptions within SPI. However, that is just a question of form and not a reason to deny leave to interrogate SPI. To avoid delay in the trial preparation time table, the first defendant may, and if able to should, answer separately interrogatories 1-5 (inclusive), 6-30 (inclusive) and 31-39 (inclusive) if answering the interrogatories in tranches permits an earlier response to be given to any tranche of interrogatories than 30 August 2014. The first defendant may answer each tranche of interrogatories by a different authorised officer should it choose to do so.

(a) The plaintiff has leave to serve interrogatories, to be answered by the first defendant by its proper officer, but otherwise substantially in the form of the draft interrogatories dated July 2014 and provided to the court at the Case Management Conference on 17 July 2014, such interrogatories to be served by 30 July 2014.

(b) The first defendant shall file and serve its answers to interrogatories by 30 August 2014.

[1] For the practice before r 30.05 was made, see McMeckan v Aitken [1891] VicLawRp 68; (1891) 17 VLR 301; Ormond v Gunnersen [1920] VicLawRp 82; [1920] VLR 402; Sharpe v Smail (1975) 5 ALR 377, 379; 49 ALJR 130, 132.