Plaintiff v Defendant

3 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.

4 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.

5 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 the manner in which the screws had been fixed has been a live issue for years and service of the report on the eve of the trial is not permissible.

6 Mr Tobin SC, who appears with Mr Armstrong and Mr Fraatz for Mr Thomas, argues that the report is probative and that the expert witnesses are still some three weeks away (in terms of the expert conclave) and that no prejudice has been established by Powercor. He contends that the issue of the fixing of the coach screws was brought into focus by Powercor's late provision by way of discovery of reports of a Mr Bainbridge and a Mr Hartrick.

7 Mr Curtain's reliance upon Order 44 was, I think, somewhat misplaced. This case has been judge-managed and I have made a number of orders relating to the service of expert witness statements and the preparation of expert reports.

By 4 February 2011 the plaintiff file and serve any expert report on liability.

9 And subsequently on 18 February 2011, I extended the time for delivery of the expert reports as follows:

Order 6 made on 29 October 2010 be vacated and in lieu thereof the Plaintiff file and serve any expert report on liability by 8 April 2011.

Order 7 made on 29 October 2010 be vacated and in lieu thereof the Defendant file and serve any expert report on liability by 27 May 2011.

Order 8 made on 29 October 2010 be vacated and in lieu thereof the parties' experts on liability shall meet in conference, prepare and deliver for the Court a joint report by 24 June 2011.

10 The end point was that by May of 2011 all expert reports were to be served and filed in preparation of the trial and, equally as importantly, the meeting of the experts which took place on 4 July 2011.

11 Dr Price's report was served on Friday 2 September 2011, or to put it perhaps more appropriately "dumped" on Powercor's solicitors. It arrived without any explanation; nor was any application made to the Court for Mr Thomas to rely upon it. It was only on the third day of the trial that a formal Order 44 report was prepared and filed. Again, there was no foreshadowing of an application for the report to be used - rather it was Mr Curtain who took up the cudgels to oppose reliance upon the report.

12 Recently in Ultra Thoroughbred Racing v Those Certain Underwriters & Ors (Ruling),[1] I set out the principles, as I understood them, relevant to a late application to amend:

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases...

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (emphasis omitted)

Aon demonstrates that there are a number of factors relevant to an application such as this. For instance:

(a) whether there will be a substantial delay caused by the amendment;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

It is, however, to be remembered that the primary question still remains: what do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed is wider than just that of the moving party.

13 Accepting that those principles relate to an application for a late amendment, it seems to me that, at least in a general sense, they are applicable to the late service of an expert report.

14 In my view, the application on behalf of Mr Thomas to rely upon Dr Price's report should be refused for the following reasons.

15 First, the explanation proffered by Mr Tobin for late service does not stand up to scrutiny. He contended that it was only after the reports of Mr Bainbridge (a Powercor employee) and Mr Hartrick (an investigator) were received from Powercor in late August that the legal team focused on the question of the hammering of coach screws into the pole. I do not accept this explanation.

16 There is nothing in Mr Bainbridge's report which refers to the hammering of screws into a pole. There is but a passing reference in Mr Hartrick's report. On the other hand, it was demonstrated by reference to the material from the Victorian Bushfire Royal Commission[3] that this issue was well and truly ventilated at Horsham in September 2009 in the evidence of Mr Gertz, a Powercor employee who was cross-examined by Mr Tobin (instructed by Maddens). He gave evidence of the practice of hammering of coach screws into poles as well as screwing the bolts in.

17 Subsequently, in the 1 March 2010 Statement of Claim filed on behalf of Mr Thomas, paragraph 20 reads as follows:

"At all material times from the date referred to in the preceding paragraph:

(a) there was a material risk that the coach screws on pole 15 had been inserted by hammering rather than being correctly installed via screwing, with an associated risk that the wood around the screw threads had been sheared away or weakened;.

A practice of hammering rather than screwing coach screws into poles had been followed from time to time during the period when the SWER line was erected and the risk of burring of the screw threads or weakening of the surrounding wood was recognised by Powercor's servants".

18 In my view, Mr Thomas' legal team has well known since September 2009 that there may be a potential issue relating to the manner in which coach screws were affixed to this pole. For reasons that I cannot fathom, it was determined to do nothing about it until the eve of the trial when it commissioned Dr Price.

19 Second the coach screw has been in the possession of Mr Thomas' solicitors since early 2010 and has been available for examination by a suitably qualified expert.

20 Third, the introduction of Dr Price's evidence at this point of time has the risk of derailing the conclave of experts fixed for 10 October 2011. Dr Price did not participate in the preparation of the joint expert report and I think it would be wrong to permit him to now intervene.

21 Finally, I accept that no demonstrable prejudice has been demonstrated by Powercor. However, that is not the determinative factor. The orders of the Court in relation to the service of expert witness statements were designed with a purpose - to facilitate a joint expert report and the giving of concurrent evidence. To permit a further expert to join that debate simply because Mr Thomas' lawyers last week thought it was a good idea is not good enough.

22 In summary, I will not exercise my discretion to permit Dr Price to give evidence and the filing of his report will not be permitted.

23 I should deal now with another matter and that is to distinguish Dr Price's position to that of Dr Gates, a metallurgist. Dr Gates has yet to prepare an expert report - I previously ordered that he provide his report by Friday 9 September 2011.

24 Mr Thomas' solicitors sought to instruct Dr Gates by telephone in December last year and formally on 3 February of this year. He had previously given evidence at the V.B.R.C. and been provided with a large number of documents by counsel assisting the Commission.

25 An issue however arose as to whether Dr Gates was entitled in the preparation of his report to rely upon the material provided by counsel assisting the V.B.R.C. The solicitors for Powercor on 31 March 2011 wrote to Dr Gates warning him that he may have privileged information and seeking an undertaking that he not communicate with Mr Thomas' solicitors:

"It is our understanding from Maddens that you are in possession of information and documents of a confidential privileged nature obtained during your retainer by the Royal Commission.

Our client takes the view that it is not open to Maddens to retain you in respect of the matters on which you have been briefed and have given evidence in the Royal Commission.

Pending the receipt of confirmation from the Royal Commission about what has happened and further communication from Maddens, we seek your immediate and unqualified undertaking which you will not communicate in any way with Maddens or its clients in connection with any matters the subject of your retainer by the Royal Commission including, but not limited to, the privileged material which you have received from Powercor Australia Ltd".

26 Understandably, Dr Gates refused to commit himself to writing a report until the issue was resolved.

27 Ultimately, the question of whether privilege attached to material held by Dr Gates was resolved by Robson J, and subsequently by the Court of Appeal, in a parallel matter of Perry& Anor v Powercor Australia Ltd[4] and Powercor Australia Ltd v Perry[5] - a claim arising out of the Coleraine Black Saturday bushfire. In Perry, Robson J and the Court of Appeal rejected Powercor's claim of privilege over a number of the documents which, as I understand it, had been provided to Dr Gates.

28 As a result, further discovery was made in this proceeding and no claim for privilege is now made, as I understand it, over the Powercor documents forwarded to or held by Dr Gates. Powercor's solicitors on 22 August 2011 confirmed with Dr Gates that they had no objection to Dr Gates' involvement:

"I refer to your letter of 18 August 2011.[6]

I annex below an extract from my letter of 12 August to Maddens in respect of the position of Dr Gates:

Powercor for its position, we confirm, has no objection in principle to the retention of Dr Gates, but we say this only for Powercor's interest and knowing nothing about the communications which you may have had with the Victorian Government (Royal Commission) on whether Dr Gates is free without restriction to accept the retainer or to employ the material obtained during his retainer for another purpose, notwithstanding conclusion of the retainer. We do not know if the Royal Commission objects or what stance indeed it is taking in relation to your ability to retain Dr Gates, having regard to the issues which have been identified in the correspondence about the nature of his retainer. These are matters which Maddens need to resolve with the Royal Commission. We cannot speak for the Royal Commission. Needless to say we can have no objection if the retainer of Dr Gates was from material solely disclosed by Powercor in these proceedings, that is to say the Horsham Proceedings. In view of the Court of Appeal's ruling we confirm that it is not our intention to seek interlocutory relief against Dr Gates in respect of the reports which he has received and which have been ruled on by the Court of Appeal. It was for this reason that we advised Maddens that there was no objection in principle to Dr Gates being an expert witness in the Horsham case".

29 The end result is that the preparation of Dr Gates' report has, by the actions of Powercor (through its solicitors), been delayed by five to six months. It was in those circumstances that I gave leave to Mr Thomas's solicitors to file and serve an expert report from Dr Gates and for him to participate in the expert conclave.

30 I therefore affirm the position that I took at the directions hearing on 29 August 2011: Dr Gates should be allowed to provide an expert opinion. It should be filed by Monday 12 September 2011 and provided to Powercor's experts. It is hoped that he, with the other experts, will be able to confer the day prior to the conclave and resolve those issues Dr Gates agrees with and those with which he does not.

[1] [2011] VSC 370 [7]-[9].

[2] [2009] HCA 27; (2009) 239 CLR 175, 217, [111] - [113].

[4] [2011] VSC 308.

[5] [2011] VSCA 239.