Plaintiff v Defendant

3 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.

4 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

**5 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.

6 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.

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

8 In that report the experts agreed, after taking into account joint fencing that the distance of fencing for the purpose of quantification was 5,580 metres:**

There is agreement on the length of fences to be rebuilt, and on the cost of materials for the new fences, but disagreement on the cost of contract labour to pull down and remove the burnt fences and to then rebuild the new fences.

**9 At the commencement of the trial, senior counsel for Mr Thomas made no mention of there being any dispute or contest as to the agreement which had been reached between the experts as to the length of fencing damaged in the fire.

10 On the morning of 20 September 2011, counsel for Powercor was provided with the hand written document prepared by Mr Thomas which was said to set out the calculations made on Sunday by Mr Thomas with a figure of 8,100 being the distance of fencing damaged. When this evidence was sought to be led, counsel for Powercor objected to it. I initially permitted a portion of the evidence to be given, but when it became apparent that what was being done was to, in effect, undo the agreement that had been reached between the experts, I heard argument concerning the admissibility of the evidence and determined that it could not be led.

11 I was told by counsel for Mr Thomas that if he was allowed to adduce this evidence he would argue that the distance to be used for the calculation of loss was 8,100 metres less 1,400 metres of shared fencing - as against the agreed figure of 5,580 metres.[3]**

**12 There are, in my view, multiple reasons for precluding the leading of this evidence at this late point in the trial.

13 First, the particulars of loss filed by Mr Thomas in December of 2010 relied upon Mr Aberdeen's report. As I have said, the Aberdeen estimate was of 7,300 metres of loss of fencing. Subsequently, the agreement reached between the experts at the conference formed the basis for the trial on this aspect of quantum. Powercor and the Court were entitled to assume, absent any suggestion to the contrary, that there was consensus on this issue.

14 Second, the very point of convening an expert conference was to narrow the issues and where possible have the issues resolved. On this point the issue was resolved by agreement. Nothing was done by Mr Thomas in the three months subsequent to the joint report to advise the Court that the agreement was either based on a false premise or that it would be sought to be undone at the trial. The trial commenced and proceeded to the eleventh day on the basis that this issue had been resolved.

15 Third, permitting Mr Thomas to give this evidence without any real notice of this alternative calculation undermines the processes which were set in place to ensure that the trial progressed in a satisfactory fashion. This is not some pedantic procedural point. Rather, at the numerous directions hearings held in relation to this trial, each of the parties were directed to ensure that interlocutory issues were finalised so that the trial could proceed smoothly. Mr Thomas' solicitors had a number of opportunities to raise this question prior to the trial.

16 Fourth, no explanation of any sort was given by counsel for Mr Thomas for endeavouring to lead this evidence at this point of time. To the contrary, he frankly conceded that Mr Thomas could have carried out these measurements on the day after Black Saturday.[4] The only defence proffered for endeavouring to lead this evidence at such a late point of time was that there was no prejudice to Powercor.

17 Finally, and I do not regard this as determinative, I am satisfied that there was, contrary to counsel for Mr Thomas' assertion, real prejudice to Powercor by the introduction of this evidence at this time. Mr Thomas could not be cross-examined until Powercor had undertaken its own measurements of the property and the damaged fences. Whilst I accept that this could be done relatively rapidly, it is, I think, in the middle of a hard fought trial, quite unfair to require it to meet this new contention. Powercor's legal practitioners should be entitled to focus on the trial and not on matters that should be have been properly flagged prior to the commencement of the trial.**

18 This part of Mr Thomas' evidence should be excluded.

[1] [2011] VSC 391.