Plaintiff v Defendants

2 With the delivery of the second supplementary joint report of Conclave 3 on this topic in March of this year, I anticipated that the issue had been resolved (at least in determining where the contest lay) prior to the concurrent evidence session which will commence shortly after Melbourne Cup Day 2013. I was, again, sadly mistaken.

3 Mrs Matthews' solicitors now want an expert engaged by them to carry out further testing to endeavour to determine the possible or likely cause of the fracture plane of two strands of this three strand conductor. This is vigorously opposed by SPI and USC who say that enough is enough, particularly in light of statements I have made previously in endeavouring to conclude the testing process.

4 Reduced to its bare essentials, the question is whether I should preclude a party from carrying out further testing at this point of time, bearing in mind that the experts' evidence is at least six months away. To put it another way, has the time come to stop all further testing - or at least to prevent any further reliance upon those tests?

5 It is somewhat difficult to characterise the application by Mrs Matthews. There is nothing in the orders of the Court that prevents Mrs Matthews' solicitors from instructing a retained expert to carry out further tests which may then be the subject of a further report from that expert. But the provision of a further report based on that testing will require the leave of the Court.

6 Although the application is difficult to identify procedurally, in substance it can be summarised as follows: Mrs Matthews needs more time to conduct further testing and obtain a further report. The envisaged further testing concerns the 45 degree fatigue crack plane of strands two and three of the conductor, as identified in a number of the Conclave 3 experts' reports. On the basis of testing to date, no expert has been able to offer an adequate explanation as to the nature of the cyclic stresses which led to the angle of the fracture planes and thus form a conclusion as to the source of the stresses and, in particular, whether the fractures are related to Aeolian vibration as Mrs Matthews contends.

7 Other than forensically, a further round of testing creates no real prejudice to any other party and, given that the concurrent evidence session is still six months away, it will not disrupt that part of the trial. Counsel for Mrs Mathews says that the testing and subsequent production of reports would take approximately six weeks: two weeks for finalisation of the test specifications, two weeks for the actual testing and another two weeks for the provision of a test report.

8 As I see it, there are a number of options in relation to the substance of this application:

(a) refuse the application by directing that the parties proceed to the concurrent evidence session on the evidence as presently available;

(b) allow the application and refer the management of the further testing to Zammit AsJ, who would then organise a further conclave in the next month or so to firm up the method of testing and the delivery of a report; or

(c) grant all parties a further opportunity to conduct any tests which they wish to carry out, set an end date for testing and the provision of reports, and hold a further conclave managed by Zammit AsJ in September to consider the results of the tests.

9 The history of the issues and the conclave meetings is set out in Ruling No 19.[2] I need only add the following.

10 Subsequent to the second meeting of the Conclave 3 members, the experts, of their own initiative (and with the implicit endorsement of the Court), authorised Dr Potts, a metallurgist, to carry out further tests as explained in paragraphs 1.4 to 1.6 of the first supplementary joint report:

The 45° crack plane observed in the incident conductor indicated that the influence of cyclic shear stresses was significantly larger than can be explained simply by conventional interpretive expectations arising from cyclic tensile or bending loads in the helically stranded conductor.

The field tests (Vazey) and the laboratory tests (Havard) were not configured to measure sheer stresses at the failure location, since at the time that these tests were designed they were focused on measuring tension and bending stresses only.

The members of the conclave cannot be categorical about the mode (or modes) of cyclic loading that produced the observed 45° fatigue crack growth planes. ... Planned additional testing and analysis by Potts, to be completed shortly, may aid in this part of the investigation.[3]

11 Dr Potts' tests were not as conclusive as the conclave members had hoped, and in a second supplementary joint report of March 2013, it was noted:

As specified, the testing was conducted under quasi-static loading conditions. Accordingly, the results do not reproduce the dynamic or vibration responses of the conductor to any of the load cases tested. There may be differences between the quasi-static and dynamic characteristics of the conductor, such that uncritical direct application of quasi-static findings to high frequency dynamic conditions may be inappropriate.[4]

12 There was nothing in the second supplementary joint report to indicate that any of the experts considered that additional testing should be carried out.

13 During the trial, on 9 April 2013, the question of Mrs Matthews' solicitors' attempts to carry out further tests was squarely raised by me in the following exchange with counsel:

MR BEACH [Senior Counsel for SPI]: Your Honour, Maurice Blackburn have approached Gipps TAFE to carry out further tests and an individual by the name of Min Guo has sought to engage Gipps TAFE.

MR BEACH: Min Guo is apparently an employee of Maurice Blackburn and Gipps TAFE is an institute that does training and apparently there's been an approach to carry out further tests. It seems that they have declined to do so but I just want to raise a general point. Your Honour had said that the testing has to come to an end at some stage. Your Honour has made that point in relation to the Vazey field tests and the like, and we would perhaps welcome an indication from Mr Keogh that as far as he is concerned, he is likewise taking the same position, that the testing is coming to an end and has to come to an end if this case is to deal with these sorts of questions properly.

HIS HONOUR: If anyone was going to rely upon any testing being carried out they would have to seek leave from me. I would have to have an extraordinarily good reason to let the evidence be adduced.

MR BEACH: I did think it important to indicate that we are concerned about further tests.

HIS HONOUR: Let's see what's happening. I will ask now. What's the score?

MR KEOGH [Senior Counsel for Mrs Matthews]: Frankly, your Honour, I know nothing about the issue that's just been raised so I can't comment on it. We had a discussion with your Honour about the possibility of introducing Professor Crews some months ago, the wood expert. We heard what your Honour said about that. You have said it again now.

HIS HONOUR: It would have to be extraordinary.[5]

14 This exchange arose as a result of apprehension on the part of SPI's legal team that Mrs Matthews' solicitors were endeavouring to find a further expert to give evidence on this issue.

15 I had thought, mistakenly as it now appears, that the answer of Mrs Matthews' counsel to my question had resolved the matter. In fact, as he told me at the hearing of this application, the question of carrying out further tests was "percolating" behind the scenes.[6]

16 On 1 May 2013, Mrs Matthews' solicitors sent a letter to the other parties with a proposal for further testing.[7] They noted in the letter that the additional testing by Dr Potts was of "little assistance" in relation to the measurement of strain/stresses on static conductors and, given the "importance" of this issue, further testing should be undertaken.

17 The letter then identified the nature of the tests, described as "further dynamic laboratory testing", endeavouring to replicate within laboratory limitations the conditions experienced by the original conductor. The tests are to be supervised by Dr Gates who is retained by Mrs Matthews and carried out at his laboratory.

18 I inquired of counsel during the hearing of this application as to where the idea for this further testing had emanated. It had not come from Conclave 3 in its second supplementary report and nor did it come from Dr Gates. Rather, I was told, it was the brainchild of the solicitors for Mrs Matthews, presumably initiated by some other expert who is not a member of the Conclave.[8] I was also advised by counsel that at the time of the exchange that I have described earlier between myself and Senior Counsel for Mrs Matthews, the carrying out of these tests was not on the radar of Mrs Matthews' solicitors.

19 As I understand the position, Dr Gates has not as yet been instructed to carry out this further testing. Senior Counsel for Mrs Matthews said that the solicitors have intentionally been leaving Conclave 3 experts out of this discussion until the Court has made a determination as to further testing.

20 Essentially relying upon my remarks during the course of the hearing on 9 April 2013, SPI and USC contend that there is nothing "extraordinary" about these tests. They say that the tests are simply an effort by Mrs Matthews' solicitors to fill an evidentiary hole which relate to her case on the use of vibration dampers and in particular the explanation of the 45 degree crack propagation plane (which depends on the strands of the conductor being the subject of Aeolian vibration). SPI and USC argue that these tests should have been carried out a long time ago but it has only now dawned on Mrs Matthews' solicitors that this issue is critical. Such conduct is anything but, so it was said, extraordinary; rather, it is bred of desperation.

21 There is force in the submission of SPI and USC. However, at the end of the day I think it misses a fundamental point - which I, too, overlooked when I set the bar as high as "extraordinary" - that Mrs Matthews (and, for that matter, all of the parties) should have the opportunity to adduce further opinion evidence as part of a "just determination" of the proceeding unless it interferes significantly with the "efficient conduct of the business of the Court".[9] Upon reflection, I think "extraordinary" is too high a threshold at this point of time when the concurrent evidence session is six months away.

22 An essential consideration, as the Civil Procedure Act 2010 mandates, is ensuring that there is a fair trial of the issues. Because this further testing is promoted by the solicitors as opposed to the experts does not mean that it should not be undertaken.

23 I have endeavoured throughout the pre-trial and trial stages of this case to immunise the experts from the solicitors (for all sides) so that they do not become an integral cog in a party's team and thus, even if subconsciously, fail to appreciate their obligations to the Court. That consideration, however, should not prevent a party from endeavouring to seek further evidence to fortify his or her case - if that be what the case demands. It is a legitimate forensic exercise for a solicitor to endeavour to adduce evidence which supports the case of his or her client. Indeed, this is exactly what has happened with the Vazey field tests, although they were commenced at a far more propitious point in time.

24 SPI also pointed to the risk of delay and the subsequent disruption of the trial as a result of the experts not being able to agree on the methodology of the tests or interpretation of the results. However the concurrent evidence session is six months away which would, in an ordinary trial, be more than enough time for a process such as further testing. Whilst this trial is far from ordinary, I think the risk of delay can be minimised by placing time limits on the testing and provision of reports.

25 As I mentioned earlier, I can see no real prejudice (other than a forensic disadvantage) to SPI or USC if I permit these tests to be carried out in a timely fashion.

26 I do not accept the suggestion by counsel for SPI that the Vazey field tests could have been undertaken in a different way if the proposed form of testing was known earlier - in any event the orders I will make will allow for further testing by SPI, if deemed necessary.

27 My orders of 30 August 2012 will mean (if complied with by Mrs Matthews' solicitors) that SPI or USC should have the opportunity to know the parameters of the tests proposed and the materials provided to Dr Gates. Orders can be made requiring the provision of reports relating to the results of the tests which can then be discussed with the experts engaged by SPI and USC (and vice versa, if appropriate).

Immediate referral of this issue to an Associate Justice

28 My initial inclination was to refer this issue to Associate Justice Zammit and for the experts, under her supervision, to discuss the method of carrying out the testing. The problem with this course is that it may lead to further disagreement between the experts as to methodology. It would also focus attention solely on the proposed tests to be undertaken by Dr Gates rather than allow for a level playing field between all the parties.

All parties to have the ability to carry out further testing with a final cut-off date

29 I think that there is a third and preferable option. If Mrs Matthews is to be permitted to arrange for further testing to be conducted then both SPI and USC should have the same opportunity. Notwithstanding that there is no suggestion in the second supplementary joint report that the experts believe further testing is necessary, each party should have the opportunity to consider whether any further testing is necessary and have a reasonable time in which to arrange for such tests to be carried out and reported upon.

30 I also think it essential that at the conclusion of all testing and provision of reports a further meeting be held by the experts in Conclave 3 (by videolink if necessary) so that the areas of disagreement and agreement in relation to the latest bout of testing (including the Vazey field tests) can be finalised. This conclave should take place in September under the supervision of Zammit AsJ.

(1) That all parties have leave to carry out further testing in relation to the cause of the fracture of the conductor.

(2) (a) That no party be permitted to rely upon any testing carried out after 19 July 2013.

(b) That no evidence shall be adduced in relation to any testing carried out after 19 July 2013.

(3) That any party who has carried out testing after 19 May 2013 file, by 9 August 2013, an expert report concerning the results of that testing.

(4) That any party wishing to adduce evidence relevant to the contents of the report(s) referred to in paragraph (3) file and serve answering report(s) on or before 30 August 2013.

(5) That a further meeting of the experts in Conclave 3 be held in September 2013 subject to any order or direction of Zammit AsJ or her nominee.

(6) That the parties have leave to apply to the Court to allow experts who are members of Conclaves 1 or 4 to participate in the meeting of Conclave 3 in September 2013 (if it is considered necessary).

I certify that this and the 8 preceding pages are a true copy of the reasons for Judgment of the Honourable Justice J Forrest of the Supreme Court of Victoria delivered on 10 May 2013.

[1] See a detailed description of the issues in Matthews v SPI Electricity Pty Ltd (Ruling No 19) [2013] VSC 180 [4]-[9] ("Ruling No 19").

[2] [2013] VSC 180 [4]-[8].

[7] Maurice Blackburn letter to all parties dated 1 May 2013.

[9] Section 9 of the Civil Procedure Act 2010 (Vic).