Plaintiff v Defendants

Supreme Court of Victoria|2013-08-13|Before: J FORREST J

PRACTICE AND PROCEDURE - Subpoena - Application to set aside subpoena - Legitimate forensic purpose - Whether "on the cards" that documents would materially assist the defence case - Expert opinion - Details of studies of electricity asset related fires other than Kilmore East-Kinglake sought to be produced.

**1 Mr Henry Hawes is an expert witness retained by Mrs Matthews. He has investigated a number of fires which occurred on Black Saturday arising out of the alleged failure of various electricity distribution assets, including the Kilmore East - Kinglake fire.

2 A critical part of this case is whether the failure of the Valley Span conductor at Kilmore East was caused by a phenomenon known as Aeolian vibration. In reaching an opinion concerning the role of Aeolian vibration in the Valley Span failure, Mr Hawes has relied in part upon his investigations of other electricity asset related fires that occurred on Black Saturday.

3 SPI[1] has issued a subpoena seeking production by Mr Hawes of a number of documents related to his investigation of these other fires. The question that has arisen is whether part of the subpoena should be set aside on the basis that it is too wide and is, in effect, a fishing expedition.**

4 Although the subpoena is directed to Mr Hawes, Mrs Matthews has standing to seek to have the subpoena to be set aside. Rule 42.04(1) of the Supreme Court (General Civil Procedure) Rules 2005 states:

The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.[2]

5 This rule is substantially in the same terms as the equivalent rule in the (now superseded) Federal Court Rules 1979 (Cth).[3] In Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia,[4] Flick J of the Federal Court confirmed the interpretation of that rule such that the phrase "having a sufficient interest" qualifies the reference to "any person" and not to "a party".[5] That reasoning applies here.[6]

**6 Mr Hawes is an engineer with extensive experience in the power industry[7] and is a member of Conclave 4, which will convene in November 2013 in a concurrent evidence session dealing with "qualitative" analysis of the impact of loads and stresses on strands of the Valley Span conductor.

7 Mr Hawes has, to date, produced three expert reports. In his report of 5 April 2013 ("the First Supplementary Report") - supplementary to his original report dated 22 August 2012 - Mr Hawes in part relied on investigations he had made relating to power assets at Horsham and Coleraine (which were the subject of separate legal proceedings against an electricity distributor) to support his findings in relation to the effect of Aeolian vibration on the Valley Span:[8]**

The impact of aeolian vibration in failure of SEWR line components was clearly illustrated in my investigation and reporting to the Victorian Supreme Court in relation to the Horsham and Coleraine Bushfires of February 2009. In both of these cases critical pole top components failed in service by vibration wear from aeolian vibration.[9]

**8 By Order of 29 April 2013, I required Mr Hawes to provide a supplementary report, explaining the reference to his experience in the Horsham and Coleraine bushfires and its relationship to his opinion as to vibration as a cause of the failure of the Valley Span conductor.

9 Mr Hawes did so, producing a third report ("the Third Report") on 6 May 2013 which addresses in detail his inspections of the lines and poles allegedly involved in the Horsham and Coleraine fires[10] and in particular his analysis of damage allegedly caused by Aeolian vibration.

10 On 21 June 2013, SPI issued a subpoena addressed to Mr Hawes requiring production of all documents in his possession, related to work carried out by him for the purpose of giving evidence in the Horsham and Coleraine bushfire proceedings. Its details are set out below.

11 On 1 July 2013, the solicitors for Mrs Matthews wrote to SPI's solicitors objecting to the subpoena, in part, on the basis that the subpoena was "impossibly broad and oppressive". Mrs Matthews objected to Mr Hawes producing anything other than records of his observations (such as photos or videos) of those assets on the basis of relevance and noted privilege may be claimed by the plaintiffs in the Horsham and Coleraine proceedings. Mrs Matthews also objected to the production of previous reports and communications relating to those inspections.

12 Mr Hawes then produced a limited number of documents (consistent with the objection) on 29 July 2013. Two days later, further documents were produced including two previous reports (with heavy redactions) in relation to the Horsham and Coleraine fires.

13 Although there has been no formal application to set aside the subpoena by Mrs Matthews, the parties agreed that what was in issue was the scope of a number of categories sought under the subpoena and particularly those within categories [4] - [10] to which I now turn.**

14 The documents to be produced under the subpoena include the following categories:

1. All communications, data and documents relating to Mr Hawes' site inspection of the Remlaw Spur SWER line, referred to in section 3.1 of the Third Report.

2. All communications, data and documents relating to Mr Hawes' inspection of Pole 15 and related assets described in section 3.2 of the Third Report.

3. All communications, data and documents relating to Mr Hawes' site inspections of the Colfitz Spur SWER line on 17 and 18 October 2011, referred to in section 4.1 of the Third Report.

4. All communications, data and documents relating to Mr Hawes' inspection of Poles 2 and 3 and related assets, referred to in section 4.2 of the Third Report.

5. All communications, data and documents relating to Mr Hawes' inspections of other sites on the Colfitz Spur and Elwood Spur on 17 October 2011, referred to in section 4.3 of the Third Report.

6. All communications, data and documents relating to the conductor drops referred to in section 4.3 of the Third Report at:

a. Elwood Spur line Pole 18 on 31 December 2008;

b. Colfitz Spur line Pole 25 on 27 June 2005;

c. Elwood Spur line Pole 18 on 12 September 2000.

7. All communications to or from Mr Hawes relating to the content or proposed content of the Third Report.

8. Any reports previously prepared by Mr Hawes in relation to the Horsham and Coleraine bushfires, referred to at page 9 line 320 of the Second Report ("Previous Report").

9. Any documents provided to Mr Hawes for the purpose of the Previous Reports, or his investigations in relation to the Horsham and Coleraine bushfires, referred to at page 9 line 320 of the Second Report.

10. All communications to or from Mr Hawes relating to the content or prosed content of the Previous Reports.

15 As I mentioned earlier, the documents which have not yet been produced by Mr Hawes pursuant to the subpoena, and which SPI seeks access to, are those belonging to categories [4] - [10]; the two reports produced relating to category [8] were produced in redacted form.

Principles for the production of documents under subpoenas

16 In Commissioner of the Australian Federal Police v Magistrates' Court of Victoria,[11] I summarised the relevant principles relating to the inspection of subpoenaed documents as follows (with one amendment which I will explain subsequently):

The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:

(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(b) "in some cases"[12] the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;

(c) the applicant for the witness summons must also satisfy the court that it is "on the cards", or that there is a "reasonable possibility", that the documents sought under the subpoena "will materially assist the defence".

(d) a "fishing expedition" is not a legitimate forensic purpose and will not be permitted;

(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.

...

...

(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[13]

**Criterion (b) of the above extract as originally expressed is too absolute; whether a court will inspect the documents sought to be produced will depend on the nature of the enquiry. In some cases it will be appropriate for the court to inspect the documents, and in other cases the inverse will be true.

17 In Shaw v Yarranova Pty Ltd,[14] Redlich and Mandie JJA said of the legitimate forensic purpose:**

There will be no legitimate forensic purpose if, "all the party is doing is trying to get hold of the documents to see whether they may assist him in his case." The court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.[15]

**18 On this application, given that only the production of documents in response to the subpoena is in issue (as opposed to any question of a claim for privilege or confidentiality), it is not necessary to inspect the documents; rather, questions of legitimate forensic purpose and relevance can be ascertained by reference to the terms of the subpoena and Mr Hawes' reports - particularly the Third Report.

19 Categories [1] - [3] of the subpoena have been responded to by Mr Hawes in a manner which counsel for Mr Matthews described as being consistent with the limitations they seek to apply to categories [4] - [6].[16] SPI takes no objection to Mr Hawes' response and production of documents in relation to categories [1] - [3].[17]

20 SPI's case in relation to categories [4] - [10] is that the legitimate forensic purpose for production is to understand, and if necessary contest, the validity of Mr Hawes' opinions concerning Aeolian vibration and the cause of the failure of the conductor on the Valley Span - a vital issue in this proceeding - insofar as it is based on Mr Hawes' inspections of the Horsham and Coleraine poles and lines.

21 Mrs Matthews objects to producing the documents sought under categories [4] - [7] and [9] - [10] on the basis that the categories are framed too widely and, in effect, constitute fishing rather than a legitimate forensic purpose. Her counsel contended that, at best, Mr Hawes should be compelled to provide notes of observations made at each of the sites nominated in the subpoena - but not more.

22 Sections 4.2 and 4.3 of Mr Hawes' Third Report are those addressed by categories [4] - [6] of the subpoena. In section 4.2, "Significant Vibration Damage to Pole 3", Mr Hawes opines that, based on his observations of it, pole 3 along the Colfitz Spur had been "exposed to significant aeolian vibration wear".[18] He also reported hearing and feeling "distinct resonance" on that pole when he was in attendance on 17 October 2011. In section 4.3, "Other Coleraine SWER Failure Sites", Mr Hawes reported on observations of other sites on the Colfitz Spur line and the nearby Elwood Spur line where three conductor "drops" had occurred in the years 2000-2008. Mr Hawes reported observations of "very advanced corrosion of conductors, conductor armour rods, and tie wires on all the aged SWER lines in the area" and, based on the countryside in which the lines were strung, opined that "many spans would have been exposed to aeolian vibration over many years".[19]

23 I think it is reasonable to assume that, having made observations of the sites referred to in sections 4.2 and 4.3 of the Third Report, Mr Hawes may have conducted some other analysis preliminary to reaching his final conclusions as documented in the Third Report. I see no reason to confine the extent of the subpoena to any record of observations made by Mr Hawes of the poles or lines. Any note or piece of data relevant to his inspection of the poles and lines (and not confined to merely a record of his observations) may be of assistance to SPI's defence of the claim.

24 To put it another way, it is on the cards that such documents exist and have relevance to the claim and that they go to a legitimate forensic purpose of SPI in defending the claim. Of course it may be that no such documents exist - but that is not the point. The question is whether the subpoena crosses the boundary into fishing; I do not think it does in respect of these three categories. SPI has shown a legitimate forensic purpose for seeking the material within categories [4] - [6] and that production of documents within these categories should not be limited only to those containing Mr Hawes' observations.

25 In relation to category [7], Mrs Matthews says that as no documents have been provided, that response should be accepted as correct unless demonstrated otherwise. I agree; suspicion on the part of SPI of a failure to comply by Mr Hawes is not good enough.

26 Category [8] relates to the reports produced by Mr Hawes. Un-redacted versions of the reports produced under this category should be produced as they may have potential relevance to Mr Hawes' inspections and conclusions concerning these assets described in the reports and may reasonably assist SPI in its defence of the claim; however these reports may be subject to privilege or Harman[20] / s 27 of the Civil Procedure Act 2010 (Vic) confidentiality considerations which can be determined subsequently.

27 Mrs Matthews submits that categories [9] - [10] constitute a "catch-all" as they are too wide in breadth and therefore constitute "fishing" by SPI. SPI says that its intention was that these items be limited by materials relevant to Aeolian vibration; however, this is not apparent in the wording of the relevant paragraphs.

28 Category [9] seeks any documents "provided to Mr Hawes" for the purpose of the reports into other fires. The category is far too wide - as is [10] which seeks "all communications" in relation to the previous reports of Mr Hawes. These two categories are classic examples of "fishing" by endeavouring to obtain every document Mr Hawes has been provided with or used in preparing his reports notwithstanding that the asset failures at Horsham and Coleraine were not alleged to have been due to Aeolian vibration. I will not require that Mr Hawes produce any material under these categories.**

(a) Within 14 days Mr Hawes produce the documents sought under the categories [4], [5], and [6].

(b) Mr Hawes produce un-redacted versions of the reports sought under category [8].

(d) Within 21 days, notice of any objection to the production of documents within categories [1] - [8] to SPI be given to the solicitors for SPI.

(e) The solicitors for the parties commissioning Mr Hawes' reports relating the Horsham and Coleraine fires be notified of these orders, and provided with a copy of these reasons.

(f) Mr Hawes be notified of these orders and provided with a copy of these reasons.**

SPI ELECTRICITY PTY LTD (ACN 064 651 118) First Defendant

OF SUSTAINABILITY AND ENVIRONMENT Third Defendant

SPI ELECTRICITY PTY LTD (ACN 064 651 118) Plaintiff by Counterclaim

(ACN 060 674 580) First defendant to Counterclaim

OF SUSTAINABILITY AND ENVIRONMENT Second Defendant to Counterclaim

COUNTRY FIRE AUTHORITY Third Defendant to Counterclaim

STATE OF VICTORIA Fourth Defendant to Counterclaim

CAROL ANN MATTHEWS Fifth Defendant to Counterclaim

[1] SPI Electricity Pty Ltd (the First Defendant).

[3] O 27 r 4 states: "The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it."

[6] Although this Instrument was superseded on 11 June 2013 by the Federal Court Rules 2011, the 2011 Rules includes the previous rule at r 24.14.

[8] Section 5 of Mr Hawes' Third Report, the Conclusion, says the following:

"The above has a direct bearing on developing an understanding of the significance [sic] and damaging effects of aeolian vibration on SWER lines and in particular to the Pentadeen Spur Valley Span. / The above also indicates that the design and construction standard applied to these older SWER lines throughout rural Victoria makes them vulnerable to experience significant aeolian vibration of conductors and consequential vibration wear and damage. / This can be expected to commonly occur throughout the SWER network in Victoria constructed by the SECV in the period from 1957 when the designs were originally prepared."

[10] In fact the Coleraine investigations relate to a number of poles on the Colfitz Spur including the pole from which the conductor allegedly detached.

[12] "in some cases" is an amendment to the original criterion which previously read "the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced".

[13] Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28].

[15] [2011] VSCA 55, 26 (citations omitted).

[16] That is, only on the basis of documents relating to observations - such as notes or photographs: T6520.

[20] Harman v Secretary of State for the Home Department [1983] AC 280; Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

superseded) Federal Court Rules 1979(Cth)

Court (General Civil Procedure) Rules 2005

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