Plaintiff v Defendants

Supreme Court of Victoria|2013-09-06|Before: J FORREST J

EVIDENCE - Notice to produce - Document sought concerning inspection of assets conducted five years after the asset inspection at issue at trial - Principles applicable - Whether "on the cards" that documents would be probative to the Plaintiff's case - Test applicable to notice to produce lower than that applicable to the question of admissibility at trial - Documents to be produced.

**1. This is an application by SPI and UAM to set aside a notice to produce given by Mrs Matthews to SPI last week and amended on Wednesday 3 September 2013.

2. In substance, Mrs Matthews seeks the production of documents relating to the inspection of timber poles on the Pentadeen Spur conducted by SPI's employees or agents in April and May of this year. Mrs Matthews submits that these documents may be of probative value in relation to:

(a) the credit of the inspector who conducted the asset inspection of pole 39 of the Pentadeen Spur in February 2008 (Mr Jason Leech of UAM);

(b) the nature of that inspection and the quality of the training and instructions given to that asset inspector;

(d) determining the results that would have been obtained if the February 2008 inspection had been conducted adequately.

3. It is important to note at this point that the question raised by the notice to produce is not one of admissibility of such documents or the weight to be attached to them if ultimately admitted but rather, whether, applying the appropriate test at the subpoena or notice to produce stage, the documents should be produced by SPI.

4. I have concluded that, notwithstanding the time that has elapsed since the inspection carried out by Mr Leech in February 2008, the documents should be produced.**

**5. The principles relevant to production of documents pursuant to a subpoena hold good for a notice to produce. I recently set those out in Ruling No. 26 and repeat them here:-

In Commissioner of the Australian Federal Police v Magistrates' Court of Victoria,[1] 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"[2] 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.[3]

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.

TAKE NOTICE that the plaintiff requires you to produce to the Court all documents recording asset inspections of poles 32, 34, 37, 38, 40 and 40E of the Pentadeen Spur undertaken in April and May 2013 after 7 February 2009 by you or your contractors, servants or agents, including for the avoidance of doubt documents recording the inspections and results of such asset those inspections.

7. It was agreed in the course of argument that Mrs Matthews does not seek details of the scheduling of asset inspections but requires any documents relevant to the instructions given to asset inspectors.

**8. The evidence adduced at trial discloses that, in the normal course of an asset inspection, the inspector utilises a device known as a PDE which contains details of the work he or she is to perform; the inspector then makes entries into the PDE, recording the results of the inspection. These entries are subsequently uploaded and placed on an SPI central database known as Q4. There is also evidence that some hard copy documents, known as PDE worksheets, are kept by the inspectors and marked up as part of the inspection process, and retained by UAM.

9. Counsel for SPI and UAM accepted (for the purpose of this application only) that the subject poles had been marked in 2013 with either one X or two Xs and that it could be inferred that such markings were consistent with an inspection of these poles.[4] It was also not in issue that if such inspections had been carried out then there would, at the least, be digital records of the results of those inspections.

10. Counsel for SPI also accepted (again for the purpose of this application only), that some of the identified poles now show drilling at the one metre level. It is alleged by Mrs Matthews that poles inspected by Mr Leech on the Pentadeen Spur in February 2008 do not show evidence of drilling at the one metre level.[5]**

**11. Senior Counsel for Mrs Matthews argued that there is a legitimate forensic purpose in the production of such records, as they:

(a) go to the credit of Mr Leech, the UAM inspector who examined pole 39 in February 2008;

(b) are relevant to the adequacy of the pole 39 inspection conducted by Mr Leech in February 2008. She says this may be used to demonstrate that the instructions given to Mr Leech were inadequate;

(c) may show that, between the 2008 and 2013 inspections, SPI has implemented a modified inspection regime. She says this could, arguably be used to demonstrate the reasonable manner in which the 2008 inspection should have been carried out; and/or

(d) may be used to "show what would have been found or probably would have been found" if pole 39 had have been "properly assessed" by Mr Leech. She says that, since Mr McCrohan of SPI has given evidence that the rate of pole deterioration can be determined, it may be possible to read the 2013 results with earlier inspection results to determine what an accurate inspection result would have been in 2008.[6]

12. Senior Counsel for SPI and UAM made helpful and concise submissions in support of the setting aside of the notice to produce. Both contended that the pleadings and the evidence adduced in the case to date demonstrated that the potential material sought was irrelevant. By reference to the pleadings, counsel for SPI submitted that the particulars of paragraph 19, subparagraph (xx) of the statement of claim, and the further and better particulars to that subparagraph, go only to the degradation of the pole wood between 2003 and 2008 and not to degradation of the pole wood between 2008 and 2013.[7] Counsel for SPI also argued that the rate of deterioration was only pleaded in relation to pole 39 and that the pleadings do not carry "a more general proposition".[8]

13. Counsel for SPI and UAM contended that there was no arguable relevance of an inspection carried out in 2013 of poles on the Pentadeen Spur to the inspection carried out in February 2008 on pole 39, and particularly that of any measurements of the rate of deterioration of poles between 2008 and 2013.

14. Finally, counsel for SPI and UAM both argued that, even if the 2013 inspection records demonstrate that some poles along the Pentadeen Spur were drilled at the one metre height at the time of the 2013 inspection, this is irrelevant: the applicable Asset Inspection Manual, as tendered at trial, and the evidence of Mr McCrohan, indicates that the Manual does not require asset inspectors to drill poles at one metre. In other words, evidence of drilling at one metre cannot be probative.[9]**

15. I do not accept that the way in which an inspector carried out an examination of a pole on the Pentadeen Spur and tested the structure of the wood in 2013 could go to the credit of Mr Leech. I do not see how it could be put to Mr Leech as a matter going to his credit that an inspector, over 5½ years later, carrying out the testing and inspection of a different pole on the same line, performed it in a different way to the technique employed by him. Nor do I think, notwithstanding the breadth of the expression "credibility", such evidence would be admissible in its own right: I doubt very much whether it would fall within the exceptions to s 102 of the Evidence Act 2008 (Vic) which excludes the admission of credibility evidence.[10]

Adequacy of Mr Leech's inspection and his instructions/training

16. The second point, going to the adequacy of the technique employed by Mr Leech in his February 2008 inspection of pole 39, has more substance. Records as to how that inspection was performed, in particular the testing of the wood, may (and I emphasise may) be relevant to the adequacy of Mr Leech's examination.

17. Mrs Matthews' case concerning the adequacy of Mr Leech's inspection is not confined to an allegation that he failed to observe a broken or stranded conductor. Rather, it extends to a number of aspects of that inspection: she alleges that there were a number of defects in the pole and its furniture which should have been reported upon (i.e. apart from the condition of the conductor) and that this would have resulted in further inspections or repairs prior to the conductor failure on Black Saturday.

18. There is, I think, considerable force in the submissions made by counsel for SPI and UAM which I set out at [12]-[14]. However, this application is not the forum at which to resolve questions of admissibility or, for that matter, points which may need to be considered in determining the outcome of this case - such as the proper interpretation of the Asset Inspection Manual. Rather, as the authorities demonstrate, it is to determine solely whether Mrs Matthews should have access to these documents applying the relatively low evidentiary threshold applicable to documents sought under a notice to produce in such an application.

19. Mrs Matthews' case against SPI and UAM relates to the training of and instructions to inspectors, as well as the manner in which Mr Leech's inspection was carried out. As I mentioned, it is not confined to the inspection of the broken conductor but extends to a number of aspects of the pole structure, including the wood testing carried out by Mr Leech. Whether this goes anywhere at the end of the day is beside the point - it is a part of Mrs Matthews' case on the question of the adequacy of asset inspections. I am satisfied that the notice is founded upon a legitimate forensic purpose.

20. I am also satisfied that it is 'on the cards' that the production of these documents will assist Mrs Matthews' case against SPI and UAM. Admittedly, this inspection was conducted five years after the 2008 inspection which is being challenged in this case. However, this factor does not, of itself, mean that such documents may be useless; there is no indication that any other asset inspection occurred more proximate to 2008 so the 2013 records may be the only basis upon which Mrs Matthews may seek to draw a comparison between the pre- and post- Black Saturday modes of inspection.

21. Reference to other aspects of the evidence (including manuals and viva voce evidence given by witnesses) cannot shut out or limit a legitimate forensic inquiry. Provided, on their face, the documents sought have some potential relevance, then it would be wrong to refuse access to those documents on the basis of the evidence led at trial to date - remembering that UAM has not yet gone into its case.

22. The reality is that production of documents pursuant to a notice to produce is subject to a far lower evidentiary threshold than that applied to the later question of admissibility at trial. The question of how current inspections (even if limited to testing for wood) are carried out is arguably germane to the manner and adequacy of Mr Leech's February 2008 inspection and the adequacy of the instructions and training given to Mr Leech in his role as an asset inspector.

23. Given my conclusion as to the second basis supporting the notice to produce it is not necessary to deal in any detail with the third and fourth bases, save to say that the third ground would, in my view, provide a basis for refusing the application by SPI and UAM; the fourth would not.**

24. I refuse the application to set aside the subpoena. SPI should, within seven days, produce the documents.

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

[2] "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".

[3] Matthews v SPI Electricity (Ruling No 26) [2013] VSC 415 [16] citing Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3 [28].

[7] PLE.CAM.001.0001, 0016; PLE.CAM.002.0001, 0006; T8480-81.

[10] s 103 of the Evidence Act 2008 (Vic); see also the discussion in Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling 25) [2013] VSC 392.

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties