Plaintiff v Defendants

2. Mrs Matthews alleges that on Black Saturday the conductor close to pole 39 of the Pentadeen Spur broke and then, whilst still attached at pole 38, struck the ground close to that pole and ignited the Kilmore East-Kinglake fire.

3. Pole 39 was burnt down in the course of the fire. Photographs[1] of pole 39 were taken shortly after it fell. It is not in issue that, by the time pole 39 was photographed lying on the ground, the pole top cap was secured by two coach screws - one effectively flush with the pole and one protruding from the pole top assembly; the other coach screw was missing.

4. Mrs Matthews' application is opposed by SPI and UAM who argue that it is too late and that the evidence is of little or no probative value.

5. I have decided to grant leave to Mrs Matthews to re-open her case and tender the screw for the following reasons.

History and circumstances leading to recovery of the coach screw

6. In the course of the trial, in Ruling No 22[2] I directed Mrs Matthews to file further better and particulars of item (vi) of the particulars to paragraph 19 of her statement of claim. Prior to that ruling it had been unclear on Mrs Matthews' pleadings, at least to SPI, as to whether her claim in relation to replacement of the Pentadeen Spur conductor extended to matters such as its appearance, history, location, inspection regime, maintenance, repair and environmental impacts.

7. I made the order with the purpose of resolving any potential confusion and to ensure that SPI had the chance to meet the case put by Mrs Matthews.

8. On 1 May 2013, Mrs Matthews filed further and better particulars of item (vi) of particulars to paragraph 19 of her statement of claim; it included 'loose or missing coach screws on the pole 39 pole cap' as a factor that should have led to the replacement of the Valley Span conductor before 7 February 2009.[3]

9. On that day, counsel for Mrs Matthews said the following in addressing the proposed particulars:[4]

We are fortunate, your Honour, that you have spotted the problem before it occurred but in the sense that it was, we would say, evident from the way in which the evidence was adduced from Mr Knop and from Mr Reuel in particular, that that was the intent of the plaintiff's case, to say that you have either got to look after it and if you are not looking after it you have got to replace it. Particularly with no vibration dampers and things of that nature for an extended period of time, if you let it go for a long period of time with all these signs you have got to replace it and that's what the replacement is. That's something, your Honour, which when we have a failed piece of equipment the logical presentation of the case is you either didn't look after it properly, or you didn't replace it and (vi) stands alone on that, your Honour, and the further and better particulars are consistent with that.

The matters of corrosion, the matters of two splices, the matters of two splices, the matters of pole top inspections and helical clevises and coach screws, they are all matters which have been very evident.

10. On 6 May 2013 I understood Mrs Matthews to have closed her case subject to the calling of Mr Anthony Walley and of course, the evidence adduced in the concurrent expert evidence sessions.

11. In her written submissions on this application Mrs Matthews says that she does not 'strictly seek to re-open her case since she has not yet closed her evidence'.[5] I pause at this point to observe that Mrs Matthews' case in relation to non expert evidence has closed. Her evidence concluded on 6 May. It would have been a nonsense to require SPI to go into evidence if Mrs Matthews' case was still in some amorphous way still open. Of course Mrs Matthews could have closed her case subject to being allowed to adduce further identified material at a later stage (as was done with Mr Walley's evidence); but such a course should have been the subject of notice prior to closing so the Court and the other parties understood her position and that there was no objection to this course. Such applications are routine in common law trials.

12. Indeed the fact that Mrs Matthews' case had been closed seems to have been acknowledged by counsel for Mrs Matthews who on 19 June 2013 said, when referring to the notice of opinion evidence to be adduced from Mr Denis McCrohan (maintenance manager of the SPI electricity distribution network from 2007 to 2010):

Encompassed in that also, your Honour, will be our application at some stage to reopen the lay evidence of the plaintiffs to put the coach screw in because that discovery was caused by matters, which were said in the report which caused a line of inquiry to be undertaken.[6]

13. Returning now to the sequence of events. On 16 June 2013, Mr Aaron Zanussi conducted a search around the base of pole 39 in the presence of counsel for Mrs Matthews, Mr Tobin SC, and a solicitor acting on her behalf, Ms McFarlane. Mr Zanussi dug into the ground to access the coach screw once it was located by the metal detector. The coach screw had been 'buried in the top soil' and was measured as being 3.35m 'east north east' from the base of pole 39.[7] He also located a number of other items which are not relevant for the purposes of this ruling. Ms McFarlane then placed the coach screw in a zip locked plastic bag.

14. On 17 June 2013, counsel for Mrs Matthews informed the court that the coach screw had been discovered. The coach screw and 'sundry metal objects' which were also found at the base of pole 39 were then placed in the custody of the court and marked for identification; they were subsequently assigned MFI exhibit numbers "P5" and "P6", respectively.[8]

15. On 19 June 2013, prior to Mr McCrohan being called to give evidence, counsel for Mrs Matthews said that:[9]

• Messrs Thomas Reuel and Warren Knop may need to be recalled in light of the evidence intended to be adduced from Mr McCrohan because some aspects of it had not been put to them;

• an application would be made at some stage to re-open Mrs Matthew's non-expert evidence; and

• discovery of the coach screw arose out of a line of inquiry initiated by the notice to adduce opinion evidence from Mr McCrohan.

16. On 16 July 2013, with my leave, the coach screw was uplifted from the court by solicitors for Mrs Matthews for examination by Drs Barter, Gates and Gartner (experts retained by Mrs Matthews, SPI and UAM respectively). The experts examined the coach screw on 17-18 July and on 19 July it was returned to the court.

17. On 13 September 2013, immediately prior to the resumed mediation of this proceeding, counsel for Mrs Matthews made an oral application seeking leave of the Court to re-open her case and tender the coach screw.[10] Subsequently, Mrs Matthews filed with the Court the affidavit of Ms McFarlane which outlines the circumstances leading to the coach screw being found and its subsequent delivery to the Court on Monday 17 June 2013.

18. In the affidavit it is said that shortly after SPI had filed its notice of intention to adduce opinion evidence from Mr McCrohan, counsel for Mrs Matthews directed Maurice Blackburn to engage a metal detector operator to search the area at the base of pole 39 of the Valley Span,[11] and that the coach screw was located in the course of that search.

19. The relevant question raised by the application is whether, on the whole, it is in the interests of justice that leave be granted for Mrs Matthews to re-open her case.

20. The position in relation to re-opening a case after the close of final submissions or judgment has been delivered is clear. In Spotlight Pty Ltd v NCON Australia Ltd[12] the Court of Appeal agreed with the opinion of Kenny J in Inspector-General in Bankruptcy v Bradshaw[13] that there are four recognised classes of case in which a court may grant leave to re-open a party's case:[14]

The four classes (with which we respectfully agree) are: (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law.

These classes are not closed; but the present case shares with Bradshaw the distinction that it falls into none of them, and no applicable new category is suggested. The overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. We are satisfied that, in the present, it does not.

21. This year Sifris J dealt with an application by a plaintiff to re-open its case in Nicholson v Hilldove Pty Ltd & Ors.[15] In that case the application was made after the trial of the proceeding and reasons for judgment had been handed down. His Honour reviewed the authorities and said:[16]

The authorities establish that the existence or discovery of fresh evidence alone is not sufficient to re-open the case. If this were not so decisions would be "of a provisional character only". Rather, public policy requires a more "stringent rule". Accordingly a party seeking to re-open a case on the grounds of fresh evidence is required to show "that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict".

22. Each of these cases involved re-opening a case after final submissions and in two of the cases (Bradshaw and Nicholson) after the judgment. It is clear that a very powerful reason is required and, of course, one that satisfies the criteria set out by the Court of Appeal in Spotlight. However re-opening a case whilst the trial is still underway is a different kettle of fish altogether.

23. The High Court in Smith v New South Wales[17] referred to the considerations relevant to determining whether to permit the re-opening of a case during the course of a trial:[18]

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgement [sic] have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.

24. Thus the primary consideration is whether the interests of justice require that the application be allowed. In this state the Court's broad powers of case management under the Civil Procedure Act 2010 (Vic)[19] need to be noted: to achieve the objective of '[facilitating] the just, efficient, timely and cost-effective resolution of the real issues in dispute' the Court may make any order or give any direction with regard to the objects listed in s 9(1)[20] including (a) the just determination of the civil proceeding and (c) the efficient conduct of the business of the court.

25. Section 49(1) of the CPA also gives the Court the power to 'give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding' before a hearing commences or during a hearing.

26. SPI contends that the coach screw which Mrs Matthews seeks to adduce into evidence was available to or reasonably discoverable by her. It points towards Mrs Matthews' conduct of the case, namely:

• the filing and service of Mr Hawes' supplementary report dated 5 April 2013, which raises this issue;

• evidence from Mr Knop and subsequently, Mr Reuel, concerning the absence of the coach screws and coach screw holes in pole 39; and

• the filing of further and better particular (vi) of paragraph 19 of her statement of claim

to demonstrate that she was alive to the issue of the missing coach screw and hence, her application cannot fall within one of the established grounds which justify the granting of leave to re-open her case.

27. SPI and UAM submit that the coach screw and evidence of what, why and how it came to be where it was eventually recovered is of little or no probative value. SPI says that it is difficult to see how the plaintiff can exclude the possibility, or render it improbable, that the coach screw came out from pole 39 either: (i) when pole 39 impacted the ground or (ii) after pole 39 impacted the ground but before it was removed from the site. Along similar lines, UAM contends that the presence of the coach screw in the position in which it was found, without more, cannot give rise to an inference that at some time, the coach screw was in the pole cap and came out before pole 39 had hit the ground on Black Saturday.

28. SPI also argues that the tender of the coach screw will lead to a further round of expert evidence concerning the coach screw which would be unfair, particularly to experts who would face a further burden of investigating the coach screw and preparing reports in a busy period leading up to the concurrent evidence sessions in November.

29. In their written submissions SPI and UAM both allege that it can be inferred that the lawyers for Mrs Matthews made deliberate tactical decisions in delaying the search for the coach screw, waiting until this point to make her application and not putting questions relating to the coach screw to Mr McCrohan during cross-examination.

30. Mrs Matthews contends that the evidence will be probative if Mr Hawes' opinion, to the effect that the coach screw fell out due to Aeolian vibration, is accepted. In this instance the Court, so the argument goes, would be able to infer that the coach screw fell a significant time prior to the fire such that it was likely to be absent or in the process of falling out at the time of the February 2008 inspection.

31. Mrs Matthews says that the importance of the screw only became obvious after the late delivery of Mr McCrohan's statement of expert opinion which theorised as to the possible reasons for the absence of the screw. She contends that the interests of justice favour the inclusion of the coach screw into the pool of evidence.

32. Mrs Matthews says that her camp had not contemplated the existence of the coach screw at the base of pole 39 prior to counsel's direction that they engage a metal detector operator to search the area. Further, she says that at no point did she indicate that she did not intend to call the new evidence.

33. Mrs Matthews accepts that in light of the case pleaded by her and the evidence led from Messrs Knop and Reuel a search for the coach screw could have been undertaken prior to receiving SPI's notice of intention to adduce opinion evidence from Mr McCrohan.

34. In response to SPI and UAM's allegation that her lawyers made a deliberate tactical decision not to adduce evidence about the fallen coach screw from Mr McCrohan, Mrs Matthews says that any failure to lead evidence was inadvertent and not a deliberate decision to achieve a forensic advantage.[21]

35. For the following reasons it is in the interests of justice that Mrs Matthews be permitted to re-open her case and tender the coach screw.

36. It was accepted by counsel for Mrs Matthews that the metal detector search could have been conducted prior to the trial and certainly prior to closing Mrs Matthews' case.

37. Whilst I reject the suggestion that it was reasonable to undertake the search as late as June there are a number of mitigating or relevant considerations, not the least of which is that no one else involved in the multiple inquiries into the cause of the fire (the investigating police, the coroner, the VBRC) apparently thought of conducting such a search. I accept that the pressure of this enormous piece of litigation means that not everything can be attended to as a perfect trial might require (and this applies to all the parties).

38. I also accept, based on Ms McFarlane's affidavit, that as soon as the light bulb was flicked on, Mrs Matthews' legal representatives acted promptly and efficiently in conducting the search for the coach screw and, once it was found, notified the court at the first opportunity.

39. I accept that Mrs Matthews' decision to apply to re-open her case now, and not at an earlier stage, was grounded upon a combination of minor misjudgement and misunderstanding of counsel. I accept counsel's explanation and the evidence of Ms McFarlane. It was not a deliberate tactical decision to gain a forensic advantage by tendering it after Mr McCrohan had given evidence and without his being cross-examined about it.

40. Clearly there was immediate disclosure of the results of the metal detector search as the coach screw was placed into the custody of the Court on the next available court day. Two days later counsel said, in clear terms, that there would ultimately be an application to tender the screw and it was marked for identification. These actions hardly bespeak a cunning tactical move designed to keep the screw under wraps until Mrs Matthews was ready to spring the surprise; it is far more likely that the failure to tender it expeditiously (and to cross-examine Mr McCrohan about it) was an oversight or misjudgement. It was patently open to counsel for Mrs Matthews to cross-examine Mr McCrohan about the screw without it being in evidence - it had already been marked for identification and awaited this application. Alternatively the application to admit it could have been made in the course of Mr McCrohan's evidence. I accept that counsel wrongly considered it was not open to him to do so unless it was in evidence.

41. The relevance rule is set out in s 55(1) of the Evidence Act 2008 (Vic):

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[22]

42. I reject SPI and UAM's submission that the coach screw is of little or no probative value and therefore the application should be refused.

43. Here it is known that a coach screw that should have been present in the pole cap is missing. The buried screw was found in close proximity to the pole and bears an uncanny resemblance to the protruding screw found in the pole cap. Arguably it is, at the very least, another piece of evidence in the puzzle of the history of the Pentadeen Spur and its infrastructure- and as such it is patently relevant as a background fact. I am confident that if it had been found in the vicinity of the pole on Black Saturday or soon thereafter no one would have suggested that it was not a relevant piece of evidence.

44. Moreover, it is clear that having the coach screw part of the body of evidence (as opposed to speculating as to what happened to it in the past) could rationally affect the assessment of the probability of whether it fell out prior to or at the time that pole 39 fell to the ground on Black Saturday. Whilst I accept that at the moment there is no direct evidence that this is the missing screw that does not mean such evidence may not be adduced later in the trial. Alternatively, when all the evidence is considered, including the similarities between this screw and the other two, then it may be that it can be inferred that it is the missing screw.

45. Whether such a conclusion ultimately leads to a positive finding as to when and in what circumstances the missing screw was dislodged cannot be determined now and, I readily accept, may never be the subject of such a finding. But that is not the test of relevance laid down in the Evidence Act. In Ruling No 18,[23] I said as follows of the test in extracting the following comment:

It merely requires the court to ask: could the evidence if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings? There need only be a minimal logical connection between the evidence and a fact in issue. It is important not to confuse relevance with sufficiency or weight.[24]

It is an undemanding test as it must be in the context of a trial where the probative force of any piece of evidence cannot be authoritatively determined until all the evidence has been received and is then capable of analysis. That is all the more so in the middle of a common law trial where (thankfully) there are no witness statements and months of evidence still to be led.

46. Any delay resulting from the admission of the screw into evidence will be minimal. I accept that it may be necessary to permit SPI to recall Mr McCrohan. But if he is to be recalled it is only a short walk from his workplace and there will only be a minor period of cross-examination and re-examination in relation to the coach screw. At least one if not both of Messrs Knop and Reuel, neither of whom gave evidence about the missing screw, are to be recalled, in any event, to deal with matters contained in further and better particular (vi) of paragraph 19 to Mrs Matthews' statement of claim.

47. Importantly, counsel for Mrs Matthews has indicated that it is not intended to conduct any expert analyses of the coach screw. I can therefore be reassured that in allowing the tender of the coach screw I will not be instigating another battle of expert evidence (of which there are many in this proceeding) between the parties.

48. The plain fact is that SPI and UAM do not seriously contend that any real prejudice or disruption will be caused by the tender of the coach screw. In the context of this proceeding, which holds great importance for nearly 10,000 group members arising out of a major civil calamity, I am satisfied that any prejudice or disruption (which is minor in any event) that may be caused to the other parties does not outweigh the interests of justice in favour of permitting the tender.

49. It follows that this is not a true consideration in determining whether to permit the re-opening of the case nor does it persuade me to refuse to admit the evidence pursuant to s 135(a) and (c) of the Evidence Act.

50. I will permit Mrs Matthews to re-open her case and admit the coach screw as an exhibit in the trial. The affidavit of Ms McFarlane will also be admitted into evidence.

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] Matthews v SPI Electricity & Ors (Ruling No 22) [2013] VSC 221.

[7] Affidavit of Kate McFarlane dated 5 September 2013, [11]. Although this first affidavit was subsequently amended by a second affidavit of Ms McFarlane, dated 27 September 2013, the second affidavit only goes to the accuracy of [9] of the first affidavit.

[8] T5321. No application has been made to admit the sundry metal objects; they are not the subject of this ruling.

[11] Affidavit of Kate McFarlane [3].

[12] [2012] VSCA 232 ('Spotlight').

[13] [2006] FCA 22 ('Bradshaw').

[14] [2012] VSCA 232, [25]-[26].

[15] [2013] VSC 231 ('Nicholson').

[16] [2013] VSC 231 at [18].

[17] [1992] HCA 36; (1992) 176 CLR 256.

[18] [1992] HCA 36; (1992) 176 CLR 256, 266-7.

[20] Civil Procedure Act 2010 (Vic) ss 7 and 9.

[23] [2013] VSC 185.

[24] Jill Anderson, Neil Williams SC, and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths Australia, 2nd ed, 2009) 163.