Plaintiff v Defendants

1. On 24 September 2013 Counsel for SPI sought to tender a large body of material (some 380 documents) which was provided by SPI's solicitors to three expert witnesses retained by it for the purpose of assisting them in forming their opinions. The issues that have now arisen are;

1. how much of this material is admissible; 2. if admissible, whether its tender genuinely assists in determining the issues in this case; and

1. when the tender of this admissible material should take place.
2. At the outset it is relevant to state the size of the material already tendered in this trial: so far 3,168 documents have been tendered, amounting to 8667MB.
3. Over the next three or four months, approximately 40 experts will give evidence on a diverse range of topics. They have produced 73 individual reports and 13 joint reports, many of which are lengthy, highly detailed and often technical. Many of these reports are underpinned either implicitly or explicitly by massive amounts of material - measured in terra- rather than gigabytes.
4. SPI's application specifically related to material underpinning the opinions of experts involved in Conclaves 1, 3 and 4 - and the concurrent evidence session in which these experts will participate in early November. The attempted tender of these documents prompted a wide ranging discussion between all the parties (including the State parties) and myself as to the tender of materials utilised by the experts in reaching their conclusions that have not at this point been admitted as evidence.
5. It was decided that it was worthwhile deferring SPI's application and discussing the more general issue of the tender and admissibility of materials underpinning the expert opinions and in particular, address the undesirability of the tender of a large mass of material (much of which would be potentially irrelevant or of minimal value).
6. I stood the matter over and then heard further oral submissions and a short joint note was filed by Mrs Matthews and SPI on 7 October 2013.
7. This ruling addresses the SPI application; it is also intended to serve as a guide to all parties as to the adducing of this type of evidence in the course of the trial.

1. As I just mentioned, the proposed tender relates to expert reports arising out of Conclaves 1, 3 and 4. Below is a table setting out the number of reports prepared by this group of experts:

Quantitative impact of loads or stresses on the primary fractures

Quantitative impact of loads or stresses on the primary fractures - First supplementary report 15/02/2013 produced by the re-convened Conclave

Quantitative impact of loads or stresses on the primary fractures - Third conclave report 21/03/2013 produced by the re-convened Conclave

Qualitative analysis of impact of loads or stresses

Report on Examination of Issues Associated with "Kilmore East-Kinglake Bushfire" 7 February 2009

Investigation into the failure of a 12.7kV SWER Conductor Pentadeen Spur, Kilmore East

Comments on Valley Span Testing Pentadeen Spur - Kilmore East and Further HRLT Testing

Comments on Valley Span Testing Pentadeen Spur - Kilmore East and Further HRLT Testing - Supplementary Report No. 1.

Supplementary Report No 2 Further Comments on Valley Span Testing Pentadeen Spur - Kilmore East

Carol Ann Matthews v SPI Electricity & Ors, Kilmore East Bushfire - Causes of Fatigue Failure of SWER Conductor

Carol Ann Matthews v SPI Electricity & Ors, Kilmore East Bushfire - Causes of Fatigue Failure of SWER Conductor SUPPLEMENTARY REPORT

Carol Ann Matthews v SPI Electricity & Ors, Kilmore East Bushfire - Causes of Fatigue Failure of SWER Conductor SECOND SUPPLEMENTARY REPORT

Carol Ann Matthews v SPI Electricity & Ors, Kilmore East Bushfire - Causes of Fatigue Failure of SWER Conductor THIRD SUPPLEMENTARY REPORT (Gates Report 5)

Supplementary Expert Witness Report - Mr Henry Hawes

Second Supplementary Expert Witness Report - Mr Henry Hawes

Expert Witness Report Kilmore East - Kinglake Bushfires Class Action

Technical Note Kilmore East - Kinglake Bushfires Class Action

Supplementary expert report No 2 of Dr Simon Barter

Third supplementary expert report of Dr Simon Barter

Fourth supplementary expert report of Dr Simon Barter

Fifth supplementary expert report of Dr Simon Barter

Further supplementary report of Dr Andrew Potts dated 22 February 2013

Further supplementary expert report of Dr Andrew Potts

Further supplementary expert report of Dr Andrew Potts (Potts Report No 5)

Second supplementary expert report of Mr John Vazey (Vazey Report No 3)

Third supplementary expert report of Mr John Vazey (Vazey Report No 3)

Analysis of the contribution of the misaligned Helical Termination to the failure of the Single Wire Earth Return (SWER) Steel Conductor of Span 38-39 of the Pentadeen Spur 12.7kV Distribution Line in Victoria on February 7, 2009

Metallurgical Investigation into the Failure of a 12.7kV SWER Power Line, Pentadeen Spur, Kilmore East

9 The categories of documents provided to or used by these experts as the basis for their opinions were conveniently identified by counsel for Mrs Matthews as follows:

b) public documents (such as extracts from scientific journals);

c) prior evidentiary material (such as extracts from the VBRC transcript or exhibits tendered at the VBRC); and

10 There are two key issues to be addressed. Firstly, whether the material is admissible under the Evidence Act Vic (2008).[1] The material in question comprises:

a) material briefed to the experts by the solicitors; and

b) material referred to by the experts in their reports or used by them in reaching their conclusions.

11 The content of the first category is self-explanatory. As to the second category, ordinarily any documents relied upon by an expert in forming his or her opinion should be identified in their report(s) (either in the body of the report or an annexure, so as to explain their path of reasoning). I was told by counsel that in some instances, material that counsel regarded as underpinning an expert's opinion had had not been identified in the report.

12 The second issue is the appropriate time at which the tender of admissible material is to occur. The possible alternatives include immediately prior to the commencement of the concurrent evidence sessions, during the expert evidence itself, or at the conclusion of each of those sessions.

13 I have in a previous ruling dealt with the status of the "basis rule" or, as Heydon J describes it, "the proof of assumption rule" in relation to s 79 of the Evidence Act.[2] It is not necessary to delve into the jurisprudence further. It is clear that, whatever the correct position may be under the Evidence Act, at the very least as a question of weight, a party adducing opinion from a witness based on assumed facts will endeavour to ensure that these assumptions, in substance, tally with the evidence that has been adduced in the trial and accepted by the trial judge.

14 The use by an expert of a document/photograph/diagram/journal article etc as part of the material relied upon to form his or her opinion does not per se make it admissible (for an extreme example see Grinham v Tabro Meats[3]). It must follow that the mere provision of a document to an expert witness is not sufficient to warrant the admission of that document into evidence.

15 For such material to be admissible it must satisfy the tests laid down by the Evidence Act. For example: relevance (ss 55 and 56); and, if hearsay, whether it falls within one of the exceptions to the hearsay rule (e.g. admissions s 81, business records s 69). Specifically it is to be remembered that the exception to the opinion rule in relation to expert opinion relates solely to the admissibility of the opinion (ss 76, 79). If the exception extends to permitting the admission of the material as part of the "basis" of the opinion (as Odgers suggests[4]) then there is a real issue as to whether s 136 of the Evidence Act permitting limited use tender should be invoked.[5]

16 Even if such material is admissible there is a further question as to whether s 135(c) of the Evidence Act should be utilised to prevent a voluminous amount of peripheral information deluging the already massive quantity of documents tendered in this proceeding.

17 The Civil Procedure Act 2010 (Vic)[6] is also relevant to this point.[7] Chapter 2 of the CPA sets out the overarching purpose and obligations in civil proceedings. The overarching purpose of the CPA and the rules of court in relation to civil proceedings are to "facilitate just, efficient, timely and cost-effective resolution of the real issues in dispute."[8] Section 8 requires a court to give effect to the overarching purpose. Section 9 of the CPA expands the overarching purpose as follows:

(9) Court's powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects -

(a) the just determination of the civil proceeding;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(f) the timely determination of the civil proceeding;

Further, s 49 of the CPA provides as follows:

(49) Court's power to order and direct trial procedures and conduct of hearing

(1) In addition to any other power a court may have, a court may 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.

(3) Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to -

(g) limiting the numbers of documents to be prepared or that a party may tender in evidence;

18 On 7 October 2013, Counsel for Mrs Matthews and SPI filed a joint note setting out a proposed protocol for the tender of materials underpinning expert evidence.

19 The purpose of this note was said to be to provide a framework to manage "the risk" that documents sought to be tendered after the expert conclaves may be ruled inadmissible therefore potentially rendering aspects of that conclave's work, and their conclusions, uncertain.[9] The parties proposed that, in relation to the "electricity" conclaves "the risk "should be managed as follows:

(a) the parties exchange lists of documents relied upon by experts (whether or not cited, but if not cited then with a notation indicating the passage of the expert's report to which the document relates), by a nominated date (the parties suggesting 25 October 2013 as a possible date);

(b) the parties exchange objections to each other's list(s);

(c) the parties seek to reach agreement regarding these objections prior to a nominated date.

If prior to a conclave being convened there is an unresolved objection which any party considers requires adjudication prior to the conclave, that party may raise the issue with the Court prior to the conclave convening.

20 As I have already mentioned, the mere provision of material to an expert does not make it relevant or admissible. Nor does the use of the material in the body of a report or as an annexure necessarily justify its admission:

...the extent to which an expert should seek to justify views, including opinions expressed in a report may well depend upon the matters which are really in issue between him or her and any expert called by the opposing parties. In most cases, as one would expect, reputable experts will agree on many, if not most of the preliminary steps and learning upon which an ultimate opinion is based. The areas of difference will emerge when opinions are exchanged. Differences will be further ventilated in the course of cross-examination. It cannot be sensibly suggested that an expert should offer chapter and verse in support of every opinion against the mere possibility that it may be challenged.[10]

21 There is the potential in this trial for a vast number of documents to be tendered which have little or no relevance to the essential reasoning and opinion of the various experts or to the real issues in dispute between the experts.

22 There is a splendid example of this possibility in the current application by SPI. One of the groups of documents sought to be tendered is 2000 or so photos - provided to an expert - of various bits and pieces attached to the top of pole 39, as well as the conductor that was strung along the Valley Span as at Black Saturday. This is probably the most photographed powerline in the world and there are already hundreds of photos in evidence. It is not clear whether these photographs are relevant to the expert's opinion, whether the photographs underpin a significant part of his evidence, or whether material already tendered will do the job in proving the factual substratum of a disputed opinion. Unless it becomes apparent through an expert's viva voce evidence that a particular photograph is significant to a contested part of his or her opinion and the current body of evidence is unsatisfactory for making the point then enough is enough.

23 To avoid this scenario, I consider that it is inappropriate at the present time to permit the tender of any material which underpins the opinions of witnesses called by any party (unless of course the material is already in evidence). The efficient conduct of the trial and sensible use of finite judicial resources compels this course.

24 I accept the suggestion of Counsel that it is desirable for the parties to exchange lists of documents and identify those that are the subject of objection; however I remain sceptical that a document not disclosed by an expert in his or her report will be relevant.[11] Nevertheless I think it helpful for the parties to know each other's position prior to the experts giving evidence subject to this important qualification: the inclusion of a document in a list without objection does not mean that it will automatically be tendered.

25 The note of counsel appears to assume that if there is agreement between counsel as to the relevance then the documents may be tendered. I disagree. Counsel's views as to relevance are helpful but not determinative, particularly given the volume of material to be considered in this case. If this case is ever to be resolved, the Court must impose some limits on the evidentiary material adduced in the course of the expert evidence sessions. Both the Evidence Act and the CPA permit the Court to do so. To allow the tender of a document merely on an uncontested relevance basis where there is no substantive debate between the experts on the opinion which it supports would be foolhardy in the context of this litigation as the example I have set out illustrates.

26 It also follows that I do not accept the course suggested in the note of counsel of determining the question of admissibility prior to the expert concurrent evidence session. This is for two reasons. The first flows from what I have just said: there may well be a vast amount of material that either is not required or which has so little do with a contested opinion that its admission will merely create another hurdle in terms of determining the case at trial or appellate level. The second is that an expert's report should disclose to each side what material he or she is relying upon. There is no question of surprise or ambush by delaying the tender process until after the concurrent evidence session. True it is, as Counsel suggests, that a party will not know before or through the course of that session whether the underlying material will ultimately be admitted but that is the price that has to be paid for keeping the evidentiary material within manageable limits.

27 To adopt the approach suggested by counsel in the note will mean days of arguments about the admissibility of documents that may, by the end of the expert evidence sessions, be irrelevant or peripheral to the central issues of this case. The trial cannot be bogged down in this way; far better, acknowledging that there is a minimal "risk", to review the material after the experts have departed the scene.

28 At least by reason of this ruling the test of admissibility will now be understood and the parties will, at the conclusion of the session, have the opportunity to make submissions concerning admissibility - just as they would have prior to the session.

29 Accordingly either by virtue of s 135(c) of the Evidence Act or s 49(3)(g) of the CPA, material which underpins an expert's opinion (that is not in evidence already) will need to pass a test of significant relevance to a contested part of an expert's opinion before I consider admitting it into evidence and, then, on what basis. The only sensible time at which this can take place is at the end of the concurrent evidence session.

30 So, in summary, I will only consider the tender of any underpinning material at the conclusion of the relevant concurrent evidence session, at which time I should be able to determine:

b) whether it is sufficiently probative in the sense that it is significantly relevant to a contested part of an expert's opinion to justify its admission; and

c) whether, if the sole basis for its tender is that it is of significant relevance to the disputed opinion, it should be permitted only on a limited basis pursuant to s 136 of the Evidence Act.

31 At this point in time, I am not prepared to consider whether a party will be allowed to tender any rebuttal material at the conclusion of the expert witness 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

[1] ("Evidence Act").

[2] Matthews v SPI Electricity & Ors (Ruling 24) [2013] VSC 269.

[3] [2012] VSC 491 at [14] and [15].

[4] Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 2nd ed, 2013) 382.

[5] See Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893.

[7] See also Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation (Ruling No 13) [2013] VSC 17.

[8] Section 1(c) of the CPA.

[9] Joint Note - Protocol for Tenders of Experts' Materials dated 7 October 2013.

[10] Sydneywide Distributors Pty Ltd v Red Bull Australia Ltd [2002] FCAFC 157 at [89].