EVIDENCE - Whether evidence was obtained illegally or improperly - Discretion to admit evidence where desirability to admit outweighs undesirability to admit - Evidence obtained for the purpose of defence of litigation - Evidence obtained by improper or illegal conduct - Assessment of probative value of evidence - Probative value high, desirability of admitting outweighs desirability of excluding - Evidence Act 2008 (Vic) ss 135, 137, 138.

PRACTICE AND PROCEDURE - Obligations of parties and their solicitors under Part 2.3 of the Civil Procedure Act 2010 (Vic) - Obligation to act honestly - Obligation to cooperate with the parties and the Court - Obligation not to engage in conduct which is misleading or deceptive - Obligation not to engage in conduct which is likely to mislead or deceive - Obligation to use reasonable endeavours to narrow the issues - Failure of Applicant and Defendant to narrow the issues - Failure of Applicant and Defendant to cooperate - Failure of Defendant not to act in a way that was likely to mislead - Civil Procedure Act 2010 (Vic) ss 16, 17, 20, 21, 23.

STATUTORY INTERPRETATION - Scope of statutory authority of Electricity Corporation to enter private property - Consent of landowners to Electricity Corporation entering private property - Electricity Industry Act 2000 (Vic) ss 1, 20, 21, 85, 88, 93, 95.

1. Mrs Matthews seeks to exclude the evidence obtained from a field test carried out by SPI in 2012 and 2013 on the Pentadeen Spur.
2. In 2012, SPI set up dummy conductors on the Valley Span intending to replicate the environmental and other conditions that affected the conductor prior to Black Saturday. Mrs Matthews says that the field test was carried out without obtaining the consent of the landowners whose properties were used to gain access to the Valley Span, therefore the results are tainted by illegality or impropriety on the part of SPI and this justifies their exclusion.
3. The field test was designed and overseen by scientific or engineering experts retained by SPI solely for the purpose of defending Mrs Matthews' claim. Three dummy conductors were strung between two poles along the Pentadeen Spur: one on the Kilmore East property of Russell and Blanche Beel (pole 39) and the other on the property of Phillip Sullivan (pole 38). For the purpose of erecting and conducting the field test, SPI accessed the Beel and Sullivan properties by one or both of two routes, the first traversing the properties of Jenny Quinn (Mr Sullivan's sister) and Omar Obeid, the second traversing the property of Peter and Liz Jackson.[1]
4. SPI will in early November 2013 seek to lead evidence of the results of the field test and have experts opine upon them. Relying upon the evidence of experts retained by her, Mrs Matthews disputes the efficacy of the test.
5. In precis the application by Mrs Matthews to exclude the results stems from the assertion that SPI employees and contractors were trespassers and therefore their entries onto the landowners' properties were in contravention of Australian law thus engaging the operation of s 138 of the Evidence Act 2008 (Vic)[2]. That section permits a Court to exclude evidence obtained unlawfully or improperly.
6. SPI says it was authorised by the _Electricity Industry Act 2000 (_Vic)[3] to access and egress the landowners' properties in order to carry out the field test. Alternatively it argues that it had the consent of the landowners to access their properties or that the landowners had acquiesced to its attendance. If SPI has to meet a s 138 argument it says Mrs Matthews' application is brought in bad faith and that it is far too late in the context of the trial process to exclude highly probative evidence; finally, SPI says Mrs Matthews has by her conduct (in bringing this application at this late stage) waived her right to make a s 138 argument.
7. SPI is supported in its response by UAM.

1. On 24 September 2013, Senior Counsel for Mrs Matthews raised with me a prospective application by his client, pursuant to s 138 of the Act, to exclude all evidence derived from the field test.[4]
2. On 26 September, I set down the hearing of the application for 11 October with affidavits to be filed by 4 October.[5] In fact, the application commenced on 14 October.
3. Central to the application is s 138 of the Act. The relevant parts read as follows:
   • (1) Evidence that was obtained-
     • (a) improperly or in contravention of an Australian law; or
     • (b) in consequence of an impropriety or of a contravention of an Australian law-

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account-

• (a) the probative value of the evidence; and
• (b) the importance of the evidence in the proceeding; and
• (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
• (d) the gravity of the impropriety or contravention; and
• (e) whether the impropriety or contravention was deliberate or reckless; and
• (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
• (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
• (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

1. The evidence relied upon by the parties comprised:
   • (a) the affidavits (including exhibits) of:
     • (i) Mr Andrew Watson, solicitor for Mrs Matthews - one sworn on 4 October 2013[6] and a second sworn on 14 October 2013;[7]
     • (ii) Ms Ruth Overington, solicitor for SPI - one sworn on 17 January 2013,[8] a second sworn on 5 October 2013[9] and a third sworn on 11 October 2013;[10]
     • (iii) Ms Irina Lubomirska, solicitor for Mrs Matthews affirmed on 15 March 2013;[11]
     • (iv) Mr Noel Baumgarten, sworn on 4 October 2013;[12]
     • (v) Mr Bill West, affirmed on 4 October 2013;[13]
     • (vi) Mrs Blanche Beel, sworn on 3 October 2013;[14]
     • (vii) Mr Peter Jackson, affirmed on 4 October 2013;[15] and
     • (viii) Mr Phillip Sullivan sworn on 10 October 2013;[16]
   • (b) the viva voce evidence of Mr Watson, Ms Overington, Mr Sullivan and Mrs Beel - all pursuant to requests for cross-examination; and
   • (c) any documents (including expert reports) referred to in, or annexed to, the parties' written submissions.[17]

1. Mrs Matthews' application requires determination of the following questions:
   • (a) Did SPI act illegally or improperly in constructing and conducting the field test?
     1. Was SPI empowered by s 93(1) of the EI Act, and/or the Electricity Distribution Code,[18] to access and egress the landowners' properties without obtaining their prior consent ("The first issue")?
     2. If no, did SPI have the express or implied consent or acquiescence of the landowners at the relevant time(s)? If not, did SPI act either illegally or improperly in accessing and egressing the landowners' land for the purpose of the field test ("The second issue")?
   • (b) If the answer to (a) is yes, then does the desirability of admitting the field test evidence outweigh the undesirability of admitting evidence that has been obtained in the way the field test evidence was obtained (s 138(1) of the Act)? In answering this question the Court is to undertake a discretionary exercise, taking into account the matters set out in s 138(3) of the Act, as well as any other relevant factors ("The third issue").
   • (c) If Mrs Matthews is successful in her application under s 138, then is Mrs Matthews estopped from bringing this application because of the alleged delay in doing so and the impact on SPI and UAM that would follow exclusion of this evidence; alternatively, has she waived her entitlement to make this application?
2. Mrs Matthews carries the onus of establishing that the results of the field test were improperly or illegally obtained. If this is proved, it is for SPI to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way.[19] SPI carries the onus on the estoppel and waiver arguments.

The first issue: Was SPI authorised by the Electricity Industry Act to enter the properties of the landowners?

The purpose of the test conductors, their construction and their use

1. In August 2011, Mr Graham Karutz, a Design Engineer employed by SPI,[20] prepared a Scope of Works proposal in relation to the Pentadeen Spur:

To support the investigations of Dr David Jones expert witness, retained by solicitors for SP AusNet in the upcoming Kilmore East/Kinglake bushfire class action.

The influence of wind, vibration, and the specific line construction on the likelihood and timing of failure of conductor at the above location is not known. To explore these issues, dummy spans of steel conductor will be erected beneath the existing in-service span so that the behaviours can be monitored and replicate, as far as is practically possible, the conditions of the original span. From this data, along with weather condition monitoring, Dr David Jones proposes to draw inferences about the performance of the original span in the context of historic weather records. Two test (dummy) circuits are proposed to mimic different conditions as detailed below.[21]

1. Mr Karutz instructed Mr Baumgarten, at this time a Design Engineer at SPI's Benalla office, to implement the works. Between August 2011 and July 2012, Mr Baumgarten was involved in the design and assembly of the test spans. He described himself as being:

responsible for liaising with landowners over whose land the Valley Span and the test conductors are strung, and adjacent land, in order to arrange access to the land for the purpose of establishing the Field Test structure.[22]

1. Mr Baumgarten said his role was limited to carrying out the instructions given to him by his manager, Mr Karutz[23] - who did not give evidence on this application.
2. In email correspondence dated 10 August 2011 between SPI employees (including Mr Karutz and Mr Baumgarten), the Scope of Works and its implementation was described as "Test lines Pentadeen Spur to support bushfire class action".[24] During cross-examination, Mr Baumgarten stated that this email was the first time he became aware of the class action; he said that he understood that the information that was to be derived from the field test would be used as part of the defence by SPI against the claims made against it.[25]
3. As the Scope of Works and the internal SPI correspondence demonstrate, the purpose of the test spans was to replicate the original conductor which was approximately 1050 metres in length and made of three strands of galvanised twelve gauge steel wire. The dummy conductors were fitted under slightly different conditions with the aim of differentiating possible causes of the failure of the original conductor.
4. During cross-examination, Ms Overington of Herbert Smith Freehills[26] (the solicitors for SPI) described the purpose of the test as follows:

The test was intended to gather the best available evidence about the likely loads on the incident conductor, the data regarding the loads then forming the input into analysis by other experts.[27]

1. It is clear from both the Scope of Works and the correspondence between Mr Karutz and Mr Baumgarten that instructions as to the nature of the construction of the dummy conductors came from an expert witness, Dr Lane, and/or the solicitors acting for SPI.[28]
2. On 8 February 2012, the dummy conductors and supporting infrastructure were erected between poles 38 and 39 in accordance with the Scope of Works. As described in Ruling 20:

The dummy conductors have been strung so that there is a vertical distance of approximately 3.3 metres between the live conductor and the highest of the dummy conductors. There is then a vertical distance of approximately 350 millimetres between each of the dummy conductors.[29]

1. These conductors have never been used for the supply, transmission or distribution of electricity; Mr Baumgarten confirmed that he "understood that they were never to be energised"[30] and the test "wasn't used for the distribution of electricity".[31]
2. The data obtained from the field test has been analysed by a number of the experts engaged by the parties. As I described and discussed in Rulings 10[32] and 20,[33] the experts have been grouped into various subject-matter conclaves. Of these, Conclaves 1, 3 and 4 go directly to the cause of the conductor failure. A list of the reports filed by members of these conclaves is contained in Ruling 29.[34]
3. In particular, Conclave 3, which is charged with determining the "quantitative impact of loads and stresses on the primary fractures of the conductor," has relied upon the various tranches of field test results. Its members have now met three times and produced three joint reports.
4. According to Mrs Matthews and SPI, there are at least fifteen expert reports that deal (in whole or in part) with the results of the field test.[35] Mrs Matthews has identified the following:[36]
   • (a) each of the Conclave 3 joint reports;[37]
   • (b) all four reports of Mr John Vazey;[38]
   • (c) the second supplementary report of Mr Harry Better as well as his initial "Comments on Valley Span Testing" document;[39]
   • (d) three of Dr Andrew Potts' supplementary reports;[40]
   • (e) the second and third supplementary reports of Dr Andrew Gates;[41] and
   • (f) the (first) supplementary report of Mr Henry Hawes.[42]

SPI says the following reports are also relevant:[43]

(a) the first report, and the first and fifth supplementary reports, of Dr Simon Barter;[44] and

(b) the first report of Mr Henry Hawes.[45]

1. Pole 39 is located on the property of Mr and Mrs Beel. To reach the pole it is necessary to drive past the ruins of their house, which is roughly 100 metres from the pole (located uphill and to the north of the house). Until Black Saturday, the Beels' house was supplied with power from a service line running off the Pentadeen Spur. Their house was destroyed by the fire on Black Saturday and the Beels subsequently relocated to Phillip Island.
2. Pole 38 is located on Mr Philip Sullivan's property. It is bare land, with no dwelling and is not supplied by power from the Pentadeen Spur - although SPI has an easement over a portion of the land where the power line is located.[46] There has, in the course of the trial, been some confusion as to the ownership of this land; Mr Sullivan explained that the property was "in the family's name at the time of Black Saturday and in 2010 the land was subdivided" with the portion on which pole 38 stands being allocated to him.[47]
3. Mr and Mrs Jackson (via a family trust) own a strip of land on the northern side of Saunders Road which separates the Beels' and Mr Sullivan's properties. The dummy conductors pass over their block. They were not customers of SPI in relation to this piece of land; however their house, which is connected to SPI supply, is located on a block on the southern side of Saunders Road.
4. Ms Quinn (Mr Sullivan's sister) and Mr Obeid each own separate parcels of land on the northern side of Saunders Road. A track runs through their land and provides all-weather access to Mr Sullivan's property and, relevantly, pole 38.[48]
5. As will be explained later, I am satisfied on a combination of the evidence of the landowners and Mr Baumgarten that the following landowners' properties were accessed and egressed by SPI for the purpose of the field test:
   • (a) Blanche and Russell Beel;
   • (b) Phillip Sullivan; and
   • (c) Peter and Liz Jackson.

In relation to access of the Jackson property by SPI, this conclusion relies on Mr Jackson's affidavit in which he deposed that Mr Baumgarten told him, on 8 February 2012, that SPI "had needed to go into the valley" on the Jackson's land (the accuracy of which was not challenged by SPI);[49] and, Mr Baumgarten's account of a number of conversations with Mr Jackson.[50]

1. In the absence of direct evidence, I am not satisfied that SPI accessed and egressed the properties of Ms Quinn and Mr Obeid.[51] I note however that in Mr Baumgarten's affidavit he refers to having contacted each of Ms Quinn and Mr Obeid on a number of occasions to advise them of site visits.[52]

The Electricity Industry Act and the Code

1. The EI Act recognises that in certain circumstances, electricity corporations may need to access land to carry out works or inspect distribution infrastructure. Section 93, which is within Part 5 (entitled "Powers of electricity corporations"), reads (in part) as follows:

(1) For the purposes of this Act, an electricity corporation, subject to this Act -

(a) may enter upon any lands and sink bores and make surveys and do any other acts or things necessary for sinking bores or making surveys; and

(b) may, with any equipment or devices, receive, store, transmit, or supply electricity, water, brown coal or products of brown coal over, or under, any land and may enter on any land upon either side of such equipment and fell or remove any tree or part of a tree or any obstruction which in the opinion of the electricity corporation it is necessary to fell or remove; and

(c) subject to the Water Act 1989 may divert water from any waterway, lake, lagoon, swamp or marsh, or alter the bed, course or channel of any waterway; and

(d) subject to the Road Management Act 2004, may enter upon any public or private land or roads and construct any works or place on under or over any such land or road any structure or equipment and may repair, alter or remove any such structure or equipment or any works under its control; and

(e) may do all other things necessary or convenient for constructing, maintaining, altering, or using any works or undertakings of, or under the control of, the electricity corporation.

(a) to a distribution company, transmission company and a generation company holding a licence under Part 2; and

(b) to the holder of any other licence under Part 2 as if a reference in this section to an electricity corporation included a reference to the holder -

(c) subject to the conditions of the licence in relation to the exercise of powers under this section; and

(d) subject to any access code applying in relation to the exercise of powers under this section issued by the Commission.

1. SPI relies upon ss 93(1)(a), (d) or (e) as the basis upon which it was authorised to access and egress the landowners' properties in circumstances which would otherwise be trespass.[53] SPI submits that subsection (a) is operative in relation to initial survey work undertaken in 2011 which was a necessary precursor to the field test;[54] subsection (d) "in terms of private land and constructing any works and altering or removing any structure";[55] and subsection (e) in relation to all other work associated with field test.[56]
2. I did not understand Counsel for SPI to contend that any entry by SPI onto private property was authorised by these provisions. Rather, I understood the submission to be that, for an entry to be authorised, it must have a relationship to the business of the electricity corporation, making it "[f]or the purposes of this Act" and, specifically in relation to s 93(1)(e), a "thing" necessary for constructing or maintaining works under the control of the electricity corporation. Applying that analysis to the field test, it was submitted that entry onto the land for the purpose of the defence of litigation is associated with the supply of power and has the necessary relationship with SPI's usual business to fall within the scope of ss 93(1)(a), (d) and (e).[57]
3. Counsel for Mrs Matthews said this interpretation casts the net too wide and that the EI Act impliedly limits access or egress to matters related to the safe supply of electricity by an electricity corporation. Alternatively it was said that even if the works fell within s 93(1), s 93(5) was engaged and SPI's works were outside the scope of SPI's licence and the Code. The Code was issued by the Essential Services Commission and regulates activities undertaken by electricity distributors to maximise safety, efficiency and reliability. I describe the Code in more detail below at [43]-[45]).
4. If SPI's contention that its works in setting up and maintaining the field test were authorised by the EI Act (and not outside the scope of the Code) is correct then the questions of consent and potential illegality/impropriety fall away. Conversely if the works fall outside the scope of s 93(1) then there is no need to examine the requirements of s 93(5) and the Code. In which case, the next question is whether the landowners' consent was obtained by SPI.
5. I now return to the EI Act.
6. Section 1 provides:

The main purpose of this Act is to regulate the electricity supply industry.

1. Section 85 sets out the definitions which apply to Part 5, including "electricity corporation" which is defined as a "distribution company, a transmission company or a generation company". Section 3 defines a "distribution company" to be a person who is the holder of a licence to distribute electricity. Sections 16 and 18 together require that a person who engages in the generation of electricity for supply or sale must hold a licence authorising the relevant activity.
2. Section 18(1) of the EI Act reads as follows:

A person may apply to the Commission for the issue of a licence authorising one or more of the following activities -

to generate electricity for supply or sale;

to transmit electricity;

to distribute or supply electricity;

to sell electricity.

1. Sections 20 and 21 of the EI Act govern the granting of a licence and provide that a licence is subject to such conditions as are decided by the Essential Services Commission. SPI holds such a licence and is therefore an electricity corporation for the purposes of the EI Act. No other definitions in s 85 of the EI Act assist in the construction of s 93, nor does the Second Reading Speech or explanatory material.
2. Pursuant to s 18(1)(c) of the EI Act, SPI was granted a licence to distribute or supply electricity to particular areas.[58] The following clauses of SPI's distribution licence are relevant:

2.1 Subject to the conditions set out in this licence, the Licensee is authorised to distribute or supply electricity.

2.2 Under this licence, the Licensee may only distribute or supply electricity to supply points located in the Licensee's distribution area.

22.2 As well as complying with this licence, the Licensee must comply with all applicable provisions of:

(d) any guideline, if the guideline itself requires the Licensee to comply or the Commission has informed the Licensee that compliance is required by way of a communication given to the Licensee by the Commission.[59]

1. The purpose of the Code is to regulate the following activities so that they are undertaken in a safe, efficient and reliable manner:

(a) the distribution of electricity by a distributor for supply to its customers;

(b) the connection of a customer's electrical installation to the distribution system;

(c) the connection of embedded generating units to the distribution system; and

(d) the transfer of electricity between distribution systems.[60]

1. However, the Code does not purport to be exhaustive of all rights. Clause 1.8.1 states:

This Code does not set out comprehensively all rights and obligations of distributors, retailers, customers and embedded generators relating to the supply of electricity to a customer's supply address or to or from an embedded generator's supply address.

1. Relevantly, Clause 3.3.2 of the Code reads as follows:

Provided official identification is produced by the distributor's representatives on request, a customer must provide to the distributor's representatives at all times convenient and unhindered access:

(a) to the distributor's equipment for any purposes associated with the supply, metering or billing of electricity; and

(b) to the customer's electrical installation for the purposes of:

• the inspection or testing of the customer's electrical installation for the purpose of assessing whether the customer is complying with this Code; or
• connecting, disconnecting or reconnecting supply,

and safe access to and within the customer's premises for the purposes described in this clause 3.3.2.

1. In addition to the s 93 access rights, s 88 of the EI Act enables an electricity corporation to require the creation of an easement over land. Any such easement is limited in scope to the rights specified in the Schedule of the Act, including access "as may be required for the transmission of electricity" and

use ... for all purposes of and incidental to transmitting electricity safely and economically across such land at any time hereinafter and also to inspect maintain in good and efficient working order [sic].

1. So in summary, ss 93(1)(a), (d) and (e) of the EI Act are broad enough to enable an electricity corporation to enter upon land and carry out those works more specifically described in ss 93(1)(a) and (d), as well as, pursuant to s 93(1)(e), to do all "things" necessary for constructing and maintaining SPI's works. However, exercise of those powers may only be for the "purposes of this Act" (as per the introductory words of s 93(1)) and is subject to the EI Act, including the conditions of a licence or any applicable "access code" (as per ss 93(5)(c) and (d)).[61] SPI's licence[62] requires that it comply with the Code.

Proper construction of s 93(1)(e) - Did the EI Act authorise access to the landowners' properties by SPI for the purpose of the field test?

1. The following principles are relevant to the interpretation of the EI Act in the context of this application:[63]
   • (a) In the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.[64]
   • (b) The task of statutory construction involves a search for the objective intention of Parliament and not the subjective intention of Parliament or of Ministers, if such an intention exists.[65]
   • (c) In interpreting legislation, the primary object is to construe the relevant provisions so that they are consistent with the language and purpose of all of the provisions of the statute.[66]
   • (d) The interpretation of legislation should occur on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where provisions are in conflict, the conflict must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve a result. The adjustment may require the Court to determine a hierarchy of provisions.[67]
   • (e) Where legislation may operate to restrict or inhibit long-standing common law rights, it will be construed strictly and only limit those rights if the legislature clearly intended to do so.[68]
2. For two reasons I have concluded that SPI's powers under ss 93(1)(a), (d) and (e) do not extend to giving it the right to access and egress the landowners' properties for the purpose of the field test.
3. First, the EI Act read in context does not give an unfettered right to SPI to access private land. It can be accepted that ss 93(1)(a), (d) and (e) give SPI the power to enter private property; however, such a power is confined to works carried out for the "purposes of the Act". Accordingly the scope of these subsections in terms of access and egress to the landowners' properties is necessarily limited.
4. I also accept, as SPI submitted, that the purpose of the EI Act, in regulating the "electricity supply industry", involves more than the supply of power to customers; it includes matters such as price regulation, distribution licences, terms and conditions of the sale and supply of electricity, separation of the generation, transmission and distribution sectors, protection of critical electricity infrastructure, powers of electricity corporations, and electricity supply emergencies.[69]
5. Whilst the EI Act does not contain any express limitation upon the exercise of the power such as to exclude works which have no relationship to the supply of electricity, the absence of such a provision cannot authorise every conceivable activity that SPI employees or agents carry out on private property. There is nothing in the scheme of the EI Act which demonstrates that Parliament intended to confer an unrestricted right of access upon an electricity corporation by words as vague and general as those in sub section (e). There must be a logical limitation consistent with the scheme of the EI Act and in particular the licence held by SPI to distribute or supply electricity.
6. The powers given to SPI by s 93(1) are subject to the conditions of the licence: s 93(5). SPI's licence granted under s 18 of the EI Act does not expressly place any limitations on the exercise of power conferred by s 93 (except by requiring compliance with the Code). However, the licence solely authorises SPI to distribute or supply electricity. In other words, on the issue of the provision of power to its customers, s 93(1) does not authorise activities except those which relate to the distribution or supply of electricity.[70]
7. I am not persuaded by SPI's submission that preparatory works for, and the construction and undertaking of the field test, are part of the usual business of a distribution company and within the scope of ss 93(1)(a), (d) and (e). As has been demonstrated, the sole purpose of the field test was to assist SPI in its defence of this class action. Further, there is no supply of power to the field test spans - the whole setup was artificial. In my opinion such an indirect relationship falls outside the scope of the subsection which must be read in light of the EI Act as a whole and the licence conditions which as I have noted merely authorise the distribution or supply of electricity.[71]
8. SPI's right of entry and access is confined to the business it is licenced to operate. Such a right can only be exercised if it directly relates to the supply of electricity to its customers; not to litigation arising out of that supply. I accept that works which are directed to the safety of the electricity supply would fall within the power given to an electricity corporation _"_to do all other things necessary or convenient for constructing, maintaining, altering, or using any works or undertakings" but no more.
9. In summary, the entry onto land in preparation for and in order to construct and carry out the field test does not fall within scope of ss 93(1)(a), (d) and (e) which are impliedly limited to activities associated with the safe supply of electricity.
10. Second, and equally as important, is the "principle of legality" referred to at [48(e)]: Parliament is presumed not to have intended to limit fundamental rights unless it indicates this i[72]ention in clear terms.72
11. In Coco v The Queen,[73] the High Court expressed the "legality principle" as follows:

The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.[74]

In Coco, the High Court held inadmissible evidence that had been obtained by a listening device that had been placed on private property under a warrant issued pursuant to a state Act which did not itself authorise entry onto private property. Other courts have made similar statements to the effect that when it comes to statutory interpretation, there is a rebuttable presumption that Parliament did not intend to authorise the commission of a tort[75] or interfere with vested property rights.[76]

1. This principle is as strong today as it has been in the past. As I noted earlier, the High Court held earlier this year in Monis v The Queen,[77] that it should be presumed that the legislature did not intend to infringe rights without expressing such an intention with "irresistible clearness."[78]
2. Property rights have long been regarded as fundamental and of a kind deserving of particular protection. In R & R Fazzolari v Parramatta City Council,[79] French CJ said:

Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights.

The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights...

The terminology of 'presumption' is linked to that of 'legislative intention.' As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law.[80]

1. In Plenty v Dillon,[81] the High Court emphasised that a person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises.[82] Plenty reiterates that, notwithstanding the number of statutes which confer power to enter land or premises without the consent of the occupier, the presumption remains that Parliament did not intend to authorise tortious conduct without an express indication of intending to do so.
2. Notwithstanding the limitations imposed on the powers under s 93(1) by s 93(5), there is no "irresistible clearness" that the power under ss 93(1)(a). (d) and (e) was intended to provide close to an unfettered right to access and egress private property - conditional only upon a tenuous and artificial relationship to SPI's business. I do not accept the submission of SPI that there is no ambiguity in the interpretation of s 93(1)(a), (d) and (e). Clearly the extent of the power under those subsections is ambiguous. In any event it is not a question of ambiguity but one of clarity: did the legislature intend with the requisite clarity to permit acts of trespass by an electricity corporation for purposes unconnected with the safe supply of electricity to its customers? The answer must be in the negative. An interpretation of the EI Act that avoids interference with landowners' property rights and does not authorise the commission of a tort should be preferred. If the legislature had intended for electricity corporations to be able to access a landowners' property for any and all purposes (including those which relate to the preparation or defence of litigation), it would have expressly said so.
3. In summary, the words of ss 93(1)(a), (d) and (e) are far too broad and imprecise to authorise an electricity corporation to enter private property for any purpose, or for a purpose unrelated to the supply of electricity.
4. Sections 93(1)(a), (d) and (e) of the EI Act did not authorise SPI's entry onto the landowners' properties for the purpose of the field test. It follows that it is not necessary to consider the effect of s 93(5) of the EI Act nor the application of clause 3.3.2 of the Code with respect to Mr Jackson.
5. It also follows that if SPI wished to access land for reasons solely connected with this litigation, it was incumbent upon it to obtain the consent of relevant landowners - otherwise its entry amounted to trespass.

The second issue: The consent of the landowners to the carrying out of the field test

1. SPI says that it had the consent of the landowners to access their land for the purpose of the test. Alternatively, the landowners acquiesced to its entry. Three of the landowners say otherwise: the Beels, the Jacksons and Mr Sullivan.
2. Mrs Matthews submits that SPI:
   • (a) acted illegally in that it trespassed onto the landowners' properties for the purpose of erecting and conducting the field test. She says that if permission was obtained from the landowners, it was obtained on a false pretence; and
   • (b) acted with impropriety in cutting off the electricity supply to the Jacksons' property on 8 February 2012.[83]

Correspondence between Maurice Blackburn and HSF concerning the field test and the landowners' consent

1. The question of whether SPI obtained the landowners' consent to enter their land for purposes related to the field test was first raised by Mrs Matthews' lawyers, Maurice Blackburn, by letter to SPI's lawyers, HSF, on 17 April 2012.[84] Between this date and 12 March 2013 (inclusive), over twenty letters were exchanged between Maurice Blackburn and HSF which raised this issue.[85]
2. The landowners' consent (or lack of it) to SPI's entry was originally the basis for an ongoing discovery feud between the lawyers over SPI's claim for privilege over communications surrounding the set-up and conduct of the field test. It had been agreed that the data from the test would be provided to Mrs Matthews but Maurice Blackburn wanted related correspondence as well as specific discovery of the files of Mr Baumgarten (the "Baumgarten materials"). The question of lack of consent went to an argument under s 125 of the Act.[86] This dispute was ultimately the subject of a number of hearings before Derham AsJ.
3. Below I have set out what I consider to be the important parts of the dispute between the solicitors over the question of consent.
4. On 11 April 2012, Maurice Blackburn (its lawyers having observed the test span on a view) wrote to HSF raising the issue of the test for the first time:[87]

We are advised that your client has recently undertaken works on the Valley Span, which appears to have involved the construction of three additional conductors between, the original, pole 38 and pole 39 on the Pentadeen Spur. We further understand that the configuration of the additional conductors are such that they are unlikely to be intended to distribute electricity along the Pentadeen Spur in the normal fashion.

Can you confirm whether or not your client has undertaken construction work on the Valley Span for purpose of undertaking experiments, testing or measurements. If so, please provide details as to the nature of any such experiments, testing and measurements including, the commencement and anticipate completion date and when your client intends to discover any documents relevant to same.

Mr Watson confirmed that the information regarding consent in this letter did not come from the landowners.[88]

We confirm that work is being undertaken on the Pentadeen Spur between poles 38 and 39 for the purposes of the current proceeding. To the extent that documents relevant to this work were located in the repositories the subject of our client's discovery obligation, they have been discovered and are the subject of a claim of legal professional privilege.[89]

1. By letter dated 17 April 2012, Maurice Blackburn raised (among other things) the question of the landowners' permission for the works:

We would have considered it prudent for your client to have notified the other parties that it intended to undertake works on the original pole 38 and pole 39 for the purposes of the current proceedings prior to doing so.

We also seek the immediate production of the landowners' authorisations for your client to conduct work on the Valley Span for the purpose of legal proceedings.[90]

1. On 27 April 2012, Maurice Blackburn wrote to HSF:

... we repeat our request for immediate production of landowners' authorisations for your client to conduct work on the Valley Span for the purposes of legal proceedings.[91]

1. On 11 May 2012, Maurice Blackburn wrote to HSF:

Further, as previously requested in our letters of 17 and 27 April 2012, we again ask that you provide by way of discovery any notifications given to, or permissions received from, the owners of the land on which Poles 38 and 39 are located, in respect of your client's entry onto the land to do the works which resulted in the installation of additional cables and other fixtures on each pole which your counsel confirmed are related to testing being undertaken of the Valley Span.[92]

1. On 14 May 2012, Maurice Blackburn wrote to HSF:

Further, we again ask that you provide, by way of discovery, any notification given to, or permissions received from, the owners of the land on which pole 38 and 39 are located, in respect of your client's entry on to the land to do the works which resulted in the installation of additional cables and other fixtures on each pole, which your Counsel confirmed are related to testing being undertaken by your client on the valley span.

We note that this is the fourth occasion upon which we have made this request and we would request the courtesy of a reply.[93]

1. HSF eventually responded to Maurice Blackburn's enquiry as to consent on 16 May 2012 and said:

5. Notifications / permissions regarding access to poles 38 and 39

We had understood our position on this matter was clear.

In any event, we confirm that in completing our review of documents in the Protocol Repositories, our approach was to treat any document relating to the Valley Span testing as relevant and discoverable. Following receipt of your correspondence regarding the Valley Span testing, we have run further searches to ensure that such documents, including documents recording or relating to notifications and/or permissions regarding access to poles 38 and 39 for the purposes of the Valley Span testing have been discovered. Those searches have revealed a small number of further documents (comprising emails and attachments to those emails) which relate to the Valley Span testing and are the subject of a claim for legal professional privilege. We propose to discover those documents by way of a supplementary list by the end of this week.[94]

1. I interpose here that the position in relation to permission for access was anything but clear. The general responses by HSF did not in any way address the issue squarely. SPI's position was as opaque after this letter as it had been before it.
2. In relation to the letter of 16 May 2012, Ms Overington said in her evidence:

My recollection is that we wanted to double-check that correspondence regarding land owner communications was captured because at the time I think we were unsure as to whether that would be relevant to matters in issue in the proceeding and given that it had been raised, we wanted to just go back and double-check that for the avoidance of any sort of confusion we had included them erring on the side of - that they were relevant rather than not relevant.[95]

1. During cross examination, I asked Ms Overington whether any of HSF's earlier correspondence (not listed above, but during the same period) squarely addressed the question raised by Maurice Blackburn as to whether SPI had landowner consent. Ms Overington said the following:

I think in the earliest correspondence we confirmed that any document at all relevant to the test would have been discovered and would be discovered to the extent it was in the files we were required to review and that would extend to authorisations and evidence of consent, although the earlier correspondence may not have specified that that's what documents relating to the field test would have captured.[96]

1. Maurice Blackburn responded to HSF on 18 May 2012 and said correctly:

The response provided in your letter of 16 May 2012 is far from clear but we shall defer our response until we have considered the supplementary list which you indicate will be provided today, 18 May.[97]

1. Ms Overington confirmed that SPI made searches and discovery as a result of a discovery order made in August 2012 and that this included some of Mr Baumgarten's correspondence - but not his personal files or those in his mail box.[98]
2. The issue of consent was next raised by Maurice Blackburn by letter of 23 November 2012:

We have previously asked your clients to produce permits pursuant to which it entered the Beale [sic] and Sullivan properties to set up the test. The request was made on several occasions and, but [sic] no documents were produced.

As you will be aware, your client is entitled to access its assets on a customer's premises only for the purposes of supply, metering or billing of electricity (see 3.3.2 of Electricity Distribution Code). Setting up infrastructure to conduct a test to support its position in litigation is not one of such purposes.

In the absence of evidence of permission to access the properties, it may be inferred that your client entered the relevant properties without appropriate permission. Such action would be in breach of its statutory/regulatory obligations concerning right of access and would constitute an act of trespass. In such circumstances, no privilege may attach to documents concerning the Valley Span test.[99]

1. HSF responded on 30 November 2012; stating directly (for the first time) as to landowner consent:

Finally, for the avoidance of doubt we also advise that all access to poles 38 and 39 has been conducted with the consent of the landowners.[100]

1. I pause here to note that there is no ambiguity in this response: HSF did not assert that it had a right of access under the EI Act and that consent was not required; instead, HSF asserted, in direct response to Maurice Blackburn's contention that SPI required the consent of the landowners, that it had such consent. This is to be contrasted with the submission it made on behalf of SPI to Derham AsJ in March of 2013:

Given that SPI sought to justify entry onto the land as authorised by the Code or the Easement and the Electricity Act, then the power there conferred may be argued to have been abused, deliberately, by entry without permission or consent. That is, if the lawyers advance the Code and the Easement as the relevant authority, it may be inferred that so too did SPI. But SPI as the electricity distributor could hardly have been in doubt about its powers under the Code and the easement. If, assuming there are no landowner consents, SPI entered the land in purported reliance on the Code, etc, there is the possibility that it did so in deliberate abuse of its power to enter the land for the purposes related to the supply of electricity, the installation of the test conductors having nothing to do with that.[101]

1. Returning now to the correspondence. By letter dated 19 December 2012, Maurice Blackburn said the following:

We have previously asked your client to produce permits pursuant to which it entered the Beale [sic] and Sullivan properties to set up the Valley Span Test. Despite this request being made on several occasions your client is yet to produce any such documentation.

We are instructed by the landowners of the Sullivan property to request details of any consent to access pole 38 provided within the last 12 months. We ask that you provide details of such consent, and any permits to set up the test and/or enter the Sullivan property, by Friday 4 January 2013.[102]

1. By letter dated 9 January 2013, Maurice Blackburn said:

We refer to our letter of 19 December 2012 in which we advised of our instructions from the landowners of the Sullivan property to request details of any consent your client obtained to access pole 38 within the last 12 months.

We have not received a response. Please provide a response by no later than Friday 11 January 2013.

In absence of a satisfactory response, at the hearing on 22 January 2013 we will submit that your client's entries onto land for the purposes of the Valley Span test were unlawful and consequently no privilege could exist in any documents pertaining to the test.[103]

1. HSF responded by letter dated 11 January 2013 and said:

(a) explain the character of the unlawful conduct you propose to allege, namely criminal or civil, deliberate or inadvertent;

(b) outline the facts upon which the allegation is based;

(c) explain by reference to legal principles and authorities, the basis upon which you contend that the alleged unlawful conduct precludes our client from asserting a claim of legal professional privilege in relation to all communications and documents in any way related to the conduct of the field test.

None of these matters has been addressed by you in correspondence to date. Upon receipt of this information our client will consider its position.[104]

1. Maurice Blackburn responded the same day and said:

We have informed you that we have instructions of the owners of the Sullivan property to seek from your client evidence of permissions to enter their land for the purposes of the Valley Span test, which you have asserted your client has.

We have asked you for evidence of such permission on several previous occasions. Please produce it without seeking to delay the matter further.

We do not propose to engage in a hypothetical debate...[105]

No evidence has been filed in support of any allegation that our client has engaged in unlawful conduct. Nor has any proper basis for an allegation of this kind been given by you in your correspondence.

We have advised you of our instructions that the relevant access to poles 38 and 39 has been conducted with the consent of the landowners. In circumstances where you propose to allege unlawful conduct which is contrary to our instructions, it is incumbent upon you to identify an evidential basis for your position. None has been provided to date. In light of our communication of our instructions it is simply not open to assert an inference may be drawn of 'unlawfulness'. Your ongoing failure to provide some substantiation of the allegation of unlawfulness is inconsistent with your obligations under the Civil Procedure Act 2010 (Vic), specifically your obligations under section 20, 22 and 23 of that Act.

We invite you again to put forward affidavit material by noon tomorrow.[106] (emphasis added)

This exchange took place in the context of an ongoing discovery dispute.

1. On 7 February 2013, an agreement was reached between the parties concerning discovery before Derham AsJ so that a list of the documents would be provided to Mrs Matthews. This list was forwarded by way of letter dated 7 March 2013.[107]
2. By letter dated 8 March 2013, Maurice Blackburn said:

We should be pleased if you would advise by close of business Tuesday 12 March 2013 whether your client had any specific consent of the relevant landowners to enter their property for the purpose of the construction of the Valley Test spans. If your client had such a consent please provide a copy of the same.[108]

1. HSF replied by letter dated 12 March 2013 and said:

SP AusNet does not understand why in correspondence the issue of consent continues to be raised. For the avoidance of doubt, as set out in our letter of 30 November 2012, our client's position is that all access to poles 38 and 39 has been conducted with the consent of the landowners.[109] (emphasis added)

1. Again I note that this unequivocal communication (consistent with HSF's advice since November 2012 when it finally responded) was premised upon the existence of consent and did not state that HSF considered SPI to be authorised to conduct the test under the EI Act.
2. In late March 2013, Maurice Blackburn received the Baumgarten materials which included considerable correspondence and internal memos (including records of communication with the landowners) concerning the steps taken by SPI to obtain the consent of the landowners to access and egress their land for the purpose of constructing and conducting the field test. The absence of any written request for permission by SPI or any written consent from the landowners was notable.[110]

SPI access to and egress of the landowners' properties for the purpose of the field test

1. Mr Baumgarten detailed in his affidavit each of the eight field test site visits carried out while he was involved with the test (i.e. between August 2011 and July 2012). This did not cover the site visits which have taken place since July 2012 and, at my request, Mrs Matthews filed a list of all SPI attendances at the Valley Span with supporting references. A total of thirteen were identified:
   • (a) 26 August 2011;[111]
   • (b) 14 September 2011;[112]
   • (c) 12 January 2012;[113]
   • (d) 31 January 2012;[114]
   • (e) 8 February 2012;[115]
   • (f) 29 & 30 March 2012;[116]
   • (g) 9 May 2012;[117]
   • (h) 2 July 2012;[118]
   • (i) 6 September 2012;[119]
   • (j) 29 November 2012;[120]
   • (k) 15 January 2013;[121] and
   • (l) 3 June 2013.[122]

Mr Baumgarten's general approach to contact with the landowners for the purpose of conducting the field test

1. Mr Baumgarten deposed that, prior to the site visits, his view (similar to that of Ms Overington) was that it was not necessary for him to obtain permission to enter the landowners' properties for purposes connected with the field test. He says he formed this view in reliance on an internal SPI document as well as the provisions of s 93(1) of the EI Act (which I set out above at [32]).
2. The internal SPI document, which he received about five or six years ago, was titled SPI Electricity Pty Ltd - Rights to Enter Private Property to Maintain Power Lines.[123] Part of it reads as follows:
   • 1.1 Under existing and past legislation ... SPI ...has right of access onto land to undertake certain works (including the right to construct and maintain power lines). In the past, SECV relied on Section 106 of the "State Electricity Commission Act 1958" for powers to enter land to construct and maintain electric lines and to transmit electricity. SPI ... enjoys similar rights, in accordance with Section 93 of the Electricity Industry Act 2000.

It is therefore NOT necessary for SPI ... to have a formal Easement Right to exercise its powers to enter private land to maintain its private assets.

3.1 As explained, under item 1.0 above, SPI does not necessarily need a formal easement right, for authority to enter a property to maintain SPI power distribution assets, including power lines. SPI does, however, endeavour to discuss issues with landowners, in advance of works, wherever possible.[124]

1. By reference to this and his past experience, Mr Baumgarten deposed that:

I did not think it was legally necessary to obtain any landowner permission or consent to enter onto land for the purpose of the Field Test. In the period I was involved (August 2011 - July 2012), I did not doubt that SP AusNet had the right to go onto land for the purposes of carrying out works in relation to the Field Test. I did not discuss this (SP AusNet's rights to enter onto private land for the Field Test) with my SP AusNet colleagues or anyone else during this period.[125] (emphasis added)

1. During re-examination, Mr Baumgarten said the following:

On my understanding of section 93, sections (d) and (e) was that we had the right to enter on private, public land or roads to install, to maintain, to place, to alter, to repair equipment on our structures and similarly, in section (e) was to do all other things necessary to maintain, construct, alter, et cetera, under section 93, yes.[126]

1. In this context, Mr Baumgarten swore that he followed his "usual practice" in relation to modifications to existing installations when contacting landowners (and other customers who may be affected) in relation to the field test. He described his "usual practice" as follows:[127]

...it has been my practice, as a matter of courtesy and good customer relations, to:

give advance notice to affected landowners and customers;

provide them with information about the timing and impact, so that SP AusNet works would have as little impact on their lives (or businesses) as possible; and

provide my contact details for any queries or concerns.[128]

1. Mr Baumgarten said on most occasions he provided advance notice - usually by telephone. He said that one of the reasons for his contacting the landowners by telephone rather than in writing was because:

telephone conversations present an opportunity for real-time, two way communications. The customer or landowner has the opportunity to raise concerns and ask questions and raise any specific issues or concerns such as livestock, locked gates, electric fencing and land impacts.[129]

Advice from HSF to SPI concerning contact with the landowners about the field test

1. Shortly after his first site visit, on 31 August 2011 Mr Baumgarten sent an email to Mr Karutz (copied to others) in which he said:

As I will need to co-ordinate with the landowners, do you have an idea of the level of detail or otherwise I can provide to these property owners.

They are very aware of our activities in the area and will quickly identify the changes (additional test spans & solar arrays, etc) to these structures; not to mention the planned outage & use of a helicopter to install these spans; I would suggest we are as open as possible without causing concern.

I made this request because I wanted to maintain a good relationship with the landowners by being courteous and not causing them unnecessary anxiety or concern about the works being undertaken by SP AusNet. I wanted to understand what level of detail I could provide to them about the works.[131]

1. Arising out of this, Mr Karutz sent an email to Ms Overington on 2 September 2011 in which he said:

...our field installation guys have raised the following concern:

As I will need to co-ordinate access with the landowners, do you have an idea of the level of detail or otherwise I can provide to these property owners.

They are very aware of our activities in the area and will quickly identify the changes (additional test spans & solar arrays, etc) to these structures; not to mention the planned outage & use of a helicopter to install these spans; I would suggest we are as open as possible without causing concern.

As requested, set out below is a suggested message to be conveyed to the neighbouring landowners.

• SP AusNet is conducting a series of tests of its network equipment.
• The tests are designed to help identify the variety of variables which impact on the performance of network equipment.
  • SP AusNet appreciates your co-operation as it undertakes these tasks. [133]

1. Ms Overington accepted that the first two bullet points of this advice could have been construed to refer to SPI's usual business but said that she meant it to refer to the field test.[134] I find this explanation difficult to comprehend, particularly when it would have been simple to state directly the true purpose of the field test; there is no reference to equipment failure on the Pentadeen Spur, let alone litigation, and only mention of network "equipment" and "performance".
2. During cross-examination, Ms Overington said:

My understanding of the request that was made of me was to explain the level of detail about the test which could be disclosed as part of the performance by SP AusNet of its courtesy discussions with the land owners.[135]

My concern at the time of preparing my response was maintaining SP AusNet's claim of legal professional privilege over all communications regarding the Field test. I was concerned to avoid linesmen disclosing details regarding the test which could lead to a general waiver of privilege.[136]

1. Ms Overington maintained this position in her affidavit and during cross-examination.[137] However, she also acknowledged that telling the landowners about the fact of the test itself would not have led to a waiver of privilege. She said:

I was concerned that in giving a number of points to linesmen that they could take a high level reference to a matter such a[s] that and expand upon it, so I was concerned that it would lead to a broader discussion about the detail around the test which would give rise to a waiver.[138]

1. During her evidence she also said the following of her note to Mr Karutz:

The note sort of gave guidance that the linesmen could disclose that it was a test. It was a test in the very same spot that there had already been a Victoria Police investigation, Energy Safe Victoria investigation, the class action was on foot. It's a natural assumption to think that if there was a test it was possibly connected with this litigation and if that enquiry had come back, then that would have been confirmed. Also, the context for this was that the business understood that it had a legal right to pass through the land, the property of the land owners, to access its equipment for the purposes of putting up a test and so the contact that was being made was over and above that requirement and it was part of a practice that SP AusNet had, in terms of keeping good relations with the land owners and customers...[139]

I must admit, I had assumed that a test - and it was very clear it was a test and that was part of the message that I had recommended be conveyed. It was a test in the very same spot where there had been investigations regarding the failure of that line on 7 February 2009 so it wasn't a large leap to then join the fact of a test with the ongoing investigations, particularly for this class action.[140]

1. On the question of what would have been done if any of the landowners had sought additional information, Ms Overington said:

Had they come back to me and said, "A land owner has asked whether this test is for the purposes of litigation," then they would need to say that it was.[141]

If we had received that sort of feedback, either directly from the linesmen or via a third party solicitor, I would expect that we would have sought to confirm or otherwise that the legal rights permitted SP AusNet to be doing this test and if the court determined that that wasn't the case, then we would have sought an order that we be permitted to go on the land to conduct this test.[142]

1. Returning to the correspondence, Mr Karutz responded to Mr Baumgarten's email on 5 September 2011 and provided him with Ms Overington's three bullet points, stating:

Regarding information to be provided to property owners, the following brief dot points were provided by the solicitor and give nothing away.[143] (emphasis added)

However, Mr Baumgarten deposed that he "didn't end up needing to use these responses" because he was never asked by the landowners as to why the work was being undertaken.[144]

1. During cross-examination, Mr Baumgarten made it clear that he perceived he was limited to these three points in what he could tell the landowners if asked:

...from my point of view, the information that I had there was suitable for what I needed to communicate with the landowners.[145]

His understanding that he could talk about the test spans was that:

they are conducting a series of tests and that was the scope of my responsibilities. If I had a question that was outside that scope, then I could refer it on to Graham Karutz.[146]

Contact between SPI and the landowners regarding the field test

1. I set out below a summary of the advice given by Mr Baumgarten to landowners in relation to the site visits in which he was involved. Before I do so, the following observation can be made: consistent with his instructions from Mr Karutz and his own understanding of SPI's powers, Mr Baumgarten did not tell the landowners the purpose of the test nor did he ever, in terms, seek their consent to enter their properties.
2. In advance of the first site visit, on 26 August 2011, Mr Baumgarten swore that he contacted Mr Sullivan and Mr and Mrs Beel by telephone. To the best of his recollection, he said words to the effect of:

I would like to enter your property in Kilmore East in the next few days so that I can look at the overhead power lines and poles. If you have any concerns, please call me on my mobile, which is ...[147]

He did not contact the Jacksons at this point (or, indeed, in relation to any of the site visits prior to 8 February 2012) because he was not aware that they were relevant landowners.[148]

1. In advance of the site visit on 14 September 2011, Mr Baumgarten deposed that he contacted Mr Sullivan and the Beels. He says, in essence, that his message was that SPI "needed access" to their land "to carry out works on the poles and power line", that access was required "for heavy vehicles and equipment", and that they "might want to make arrangements for livestock or horses to be moved".[149]
2. Mr Baumgarten's affidavit does not refer to the site visit on 12 January 2012.
3. In advance of the site visit on 31 January 2013, Mr Baumgarten called the Beels and advised that "people would be on site later today"; he does not recall contacting Mr Sullivan.[150]
4. In advance of the site visit on 8 February 2012, Mr Baumgarten said that he called Mr Sullivan and the Beels. He says he conveyed the following message:

We need access to your land in to carry out works and testing on the power line and poles.

There will be a helicopter operating in the area on Wednesday the 8th of February from mid-morning to early afternoon. The helicopter will be assisting our linesmen to install a number of temporary spans.

Please call me on ... if you have any queries or concerns.[151]

Mr Baumgarten also sent a follow-up email to the Beels in which he said:

... I would like to advise that SP-AUSNET will have a Helicopter working in the area between Poles 38 & 39 during the power outage next week.

I would like to advise that you may need to make provision for stock that may otherwise be disturbed by the operation of this helicopter; please make appropriate arrangements.

If you need to discuss, please give me a call on the below listed number.[152]

1. Mr Jackson received an outage notification in advance of the 8 February 2012 site visit. This notification concerned his property south of Saunders Road which was going to be subject to a planned power outage due to the works.[153] It said:

As part of our network improvement program, we will be conducting essential work in your area.[154]

To an enquiry by Counsel for Mrs Matthews as to the accuracy of this statement, Mr Baumgarten explained that this notice contained the generic statement that is included in all interruption notices.[155]

1. Mr Jackson says that on 8 February 2012, he heard a helicopter and saw several vehicles on Mr Beels' property near pole 39. He drove to pole 39 with Mr Bill West, a local newspaper editor, and spoke to a person who identified himself as an engineer (it transpired that it was Mr Baumgarten).[156] He was given a business card and explained that, "as part of the works that they were doing, they had needed to go into the valley, which was on our northern land".[157] Mr Jackson says that he is "clear that the engineer did not tell me that the purpose of the works ... was to do with the class action litigation".[158]
2. Mr Baumgarten deposed that Mr West asked him several times for details of the works to which Mr Baumgarten said he was not able to say anything more, however, he did say that the SPI communications team would speak with him.[159] Mr Baumgarten's evidence did not contradict Mr Jackson's on this point.[160] Below is a copy of the article written by Mr West and accompanying photograph, published in the Kilmore Free Press on 10 February 2012. Mr West was not challenged on the accuracy of his article.[161] It will be observed that, consistent with the "give nothing away" approach, neither the Kilmore Free Press, nor the landowners, were appraised of the true purpose of the field test.

1. Mr Baumgarten deposed that after his encounter with Mr Jackson, he called Mr Jackson the following day and:

...told him that the works were for testing on the power line and poles and that we were installing test conductors. I told him that unfortunately we didn't get everything done the day before, so we may need to come back in the future. I told him I would keep him advised and give him notice so that he could move horses or livestock if he needed to.[162]

As to whether he could have told Mr Jackson that the work was associated with the bushfire class action he said:

Again, it was outside my scope of responsibility so I was unable to let him know that information.[163]

1. Mr West's account of 8 February 2012 accords generally with that of Mr Jackson and Mr Baumgarten.[164] Although Mr Baumgarten said that he arranged for SPI's communications person to provide information or contact Mr West,[165] Mr Baumgarten did not know whether this occurred[166] and Mr West said that he was not contacted further by anybody from SPI with details of the works.[167]
2. In advance of the site visits on 28 and 29 March 2012, Mr Baumgarten contacted the Beels advising that:

We will be entering your land in Kilmore to carry out works on the power pole on your property.

The works will involve an EPV [Elevating Platform Vehicle] and a light vehicle, later this week on Thursday or Friday.[168]

Mr Baumgarten deposed to having called the Jacksons to advise that "Some of our personnel are going to visit later this week ... to inspect the test spans and attach additional equipment to the pole";[169] he does not depose to having contacted Mr Sullivan about these site visits.

1. In advance of the site visit on 9 May 2012, Mr Baumgarten called the Jacksons and advised that "our personnel will be accessing power pole 38 through your property tomorrow".[170] He could not find a record of contacting Mr Sullivan, describing it as a possible oversight.

Mrs Beel's evidence regarding contact from SPI about the field test

we were not at any stage informed by anyone from SP Ausnet, either in writing or by telephone, that the works being undertaken at Pole 39 on our Kilmore property in 2011 and 2012 were to erect a test line which was to be used by SP Ausnet in its defence of the Class Action proceedings. If I had been informed by SP Ausnet that that was the purpose ... I would not have allowed them to come onto our land and erect the additional spans and the relevant equipment. I may also have sought advice on my position from Maurice Blackburn.[171]

1. During cross-examination, Counsel for SPI asked Mrs Beel:

If you had been told expressly that the test spans were being used to gather data for the purposes of the legal proceeding, would you, if you had been told that, have spoken to Maurice Blackburn about how you could react to that? --- I would have said no and then I would have gone - I am sure I would have gone and got some legal advice if I was able to say no, but nobody did tell us about it. Nobody mentioned it.

You would have gone off and got some advice from Maurice Blackburn about it? --- I would have said no to them and then gone off and got some advice as to have I done the right thing because you didn't know what you could allow. At that stage everyone was coming on to the property and you didn't know who was - who could be there and who couldn't be there but I would not have allowed that.

If Maurice Blackburn had told you, "Let's wait and see what the actual results from these tests are before we form a view about it", what would your response to that have been? --- If they had have told me I probably would have taken them at their word and said - I don't really know. It's a bit hard. I have got to think about it and I don't really know what I would have said at that time because I was very upset - now that I have been told because I didn't know then when they just say, "We are going to do this, we are going to do that" and you just said, "Okay, okay". Because everything was being done... from all different places. The police were up there, SP AusNet kept saying, "We have to check a pole. We have to do this, we have to do that" and we just allowed it not knowing what we could allow and what we couldn't allow but if they told me for the express purpose of the class action against - I would have said, "No, not until I get some advice" and if I had been told I had to do it I would have allowed them on to the property. If I had to.[172] (emphasis added)

1. I accept Mrs Beel's evidence unreservedly. Mr Baumgarten's communications intimated, as I believe they were intended to, that these works were directed to SPI's business of the supply of power and, deliberately avoided any mention of this litigation. References to test spans were shrouded by other references to works and tests consistent with the instructions he had from Mr Karutz "to give nothing away."
2. Mr Baumgarten said that, on each of the occasions when he gave advance notice of the site visits, he:

understood landowners to all give permission either expressly (by saying "OK" or "That's fine") or by not raising any objection with me.[173]

He also deposed that he has never received any oral or written objection to the field test from any of the landowners.[174]

1. It is helpful now to examine, briefly, the authorities relevant to trespass, particularly those where the purpose of entry is not that which was authorised by the landowner or occupier.
2. In Plenty, Gaudron and McHugh JJ said:

The policy of the law is to protect the possession of property and the privacy and security of its occupier. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises.[175]

Their Honours went on to say the following of an implied licence to enter property:

Consent to an entry is implied if the person enters for a lawful purpose. In Robson v Hallett, Lord CJ said:

"the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps and knock on the door of the house"

... the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is the trespasser.[176]

1. SPI had no express consent from the landowners. Its contention that it had implied consent is dependent upon the absence of objection - said to be tantamount to consent or acquiescence. However such a proposition can only be made out if the landowners knew what SPI was doing when it attended the Pentadeen Spur to erect and conduct the field test. In Barker v R[177] Mason J said the following:

The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession_. If the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass. Thus a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if he enters for any other purpose, especially if that other purpose be an unlawful purpose._[178] (emphasis added)

Macfarlan JA of the NSW Court of Appeal in Dean v Phung[179] referred to this part of the judgment of Mason J. Dean v Phung involved the issue of trespass to the person - a dentist performed works which went beyond the scope of the patient's prior consent or agreement and did so for the purpose of financial benefit. In that case, the dentist was found to have committed a trespass as he acted outside of the scope of the consent given by his patient.[180]

It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of that authority then he stands in no better position than a person who enters with no authority at all.[181]

1. In Barker, Brennan and Deane JJ said the following of specific permissions to enter land (as opposed to permissions granted by general law):

Such a permission may be subject to express or implied limitations regarding the time, place, manner or purpose of entry. If it is so limited, it will operate only to authorize an entry which comes within the scope of its limited terms. ... [However] If it is a general permission to enter in the sense that it is not limited, either expressly or by necessary implication, by reference to the purpose for which entry may be effected, it is not legitimate to cut back the generality of the permission to enter merely because it is probable that the grantor would, if the matter had been raised, have qualified it by excluding from its scope any entry for the purpose of committing an unauthorized act. When the permission is not in fact so limited, an unanticipated or illegitimate purpose on the part of the entrant does not, at common law, affect the status of his entry or make him a common law trespasser.[182]

Common sense indicates the answer that entry will be as a trespasser if, as a matter of substance and fact, the entry in question is beyond the scope of the permission ... When the only suggested justification for entry is the permission of the person in possession, the question whether entry was as a trespasser involves no more than identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission. If the permission was not subject to any express or implied limitation which excluded the entry from its scope, the entry was not as a trespasser. If the permission was subject to an actual express or implied limitation which excluded actual entry, the entry was as a trespasser.

... Except where an authority under the general law or a question of construction of a written document is involved, the identification of the limits of the authority, like the definition of the actual entry for the purpose of ascertaining whether it comes within those limits, is essentially a question of fact to be determined by reference to the circumstance of the particular case.[183]

1. The decision in Plenty also concerns the primacy of private property rights, even where the trespass has caused no damage.[184] The trial judge had characterised the trespass as "of such a trifling nature" as not to warrant an award of damages; Gaudron and McHugh JJ disagreed, saying:

... once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant's land against his express wish. True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land.[185]

Although in Plenty the entry occurred against the express wishes of the plaintiff, it is the right of a landowner to the exclusive use of land that is of importance for this application.

1. The primacy of property rights was recently considered by the Court of Appeal in R v Marijancevic.[186] In that case, the accused were charged with offences relating to drug trafficking and manufacture. Affidavits relied upon to obtain warrants which were used to obtain much of the prosecution evidence had not been properly sworn. The Court of Appeal upheld the trial judge's finding that each of the entries onto the land and premises were therefore unlawful and constituted trespass and that, as a result, the evidence was inadmissible. Warren CJ, Buchanan J and Redlich JJA said:

A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights. As the High Court said in George v Rockett:

the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to [property] interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislature.[187]

1. I return now to this case and the evidence of Mrs Beel as being illustrative of the landowners' knowledge. As I mentioned a moment ago reference to test spans by Mr Baumgarten, was of no real guidance to the Beels. Mrs Beel, understandably, took it for granted that the occasions upon which SPI personnel utilised the Beel property was something which SPI was entitled to do. It did not occur to her that the test was outside the bounds of SPI's usual business or that it related solely to the class action - because SPI obfuscated the true basis for entering her property. In circumstances where SPI owned and controlled electricity assets on the Beels' property, where its employees or contractors had been coming and going regularly after Black Saturday (as Ms Overington stated), and where SPI had given no indication that the test was outside of SPI's usual business and solely related to the class action, this is unsurprising. Indeed, I think in the circumstances the natural conclusion for any person in the shoes of the landowners would have been the same.
2. I also accept Mrs Beel's evidence that, if she knew the test was for the purposes of the class action (and, I infer, if she were given some indication or suggestion that she had a right to refuse access), then she would have sought legal advice.
3. The result is that it is crystal clear that at no time did Mrs Beel, or her husband, consent impliedly to any form of access by SPI to their property, let alone access for the purpose of this litigation. She simply assumed that it had the right to do so. The same conclusion holds good for the Jacksons and Mr Sullivan. I accept the evidence of Mr Jackson and Mr Sullivan. Where there is a conflict between the evidence of these three witnesses (Mrs Beel, Mr Jackson and Mr Sullivan) and Mr Baumgarten as to their understanding of the nature and purpose of the SPI works, I accept the landowners' evidence for the reasons I have set out.
4. The absence of objection by the landowners is a furphy. SPI did not tell them the true nature of the field test, instead describing it as works to improve network performance. I am satisfied that the landowners were deliberately kept in the dark by SPI as to the real purpose of the field test. As the authorities demonstrate, for there to be consent (express or implied) there must be an understanding of the true purpose of the entry. Because of SPI's actions there was no such understanding.
5. I am certain that no implied consent for entry onto their properties for the purpose of the carrying out of the field test was ever given by the landowners.
6. SPI entered the land on each occasion listed at [96] above as trespassers and therefore acted in contravention of the legal rights of the Beels, the Jacksons and Mr Sullivan thus engaging s 138 of the Act.
7. I reach this conclusion only in relation to the landowners, or their representative, who gave direct evidence on this application: namely, the Beels, the Jacksons and Mr Sullivan. As I have already stated, absent direct evidence as to entry by SPI onto the property of the Mr Obeid and Ms Quinn, I am not prepared to infer that such use was made by SPI of their properties. However I repeat that Mr Baumgarten's evidence provides no basis for finding that he took a different approach in relation to his discussions with this group.
8. To avoid confusion my reference to landowners in the subsequent passages of these reasons is confined to the Beels, the Jacksons and Mr Sullivan.
9. Mrs Matthews contended that there was an additional element of impropriety in relation to the cutting off of the Jacksons' power on 8 February 2012 when the three dummy conductors and supporting infrastructure were installed on the Valley Span. Whilst I think it can be inferred that the outage on that day was in connection with the installation of the conductors and had nothing to do with the supply of electricity, consideration of this issue adds little to the gravamen of the complaint against SPI: the unlawful access, on repeated occasions, of the landowners' property. I also note that no mention is made in Mr Jackson's affidavit of damage or inconvenience caused by the outage. I think that this issue can be safely put to one side.

The third issue: Does the desirability of admitting the evidence outweigh the undesirability of admitting it?

1. Once it is accepted that the field test was conducted as the consequence of a trespass, and therefore "in contravention of an Australian law", SPI bears the burden of persuading the Court that evidence derived from it should be admitted.
2. Section 138 of the Act (set out at [10] above) sets out a discretionary approach to determining whether improperly or illegally obtained evidence ought to be admitted. It requires a court to weigh the public interest of having before it all probative evidence against the public interest in "deterring misconduct and maintaining the legitimacy of the judicial sy[188]m".188 Section 138(3) sets out a non-exhaustive list of factors to be taken into account in making this[189]sessment.189
3. The Australian Law Reform Commission, as cited by French J in relation to the equivalent NSW provision in Parker v Comptroller-General of Customs,[190] said :

This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted.[191]

1. In R v Marijancevic[192] the Court of Appeal held that the construction of s 138 highlights the "importance of according appropriate weight to the effect of any impropriety or unlawfulness".[193] In ASIC v MacDonald,[194] Gzell J said, in reference to the s 138(3) factors, that:

no preponderance is ascribed to any one of these matters over others. Each, if applicable, is to be weighed in the balance in favour of exercising the discretion or against it.[195]

1. This trial commenced in early March 2013 and is now in day 112. Since that time, the Court, the parties and the experts engaged by the parties have taken a number of steps which involve consideration of the field test results. It is convenient to briefly set these out before considering the matters contained in s 138(1) and (3).
2. On 18 April 2013, I ruled on the appointment of assessor(s) to assist the Court during the Conclaves 1, 3 and 4 expert evidence sessions (currently scheduled to take place from 13 November to 13 December 2013).[196] On 7 July 2013, a directions hearing was held before Zammit AsJ to discuss the logistics of appointing assessor(s). Following this, her Honour consulted with several of the expert witnesses to identify possible assessors. On 25 September, a further directions hearing was held before her Honour to discuss the question of the retainer and payment of the assessors. On this date, her Honour also made orders appointing two assessors.
3. On 29 April 2013, I ruled that Mrs Matthews be granted leave to rely upon Mr Hawes' supplementary report.[197] This report specifically deals with what Mr Hawes says are frailties which limit the field test's probative value.
4. On 10 May 2013, following an application by Mrs Matthews, I ruled that all parties be granted leave to carry out further tests in relation to the conductor fracture until 19 July 2013 (and file any reports arising out of those tests by 9 August 2013).[198] The experts are scheduled to meet to consider these on the day before the expert evidence session commences in November 2013.

1. In Ruling 29, I set out a table listing all expert reports filed in this proceeding. [199] The following table extracts those that have been filed during or after March 2013. Those reports identified by Ms Overington or Mr Watson as being directly relevant to the field test (as listed above at [25]) are marked with an asterisk)):

Carol Ann Matthews v SPI Electricity & Ors, Kilmore East Bushfire - Causes of Fatigue Failure of SWER Conductor THIRD SUPPLEMENTARY REPORT (Gates Report 5) (EXP.CAM.022.0001)*

Supplementary Expert Witness Report - Mr Henry Hawes (EXP.CAM.017.0001)*

Second Supplementary Expert Witness Report - Mr Henry Hawes (EXP.CAM.024.0001)

Technical Note Kilmore East - Kinglake Bushfires Class Action (EXP.CAM.023.0001)

Third supplementary expert report of Dr Simon Barter (EXP.SPN.130.0001)

Fourth supplementary expert report of Dr Simon Barter (EXP.SPN.140.0001)

Fifth supplementary expert report of Dr Simon Barter (EXP.SPN.150.0001)*

Technical Note: Conductor Strand Testing (EXP.SPN.280.0001)

Further supplementary expert report of Dr Andrew Potts (EXP.SPN.780.0001)*

Further supplementary expert report of Dr Andrew Potts (Potts Report No 5) (EXP.SPN.790.0001)*

Second supplementary expert report of Mr John Vazey (Vazey Report No 3) (EXP.SPN.520.0001)*

Third supplementary expert report of Mr John Vazey (Vazey Report No 3) (EXP.SPN.530.0001 (provided on CD))*

The probative value of the evidence (s 138(3)(a))

1. The first factor identified under s 138(3) is that of the probative value of the impugned evidence. "Probative value" is defined in the Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
2. The issues which the field test is intended to resolve (or assist in reaching a conclusion on) are at the core of the case against SPI and UAM on the issue of causation. These include:
   • (a) did the Valley Span conductor experience Aeolian vibration prior to Black Saturday and, if yes, were the stresses it produced sufficient to cause crack propagation, ultimately causing the Valley Span conductor to fail;
   • (b) did the lack of spiral vibration dampers play a causal role in the failure of the Valley Span conductor on Black Saturday; and
   • (c) did the misaligned helical termination close to pole 39 play a causal role in the failure of the Valley Span conductor on Black Saturday?
3. For the purpose of this exercise it suffices to note that the field test evidence is relevant to:
   • (a) the magnitude and number of stress cycles induced by wind vibration likely to have been experienced by the Valley Span prior to Black Saturday;

(b) the effect, if any, of the misaligned helical termination close to pole 39 on those stress cycles and the life of the conductor; and

(c) the effect, if any, of spiral vibration dampers (if fitted prior to Black Saturday) may have had on those stress cycles.

UAM also says that the field test data is relevant to the Court's determination of the probative value of another test carried out by Dr Havard, an expert engaged by UAM.[200]

1. There are a limited number of decisions on the approach to be taken to the question of probative value under s 138.
2. In Employment Advocate v Williamson,[201] Branson J (with Kenny J agreeing) said of this test: "the greater the probative value the greater the desirability of admitting it".[202] In ASIC v McDonald,[203] Gzell J found that the probative value of the documents obtained as a result of impropriety was "so low as to render the documents of no more than peripheral significance. They lack importance in the proceedings"[204] resulting in their exclusion.
3. Section 135(a) of the Act gives the court a general discretion to exclude evidence on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial. Although it is true, as SPI says, that the task under s 135 is not the same as that under s 138(3), decisions concerning a similar concept are a useful guide in the characterisation of the s 138 discretion.
4. In James Hardie v ASIC,[205] McColl and MacFarlane JJA considered the trial judge's application of s 135(a):

It was necessary that the trial judge assess the probative value of the other analysts' reports and undertake the balancing exercise required by s 135. Unfortunately, we can see no indication that he did so. He described the analysts' reports as "material to an assessment of the circumstances that existed at the time ...", and so must have ascribed some probative value to them. But he did not go further. The documents ... could have been accessed by the trial judge. But his Honour did not wish to be taken to examples of the analysts' reports, and in our view the probability is that he did not do so. If he did not, he could hardly have assessed the probative value of the other analysts' reports. But even if he did, it remains that there is no indication that he assessed their probative value and undertook the balancing exercise.[206]

1. Section 137 of the Act also requires an assessment of the probative value of a particular piece of evidence. It is not a discretionary provision but mandates the exclusion of prejudicial evidence in a criminal proceeding "if its probative value is outweighed by the danger of unfair prejudice to the accused".[207] The Court of Appeal in Dupas v R[208] said:

(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. ...

(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.

(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. ...

(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence that it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.[209]

1. Accordingly, I accept the proposition that it is not enough for a court merely to form an impression of the probative value of the field test. As the authorities relevant to s 135 and s 137 indicate, there must be a systematic analysis of the impugned body of evidence sufficient to reach at least a preliminary view as to its "quality and frailties". However, this assessment must necessarily take place within the limits imposed by the nature of the evidence and the time at which the application is made.
2. In this trial, it is simply not practicable for the expert evidence (of which there are gigabytes) to be examined minutely as though for the final determination.
3. The difficulty of this exercise is not just the size of the body of expert evidence but also its complexity. In Ruling 19 - in which I decided that I required the assistance of expert assessors to assist with the Conclave 1, 3 and 4 evidence - I said the following:

I do not doubt that the experts will provide me with ample explanation. However, I am not confident that I will understand it. True it is that I will have the opportunity to question each of the experts on points of difficulty. But even then, especially where there is disagreement, I may not be able to resolve those questions without some assistance.

... As I mentioned earlier, I have been assisted by the presentation of two highly qualified experts. Those presentations left me with a greater understanding of the issues that I have to determine. But they also gave me an insight as to the problems I would face in endeavouring to resolve technical disputes in this matter without assistance.

1. Accordingly, whilst it is necessary to examine the expert evidence systematically this can only be done at a level of generality, looking to the conclusions which the experts currently say may or may not be derived from the field test data.
2. Mrs Matthews argued that, even at this stage I should find that the probative value of the field test is low for the following reasons:
   • (a) the test conductors are new and so are subject to more self-damping than the Valley Span conductor would have been;
   • (b) the Valley Span structure has been significantly altered since Black Saturday;
   • (c) the field test does not use exactly the same hardware as was fitted to the Valley Span conductor at Black Saturday;
   • (d) the test spans are strung at a lower height than the Valley Span conductor which means they are subject to more turbulent airflow (which is relevant to the experience of Aeolian vibration);
   • (e) the test spans are unlikely to be strung at the same/a comparable tension to the Valley Span conductor at Black Saturday;
   • (f) the position of strain gauges fitted to the dummy conductors in relation to the distal end of the helical termination (that this could reduce the magnitude of Aeolian vibration-induced stresses); and
   • (g) the configuration and use of strain gauges which measure tension and bending stresses only.[210]

Mrs Matthews submits that these issues - "the quality or frailties" of the field test - severely limit the degree to which evidence derived from it can assist in the determination of facts in issue.

1. But the statements made by Mrs Matthews' lawyers in the course of the various hearings considering expert evidence and the relevance of the field test belies this suggestion. For instance, before Zammit AsJ on 28 November 2012, Counsel for Mrs Matthews said:

Now, a lot of reliance is placed, it seems, on the Vazey test material. And the

plaintiff will be anxious to be in a position to respond from the word go at the

trial to any criticisms that can be made of the Vasey [sic] test on the basis - or

arising from whatever material we get access to regarding the way in which

the test was set-up. But if this issue's not dealt with until January [2013], we

are at a real disadvantage of (sic) the time when the trial is being opened in being in a position to say anything about the Vasey [sic] test.[211]

1. Later, in March 2013 in her opening submission to this trial, Mrs Matthews said:

Evidence will be presented that a proper examination of these events reveals

that they occur when the test spans are experiencing aeolian vibration which resonates with conductor fittings and the pole.[212]

1. In her submissions in relation to the issue of the consent of the landowners to the test filed on 14 March 2013, Mrs Matthews' lawyers said of the importance of the field test to SPI:

3.1. SPI's vibration defence relies substantially on the results of a field test ("the Valley Span test"), reports by its independent expert Mr John Vazey. Indeed, in opening submissions counsel for SPI said that "[we] say the whole debate now comes down to the Vazey field tests."

3.4 SPI's experts Mr Vazey and Dr Barter rely heavily on those results to suggest that the conductor failure could not have occurred by the mechanism alleged by the Plaintiff (ie by Aeolian vibration), because the Valley Span test is not detecting levels of stress sufficient to have caused the failure and it must therefore have been some other (as yet unestablished) mechanism that cause the conductor to fatigue and fail. The Valley Span test therefore forms the keystone of SPI's vibration defence.[213]

1. At a hearing before Derham AsJ on 15 March 2013, Counsel for Mrs Matthews said:

Mr Keogh: In that regard we emphasise that the vibration case is central to the plaintiff's prosecution of the claim against SP I The valley span test is central to SP I's defence of that aspect of the plaintiff's claim and that is confirmed by senior counsel for SP I in opening, and this is recorded at para 3.1, where he says, "We say the whole debate now comes down to the Vazey field tests".

Mr Keogh: I apologise, Your Honour, that was the science presentation [before Forrest J on 25 February 2013] rather than the opening but I don't think in respect of this proposition that there's any debate. Whilst those words might not have been used in opening, the sentiment was certainly pursued in opening ...

1. And, on Day 18 of the trial when Senior Counsel for Mrs Matthews gave reasons as to why SPI should continue conducting the field test:

... it would be of value, or the test is potentially of greater value if it continues for a 12 month period because the different wind events have a seasonal aspect, and if you are missing out on a large part of the cooler months, the winter months, then you are potentially missing a period in respect of which Aeolian vibration may be felt to a more significant degree.[214]

1. Turning now to the expert opinions, the joint reports of the Conclave 3 experts (retained by Mrs Matthews, SPI and UAM) demonstrate the importance of the data from the field test (overseen by Mr Vazey).
2. In the first joint report[215] the following was said (I have noted the number of Conclave members in agreement with each of the propositions below):

(b) The test spans were designed to gain field data that could be used to understand the loading on the incident span, although aspects of the original conductor could not be exactly replicated due to fitting differences and the unknown loading conditions ... Nevertheless, though not definitive in their currently presented form, the tests have given reasonable insight into the following. [Agreement by 7/8 of the members]

1. Various frequencies of the cyclic loads that could have occurred to the original span. [Agreement by 7/8 of the members]
2. Magnitudes of the various types of cyclic stresses at the measured locations on the test spans. [Agreement by 6/8 of the members]
3. State of loading at the measured locations on the test spans ... [Agreement by 8/8 of the members]
4. Effect of the ill-seated termination ... on the magnitude or otherwise of dynamic loads ... [Agreement by 6/8 of the members]
5. The effect of a spiral damper on the stresses at the strain gauges ... [Agreement by 7/8 of the members][216]

1. In the second joint report[217] the following is said:

7.1 The Pentadeen spur trials were designed to differentiate the significance of the misaligned helical termination and the fitting of a damper. Notwithstanding its limitations, the field trial has been very useful in providing insight into the nature of the stresses likely to have occurred on the original span on the Pentadeen Spur. [Agreement by 8/8 of the members]

7.3 The early Vazey data [i.e. the field test data] did not provide clear evidence of cyclic stress ranges ... of sufficient magnitude to exceed the current estimated stress threshold for fatigue. However, more recently supplied data has revealed occasional episodes of vibration of magnitudes approaching the identified threshold ... [Agreement by 8/8 of the members][218]

1. In that report, six of the eight experts agreed that:

To date, the observed aeolian events occur on occasion over a very limited range of wind speeds of up to around 15km/h. The stress magnitude of the aeolian vibration for the majority of the time appears to be 1 to 2 MPa which is consistent with the single mode VIV bending modes predicated by Potts (see Potts Report #2). ([7.22])

and seven of the eight experts agreed that, although the field test data had detected Aeolian vibration, the stress range was typically 1-2MPa with some other forms of vibration causing stress ranges in the order of 60MPa.[219]

1. In addition, six of the eight experts also agreed that stresses from 70-120MPa were required to initiate crack propagation and that, even for advanced cracks at least 30MPa would be required. Five of the experts also agreed that "Cyclic stress ranges of 30 MPa are significantly greater than stress magnitudes that have thus far been found to be possible for VIV".[220]
2. For the purposes of the third joint report,[221] Mr Vazey was asked to examine the field test data to determine the amplitude of stress and displacement during "Aeolian excitation" as a function of vibration frequency and wind speed.[222] Five of the eight experts reached the conclusion that:

aeolian VIV is not excited at wind speeds in excess of 15km/hr. It is most likely that higher wind speeds are more turbulent and consequently prevent sympathetic aeolian VIV in significant sections of the conductor. The result is consistent with previous investigations of the Field Trial data.[223]

1. In relation to Aeolian vibration observed via the field test, all eight of the experts agreed in the third joint report that:

The stresses measured in the field trial from this phenomenon [Aeolian vibration] were found to be insufficient to cause or contribute to the fatigue crack growth. The maximum stress ranges (that were clearly associated with aeolian VIV) observed in the trial to date have been 12 to 14MPa.[224]

1. Five of the experts agreed that because of differences between the Valley Span conductor and the field test conductor spans, it is possible that higher magnitude Aeolian vibration could have occurred. However, they also say:

If for example it is believed that the threshold stress range for commencement of fatigue cracking is 90MPa then it would be necessary for the incident conductor to have experienced a 7- or 8-fold increase in VIV-associated stresses before this VIV could have contributed to fatigue.[225]

1. In relation to vibration dampers, in the second report three experts concluded that "it appears unlikely that the fitting of spiral vibration dampers would have significantly altered the ultimate failure of the conductor" whilst four others responded saying there was insufficient data "on the effect of spiral vibration dampers on low-frequency high amplitude conductor motions ... to give a categorical statement about the need for them in this context".[226]
2. On this topic of vibration dampers, the third joint report considers a number of "transient events" recorded in the field test data, described as "[o]ccasional high intensity bursts of high frequency bending".[227] The report appears to suggest disagreement between the experts as to whether some of these transient events show waveforms similar to those produced by Aeolian vibration.[228] On this question however, six of the experts agreed that:

It appears most likely that fitting of spiral dampers will not prevent excitation during the impulsive events, as impulsive events have occurred on all of the test conductors, even Conductor C with a spiral damper fitted, both at the same time and independently.[229]

1. Pausing here I consider that this analysis of the expert evidence, without any more, demonstrates the potentially high probative value of the evidence obtained from the field test. I will now briefly mention some of the specific matters addressed by Mrs Matthews.
2. In relation to the strain gauges, whilst Drs Gates, Meehan, Havard and Better support the proposition, in the second joint report, that the location of the strain gauges could "conceivably reduce the magnitude of bending stresses from Aeolian vibration ... this effect is likely to be minor."[230]
3. In relation to the misaligned helical termination, in the second joint report, seven of the eight experts agreed that:

The Vazey data also did not indicate any deleterious effect on the conductor through the misalignment of the helical termination.[231]

And, based on the field test, as well as other testing and analysis, seven of the eight experts agreed that:

... it is most likely that the misaligned helical termination had no significant effect on reducing the life of the conductor.[232]

1. Whilst I accept that the joint reports do not reveal complete agreement about the utility of the field test or the conclusions to be drawn from the data,[233] the excerpts above indicate a real and not insignificant degree of reliance upon the field test data. The joint reports suggest that a number of the experts use that data to draw conclusions in relation to issues that are at the core of this proceeding: whether Aeolian vibration affected the Valley Span before Black Saturday; if it did what kind of stresses it produced; whether the stresses were significant to cause crack propagation and conductor failure; and whether the misaligned helical termination is likely to have impacted on the conductor failure.
2. I accept that there is a real contest as to the reliability of the field test data. However, to put it colloquially, the jury is still well and truly out on this question, and as has been seen, a number of experts are evidently satisfied that the field test is of real assistance in determining questions related to causation. Further, given the recognised complexity of the evidence Mrs Matthews seeks to exclude it is not appropriate at this point to reach a steadfast conclusion that the evidence lacks probative value when on its face it goes squarely to a number of central issues.
3. I am persuaded that there is a real and significant prospect that this body of evidence could "rationally affect the assessment of the probability of the existence of a fact in issue" and the probative value of the evidence is potentially high in the sense that:
   • (a) the data derived from the field test goes to the core of the case against SPI - if SPI is found to have been negligent in not fitting vibration dampers then whether such dampers would have made any difference is a critical issue to which the field test is squarely directed;
   • (b) the field test is relied upon in the analysis undertaken by a significant number of the experts engaged in this trial, with all parties placing considerable reliance upon expert evidence in determining the matters relevant to Conclaves 1, 3 and 4;
   • (c) the experts appear to be utilising the field test data to reach or fortify certain conclusions in relation to the issues I have identified (the strength of these conclusions and any degree of disagreement between the experts will be explored during the expert evidence sessions, if the evidence is admitted); and
   • (d) the field test data is also relied upon in relation to other alleged aspects of negligence - particularly against UAM (in relation to the misaligned helical termination) which I shall return to in more detail shortly.

The importance of the evidence to the proceeding (s 138(3)(b))

1. The second factor is that of the importance of the evidence to the proceeding. In the main, matters which go to this question overlap with the question of probative value.
2. As I have already noted above at [25], Mrs Matthews and SPI have identified a large number of expert reports which are relevant to the field test. I also note that, as can be seen from the joint reports, a significant amount of discussion between the Conclave 3 experts related to the data from the field test and the use to be made of it.
3. Mrs Matthews acknowledges that if I were to exclude the field test data, any expert opinion relying on it will necessarily fall away.[234] However, she says that the evidence of experts Mr Hawes, Dr Havard and Mr Better, relevant literature, evidence derived from a test conducted by Dr Gates (another expert), and evidence from previous witnesses in the proceeding, may assist in determining the issues - therefore reducing the importance of the field test data.
4. SPI and UAM on the other hand submit that the importance of the field test is evidenced by the fact that, if the test is excluded, there will be no quantitative analysis of the likely influence of vibration on the Valley Span prior to Black Saturday. They say that the Court would only be left with the general and qualitative evidence to be dealt with by Conclave 1 only.
5. I accept the submissions of SPI and UAM. It is not necessary to rehash what I have just said about the probative value of this evidence. An examination of the joint reports, to which I have referred, demonstrates that the field test evidence is of importance to the determination of the case against SPI and UAM.

1. The third factor is the nature of the cause of action: a tort claim based on breach of duty (common law and statutory).

The gravity of the impropriety or contravention (s 138(3)(d))

1. The fourth factor is the gravity of the impropriety or contravention (illegality).
2. To summarise what I have already set out at [136]-[141], the landowners:
   • (a) were not told the true purpose for carrying out the works and why SPI needed to access and egress their land;
   • (b) did not expressly consent to the access to and egress by SPI of their properties; and
   • (c) did not impliedly consent or acquiesce to the access and egress by SPI of their properties.
3. The Court of Appeal in R v Marijancevic[235] identified a spectrum of least to greatest seriousness of impropriety (although notably did so in relation to illegal rather than merely "improper" conduct). The Court stated:

At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct... There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread.[236]

1. The question of prejudice to Mrs Matthews (and the group members) is also taken into account in the consideration of gravity. As Ipp AJA said in R v Helmhout:[237]

I do not see how the gravity can be considered without reference to the consequences of the contravention on the individual concerned.[238]

1. In determining the gravity of the contravention the first consideration is the fact that SPI entered the landowners' properties unlawfully on at least thirteen occasions.
2. Also relevant, I think, is a second matter: the circumstances surrounding those entries.[239] This necessarily includes consideration of the conduct of SPI and HSF (its agent) in this proceeding and relevant to the field test, and particularly in relation to its right to enter the properties of the landowners. The field test was an integral element of its defence of Mrs Matthews' own claim and that of the group members.
3. On the question of the surrounding conduct, the obligations placed on SPI by the Civil Procedure Act 2010 (Vic)[240] are relevant.[241] In the course of its defence of this claim SPI was bound to comply with the overarching obligations set out in Part 2.3 of the CPA. This is not a mere legislative entreaty; it is, by s 16, "a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved".[242] That paramount duty has a number of facets relevant here, namely, parties must:
   • (a) "act honestly at all times": s 17;
   • (b) "cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding": s 20;
   • (c) "not, in respect of a civil proceeding, engage in conduct which is - (a) misleading or deceptive; or (b) likely to mislead or deceive": s 21; and
   • (d) "use reasonable endeavours to - ... (b) narrow the scope of the remaining issues in dispute": s 23.
4. Turning first to the conduct of SPI. If SPI truly believed that it had authority pursuant to s 93(1) of the EI Act (as Ms Overington and Mr Baumgarten assert) then it was a simple task for it to tell the landowners the true purpose of the field test and to advise them that it was entitled to conduct the test without their permission. It did not take this course. Ms Overington of HSF advised Mr Karutz as to the information to be provided to the landowners in her three-point note-and only if they asked. Acting on this, Mr Baumgarten (and, it would seem, all SPI personnel involved), was told only to communicate those points - if asked. He was specifically told by Mr Karutz "to give nothing away".[243]
5. Whilst I accept that Mr Baumgarten may have misguidedly believed he had the authority to enter the properties without consent, the information provided to the landowners was, in my opinion, likely to mislead them not only as to the purpose of the test but also as to whether SPI had the right to access their properties for the purpose of the test without their consent. This approach left the landowners without sufficient knowledge to determine whether they could or should take steps in response to SPI's (unlawful) presence on their land.
6. Viewed in the most favourable light, the advice given by Mr Baumgarten to the landowners, consistent with the instructions he had received from Mr Karutz, obfuscated the true purpose behind the unlawful entries onto the landowners' properties over a significant period of time.
7. On this point, one further matter should be noted: SPI must have known that there was a risk that the landowners had been traumatised by the events of Black Saturday and that some, such as the Beels, were likely to be group members. All the more reason to be candid and accurate.
8. Ms Overington agreed that the landowners could have been informed by SPI that the works were being carried out for the purpose of the class action without effecting a waiver of privilege.[244] Her express concern underlying the limited information in her three points - that SPI field workers may engage in a frolic of their own in relation to waiver - was unconvincing, particularly bearing in mind that the employees could at any time have been asked questions by the landowners in relation to the three points - if it got to that.
9. Ms Overington parried the suggestion that the information provided may have obscured the true purpose of the field test by stating that the landowners should have realised that the works were related to the litigation.[245] There are a number of responses to this proposition.
10. The obligation to act honestly and not to engage in conduct that was misleading or likely to mislead lay upon SPI and related directly to conduct concerned with this proceeding. This obligation demanded consideration and compliance when providing information about the purpose of the field test; this was particularly important in circumstances where SPI, as I just mentioned, should have been (and I have no doubt was) aware that some of the landowners were potentially group members (remembering that the class remained open until 22 March 2013).[246]
11. To put it another way in circumstances where the landowners were potentially group members, I consider that its obligation not to engage in conduct which was likely to mislead extended to telling landowners the true purpose of the test. It was not appropriate to expect that the landowners would be canny enough to deduce the true reason for obtaining access - in the face of SPI's communications which deliberately omitted any reference to the true purpose of the field test or associated litigation. SPI employees were under instructions to refer to "network performance" if asked the purpose of the test. Further, SPI knew some of the landowners were significantly affected by the fire. I refer in particular to the Beels, whose house was destroyed (leading them to re-locate to Phillip Island). As I said earlier, I unreservedly accept Mrs Beel's evidence that she had no idea what was going on (insofar as the works related to the class action).
12. SPI was in a clear position of advantage vis-à-vis the landowners: it owned and controlled highly technical infrastructure; in usual circumstances, the attendance of SPI personnel on the landowners' properties to undertake works would be authorised under the EI Act; it is reasonable to assume that the landowners would expect SPI to have a working understanding of its powers (and the limits upon them) and that it would not act outside its powers without consultation and consent. Moreover, because the field test works could easily be mistaken for works closely related to its usual business, it was patently not unreasonable for a landowner to reach this conclusion.
13. SPI knew precisely what was going on with the works on the Pentadeen Spur but chose not to share its knowledge with the landowners relying upon continuing obfuscation in its dealings with them. Its conduct, it can reasonably be inferred, resulted in the landowners having no real prospect of understanding the true nature of the field test. The article written by Mr West demonstrates powerfully the "give nothing away" approach taken by SPI.
14. SPI's agent, HSF, also had obligations under the CPA concerning the issue of consent. In particular, it was obliged to cooperate in the conduct of the proceeding and to endeavour to "narrow the issues".[247]
15. When Maurice Blackburn became aware in April 2012 of the works on the Pentadeen Spur it immediately raised the issue of landowner consent with HSF. It is irrelevant as to whether the inquiry went to the question of discovery or to the application of s 138. The question was appropriate and HSF had an obligation to cooperate. Although I accept that the Maurice Blackburn correspondence was not ignored, it is patent that there was no specific or adequate reply to the request notwithstanding the follow up letters.[248] Eventually, HSF specifically stated inaccurately - on three separate occasions (30 November 2012, 16 January and 12 March 2013) - that SPI had the consent of the landowners.
16. I remain confused in light of Ms Overington's evidence before me as to this repeated assertion. Ms Overington said (like Mr Baumgarten) that it was always her view that the EI Act (or the Code) authorised the entry. This was also the submission made to Derham AsJ in the discovery fight over access to the field test documentation. In other words, no consent was required.
17. As I have already said in relation to SPI, it would have been a simple task for HSF to reply to Maurice Blackburn, in the spirit of cooperation as mandated by the CPA, and advise that no consent was required as SPI had the authority to conduct the field test. I am afraid that I do not accept that HSF - a vastly experienced litigation firm - could have confused the concepts of authority and consent. If HSF was indeed relying on consent, it should have identified the basis of that consent promptly and in clear terms, early in the piece. Such a course would have been in furtherance of its obligations of cooperation and narrowing the issues in dispute early in the proceeding.
18. So in summary, in addition to the repeated acts of trespass, SPI breached its obligation to avoid conduct which was likely to mislead and acted inappropriately in its dealings with the landowners. Further, HSF, SPI's agent, breached its obligations to cooperate and narrow the issues in dispute.
19. In light of all this, it may be thought that SPI's conduct was, indeed, grave - particularly given my conclusion that it consciously suppressed information about the purpose of the field test. There are, however, a number of countervailing factors to be considered on the question of the consequences or prejudice to Mrs Matthews and/or the landowners resulting from SPI's conduct.[249]
20. First, no landowner has given evidence to suggest that the entries onto the land and the maintenance of the conductors caused inconvenience or damage. There is no suggestion of damage to property or injury to stock. The reality is that the comings and goings of SPI, probably with the exception of those of 8 February 2012, had little impact on the daily lives of the landowners; this is particularly so in relation to the Beels and Mr Sullivan who do not live on the properties they own. No landowner has pursued any civil remedy (be it injunctive or for damages) against SPI.
21. Second, the prejudice to Mrs Matthews arising out of SPI's conduct as contended by her Counsel is illusory. It was said that if the landowners had been consulted by SPI and consent subsequently refused then Maurice Blackburn would have become involved in any SPI court sanctioned field test. This proposition, it seems to me, is speculative. It appears to be premised on the suggestion that Maurice Blackburn on behalf of Mrs Matthews would have played a part in dictating the manner in which the field test would have been carried out. I do not accept this proposition. It may well be that, in the event of such an application, a court would merely have approved the SPI test on the basis that all data and documentation concerning the test be passed on to Mrs Matthews' lawyers so that it could be considered by the experts retained by her. As I understand it, this is what has transpired, albeit after a protracted guerrilla war.
22. Third, as far as I can discern there is no prejudice to the landowners. The Beels are the only landowners who remain group members and Counsel for Mrs Matthews will, in the course of cross-examination be able to thoroughly examine whether the field test results are truly probative on the question of causation.
23. Taking into account these factors, I think that the contravention and conduct associated with the unlawful entries is best characterised as lying somewhere in the middle of the spectrum identified by the Court of Appeal in R v Marijancevic.[250]

Was the conduct deliberate or reckless (s 138(3)(e))

1. The fifth factor is whether the conduct was deliberate or reckless.
2. In Parker v Comptroller-General of Customs,[251] Basten JA (with Mason P and Tobias JA agreeing) said:

What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individual's civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.[252]

1. In R v Marijancevic,[253] the Court of Appeal said that conduct is reckless when there is

some advertence to the possibility of a breach of the obligation and a conscious decision or a "don't care" attitude to proceed regardless of that possibility.[254]

1. The meaning of "reckless" was also considered in the decision of the New South Wales Court of Criminal Appeal in R v Helmhout in relation to the equivalent NSW provision. In that case, an Aboriginal person had been detained by police and the police failed, before obtaining evidence from him, to notify a representative of an Aboriginal legal organisation be notified as required by cl 28 of the Crimes (Detention) Regulation. The matter on appeal was whether the evidence ought to have been admitted. Hulme JA said the following:

It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term "reckless" in paragraph (e) of s138(3). In the context of "improperly or in contravention of an Australian law" the concept "reckless" must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a "don't care" attitude generally ... The mere failure to comply with clause 28 on one occasion cannot, without more, demonstrate these matters. There is no other evidence to suggest the failure was reckless ...[255]

1. In DPP v Nicholls,[256] Adams J said of s 138(3)(e):

"reckless" within the meaning of s 138(1)(3)(e) of the Evidence Act 1995 requires a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect will be substantially prejudiced.[257]

1. Returning now to this case. Given my findings in relation to probative value and gravity, it seems to me that this issue is of some significance.
2. Both Ms Overington and Mr Baumgarten swore that there was no intention to deliberately infringe the landowners' rights; each said they believed that access was authorised by the EI Act; and, each said that this informed the decision to conduct multiple entries without seeking consent.
3. That evidence needs to be contrasted against several matters.
4. First, the internal SPI document relating to rights to enter private property - which was Mr Baumgarten's source of information - conveys to the reader that SPI had a right of access for the purpose of undertaking certain works, including constructing and maintaining power lines in the context of the supply of power; it says nothing about the construction and maintenance of a field test for the purpose of litigation. I accept, of course, that Mr Baumgarten (fortunately for him) could not be expected to have engaged in an analysis of the EI Act that this application has required.
5. The position with HSF (SPI's agent and legal advisor) is a little different. I find it difficult to understand how such an experienced litigation firm, undoubtedly familiar with the EI Act and the access gained by SPI, could advise Maurice Blackburn on three separate occasions that SPI had the consent of the landowners; it could have responded directly to Maurice Blackburn's assertion in its letter of 23 November 2012 and stated simply that it considered SPI to have authority under the EI Act and therefore it did not require consent.
6. Second is the failure to call Mr Karutz, the guiding mind of the project. It is clear that Mr Baumgarten was supervising the field test in accordance with Mr Karutz's instructions. It could be reasonably supposed that Mr Karutz is the appropriate person to have deposed as to his belief concerning the authority provided by the EI Act rather than his adjutant. There being no explanation for Mr Karutz's absence, I think that a Jones v Dunkel[258] inference can be drawn on this point against SPI. However, one has to be careful about the extent of such an inference. Here there is nothing in the evidence of Mr Karutz's involvement (in the tendered correspondence) that indicates he had a different state of mind to Mr Baumgarten or any other SPI personnel. More importantly it would be wrong to speculate, particularly on an issue such as this, as to what he may or may not have thought.
7. Ultimately, after considerable reflection and notwithstanding the inference to be drawn by reason of the absence of Mr Karutz, I have determined that the evidence of Mr Baumgarten and Ms Overington should be accepted as to the state of mind of SPI concerning its authority to access the landowners' properties.
8. Whilst I think that this was an unreasonable conclusion that sits uncomfortably with multiple references by HSF to landowner consent, I am not satisfied that SPI's conduct was deliberate or reckless.

Has any other proceeding been, or is one likely to be, taken in relation to the impropriety or contravention (s 138(3)(g))__[259]

1. The seventh factor is whether any other proceeding (whether or not in court) has been or is likely to be taken in relation to the impropriety or contravention.
2. None of the landowners have suffered any material loss as a result of SPI's conduct. Nor have they brought or are likely to bring an action in trespass against SPI.

The difficulty of obtaining the evidence without impropriety or contravention (s 138(3)(h))

1. The eighth factor is the difficulty (if any) of obtaining the evidence without impropriety or contravention.
2. The answer to this question is clear: SPI could readily have approached the landowners and sought their consent. It did not.
3. In the event that the SPI had sought such consent and was met with refusal then SPI could have sought the aid of the Court. Either by reference to the CPA, (arguably ss 47 and 48) or (more likely) under the Supreme Court (General Civil Procedure) Rules 2004, Order 37.01, the Court could, if satisfied of its utility, have ordered that a field test be carried out on the Valley Span. Whilst such an application would have been cumbersome (e.g. each of the landowners would need to have been put on notice) no party suggested that it would have been futile. Indeed, if Mrs Matthews is successful SPI has indicated that it would seek such an order for further tests; UAM will support such a move.

Other factors: Impact of excluding the evidence on UAM

1. The field test has direct relevance to the case against UAM: amongst other things it is alleged that Mr Leech, the UAM inspector, should have identified a misaligned helical termination close to pole 39 when he conducted an inspection of the pole in February 2008. Mrs Matthews maintains that the failure of SPI to fix the misalignment bears a causal relationship to the ultimate failure of the conductor.
2. One of the field test spans has been strung with a misaligned helical termination. It is arguable that the results of the field test provide a basis for UAM to contend that the misaligned helical termination had no effect on the fracture of the conductor - as its expert Dr Havard opines. I refer also to the excerpts of the Conclave 3 joint reports above, at [173]-[184], specifically referring to the significance (or otherwise) of the misaligned helical termination.
3. In my view, this consideration is of some significance. UAM was not party to any misconduct concerning the field test. True it is that it indirectly obtains the advantage of SPI's endeavours. Nevertheless, acceding to Mrs Matthews' application would mean UAM, through no fault of its own, is deprived of the benefit of the test results.

Other factors: The failure of Mrs Matthews to raise this point earlier

1. Counsel for Mrs Matthews raised this challenge to the admissibility of the field test data under s 138 on 24 September 2013.[260] Mr Watson says that it was "very shortly" prior to this that Mrs Matthews received notice from SPI that Mr Baumgarten would not be called to give evidence[261] and that this advice prompted the application. Mr Watson said:

Since April 2012 we had been pursuing the issue of consent. We had been met with resistance at various points in time for any information about that. It was an evolving picture and we did not reach a position where we were clear about that picture until we were, or at least until we had any measure of clarity about that picture until March and we made a decision that we would seek further information in cross-examination of Mr Baumgarten when he was called.[262]

1. Maurice Blackburn knew in April 2012 that some form of test had been set up on at the Pentadeen Spur.[263] It did not seek instructions from the landowners at that time as to their state of knowledge or whether they had given consent to SPI's presence on their land for the purpose of such a test. On this, the following exchange took place between Counsel for SPI and Mr Watson:

But they would have been the first port of call, wouldn't they: to speak with the people and ask them whether had they knew about this and whether they consented?---Well, plainly they were not, from our perspective, because we first asked your instructors but more fundamentally, no. We thought the obvious thing to do was to speak to your instructors and seek from them those documents.

But you have just given an answer to his Honour that you didn't get a response to this so wasn't your first point of call either to bring on a contested discovery application or do the obvious thing which was go and speak to the land owners themselves?---No. Our first port of call was to then ask for the courtesy of a response.[264]

1. During re-examination, as to why, in April 2012, Maurice Blackburn did not go directly to the landowners for evidence of consent Mr Watson said:

we were in a position where we anticipated that it would be a very simple and straightforward matter for SP AusNet to produce whatever records it had and indeed, we thought was a more likely - likely to be a a quicker way of dealing with the issue than approaching the landowners.[265]

This proposition is borne out by the letters Maurice Blackburn wrote to HSF. I accept that at this time their approach was a sensible and reasonable alternative to going straight to the landowners, particularly given HSF's obligation to cooperate.

1. On the question of why Mrs Matthews did not raise a s 138 challenge earlier - specifically in November or December of 2012 - the following exchange took place between Counsel for SPI and Mr Watson:

There was no impediment to you writing and saying that none of the Vazey test data and the use that conclave 3 had made of It could be used because it was fruits from the poison tree?---There was no impediment ... but we had been specifically advised in the correspondence at 30 November that there was consent and - - -

But you didn't even believe that in your letter of 19 December, is that right?---No that is not right. We didn't know - we had been specifically advised that there was consent. We had information which suggested there was not and we wrote to your instructors seeking to clarify it because we thought it might be a simple matter for your instructors to say, "Look, here they are", in which case we would have known that notwithstanding the position that had been advised to us by the Sullivans and the Beels that there had been an error and in fact consent had been given.

But you knew at that stage from the discovery that had been given that there weren't actually any written documents constituting written consents or authorisations and permits, put aside for the moment whether they were privileged or non-privileged. You knew that on 19 December 2012, did you not?---No. I don't think we did know that at all.

You had the opportunity to find that knowledge by just looking at the lists of documents that have been given?---No, I don't think that's right at all, given that the list we were provided was expressly provided on the basis that searches would be conducted of relevant repositories and of course, what has subsequently emerged, is that Mr Baumgarten was not treated as a repository for those searches.[266]

1. Counsel for SPI also put to Mr Watson that the Maurice Blackburn letter of 19 December 2012 should be read as indicating that Maurice Blackburn did not accept that SPI had consent. Although Mr Watson disagreed, saying: "What we actually wanted was details",[267] by then if consent remained a real issue the time had arrived to contact the landowners and obtain instructions - indeed, that letter (of 19 December 2012) made it clear that by then that at least one of the landowners had been spoken with on the issue of consent.[268]
2. By mid-January 2013, Mr Watson was contemplating a possible s 138 application:

Was your mindset as at 17 January that you thought that you might use the absence of consent later down the track to rule inadmissible the Vazey test data and any expert material based upon that?---My mindset at that stage was that that was a possibility.

And not communicated to anyone at Freehills?---Not communicated to anyone at Freehills other than implicitly by a reservation of rights.

Nevertheless, Mr Watson maintained that, rather than relying upon the landowners' evidence it was then necessary for Maurice Blackburn to continue to see what HSF produced in relation to the Baumgarten materials:

we were still ... not clear about the nature and scope of Mr Baumgarten's evidence. We had not had the benefit of any witness statement and we had not had the benefit of any discovery.[269]

1. On the basis of the above, I am satisfied that, in the period leading up to December 2012, Maurice Blackburn was entitled to regard the most appropriate and efficient source of confirmation regarding consent for the field test to be HSF. However, by January 2013, waiting and not acting - including failing to communicate explicitly to anyone (i.e. the other parties or the Court) was not an appropriate course, bearing in mind the CPA obligations to cooperate with the Court and the other parties (s 20).
2. If, contrary to my view, January 2013 was not the appropriate time to bring the application then, at the very latest, the receipt of the Baumgarten materials in late March should have triggered the application. Mr Watson gave the following explanation of why it did not take this course in the following exchange with Counsel for SPI:

your mind was set at March 2013 that you had it in mind to adopt this strategy of seeking to bring an application to adopt this strategy of seeking to bring an application to rule this test material inadmissable but you thought you would stay your hand until such time as Mr Baumgarten was called and Mr Richter started cross-examination? --- Well, a decision was made that it would be a preferable course to have the evidence of Mr Baumgarten and the opportunity to cross-examine him before an application was made.[270]

After I sought clarification, Mr Watson further said:

Well, it was still possible what Mr Baumgarten said might end up leading to a situation where an application might not be made, conceivably.[271]

1. Mr Watson stated that between 15 March 2013 and 24 September 2013, Maurice Blackburn's approach was to:

await the cross-examination of Mr Baumgarten and assess whether or not an application would be made one that cross-examination had concluded. Now, when it was clear he was not going to be called we had to make the assessment without the benefit of understanding his answers in cross-examination.[272]

1. Mr Watson stated during cross-examination, and I accept, that Maurice Blackburn did not "seek to take any tactical advantage in relation to any element of surprise" (in the words of Counsel for SPI) by sitting on the application until late September.[273] But that does not mean that it was entitled to wait.
2. In my opinion the conduct of Mrs Matthews' lawyers in making this application on day 94 of the trial was both unacceptable and unreasonable. Maurice Blackburn breached its obligation under s 20 of the CPA to cooperate with the Court. This conduct counts against acceding to Mrs Matthews's application for the following reasons.
3. First, I am satisfied that by December 2012/January 2013 Maurice Blackburn, as Mr Watson conceded, had a s 138 application in mind. By that time the lawyers had spoken to at least one of the landowners and must have known that consent was a live issue - notwithstanding the assertions made by HSF. It well knew that planning for the case involved a set timetable for lay and expert evidence. It also knew that the process of expert evidence was ongoing with experts continuing to review the data with expert reports (including the third joint report of Conclave 3) being formulated or likely to be formulated.
4. The lawyers acting for Mrs Matthews (Counsel and Maurice Blackburn) must have understood that the longer the application was delayed the greater the risk that the conduct of this extraordinarily large piece of litigation would be disrupted and the greater the turmoil that would result if the application was successful. Particularly it must have been known that it would be nearly impossible for the concurrent expert evidence session involving the Conclave 3 experts planned for early November to continue as scheduled.
5. As has been seen, a significant number of the experts have relied upon the field test in formulating their views on various matters. If the application is successful not only would they need to reformulate their opinions (with the obvious problem of asking them to put the field test out of their collective minds) but their reports would need to be redrawn. This would mean a significant and time-consuming task for each and the process would involve an unrealistic degree of artificiality.
6. As Mr Watson conceded (as put by Counsel for SPI): he knew that making this application over six months into the trial would cause "a lot of expenditure, expense and inconvenience" to those parties relying upon the field test data.[274]
7. Second is the asserted rationale for delaying the making of the application. In response to questioning by Counsel for SPI as to why Mrs Matthews did not pursue a s 138 challenge earlier, Mr Watson said:

Well, you don't challenge the admissibility of something as a rule until it's actually tendered.[275]

This refers to, I think, the time at which evidence of the field test is to be adduced: immediately prior to the concurrent expert evidence session in early November. This is a confounding and disturbing explanation given the obligation upon Maurice Blackburn to cooperate with the Court and to narrow the issues. It is also patently incorrect. Where a party wishes to rely upon a point that if successful will potentially cause significant disruption to a trial then modern trial procedure, as reflected by the provisions of the CPA, requires that party to give notice to the Court as soon as reasonably practical - not to sit on its hands and wait until it thinks an opportune time has arrived. It is beyond the Pale to wait six months before alerting the Court to the prospective application.

1. The suggestion that it was reasonable to wait until Mr Baumgarten (who was on the SPI witness list but ultimately did not give evidence) was called and cross-examined on the question of consent is equally unacceptable. In any case, absent this issue being raised, cross-examination on this point was irrelevant to the determination of the case and the evidence would have been inadmissible.
2. Third is the proposition that SPI's lawyers should have been aware of the possibility of this application. Mr Watson said: "I didn't think they needed to be appraised of it. They seemed to be aware of it."[276] This answer referred to a remark made by Counsel for SPI in a hearing before Derham AsJ. This suggestion goes nowhere. In any piece of litigation a party might suspect that an opponent may have in mind taking a particular course. That is part and parcel of adversarial litigation. However, until that action crystallises or can be reasonably anticipated, the opposing party is entitled to put it to one side. Even if SPI should have anticipated this application it does not assist Mrs Matthews. Her obligation to cooperate was also owed to the Court - to which I now turn.
3. Finally, there is the role of the Court in modern trial management. When asked whether Maurice Blackburn had considered notifying the Court that Mrs Matthews was contemplating this application, Mr Watson said that he did not feel this was necessary.[277] Nor did he accept the proposition that making the application at this time would "interrupt the orderly flow of the trial".[278] I regard both responses as extraordinary and completely out of touch with the manner in which trials are conducted in this State. I should add, however, lest it be thought that I am unfairly criticizing Mr Watson alone that I was told by Mr Keogh, Senior Counsel for Mrs Matthews, that the decision to wait was made by Mrs Matthews' legal team.
4. The CPA makes it abundantly clear that the Court has a fundamental role to play in modern trial management. A number of the obligations imposed upon parties and lawyers by the CPA relate directly to cooperation in ensuring that trials are managed efficiently - that is the very point of the obligations to cooperate and to narrow the issues. This is especially so given the repeated occasions upon which the question of the field test was raised in the course of the trial and before Zammit AsJ with not a murmur about the admissibility of the data. To treat the Court as a mere observer of a forensic contest is, simply put, wrong and, in the context of this trial, foolhardy.
5. I repeat what I said earlier - this trial has involved many months, indeed years, of planning - particularly in relation to the expert evidence. To not alert the Court that this application was in the wind was, to put it in the most favourable light, a serious error of judgment.
6. If the Court had been alerted at an earlier time that this was a live issue - say in the month before or around the time of the commencement of the trial - then measures could have been taken to manage the expert evidence appropriately in the event of the application being successful. Of course there would still have been problems in relation to the use of the field test data, individual and joint expert reports, and expert evidence generally. However, those may have been manageable at that time without significant disruption to the trial.
7. If this application is successful at this late stage in the trial then, depending upon consequential orders (such as the experts reconsidering the issues absent the field test or, alternatively, a new field test being set up and, in a year's time, analysing the data - as SPI and UAM have suggested) it will mean that the trial will have to be halted. And the duration of such an interruption may be measured in years rather than months. Such a result is patently unacceptable.

1. In my opinion, the evidence obtained from the field test should not be excluded. Whilst I regard the gravity of the contravention and associated misconduct as being mid-range and deserving of criticism, the potential probative value of the tests in resolving the question of causation in the case against SPI and UAM is significant and important to the resolution of critical issues in this proceeding. Added to this is my conclusion that SPI's conduct was neither deliberate nor reckless and that UAM, innocent of any wrongdoing, would suffer considerable prejudice if this evidence was excluded.
2. I am satisfied on this basis that Mrs Matthews' application should be refused. I should add that if I had any real doubt about the result on the grounds that I have mentioned (which I do not) the delay in making this application would have fortified my resolve to refuse it.

1. In essence, I have treated the failure of Mrs Matthews to make this application at an earlier point in time as going to the question of the exercise of my discretion under s 138 of the Act. Given my conclusion, it is not necessary to examine this matter further.

(a) SPI did not have the authority under ss 93(1)(a), (d) and (e) of the EI Act to access and egress the landowners' properties for the purposes of erecting and conducting the field test.

(b) Nor did SPI have the consent of the landowners to do so.

(c) SPI's access and egress of the landowners' properties on multiple occasions without their consent constituted a contravention of Australian law and so s 138(1) of the Act is engaged.

(d) However, taking into account the factor_s_ contained s 138(3) as well as the other considerations I have identified, the desirability of admitting the evidence outweighs that of excluding it. It follows that evidence arising out of the field test should not be excluded.

1. Mrs Matthews's application should be dismissed.

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] Collectively referred to as "the landowners". See SPN.843.010.0003; Affidavit of Mr Baumgarten at [18]-[22]. It is also possible that the property of Rob Dowell was accessed. The evidence on this is unclear and for the purpose of this Ruling I have not considered his position.

[4] T9203 and following. The application was made orally and, with my approval, without a summons.

[6] CRT.CAM.139.0001 ("First Affidavit of Mr Watson").

[7] CRT.CAM.151.0001 ("Second Affidavit of Mr Watson").

[8] CRT.CAM.150.0001 ("First Affidavit of Ms Overington").

[9] CRT.SPN.042.0001 ("Second Affidavit of Ms Overington").

[10] CRT.SPN.047.0001 ("Third Affidavit of Ms Overington").

[11] CRT.SPN.046.0001 ("Affidavit of Ms Lubomirska").

[12] CRT.SPN.043.0001 ("Affidavit of Mr Baumgarten").

[13] CRT.CAM.140.0001 ("Affidavit of Mr West").

[14] CRT.CAM.141.0001 ("Affidavit of Mrs Beel").

[15] CRT.CAM.142.0001 ("Affidavit of Mr Jackson").

[16] CRT.CAM.143.0001 ("Affidavit of Mr Sullivan").

[17] Mrs Matthews' two sets of submissions dated 13 and 14 October 2013 respectively; SPI's two sets of submissions dated 11 and 13 October 2013 respectively; and UAM's submissions dated 14 October 2013.

[18] CAM.520.001.0079 (January 2011, version 6) ("the Code"). The Code was also exhibited to the First Affidavit of Mr Watson

[19] Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619, [28] (French CJ).

[21] SPN.839.008.0054. Although the original plan was for two dummy spans to be erected, ultimately three dummy spans were erected.

[25] T10483-4; T10488-9. This email was one in a chain of emails, all with virtually the same subject header (i.e. Test lines at Pentadeen spur to support bushfire class action) dated between 2 and 30 August 2012 : SPN.843.007.0207 & SPN.824.005.1705.)

[29] Matthews v SPI Electricity (Ruling No 20) [2013] VSC 197, [29].

[32] Matthews v SPI (Ruling No 10) [2012] VSC 379.

[33] Matthews v SPI Electricity (Ruling No 20) [2013] VSC 197.

[34] Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537, [8].

[35] In the case of the solicitors for Mrs Matthews, a list of 15 reports is set out in the First Affidavit of Mr Watson [6]; in the case of solicitors for SPI, a list of 16 reports is set out in the Second Affidavit of Ms Overington [46].

[36] First Affidavit of Mr Watson [6].

[37] EXP.JOINT.003.0001, EXP.JOINT.003.0027, and EXP.JOINT.003.005.

[38] EXP.SPN.500.0001, EXP.SPN.510.0001, EXP.SPN.520.0001, EXP.SPN.530.0001.

[39] EXP.CAM.009.0001 and EXP.CAM.020.0001.

[40] EXP.SPN.260.0001, EXP.SPN.780.0001, EXP.SPN.790.0001.

[41] EXP.CAM.003.0001 and EXP.CAM.022.0001.

[43] Second Affidavit of Ms Overington [46].

[44] EXP.SPN.100.0001, EXP.SPN.110.0001, EXP.SPN.150.0001.

[46] Although Mr Sullivan said he had not been aware of this prior to Counsel for SPI bringing it to his attention during cross-examination, he did not dispute that SPI has an easement over part of his land being the portion where the power line is located: T10396. The title documents are exhibited to the First Affidavit of Mr Watson, Exhibit AJW-6.

[48] Affidavit of Mr Baumgarten [18]-[20].

[50] E.g. one conversation on 8 May 2012, in which he deposed that he said to Mr Jackson "Our personnel will be accessing power pole 38 through your property tomorrow": Affidavit of Mr Baumgarten [95].

[51] As noted above at [3], I have not considered the position with respect to Mr Dowell.

[52] See, e.g., Affidavit of Mr Baumgarten [33], [44], [66], [86].

[53] Counsel for SPI submitting that "Section 93 is the express section which authorises an otherwise trespass": T10631.

[57] I note that no argument was advanced by SPI on this application that the easement or the Code were relevant to its assertion that it had authority to enter the landowners' properties.

[61] There is some uncertainty whether the Code is in fact an 'access code' for the purposes of s 93(5)(d). 'Access code' is not defined in the EI Act or Essential Services Commission Act 2001 (Vic), which authorises the making of the Code. The Essential Services Commission has not published any document titled 'Access Code.' Nonetheless, the Code (in part) deals with some forms of access and distributors are required to comply with it under their distribution licence.

[63] I have, in part, adopted the analysis of Garling J in Thiering v Daly [2011] NSWSC 1345 (11 November 2011) [50].

[64] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [5]-[6] (Gleeson J); Interpretation of Legislation Act 1984 (Vic) s 35(a).

[65] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [146]-[147] (McHugh J).

[66] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] and [71] (McHugh, Gummow, Kirby and Hayne JJ).

[67] Project Blue Sky [70] (McHugh, Gummow, Kirby and Hayne JJ); Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440 (Gibbs J); Wilson v State Rail Authority (NSW) [2010] NSWCA 198, [13] (Allsop P).

[68] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427. This basic 'principle of legality' has been well established in Australia since at least 1907, when the High Court referred to Maxwell on the Interpretation of Statutes (1905) and stated that it is extremely improbable that the legislature would overthrow fundamental principles or infringe rights "without expressing its intention with irresistible clearness" (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304). More recently the High Court in Monis v The Queen [2013] HCA 4 (27 February 2013) stated that the principle of legality is known to known to both the Parliament and the courts as a basis for the interpretation of statutory language [331].

[70] Refer to clauses 2.1 and 2.2 of the licence: SPN.600.001.1282. The other matters contained in the licence are all matters directly related to the distribution or supply of electricity (e.g. obligations to offer connection services; requirements for offers; and statements of charges).

[72] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; refer also to those cases listed at footnote [55].

[73] [1994] HCA 15; (1994) 179 CLR 427.

[74] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 ("Coco").

[75] Clunies-Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193, 199-200.

[77] Monis v The Queen [2013] HCA 4 (27 February 2013).

[78] Monis v The Queen [2013] HCA 4 (27 February 2013) [331] (see above at [48(e)]).

[79] [2009] HCA 12; (2009) 237 CLR 603.

[80] R & R Fazzolari v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603, 618-19 (citations omitted).

[81] [1991] HCA 5; (1991) 171 CLR 635 ("Plenty").

[82] Mrs Matthews' written submissions at [4.17], quoting Plenty, 648.

[83] Mrs Matthews' written submissions [4.26], [4.28].

[84] This is according to Derham AsJ in Matthews v SPI (No 2) [9]; Second Affidavit of Ms Overington Exhibit REO-3 (CRT.SPN.042.0001, 0130).

[85] First Affidavit of Mr Watson [6].

[86] "Loss of client legal privilege-misconduct".

[101] Matthews v SPI Electricity Pty Ltd (No ) [2013] VSC 116, [24].

[111] Affidavit of Mr Baumgarten [37]; T10520.

[112] Affidavit of Mr Baumgarten [54] and [59]; T10521-10522.

[114] Affidavit of Mr Baumgarten [54], [59]. During cross-examination, by reference to photographs of pole 39 and persons around it (including, in particular, VAZ.501.006.4897), Mr Baumgarten agreed that SPI persons, including Mr Ambrose, attended pole 39 on 31 January 2012: T10524-5.

[115] Affidavit of Mr Baumgarten [69]; T10510, T10524.

[116] This visit was for the purpose of installing the weather station, video camera and other related equipment at pole 39 as well as adjusting the tension of the test spans: Affidavit of Mr Baumgarten [84]-[85], [88]-[90]; T10525.

[117] Mr Baumgarten then says that on 9 May 2012 SPI had planned to fit an Automatic Circuit Recloser on the Pentadeen Spur and that the opportunity was therefore taken to carry out works on the test spans on this day. He was not present for these works. Affidavit of Mr Baumgarten [91]-[93]; T10525.

[118] Mr Baumgarten attended the site of pole 39 on 2 July 2012; he was accompanied by SPI's lawyers and Mr John Vazey as well as other SPI personnel: Affidavit of Mr Baumgarten [98]; T10526, T10537.

[122] EXP.SPN.530.0001, [47]; EXP.SPN.790.0001, [2580] and following; T10528-29.

[123] Affidavit of Mr Baumgarten, Exhibit NWB-1.

[124] Affidavit of Mr Baumgarten [8] and Exhibit NWB-1.

[125] Affidavit of Mr Baumgarten [11]-[12].

[127] Affidavit of Mr Baumgarten [14].

[128] Affidavit of Mr Baumgarten [13].

[129] Affidavit of Mr Baumgarten [27].

[131] Affidavit of Mr Baumgarten [39].

[132] As extracted in the Second Affidavit of Ms Overington [58]; referred to in Mr Baumgarten's affidavit [37].

[133] Second Affidavit of Ms Overington [59]; SPN.835.001.1332.

[137] T10537 and T10549, confirming what was said in the Second Affidavit of Ms Overington [60]-[61].

[143] Affidavit of Mr Baumgarten [40]; SPN.844.001.0171.

[144] Affidavit of Mr Baumgarten [40].

[147] Affidavit of Mr Baumgarten [33]. These are the words Mr Baumgarten recalls using when speaking with Mr Sullivan; he deposed to having used effectively the same words when leaving a voicemail for the Beels: Affidavit of Mr Baumgarten [33]-[34].

[148] Affidavit of Mr Baumgarten [32].

[149] Affidavit of Mr Baumgarten [44], [48].

[150] Affidavit of Mr Baumgarten [57]-[58].

[151] Affidavit of Mr Baumgarten [66].

[152] Affidavit of Mr Baumgarten [66]-[67] and Exhibit NWB-13; SPN.843.008.0001.

[153] A quotation from that outage notification was included in an article in the Free Press published on 10 February 2012: Affidavit of Mr Jackson [16] and Exhibit PMJ-5.

[154] As excerpted in the Free Press article written by Mr West: Affidavit of Mr West, Exhibit BAW-1.

[159] Affidavit of Mr Baumgarten [70], [74]-[76].

[161] Affidavit of Mr Jackson, Exhibit 'PMJ-5' (CRT.CAM.142.0001, 0016).

[162] Affidavit of Mr Baumgarten [80].

[164] Affidavit of Mr West, see in particular [6]-[7] and his article at Exhibit BAW-1.

[168] Affidavit of Mr Baumgarten [86].

[169] Affidavit of Mr Baumgarten [86].

[170] Affidavit of Mr Baumgarten [96].

[173] Affidavit of Mr Baumgarten [26].

[174] Affidavit of Mr Baumgarten [101]; see also [79].

[175] [1991] HCA 5; (1991) 171 CLR 635, 647 (citations omitted).

[176] [1991] HCA 5; (1991) 171 CLR 635 ,647 (citations omitted).

[177] [1983] HCA 18; (1983) 153 CLR 338 ("Barker").

[178] [1983] HCA 18; (1983) 153 CLR 338, 342 (Mason J) (citations omitted).

[179] [2012] NSWCA 223, [92] (Macfarlan JA) citing Barker v The Queen [1983] HCA 18; 153 CLR 338, 342 (Mason J).

[180] [2012] NSWCA 223, [64]-[65] (Basten JA, Beazley JA agreeing), [93] (Macfarlan JA). I should note that there were some differences between the reasoning of the Judges. Basten and Beazley JJA were of the view that the practitioner's state of mind was not a relevant consideration when determining whether lack of consent amounted to trespass: [94]-[95] (cf Macfarlan JA at [94]-[95]).

[181] [1983] HCA 18; (1983) 153 CLR 338 at 346 (Mason J) (citations omitted).

[182] [1983] HCA 18; (1983) 153 CLR 338 at 357 (Brennan and Deane JJ) (citations omitted).

[183] [1983] HCA 18; (1983) 153 CLR 338 at 364-5 (Brennan and Deane JJ) (citations omitted).

[184] In Plenty, the first and second respondents were police officers who had entered onto the appellant's farm in order to serve a summons on the appellant's daughter. It was found that the officers had neither express nor implied authority to enter the property.

[186] [2011] VSCA 355 (referred to in Mrs Matthews' written submissions dated 11 October 2013, [4.19] (SUB.CAM.004.0001, 0012)).

[187] R v Marijancevic [2011] VSCA 355, [57].

[188] ALRC 1985 Interim Report, Vol 1, [964] as cited in Stephen Odgers, Uniform Evidence Law (10th ed.) [1.3.14880].

[189] See for, example, Ipp AJA in R v Helmhout [2001] NSWCCA 372, [8] who said (in relation to the Evidence Act 1995 (NSW): "The words 'desirability' and 'undesirability' in s 138(1) are of very broad import. Section 138(3) sets out matters that are to be taken into account in making a determination under s 138(1) but specifically stipulates that they do not limit the matters that the Court may take into account. The general tenor of s 138 does not reflect an intention to confine the inquiry.

[190] [2009] HCA 7; (2009) 252 ALR 619 ("Parker").

[191] [2009] HCA 7; (2009) 252 ALR 619, [27] (citations omitted).

[192] [2011] VSCA 355.

[193] [2011] VSCA 355, [17] (Warren CJ, Buchanan and Redlich JJA).

[194] [2008] NSWSC 1169.

[195] [2008] NSWSC 1169, [27].

[196] Matthews v SPI Electricity & Ors (Ruling No 19) [2013] VSC 180.

[197] Matthews v SPI Electricity & Ors (Ruling No 20) [2013] VSC 197.

[198] Matthews v SPI Electricity & Ors (Ruling No 23) [2013] VSC 239.

[199] Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537, [8].

[200] Written submissions of UAM, [4], [6]-[10] (SUB.UAM.003.0001, 0002-3).

[201] [2001] FCA 1164; (2001) 111 FCR 20.

[202] [2001] FCA 1164; (2001) 111 FCR 20, [93].

[203] [2008] NSWSC 1169, [28].

[204] [2008] NSWSC 1169, [28].

[205] [2009] NSWCA 18.

[206] [2009] NSWCA 18, [31]-[32]. See also ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764, [163].

[208] [2012] VSCA 328; (2012) 218 A Crim R 507.

[209] [2012] VSCA 328; (2012) 218 A Crim R 507, [63] (emphasis in original).

[210] Written submissions of Mrs Matthews dated 11 October 2013, [7.8].

[211] As cited in SPI's written submissions dated 11 October 2013, [80] (CRT.SPN.0048.0001).

[212] SUB.CAM.001.0001, 0023 [5.35]; cited in SPI's written submissions dated 11 October 2013, [82].

[213] SUB.CAM.007.0001, 0004; cited in SPI's written submissions dated 11 October 2013, [83].

[214] T1965; as cited in SPI's written submissions dated 11 October 2013, [87].

[228] Two of the experts engaged by Mrs Matthews said that they do whereas each of the experts for SPI, and one of the experts for UAM, appear to reject the proposition that the transient events are consistent with Aeolian vibration.

[232] EXP.JOINT.003.0027, 0045. Mr Meehan (engaged by Mrs Matthews) has reservations about this conclusion because of what he says are limitations in the field test's capacity to reflect the conditions the Valley Span conductor was under prior to Black Saturday.

[233] See, e.g., EXP.JOINT.003.001, 0007-8 ("Disagreements and comments about the Vazey tests").

[234] Mrs Matthews' written submissions dated 11 October 2013, [6.3].

[235] [2011] VSCA 355.

[236] R v Marijancevic [2011] VSCA 355, [67].

[237] [2001] NSWCCA 372.

[238] [2001] NSWCCA 372, [12].

[239] If I am wrong about this being a relevant consideration in relation to illegality it is undoubtedly relevant to the question of impropriety.

[243] See [110] above.

[244] See [107] above.

[245] See [108] above.

[246] The class closed at 4pm on 22 March 2013, pursuant to my Order of 24 January 2013.

[247] See [200(d)] above.

[248] See [77]-[80] above.

[249] See reference to R v Helmhout at [197], above.

[250] [2011] VSCA 355.

[251] [2007] NSWCA 348. This decision was the subject of an appeal to the High Court in Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 (referred to earlier); the High Court dismissed the appeal.

[252] [2007] NSWCA 348, 592.

[253] [2011] VSCA 355.

[254] [2011] VSCA 355, [47] (Warren CJ, Buchanan and Redlich JJA).

[255] [2001] NSWCCA 372, [33].

[256] [2001] NSWSC 523.

[257] [2001] NSWSC 523, [23].

[258] [1959] HCA 8; (1959) 101 CLR 298.

[259] No party attributed any importance to the sixth factor, s 138(f).

[260] As confirmed by Mr Watson: T10450-1.

[266] T10424-5. Mr Baumgarten's documents were not treated as a repository for the purposes for discovery, hence those documents not being subject to discovery earlier: see e.g. T10426.

[268] Indeed it was said, incorrectly, that Maurice Blackburn had instructions from Mr Sullivan.

[273] T10453. This question directly followed a discussion regarding a hearing before Derham AsJ on 15 March 2013.

[278] T10433 (whilst accepting the point regarding expenditure, expense and inconvenience).