Plaintiff v Defendants

2 The context of the pleading can be shortly stated. In paragraph 18 of its current statement of claim, the plaintiff alleged that the northern conductor on the feeder line to the Murrundindi sawmill failed and the conductor fell while still energised and electrified a paddock fence. The plaintiff alleges that this incident was part of the cause of the ignition of the fire. She contends that the fire ignited under, or immediately adjacent to, the paddock fence some distance from the fallen conductor because the wire strands in the fence had been electrified.

3 Ausnet Services admits, in paragraph 18 of its current pleading, that the northern conductor fell but otherwise denies paragraph 18 of the statement of claim. Its current pleading continues:

18AA Further to the denial alleged in paragraph 18, it says further as follows:

(a) The Murrindindi fire started at the roadside reserve located between the fence (on the one part) and Wilhelmina Falls Road (on the other part), within the area identified by cross-matching in the map annexed hereto styled 'Annexure 1A';

(b) The Murrindindi fire preceded the falling of the red conductor;

(c) The Murrindindi fire was started by reason of a human act.

PARTICULARS

The human act referred to is:

(i) an act of arson, by an at present unknown individual or individuals;

(ii) an act of discarding an ignition source in vegetation, by an at present unknown individual or individuals;

(iii) ignition by hot exhaust, hot exhaust particles, or by other material discharged to have displaced from a hot exhaust, on the part of an at present unknown individual or individuals.

Further particulars of the act or acts relied upon will be provided after discovery is complete, and in advance of the trial of the matter.

4 Each relevant defendant has positively pleaded an alternative causation hypothesis, an allegation that the fire was started by a human act. The plaintiff contended that the material facts upon which that allegation is based have not been set out despite repeated requests for further particulars. The plaintiff submitted that the allegation was vague and inadequate, failing to properly articulate how the defendants intend to put their case.

5 Correspondence between solicitors, and counsels' statements at case management conferences, confirm that Ausnet Services has consistently advanced this alternative hypothesis to that alleged by the plaintiff for the mechanism of ignition of the fire. From an early stage, the defendants accepted that this alternative hypothesis should be pleaded and once introduced into the defences, the alternative hypothesis has been in the form set out above.

6 From its introduction into the pleadings, the plaintiff has contended for proper particulars of the material facts that supported the alternative hypothesis. It is not necessary to set out a chronology of the communications between the parties on this issue. Essentially, the provision of proper particulars was deferred pending the completion of interlocutory steps, consideration of experts' reports, and the disclosure of proposed witness lists. Now that those matters have been completed, the relevant defendants contend that they cannot provide further particulars of the human act or acts relied on and intend to proceed to trial on the present particulars with the final sentence, by which further particulars are promised, to be deleted.

7 Ausnet Services proposes to lead evidence from two experts. Mr Allen will suggest that smoking material, vehicle related causes and arson/incendiary are 'possible' causes of the ignition of the fire that cannot be ruled out. He would classify the cause of the fire as 'undetermined'. Dr Colwell has opined that ignition by hot exhaust can occur in some circumstances but he draws no positive conclusions relevant to the Murrindindi fire.

8 The plaintiff submitted, correctly, that the position she now faces is that there remains a positive allegation of a human act causing the fire in the pleading without any definition of what that act is alleged to be, how it was carried out, by whom and in what circumstances, and how it caused ignition of the fire, but with a statement that further particulars would be provided following discovery and in advance of trial. Discovery has now been completed, lay witness lists have been exchanged, and expert evidence is proposed that various human acts were possible causes or could not be ruled out but without articulating how the evidence in this proceeding links to any particular cause or providing any detail of how any of the various alleged human acts were carried out. Despite promises of further particulars, the plaintiff is no better informed regarding the way in which the defendants' alternative theory was put than it was in September 2013 when the allegation was first raised. Further, at an earlier case management conference, the defendants foreshadowed that it would oppose the plaintiff calling evidence in rebuttal of their alternative fire ignition theory.

9 The plaintiff submitted that Ausnet Services' case was not clearly pleaded and she does not know whether Ausnet Services will contend at the trial that:

(a) it is theoretically possible for one or more of the three human acts referred to to have been carried out so they cannot be discounted as a possible ignition source;

(b) a specified human act did in fact take place but Ausnet Services cannot identify the individual who carried out the act;

(c) particular individuals or particular vehicles were responsible for the fire and will be identified in the course of the trial; or

10 The plaintiff submitted she will need to respond differently to each different formulation of the alternative ignition theory. However, such response may not be needed if each human act is being presented only as a non-specific possibility, meaning a possibility that cannot be ruled out although no basis is advanced to rule it in. If it is to be suggested that a particular individual was responsible for arson, evidence that may exonerate that individual may need to be put by the plaintiff. If it is to be alleged that the remnant of an old cigarette lighter found a distance from the area of origin was used to ignite the fire, that will require different responsive evidence to an allegation that the presence of an old cigarette lighter was indicative that people may stop in that location. If it is to be suggested that a certain type of vehicle, that may have started the fire with its hot exhaust, was seen at a certain time in a certain place, other evidence regarding that vehicle may need to be called, or relevant witnesses asked about their observations when they give evidence. Such evidence will be unnecessary if it is only to be suggested that vehicles can start fires.

11 In Goldsmith v Sandilands,[1] Gleeson CJ said:

It sometimes happens, in the course of litigation, that counsel will start a hare. The response of the opposing counsel may be to pursue it. One of the duties of a trial judge is to control the proceedings, to exclude irrelevancy, and to maintain proper limits upon the extent to which the parties and their lawyers will be permitted to raise and investigate matters that are of only marginal significance. The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but 'to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial'. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. One such qualification limits investigation of collateral matters. (Citations omitted)

12 In Bailey v Federal Commissioner of Taxation,[2] Gibbs J said:

Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.

13 Each allegation in a defence must have a proper basis on the factual and legal material available to the alleging defendant at the time of responding to the plaintiff's claim. It is by reference to this requirement that the present controversy may be resolved.

14 Paragraph 18AA defines, relevantly, three key issues to be resolved at trial. First, the relevant defendants deny that the fire was ignited from an electrical source following the failure of the northern conductor. The plaintiff is put to proof of its allegations and the relevant defendants allege that the fire was not so caused but was caused by a human act. Central to these competing hypotheses are two issues of fact: where precisely was the point of origin of the fire and did the northern conductor fail before, or after, the fire was ignited?

15 To succeed on her claims, the plaintiff must prove, on a balance of probabilities, the point of origin of the fire for which she contends and that the fire ignited at that place following the failure of the northern conductor. The burden of proving, on a balance of probabilities, that the fire was ignited at the place contended for by the plaintiff following on the failure of the northern conductor is, and remains throughout, on the plaintiff.[3] Although it is open to the relevant defendants to suggest and seek to prove some other place of, or mechanism for ignition of the fire that was not causally related to any breach of obligation owed by the relevant defendants, there is no obligation on them to do so. Moreover, if they choose to do so, as here they have, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative hypothesis.[4]

16 Counsel for the relevant defendants contended that it was only in this context that it could be said they were positively advancing a thesis as to the cause of ignition of the fire. I am not persuaded that this position is unambiguously clear on the pleadings as particularised. Where a defendant has chosen to suggest and/or seek to prove at trial some other alternative hypothesis, the facts in issue on that alternative hypothesis must clearly emerge from pleadings framed in the light of the legal principles governing the issue. Facts relevant to facts in issue that enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute must properly emerge from the particulars. In the present case, the relevant defendants have had the opportunity to identify and demonstrate the issues and relevant facts for the alternative fire ignition hypothesis following completion of interlocutory steps and preparation of lay and expert evidence for the trial, due to commence within a fortnight.

17 Correspondence between solicitors has concluded on this issue with the observation made by Ausnet Services' solicitors that 'our client's evidence will be led at trial both in support of its denial of the plaintiff's pleaded causation case as well as in support of the matters pleaded in paragraph 18AA of its defence.' The solicitors also stated that:

The evidence to be adduced at trial will, we expect, support a number of other possible causes of the Murrundindi bushfire, which may be classified as "by reason of a human act", as set out in section 18A(c) (scil. 18AA(c)) of the Defence. The human acts which are referred to in the particulars to 18A(c) are the other possible causes in relation to which the First Defendant intends, based on the information currently available, to lead evidence. They are alternatives.

The solicitors continue by identifying in general terms what that evidence will be and providing some limitation on the generality of the particulars in the defence. The act of arson is confined to the 'act of deliberately igniting vegetation' in the area in question. The act of discarding is unknown but the ignition source discarded is limited to a cigarette, a match, or 'silage'. Neither the type of vehicle nor the activity in which it was engaged is known, and the vehicle could have been moving or stationary when exhaust discharge occurred, but an ignition mechanism was broadly described in generic terms.

18 Counsel accepted that the phrase 'at present' where it appears in the particulars was used consistently with the final sentence of the particulars, which promised disclosure of further material facts after the completion of interlocutory steps. That time has arrived and that expression, in addition to the final sentence, must be struck from the particulars where it appears.

19 In argument, it emerged that the relevant defendants have no proper basis to further particularise their allegations beyond what is set out in the letter from Herbert Smith Freehills of 25 February 2014 and cannot identify, in respect of this fire beyond generic statements applicable to any fire, each type of human act particularised either a possible identity of the actor or a possible mechanism for the act.

20 The relevant defendants submitted that these allegations were unambiguous as the absence of an allegation as to the mechanism of the relevant human act must be inferred from the absence of an allegation of the identity of the actor. I do not agree. The identity of the actor and the identity of the mechanism of ignition of the fire are separate matters, although one identity may, but not necessarily will, inform the other. For example, forensic analysis of the location where the fire originated may provide objective facts relevant to determining the mechanism of ignition but not identify the actor. On the other hand, investigations may identify the actor but not the mechanism of ignition.

21 Having affirmatively stated that the fire was ignited by reason of a human act rather than that it may possibly have been ignited by a human act, the relevant defendants are obliged to state the material facts that support that allegation. Clearly, there is evidence from which such facts might emerge. I am informed that there will be evidence from fire investigators who investigated the scene in the vicinity of the Murrindindi mill in the days following Black Saturday. Although there was a police investigation into whether the fire was ignited by an arsonist, the relevant defendants do not nominate the police suspects or any other person as having caused the fire. I was informed that the relevant defendants cannot further particularise their allegation. Deleting the words 'at present' from the particulars makes it unambiguously clear that the relevant defendants' allegation that the fire was caused by a human act is not based upon identification of a possible or actual perpetrator. That is now the defendant's case and the deletion must be made. If the evidentiary material available to the relevant defendants is insufficient to identify the detail of the relevant human act and the mechanism by which it ignited the fire, then the particulars should also make that plain.

22 If that is done, the issue raised by the defendants' allegation about the causative role of a human act becomes clear. This is not a question of particulars. Rather, it concerns the definition of the issues being joined in the proceeding, a matter for the substantive pleading. I am presently unpersuaded that there is a proper basis for the relevant defendants to tenably contend that the fire was ignited by reason of a human act rather than that it may possibly have been ignited by a human act. The factual and legal issues being defined by the pleadings are different depending on which formulation of s 18AA(c) be adopted.

23 If the former interpretation be maintained as the defendants' allegation, the plaintiff is entitled to know the material facts that constitute each of the human acts referred to and which demonstrate the proper basis for the allegation that the fire was ignited by reason of a human act. If such particulars cannot be provided, the pleading should make clear that the allegation is no more than that the fire was possibly ignited by a human act and that the allegation is based on unidentifiable actors, unidentifiable acts and unidentifiable mechanisms of ignition in the specific circumstances of the ignition of the Murrundindi fire, but ignition by a human act is a possible cause of the fire that cannot be ruled out.

24 Based on my discussions with counsel in argument, I am satisfied that no further particulars can be provided and that the relevant defendants must classify the human acts or mechanisms of ignition as unidentifiable. It must be the case that there is no proper basis to allege that Murrindindi fire was started by reason of a human act that can now be particularised. What the defendants are truly alleging is that the Murrindindi fire possibly was started by reason of a human act. But the defendants do not seek to prove ignition by human act, they seek to expand on their denial of the plaintiff's causation theory by raising an alternative hypothesis, which is directed to whether the plaintiff can or will discharge her burden of proof.

25 If that be the position, then the pleading must properly frame the issue and the particulars should clearly state that the human acts or mechanisms of ignition, and the actor, are unidentifiable and, further, identify the material facts on which the allegation that the fire was possibly ignited by a human act is based, that is, why human act as a cause cannot be 'ruled out'. If that not be the position, then particulars of the material facts constituting, for each of the three categories of human act, what the act was and what the mechanism for ignition of the fire by the act was, would show that there is a proper basis for that allegation and ought, by this stage of the proceeding, be identified. There would be no reason for the defendants not to provide proper particulars.

26 However, the relevant defendants have been unable to add to the particulars as promised after all opportunity to identify relevant material facts has been afforded to them and do not suggest otherwise. There is no reason to grant any further time, and none was sought.

27 No proper basis for the allegation as it is presently pleaded and particularised can be identified. Accordingly, paragraph 18AA(c) and the particulars to it, and to the corresponding paragraphs of the UAM defence will be struck out unless the relevant defendants amend paragraph 18AA(c) and its particulars in accordance with these reasons by no later than 30 January 2015.

[1] [2002] HCA 31, [1]-[2][2002] HCA 31; , (2002) 76 ALJR 1024

[2] [1977] HCA 11; (1977) 136 CLR 214, 219.

[3] S 52, Wrongs Act 1958.

[4] Rhesa Shipping Co v Edmunds & Anor [1985] 2 All ER 712, 714.