Kinglake-Kilmore East bushfire trial update

6 November 2013
After patiently waiting more than four years, victims of the devastating 2009 Victorian Black Saturday bushfire through Kinglake-Kilmore East today finally got their day in court.

Wednesday, 6 November, 2013

Bushfire trial update

SP AusNet has now closed the lay evidence part of its case. The company to which SP AusNet outsourced its inspections, ACN 060 674 580 Pty Ltd (formerly known as Utility Services Corporation Ltd), has also presented its defence to allegations that it was partly responsible. We are now hearing the defence from State government parties (the CFA, Department of Environment and Primary Industries, and Victoria Police) to SP AusNet cross-claims against them. This will be followed by expert evidence on various issues, scheduled to be heard by the Court from mid-November through to March next year.

Although the case may still settle before the presently-scheduled finish of April 2014, Maurice Blackburn's view about our case's strength has not changed. We remain confident about winning if we are required to go to verdict.

 

Wednesday, 16 October, 2013

SP AusNet took legal advice that left bushfire victims in the dark

The Supreme Court has heard evidence this morning that electricity company SP AusNet obtained specific advice from Freehills as to what to tell landowners before it put up 'dummy' conductors for its defence of the Kinglake-Kilmore East Black Saturday class action.

The evidence comes on the closing day of testimony and arguments about a pivotal point in Australia's biggest ever class action - over whether or not the evidence that underpins the defence of SP AusNet be thrown out for being obtained unlawfully.

Yesterday the Court heard and saw evidence that internal SP AusNet emails had stated that "the property owner relationship could be a showstopper".

Today the Court heard evidence from Senior Associate lawyer at Freehills Ruth Overington, that even though she knew that landowners were group members in the class action, she provided a checklist of information to SP AusNet for use with landowners, that excluded the fact that the tests were for the purpose of SP AusNet's defence of the class action.

The three bullet points of information, which Ms Overington described as the "suggested message to be conveyed to the neighbouring landowners", stated that SP AusNet is conducting tests "to help identify a variety of variables which impact on the performance of its network equipment".

The court also heard this week that the three bullet points of information provided by Freehills were then circulated internally by Graham Karutz of SP AusNet in an email which stated: "Regarding information to be provided to property owners, the following brief dot points were provided by the solicitorand give nothing away".

One of the landowners on whose land the test spans were erected, Blanche Beel, whose house burned down on Black Saturday, gave evidence this week that SP AusNet did not inform her at any time that they were accessing her land for the purposes of the class action.

Ms Beel told the Court that she would not have allowed the test to be put up on her land if she had known that it was to be used to gather evidence to be used against her and the other group members in the class action.

In March of this year Associate Justice Derham made a ruling in which he indicated that he did not consider that SP AusNet had the statutory authority to enter the land for the purposes of establishing a field test for use in this litigation.

It is expected that Justice Jack Forest will reserve his decision.

 

Tuesday, 15 October, 2013

SP AusNet email admits property access could be a "showstopper"

The Kinglake-Kilmore East Black Saturday bushfire class action has today heard evidence today that internal SP AusNet emails had stated that "the property owner relationship could be a showstopper".

One of the landowners on whose land the test spans were erected, Blanche Beel, gave evidence yesterday that SP AusNet did not inform her at any time that they were accessing her land for the purposes of gaining evidence to be used in the class action.

The Supreme Court has also heard evidence today that Freehills lawyer Ruth Overington issued instructions via email to SP AusNet regarding what information the company should provide to landowners, on whose land the company was erecting test conductors to use in their defence of Victoria's biggest class action.

The three bullet points of information, which Ms Overington described as the "suggested message to be conveyed to the neighbouring landowners", stated that SP AusNet is conducting tests "to help identify a variety of variables which impact on the performance of its network equipment".

There was no mention of the class action - which the Court heard evidence today was the sole purpose of the tests - in the proposed information to go to the landowners.

The court also heard today that the three bullet points of information provided by Freehills were then circulated internally by Graham Karutz of SP AusNet in an email which stated: "Regarding information to be provided to property owners, the following brief dot points were provided by the solicitor and give nothing away".

Martin Hyde, Class Actions Principal at Maurice Blackburn Lawyers which is acting for the plaintiff, says the evidence given today paints a bleak picture of what was happening behind the scenes.

"Given that SP AusNet, in its own submissions, has acknowledged that its defence of the class action largely depends on the scientific evidence gleaned from their field test, it is little wonder the company is deeply concerned about the impact on its case if the evidence from the field test is ruled to be inadmissible because it was obtained unlawfully," Mr Hyde said.

In March of this year Associate Justice Derham made a ruling in which he indicated that he did not consider that SP AusNet had the statutory authority to enter the land for the purposes of establishing a field test for use in this litigation.

 

Monday, 14 October, 2013

SP AusNet bushfire class action evidence under impropriety cloud 

The scientific evidence that electricity company SP AusNet has based its Black Saturday bushfire class action defence on, may be excluded for being improperly obtained. 

Maurice Blackburn Lawyers, on behalf of the lead plaintiff Carol Matthews, have made an application to the Supreme Court today claiming that landowners were misled as to why the company was undertaking electrical infrastructure works on their properties after the deadly 2009 bushfires.

The Court today heard evidence that landowners, including group members of the class action against SP AusNet, were not informed that the testing work SP AusNet was undertaking on electrical infrastructure on their properties, was in fact being done to build an arsenal of evidence for use against them in legal proceedings, and was not for essential network improvement work, which is what landowners had been notified by SP AusNet the works were for.

If Justice Jack Forrest agrees that the evidence was obtained illegally or improperly, it can be ruled out of proceedings, which would be a turning point in the mammoth trial which has been on foot since March.

Under questioning in the trial today, land owner and group member in the class action, Blanche Beel, whose house was burned down on Black Saturday, told the court that she would not have allowed the testing to occur on her land if she had have been informed it was for the purposes of gathering data for SP AusNet to use in its defence of the class action against her and the other group members in the class action.

"I would have said no, and I would have gone - I'm 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," Ms Beel told the court.

"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."

Asked by Jonathan Beach, QC for SP AusNet, if her issue was that she hadn't been told that the data from the test span was going to be used for the purposes of the legal proceeding, Ms Beel replied:

"I was never told that. And I wasn't given the availability of saying, 'No, you can't come on'."

The argument continues, with Maurice Blackburn's head of class actions Andrew Watson to give evidence this afternoon, and SP AusNet engineer Noel Baumgarten and Ruth Overington of Freehills lawyers (acting for SP AusNet) to take the stand tomorrow.

 

Wednesday, 31 July, 2013

SP AusNet's lawyers stopped chief maintenance man from investigating cause of catastrophic Black Saturday fire

Lawyers for SP AusNet - the electricity company accused of starting the devastating Kilmore East/Kinglake Black Saturday bushfire in 2009 by the poor maintenance of its powerlines - blocked the Chief Maintenance officer from accessing important information that would have enabled him to make the powerlines safer for the community, the Supreme Court has heard.

SP AusNet's in-house lawyers and its external lawyers Freehills, instructed SP AusNet's Chief of Maintenance Denis McCrohan not to look into the cause of the 2009 Kilmore East/Kinglake Black Saturday bushfire before giving evidence, the Supreme Court has heard during this week's hearings into the bushfire class action.

The Supreme Court has heard this morning from Mr McCrohan, that, "as a result", since Black Saturday there have been "no changes to the procedures and processes" that SP AusNet has in place to minimise the risk of another devastating fire.

Despite being quarantined from discussing with his colleagues the reason for the failure of the conductor which broke on Black Saturday and started the Kilmore East/Kinglake fire which killed 119 people, Mr McCrohan has been giving evidence in the class action on the likely cause of the break of the conductor which started the fire.

In his evidence, Mr McCrohan said that the main investigation into why the line broke would have been conducted by SP AusNet's engineering team, headed by Mr Saman De Silva, and that he was instructed by SP AusNet's lawyers not to talk to Mr De Silva or his team about their investigation.

While putting Mr McCrohan forward as a witness in the class action trial, SP AusNet has effectively muzzled its Head of Engineering Mr De Silva, refusing to call him as a witness. 

Under cross-examination as part of the class action currently underway on behalf of 10,000 victims of the fire, Mr McCrohan told the court that SP AusNet's lawyers instructed him specifically not to look into any maintenance issues related to the fire, despite the fact that he was responsible for trying to minimise the risk of SP AusNet's powerlines failing.

Mr McCrohan confirmed that before giving his evidence, the "only people" he had spoken to about the cause of the fire were SP AusNet's lawyers involved in defending the class action proceedings.

When Counsel for the plaintiff, Tim Tobin SC, put to Mr McCrohan that he approached the legal team rather than talked to linesmen, line engineers or even the inspection company about the cause of the fault in the line which ignited the fire, Mr McCrohan said:

"For this particular incident, that's exactly what happened, in actual fact, they (the legal team) came to me."

Under further questioning about why he didn't make inquiries relevant to further failure mitigation for SP AusNet, Mr McCrohan responded:

"All the other instances we look into… this one site I didn't look into because I was instructed not to, we had other people doing that." Mr McCrohan confirmed that the "other people" were Mr De Silva and his team.

In response, Mr Tobin SC suggested to Mr McCrohan that he could have done more, saying:

"At times you can say to lawyers, 'Go to hell. My job is to look at the security of this system. We have just had 120 die. Do you want me to sit on my hands and do nothing about it?'"

Martin Hyde from Maurice Blackburn Lawyers, which is representing the class action group members, says ring-fencing its Head of Maintenance from everyone but lawyers, coupled with a refusal to call the Head of Engineering Mr de Silva, whose group led the investigation, raises very serious questions about the conduct of SP AusNet.

"These revelations suggest that SP AusNet's focus remains on self-protection and minimising the amount that it may have to pay out to victims of Kilmore East/Kinglake bushfire rather than taking all practical steps to protect the community," Mr Hyde said.

Mr Tobin's cross-examination of Mr McCrohan continues.

 

Thursday, 11 July 2013

Bushfire trial mediation next step

The case has been in trial since March this year. The judge will not be sitting for the period 24 June 2013 to 26 July 2013.

Throughout May and June, SP AusNet called four lay witnesses who gave evidence on various aspects of SP AusNet's practices and procedures. Robert Richter QC, barrister for the plaintiff, has cross-examined these witnesses and we are happy with the progress of the trial to date.

The Court has provided the parties with a revised timetable for the remainder of the trial. A further mediation has been scheduled from 22 July to 25 July 2013. At this mediation the parties will try to find a way to resolve the class action.

If the mediation is unsuccessful, SP AusNet's lay evidence will resume on 29 July 2013 for an estimated period of eight weeks, following which we will hear evidence from USC's lay witnesses and some of the State Parties' lay witnesses. After this, the judge will hear expert evidence, the balance of the State's lay witnesses and closing submissions. Present indications are that the trial will finish in April 2014.

 

Friday, 24 May, 2013

Former SP lines engineer exposes company's failings

The Black Saturday bushfire class action trial has heard explosive evidence this week from former SP AusNet Senior Lines Engineer Anthony Walley, who revealed serious deficiencies in the company's management of its assets.

In his evidence, Mr Walley pointed to his own experiences with SP's inadequate systems, and highlighted an admission from SP's main data systems manager that the data on which SP based its asset replacement and maintenance strategy was "shit".

Mr Walley, who was part of the core SP team involved in the Victorian Bushfire Royal Commission, has given evidence before Justice Jack Forrest all week regarding the lack of care the company showed towards the maintenance of its electrical infrastructure, the failure of part of which ultimately led to Victoria's most devastating bushfire.

In his evidence to the court, Mr Walley explicitly highlighted failings of SP AusNet's internal approach to asset maintenance, including:

  • SP AusNet adopted a 'run to failure' approach in relation to conductors
  • There was internal pressure within SP AusNet to downplay risks so that they did not have to be elevated to Board level
  • SP AusNet did not properly investigate the reasons why its assets were failing, including in high bushfire risk areas
  • SP AusNet did not have crucial records of maintenance to its assets from before 1999. 
  • SP AusNet did not apply vibration dampers to the Kilmore East line that failed on Black Saturday, in contravention of its own standards.

Rory Walsh, Senior Associate with Maurice Blackburn Lawyers which is running the case, says the court has heard some shocking evidence from a very senior officer of SP AusNet with first-hand knowledge of the company's practices.

"What Mr Walley has exposed to the court this week is that SP AusNet showed complete disregard to maintaining a safe network of power lines in high-risk areas, and that the company had an inadequate approach to maintaining electrical infrastructure, part of which failed on Black Saturday and cost 119 people their lives," Mr Walsh said.

"Mr Walley has given crucial evidence for the victims of this fire, evidence that comes straight from the core of one of Australia's biggest electrical companies that exposes blatant failings in delivering electricity safely.

"Put simply, SP AusNet didn't know the condition of its ageing power lines through which they supplied electricity through remote areas of high bushfire danger. In such circumstances, it was inevitable that the power lines would fail."

 

Monday, 13 May, 2013

Plaintiff's lay evidence has concluded in bushfire trial

After nine weeks of trial, the first phase of the plaintiff's case in the Kinglake-Kilmore East bushfire class action has concluded. The Court has heard evidence from 31 witnesses and received over 300 documents to establish the claims made against SP AusNet.

On Monday 20 May, our legal team will also call Mr Anthony Walley, a former Senior Lines Engineer for SP AusNet, to give evidence.

Mr Walley will give evidence that SP AusNet's asset management systems and practices relating to conductors were inadequate and not in accordance with appropriate asset management practices.

Justice Jack Forrest has recently handed down two important rulings which deal with the expert evidence. The first of these rulings allows the plaintiff to file a supplementary expert report prepared by Mr Henry Hawes, an engineer with expertise in line design and the impact of wind on powerlines. The report provides strong support for the plaintiff's case.

The other ruling allows the parties to conduct further testing in relation to the cause of the fracture of the conductor which failed on 7 February 2009.

SP AusNet has now called its first witness to give evidence and Robert Richter QC for the plaintiff has commenced his cross-examination. SP AusNet has nominated 19 lay witnesses to give evidence in support of its case and it is likely that it will take four to six weeks to hear their evidence.

The Court's mid-year vacation is scheduled from 22 June to 21 July 2013. The hearing of the Kinglake-Kilmore East Black Saturday bushfire class action will recommence before Justice Jack Forrest on Monday 22 July, 2013.

 Friday April 12, 2013

CFA-designated safe-house failed on Black Saturday

Bushfire trial witness Jenny Clark, who lost family, friends and pets in her CFA-designated safe-house during the Black Saturday Kinglake/Kilmore-East fire, has given evidence this week that the CFA had convinced her it was safer to stay, rather than leave during a fire.

 Despite having previously had a fire plan that saw the family evacuate during dangerous times such as the 2006 fires, Ms Clark told the court that her house had been designated by the CFA as a safe-house in 2008 and that she and nearby friends were to gather there during a fire for safety.

 Ms Clark told the court that despite the new plan, if she had have received adequate warnings about the ferocity of the Black Saturday fire, she would not have been happy to stay and defend, saying;

"Well, we would have liked to have had some warning and then we could have left early."

 During the fire there were eight people at the Clark safe-house, including Jenny, her husband Mick, her son Danny, three grandchildren Mackenzie, Aidan and Neve, as well as neighbours Melanie and Penny Chambers.

 The court heard Ms Clark re-live what she described as a "horrific" situation that unfolded at the house on Black Saturday, which resulted in only herself, Mick and Aidan surviving.

Ms Clark told the court:

"I didn't see the fire coming towards us. I just - the front door caught on fire and that was the first we knew, really."

  "It was pretty horrific. It was… the front windows of the house exploded inwards and the curtains caught on fire, and then it ran across the floor and the carpets. My dog caught on fire, the smoke alarms were going, cat was screaming, yes."

 Ms Clark described how she, Mick and Aidan tried to get to the others trapped inside the house, that she could see them and was yelling to them to "get out", to no avail.

  "Then we ran around the back and tried to get through into the laundry, but the flames were just too big and ferocious and we just didn't - couldn't get there. Couldn't do it," she told the court.

  Ms Clark suffered burns to 40 per cent of her body on the day. She is one of a group of around 10,000 people in a class action suing electricity company SP Ausnet for damages over what occurred on Black Saturday.

Thursday, 14 March, 2013

ALERT: Lead plaintiff Carol Matthews to take the stand tomorrow morning in Kinglake-Kilmore East bushfire trial

Carol Matthews, the lead-plaintiff representing thousands of victims involved in the class action against SP Ausnet over the 2009 Black Saturday Kinglake-Kilmore East bushfire will take the witness stand to give evidence to the trial tomorrow morning.

Ms Matthews will be called to give evidence when the court resumes at 10:15am tomorrow morning, Friday 15 March.

The William Cooper Justice Centre is located on the corner of William and Lonsdale Streets in the Melbourne CBD, with the court on level three.

 Friday, 8 March, 2013

Kinglake-Kilmore East bushfire trial update - week one

At the conclusion of the first week of hearings in the Kinglake-Kilmore East Black Saturday Bushfire class action, Justice Jack Forrest has announced that the opening submissions of all parties can be made available to the public.

 The case being put on behalf of the class action group members made reference to several significant internal SP Ausnet documents that highlighted the electricity company knew of several inadequacies with their training, inspection and maintenance regimes.

 The documents also reveal that the company chose to ignore the best advice of its own Lead Engineer for lines Mr Saman De Silva, and it ignored advice contained within its own bushfire mitigation manual produced years earlier.

 The following excerpts highlight that SP Ausnet's own people knew not enough was being done by the company in regards to line safety and maintenance.

 In August 2007, SP's Maintenance Program Delivery Manager Andrew Randall wrote an email to Lead Engineer for lines Mr De Silva, indicating that SPI was aware that its reactive maintenance practices were slow and inadequate. Mr Randall wrote:

  UAM inspect first and have no incentive to defer maintenance, they are more likely to pick things up and aggressively prioritise them to cover their backs. It is our maintenance team that invariably pushes out the priority and say it will last a bit longer. I agree we are not doing enough maintenance.

  An internal report prepared by SPI in June 2010 relating to an amended asset performance strategy records shows:

Due to the limited expenditure on the network between 2001-2007, and the introduction of the asset performance strategy, find rates [of faults] have risen in some areas from 2% to 15%. One of the main contributors is the previous strategy of delaying replacement of deteriorated assets across the entire network, which consequently impacted on network reliability, and the reputation of SP AusNet.

  In a document prepared after the fire, Mr De Silva, SPI's Lead Engineer for Lines, gave a frank assessment of options available to SPI:

Option 1: Do Nothing

Leave the existing corroded and aged conductors in place and maintain any conductors that may break and fall the ground. By continuing with this method, there will be no reduction in the number of breakages and outages and the risks associated with a conductor falling to the

ground…..Consequential cost of Do Nothing option is very high and replacement of identified conductors as soon as possible is in the company and public interest.

  Option 2: Replace the corroded conductors on reactive basis under maintenance.

This option is to replace sections of conductors when they fail without any planned replacements. This option not only will cause additional USADI [sic] but will give rise to potential bushfire risks. This type of patch work cannot go forever hence at some stage a decision has to be taken to replace large sections of cable and possibly more than what is currently identified…

Considering the negative impact on the business by following this option it is recommended that this option is not pursued.

  Option 3: Replace the corroded conductors and rebuild older pole tops where necessary

Replacement of the corroded and aged conductors at these sites where conductors have been assessed as being in poor condition is the only solution that is capable of addressing the risk of breakages and the consequent bushfire risks and damage to property, livestock and reputations. By replacing with new conductors the number of fires and outages would be expected to be reduced.

This is the preferred option

  On Black Saturday, the ―consequential cost of SP Ausnet running the corroded, old severely degraded Valley Span to failure was catastrophic.

 And SP Ausnet's own Bushfire Mitigation Manual (The 2005 Bushfire Mitigation Manual: Fault energy management on days of total fire ban), specifically notes that by not suppressing electricity circuit reclosers (shutting off power on damaged lines) "the auto reclose action will re-energise a fault, thus liberating an additional quality of fault energy with a greater ability to start ground level fires; and,

If a fire were to occur from a permanent fault with auto reclose left in service, defence of the situation would be difficult."

 The full submission document can be found here:

/media/1003/plaintiffs-opening-submissions.pdf

 Tuesday, 5 March, 2013

Kinglake-Kilmore East bushfire trial update

Electricity company SP Ausnet's own manual on bushfire mitigation highlighted the extreme danger of leaving electricity wires live after a fault, the class action trial into the 2009 Kinglake-Kilmore East Black Saturday bushfire has heard.

In an internal SP Ausnet document called The 2005 Bushfire Mitigation Manual: Fault energy management on days of total fire ban, the company accused of negligence causing the Black Saturday fire notes the high danger of leaving damaged lines live by not turning off the auto reclose function.

Robert Richter QC for the plaintiffs read from the SP Ausnet safety manual which states - "If a fire were to occur from a permanent fault with auto reclose left in service, defence of the situation would be difficult".

Mr Richter said that was indeed a prescient observation, adding throughout his opening on Monday  that the court would hear further evidence showing that reclosing the line (to allow electricity to continue to be passed through it) increases the danger of ignition, should there be a fault.

Today both the utility company responsible for checking the lines UAM, and electricity provider SP Ausnet will outline their cases to the court.

Monday, 4 March, 2013

Day one - Kinglake-Kilmore East bushfire trial begins

After patiently waiting more than four years, victims of the devastating 2009 Victorian Black Saturday bushfire through Kinglake-Kilmore East today finally got their day in court.

In what is expected to be one of the biggest trials of 2013 on almost any measure, the trial began today in front of Justice Jack Forrest in the Supreme Court's newly constructed courtroom in the William Cooper Justice Centre.

The trial is set to run for six to nine months, with more than 7500 claimants that are registered with Maurice Blackburn seeking compensation for personal injury and losses that are expected to total into the hundreds of millions of dollars.

Counsel for the class action members, Robert Richter QC, made his opening statements today, outlining the case against SP Ausnet, highlighting;

  • SP Ausnet ignored their own policy of fitting $6 vibration dampeners to lines over 300 metres long (the line in question was over one kilometre long) and those dampeners would have prevented the line from breaking;
  • SP Ausnet had a woefully inadequate and unacceptable policy of running their powerlines to the point of failure before replacing them, and had a proper asset management policy been in place the fire wouldn't have occurred;
  • SP Ausnet allowed a broken, fallen line to remain electrified and to shoot out four separate bursts of electricity, sparking vegetation to flame; and,
  • Previous inspections of the line in question were inadequate and should have identified faults with the line that needed addressing.

Lead plaintiff for the class action, Carol Matthews, was in court today, but is not expected to have to give evidence this week.

 

 

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