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.