There has been another judgment in the ongoing Black Saturday bushfire litigation, though the issue in the latest dispute may well surprise readers of this blog.  In Matthws v SPI Electricity (No. 3) [2011] VSC 399 Forrest J had to consider where an Associate Judge could read extracts from the reports of the 2009 Victorian Bushfires Royal Commission!

A step in civil litigation is ‘discovery’ where the parties have to exchange all relevant documents that they intend to rely on.  In order to manage the discovery process, an Associate Justice was appointed.  She would have to make decisions on whether or not various documents were relevant to the ultimate litigation.  It was felt that it would make her job easier if she could review parts of the Royal Commission reports and the evidence before the Commission to better understand the issues that would ultimately come before the Court.  The parties were also required to give discovery of the various documents that they had provided to the Royal Commission.

The ‘state parties’ that is the Country Fire Authority, the Department of Sustainability and Environment and the State of Victoria resisted moves to allow the material to go before the Associate Justice.  They argued that the Associate Justice should ‘only have Chapters 1 and 2 of Volume 1 of the Final Report, and only four pages of the chapters dealing with the Kilmore East fire.  The State also stipulated as follows:

The State parties consent to provision of this material on the basis it does not become evidence in the proceeding does not constitute an admission that the information is accurate, relevant or admissible in the proceeding; and the material provided does not extend to exhibits referred to therein.

Regardless of the merits of this claim, this position demonstrates (the often misunderstood position) that a finding by a Royal Commission (or a coroner) is not legally binding.  These tribunals do not determine legal rights and responsibilities and the State was clearly trying to protect its position to re-litigate (if necessary) matters of fact that readers may think have been settled by the Royal Commission.

In this case the trial judge, Forrest J reviewed the pre-trial processes that were put in place to reduce cost and delays in litigation and to facilitate resolution of the true issues in dispute rather than technical fights that were time consuming and costly; with discovery possible costing more than the entire amount in dispute.  Forrest J said

 … the discovery process in this case is extraordinarily complex and difficult.  No-one can hazard a guess as to its size if not controlled.  Terabytes loom large.  It may, on a worse case scenario, take 12 months.  Any step which can be taken to assist the Associate Justice in managing and containing discovery is for the good.  By this I mean that the complexity of the issues demands that any background information which can help her Honour to determine what material is germane to the issues to be litigated at trial can only be of assistance.

Allowing the Associate Justice to access the Royal Commission material would assist her to manage the discovery process by understanding what is, or is not relevant.  ‘They will assist her Honour in understanding what the real issues are and what documents are truly relevant.’

Further the Associate Justice was only managing the pre-trial process.  She will not be the trial judge and so will not determine issues in dispute, so any concern the State parties had on whether the court would see the findings of the Commission as established facts was simply not relevant at this pre-trial stage.

The legal issue is interesting; but I suspect readers of this blog and the community generally would be surprised to learn that it was even debatable that the report of a Royal Commission, that cost many millions of dollars to conduct its inquiry, was not automatically before a court but as noted, it confirms that Royal Commissions and Courts play a very different role.  Royal Commissions are not bound by the rules of evidence, they are not bound by the concept of the ‘burden of proof’ and they cannot conclusively determine either the facts or legal responsibility.  These are matters for the Court and the findings of the Royal Commission do not bind the Court; that is the Court does not have to make findings that are consistent with the Royal Commission report.  It follows that litigation may again take a long time, cost a lot and go back over issues that have already been canvassed in the Commission.

6 September 2011