IN THE SUPREME CO URT OF VICTORIA AT ME LBOURNE COMMON LAW DIVISION No 4788 of 2009 BETWEEN CAROL ANN MATTHEWS Plaintiff

and
SPI ELECTRICITY PTY LTD (AC N 064 651 118) & ORS Defend ants

(by ori ginal proceeding) AND BETWEEN

SPI ELECTRICITY PTY LTD (ACN 064 651 118) Plainti ff by Counterclaim

and
UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS Defendants by Countercl aim (by counterclaim) AFFIDAVIT OF KENNETH ALEXANDER ADAMS Date of document: 24 March 2011 Filed on behalf of: the first defendant Prepared by: Freehill s Level 43 10 1 Collins Street Melbourne VIC 3000 Solicitor's Code: 420 DX: 240 Melbourne Tel: +6 1 39288 1234 Fax: +61 39288 1567 Ref: KAA:REO:8 1720904 Attention: Ken Adams Email: ken. adams@ freehills.com

T Kenneth Alex ander Adams of 101 Collins Street, Melbourne, solicitor, make oath and say as , foll ows: I. I am a member of Freehill s. I have the conduct of this matler on behalf of the first defendant

(SPI Electricity) and the fonner defendants, S P Australia Networks (D istribution) Ltd and

SP Australia Networks (Transmission) Ltd (together SP AusNet). I am authorised to make this affidavit on behalf of SP AusNct and I do so from my own knowledge except where ind icated to the contrary. Where I depose to mallers on the basis of information provided to me I believe that infonnation to be true and correct. 2. I make thi s affidavit in response to the plaintiffs application made by summons dated 17 March 2011 (the Application). Commencement of the proceeding - 16 February 2009 3. On 15 February 2009 there appeared
011

page I of The Sunday Age an article litled "Huge

fire class action launched". The article contained the following statements:

" The Brumby Government and a private electricity company face one of the largest class actions in Victorian history over last weekend's devastatingfirestorm. The legal wrangle, which is expected to involve hundreds of millions of dol1ars and last for years, will centre on a fallen power line that is believed 10 have sparked Ihe blaze that tore through Kinglake, Steels Creek and St Andrews, killing more than 100 people and destroying about 1000 homes. ... Yesterday Slidders Lawyers partner Daniel Oldham confirmed that a class action had been issued in the Supreme Courl on Friday against Singapore-owned electricity company SF AusNet, which is responsible for maintaining most oj Ihe power lines in eastern Vic/aria.
'It is believed that the claim will be made on the basis of negligent management oj power lines and infrastructure, ' Mr Oldham said."
Now produced and shown to me and marked "KAA: 1" is a copy of Lhe article. 4. Early on Monday 16 February 2009 I caused a search to be conducted of the Supreme Court Registry for any originating process recently fil ed which named SP AusNet as a defendant. That search revealed that no such originating process had been filed. 5. On two separate occasions during the afternoon on 16 February 2009 I telephoned Sliddcrs Lawyers to seek clarification regarding the accuracy of statements attributed to Mr Oldham in The Sunday Age article. My inquires of Sl idders Lawyers went unanswe red.

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6.

Shortly after 4.00pm on 16 February 2009 I contacted the Deputy Regi strar

Service Co-

ordination, Supreme Court of Victoria and was infonned that earlier that day she had been
advised by Slidders Laviyers thaI they would be filing a group proceeding in connection with the Victorian bushfires later that day.

7.

I subsequently obtained from the Supreme Court a copy of a generally indorsed writ fil ed at 4.40pm on 16 February 2009 by Slidders Lawyers on behalf of Leo Keane (the Original
writ).

Public comments regarding the premature commencement of a proceeding 8. On 17 February 2009: (a)
SP AusNet issued a statement to the Australian Securities Exchange in which it

advised that it had been notified that a writ had been filed and that it considered the claim to be "both premature and inappropriate, given the establishment of the Royal Commission of Inquiry into the Victorian bushfire crisis"; (b) there appeared in The Age an article titled "Hulls hits ' unseemly ' bushfire class action" in which the then Attorney Genera l for Victoria was quoted as stating " There does seem 10 be an unseemly rllsh by some lawyers to the court even before the "; causes of these fires have been fully investigated and (c) in the same article reference was made to a press release issued by Slater & Gordon lawyers. The article stated that: "Slater & Gordon said it was premature to be considering a class action until the findings of the royal commission on the fires were released 'ThaI process will necessarily take some time and in our view it would be wasteful, distracting and pre-emplive
10

replicate Ihal process wilh private

collateral private action', the firm said in a statemenl."

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9.

Now produced and shown to me and marked "KAA:2" is a copy of SP AusNel's ASX
announcement and the article which appeared in The Age on 17 February 2009.

Concerns conveyed to Slidders Lawyers 10. The Original writ sought loss and damage consequent upon fires which commenced near Kilmorc East and Beechworth, Victoria on 7 February 2009. It appeared on its face to be
deficient in a number of respects, which indicated to me that it had been prepared in haste. 11 . I conveyed my concerns about the manner in which the proceeding had been commenced,

and the content of the Ori ginal wri t to Sliddcrs Lawyers by letters dated 20 February 2009
and to March 2009. The responses received fro m Slidders Lawyers did not address the substanti ve issues raised. Now produced and shown to me and marked "" KAA: 3" is a copy of the correspondence between Freehills and Slidders Lawyers. 12. On 16 April 2009 SP AusNet was served with the proceed ing. The documents served included the Original writ and an amended general endorsement daled 15 April 2009. The only substantive change between the Original writ and the amended general endorsement was the removal of a claim in relation to the Beechworth fire.

Adjournment of the proceeding

13. On 15 May 2009 orders were made by consent to: (a) pemlit Maurice Blackburn and S lidders to appear as joint solicitors on the record for Mr Keane; (b) (c) excuse the plaintiff from filing a statement of claim until further order; and stay the proceeding, with any party having a right to revive the proceeding upon the provision of 14 days written notice of his or its intenti on to take a step in the proceeding. 14. AI the time SP AusNet consented to orders as outlined above, I was unaware that the proceeding had been commenced without instructions from Mr Keanc. Nor was I aware of

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the absence of authority from Mr Keane for the proceeding to continue. !-lad I been made aware of these matters at the time, I would not have advi sed SP AusNet to consent to the orders which were made on 15 May 2009.

The substitution application and variation to the orders

15. On 18 June 20 10 the plaintiffs application made by summons dated 17 June 2010 was served upon SP AusNet. Among other things, the summons sought orders to: (a) (b) 16. substitute Mrs Caro l Ann Matthews as the plaintiff in the proceeding; and substitute SPI Electricity as the only defendant in the proceeding.

On 23 July 20 10 SP AusNet consented to both the substitution of Mrs Matthews as plaintiff and of SPI Electricity as the only defendant. At the time of the provision of this consent, I was unaware that the proceeding had been commenced without instructions from Mr Keane, nor was I aware that he had not given hi s authority for the proceeding to continue to that date in his name. Had I been made awarc of this information at the time, 1 would have advised SP AusNet not to consent to the proposed substitution of Mrs Matthews as the plaintiff.

17.

On 28 July 2010 I received a letter from the plaintiff's solicitors infonning me that it had come to their attention that the use of Rule 9.06 as the basis upon which SPI Electricity was substituted as the only defendant, may have consequences for the calculation of any interest in respect of the claims of the plaintiff and group members. The plaintiff's soli citors advised that they proposed to seek a variation to the orders made on 23 July 20 10 the effect of which was that the basis for the substitution would be Rule 36.01 , rather than Rule 9.06.

18.

Under cover of a letter dated 3 August 2010 which I caused to be sent to the plaintiffs solicitors, SP AusNet advised the plaintiff that it did not oppose the variation sought to the orders made on 23 July 20 I O. At the time this letter was sent 1 remained unaware of the absence of instructions from Mr Keane. Had T been infonned of these matters I wou ld have advised SP AusNet to oppose the variation sought to the orders.

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19.

Now produced and shown to me and marked " KAA:4" is a copy of the letter dated 28 July
20 I 0 from Mauri ce Blackburn / Oldham Naidoo to Freehills and the letter dated 3 August 2010 from Freehill s to Maurice Blackburn / Oldham Naidoo.

SWORN BY at Melbourne

in the State of Victoria

on 24 March 2011

Before me:

RI1T1i EUZABETM aVERll/aTO"

FreehlIt8 101 CoIHna Street Melbourne

An Australian l.~1 Practltloll8r wtthln U16 meaning ot tnlllegal Profession Act 2004.

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