KAA-3 (in the Affadavit Sworn 24 03 11)

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

BETWEEN

CAROL ANN MATTH EWS

and

SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS

(by original proceeding) AND BETWEEN

SPI ELECTRICITY PTY LTD (ACN 064 651118)

No 4788 of 2009

Plaintiff

Defendants

Plaintiff by Countercla im

and

UTILITY SERVICES CORPORATION LIMITED (ACN 060 674580) & ORS

Defendants by Counterclaim (by counterc laim)

CERTIFICATE IDENTIFYING EXHIBIT

Date of document: 24 March 20 II Filed on behalf of: the first defendant Prepared by: Freehill s Level 43 10 1 Collins Street Melbourne VIC 3000

Solicitor's Codc: 420 DX: 240 Melbourne Tel: +61 39288 1234 Fax: +61 39288 1567 Ref: KAA:REO:81720904 Attention: Ken Adams Email : [email protected]

This is the exhibit marked "KAA:3" now produced and shown to KClU1cth Alexander Adams at the

time of swearing his affidavit on 24 March 201 1.

Freehills 8165581

£ #' ~/1 --- -- ~--+ - -~---

i'liITM IElIZABEi1·J iJWi'lIM<rl1:;}id

F<96hIIis "KAA 3" 101 Collins Street MvlboU({)<?l : lui Au~1an legal P",ctnioner Ifthin ttl; b F h 'II mean~~oeJroe etween ree I S

and Slidders Lawyers

Freehills

Ms Renishka Naidoo Managing Partner Slidders lawyers

[email protected]

Dear Renishka

20 February 2009 Matter 81523827

8yemail

SP Australia Networks (Distribution) Ltd & SP Australia Networks (Transmission) Ltd als Leo Keane Supreme Court of Victoria Proceeding No 4788 of 2009

We act for SP Australia Networks (Finance) Trust. SP Australia Networks (Transmission) ltd and SP Australia Networks (Distribution) Ltd (together SP AusNet) . Our client is listed on the Australian Securities Exchange.

On 15 February 2009 the front page of The Sunday Age carried an article titled -Huge fire class action launched-. Within the body of the articte it was reported that:

• Yesterday Slidders Lawyers partner Daniel Oldham confirmed that a class action had been issued in the Supreme Court of Victoria on Friday against Singapore-owned electricity company SP AusNet, which is responsible for maintaining most of the power fines in eastern Victoria.

'It is believed that the claim will be made on the basis of negligent management of power fines and infrastructure, ' Mr Oldham said:'

During the opening hour of trade on Monday 16 February 2009 our client's share price fell more than 13%. Several hundred thousand shares were traded during this period.

A search of the records of the Supreme Court of Victoria on Monday morning revealed that no proceeding against OUf client had been issued on Friday. Nor had any proceeding been issued by midday on Monday. At 1.02pm on 16 February 2009 Ken Adams of our office telephoned your office and asked to speak with Mr Oldham. Mr Adams advised that he represented SP AusNet and wished 10 clarify media reports concerning his client. Mr Adams was told that:

• Mr Oldham is on leave for the entirety of this week; and

Charles Slidders (founding partner of Slidders lawyers) is overseas indefinitely.

An employee named Giordana stated that she wou ld speak to Mr Oldham and agreed to call Mr Adams back as a matter of urgency.

Mr Adams' urgent message went unanswered.

At 3.06pm Mr Adams again called your firm and asked to speak with any partner. He was advised that you were the only partner presently in the office and that you were not taking telephone calls. Mr Adams left a message requesting that his call be returned immediately.

, Houston, C .• and Badle1ard. M .• "Huge fi re class actioo launched" The Age p.1.

Doe 1115438.7

101 Collins Streel MelbWrne VIC 3000 Auslratia GPO Box 12l1A Melbourne VIC 3001 Australia

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Telephone " 61 3 9288 1234 FIK5lmiIe ·61 3 9288 1567 www.freetlills.COtn OX 240 Melbourne

Con~ oIkcs in ~ Ho cr. ... "" City ..-...-

freehills

Shortly after 4.00pm Mr Adams telephoned Denise Weir, Deputy Registrar - Service Coordination, Supreme Court of Victoria. Ms W eir advised Mr Adams that:

(a) earlier that day the Court had been advised by Slidders Lawyers that they would be filing a group proceeding in relation to the Victorian bush fi res later thai day; and

(b) laler in the day the Court was informed that a derk was on his or her way to Court to file the proceeding.

As at the time of sending this letter some three days later, Mr Adam s' two urgent messages to Slidders l awyers remain unanswered. Further no explanation has been given as to whether Mr Oldham daims to have been misquoted or whether he has misled the investing community by falsely slating thai a dass action had been commenced last week.

We have now obtained a copy of the generally indorsed writ in Supreme Court of Victoria Proceeding No 4788 of 2009 (the Proceeding ). This proceeding has not yet been served upon our client. We are aware thai on 24 December 2008 your firm also filed a group proceeding against various State parties seeking relief in relation to certain bush fires that occurred in Victoria in early 2003 and that that proceeding has not yet been served upon the defendants. Please let us know whether. and if so when, your client intends to effect service of the Proceeding on our cl ient.

More generally it is not clear to us why the Proceeding has been commenced by way of a generally indorsed writ. A cursory review of the document reveals that it is replele w ith errors and incoherent allegations. In view of the deficiencies in the document, it would appear that the Proceeding was filed prematurely and in considerable haste. There is no obvious rational explanation for your client to have done so. Given the gravity of the allegations and the public manner in which your firm has raised these matters, we consider this to be very serious. Should your client wish to pursue the Proceeding we ask that the deficiencies be remedied prior to service, so that the resources and time of the Court and our client are not wasted.

We also ask that you preserve all records of communications and all documents relevant to the publication of the article titled -Huge fire class action launched" which was published in The Sunday Age on 15 February 2009.

We look forward to your prompt response.

Yours sincerely

Ken Adams Partner Freehills

+61 39288 1669 +61418350776 [email protected]

1115438

£.~ Ruth Overington Senior Associate Freehills

+6139288 1946 +61 421 643204 [email protected]

SP Australia Networ\o;;s (Distribution) ltd & SP Australia NelwOfks (Transmisskln) lId ats leo Keane

Supreme Court of VICtoria Proceeding No 4788 of 2009 page'

SLIDDERS

27 February 2009

STRICTLY PRN ATE & CONFIDENTIAL MrKenAdams Freehills GPO BOX 128A MELBOURNE VIC 3001

Dear Mr Adams,

BY EMAIL kell,[email protected]

Class Action v SP Australia Networks (Distribution) Ltd Trading as SP Ausnet and SP Australia Networks (Transmission) Ltd Trading as SP Ausnct

Supreme Court Number 4788 of 2009

We refer to our previous correspondence in relation to the above matter, and In

particular, your letter dated 20 February 2009.

We deny the allegations in your letter that suggest that our law finn, and in particular, Daniel Oldham, engaged in any impropriety in relation to the filing, and media reporting, of the above matter.

At no stage did Mr Oldham confinn to any journalist that a " ... class action had been issued ... against SP Ausnet,"

The reference to a class action having been issued was incorrect reportage. Moreover, the concept of a "class action" has no technical legal status without greater specification and is short hand or vernacular adopted by the journalist.

That the status of any legal proceedings was at large is confinned by the attribution to me of the following statement "It is believed that the claim will be made on the basis afnegligent management o/power lines ... " Such a statement is clearly speculation as to what might occur.

Fina1iy, we confinn that we have not served the above proceeding on your client as yet. We advise that we intend to serve your client with the Originating Process in accordance with the Supreme Court Rules.

If you have any further queries, please contact Jordana Dymond of our office.

Yours faithfully,

iC:-WYERS

Daniel Oldham Partner [email protected]

Jordana Dymond Lawyer [email protected]

LEVEl. " 3 1S KING STREET, ME1.80URNE VIC 3000

OX 30871 MEl.BOURNE STOC>,( EXCHANGE VIC I PO BOX 13288 L AW COURTS POST OFFICE, MEl.aOURNE VIC SOlO

T + 61 396400002 i F + 6 I 39640 0090 WWW.Sl.IODERS .COM.AU

A6N 76 105 "90 444 S,-,DDERS '-AW"I'ERS PTY LTD

Freehllls

Mr Daniel Oldham Partner Slidders l awyers

[email protected]

Dear Daniel

10 March 2009 Malter 81523827

By email

SP Australia Networks (Distribution) Ltd & SP Australia Networks (Transmission) Ltd ats Leo Keane Supreme Court of Victoria Proceeding No 4788 of 2009

We refer to your letter dated 27 February 2009.

Your letler is a wholly inadequate response to the concerns raised in our letter dated 20 February 2009. Those concerns fait broadly into two categories:

(a) the appropriateness of your firm's conduct in connection with the publication of an articled tilled "Huge fire class action launched"; 1 and

(b) your client's intentions with respect to the defective generally indorsed writ filed in relation to our client.

1 The Sunday Age article

It is incontrovertible that a member of your firm spoke with one or mOte journalists from The Sunday Age. II remains unclear:

(a) for what purpose Mr Oldham sought to pubticise the issue of a proceed ing against our client;

(b) what steps were taken by Mr Oldham to correct the misquote contained in The Sunday Age article once he became aware of it;

(c) why were Mr Adams' calls to Slidders Lawyers unanswered? As Mr Adams explained at the time and we reiterated in our letter dated 20 February 2009. our inquires 'Here motivated by a desire to ensure the shareholders of our client were not misled . It is unclear why your firm considered it appropriate to inform the Supreme Court Registry of the intention to file a proceeding on 16 February 2009. but refused to afford Mr Adams the same courtesy; and

(d) why the proceeding was filed outside the standard opening hours of the Supreme Court Registry? If Mr Oldham did not make the statement alleged to the journalist why was there an apparent urgency to commence the proceeding?

We ask that you provide an explanation in relation to each of the queries outlined above.

In your leiter you state that "the concept of a 'class action' has no technical legal status without greater speCification and is short hand or vernacular adopted by the journalist."

• Houston, C., and Bachelard, M., "Huge fire class action launched" The Sunday Age 1'.1.

Doo; 1208579,2

101 CoIIin$ SIr!!!!1 Melbourne VIC 3000 AuSlraf.a GPO Sox 12" Melbourne VIC 3001 Australia

Sydney -.... ~ ~ ~

Telephone . 61 39288 1234 FiIC5imlle .61 J 9288 1567 www.freehills.com DX 240 Melboume

CcwrH:l<lndenl oI'kes in Hanoi HO 0,; UiM ~ J.bruI

FreehiUs

This is a curious statement for the fonowing reasons:

the subject fine of your letter is described as:

' Class Action v SP Australia Networks (Distribution) Ltd Trading as SP Ausnet (sic) and SP Australia Networks (Transmission) Ud Trading as SP Ausnet (sic) Supreme Court Number 4788 of 2009" (emphasis added); and

• under the heading "Hoi topics' on the website of Slidders Lawyers, is an article titled ' Victorian Bushfire Class Action 2009", The article explains that · Slidders Lawyers confJfms that a Class Action has been issued against SP AusNet in relation to the Kilmore East and Beechworth bushfires of February 2009. '

In each instance the phrase "class action" is capitalised. This suggests that your firm considers the phrase to be descriptive of a particular type of legal proceeding . This is at odds with the statement advanced in your letter dated 27 February 2009.

Further, in view of the frequency with which your firm and the writer of your letter dated 27 February 2009 use the label "class action" , are you seriously suggesting that the use of it, rather than "group proceeding" is evidence that there was no discussion or discuss ions between Mr Oldham and the journalists from The Sunday Age?

As outlined in our letter dated 20 February 2009 we ask that you preserve all records of communications and aU documents relevant to the publication of the article titled "Huge fire class action launched" in The Sunday Age on 15 February 2009. For the avoidance of doubt, without limitation, we require you to preserve all:

file notes of any discussion between any member or employee of Slidders lawyers and any journalist during the period from 7 to 17 February 2009 (inclusive) (the Relevant Period);

documents which refer or relate to any such communications ;

correspondence between any member or employee of Slidders lawyers and any journalist during the Relevant Period ;

all relevant text messages; and

alilandline and mobile telephone records of Daniel Oldham for Ihe Relevanl Period .

Please confirm that these records have been preserved.

2 Generally indorsed writ

In our letter we asked that you explain:

(a) whether your client intends to effect service on our cl ient, of the generally indorsed writ filed in Supreme Court of Victoria Proceeding No 4788 of 2009 (the Proceed ing);

(b) when your client intends to effect service; and

(c) whether your client intends 10 remedy the errors present in the generally indorsed writ filed in the Proceeding, prior to service.

Your response is confused and does not respond to these simple inquiries.

Our client is listed on the Australian Securities Exchange . In these circumstances il is incumbent on your cl ient to ensure that the market is not confused about the nature of the a11egations he intends to level at our client. It is no answer to this to assert thai your fi rm "intend to serve [our] client with the Originating Process in accordance with the Supreme Court Rules."

Far from clarifying the position this statement merely adds to the confusion. It suggests that it is the intention of your firm which is the determinate of the timing of service, not that of your client.

1208519

SP Australia Networks (DisbiDution) Lid & SP Australia Networks (TransmissiOll) Ltd als Leo Keane

Supreme CoUf1 01 VICtoria Proceeding No 4788 of 2009

Freehills

In the circumstances we reiterate our request for answers to the questions outl ined above. We also invite you to explain why your firm considers it appropriate for it to have an active role in determining when service will be effected on our client.

We look forward to your prompt response.

Yours sincerely

Ken Adams Partner Freehills

+61 39288 1669 +61418350776 [email protected]

Ruth Overington Senior Associate Freehills

+61 39288 1946 +61 421 643204 ruth,[email protected]

Copy to: Ms Jordana Dymond Slidders Lawyers

1208579

SP Australia Networks (Distribution) LId & SP Australia Networks (Transmission) ltd ats Leo Keane

Supreme Court of Victoria Proceeding No 4788 of 2009 page 3

SLIDDERS

9 April 2009

STRICTLY PRIVATE & CONFIDENTIAL MrKenAdams Freehills GPO BOX 128A MELBOURNE VIC 3001

Dear Mr Adams,

BY EMAIL [email protected]

Class Action v SP Australia Networks (Distribution) Ltd Trading as SP Ausnct and SP Australia Networks (Transmission) Ltd Trading as SP Ausnct

Supreme Court Number 4788 of 2009

We refer to our previous correspondence in relation to the above matter, and in particular, your letter dated 10 March 2009 ("Your Letter").

In relation to your points under number 1, we reiterate the contents of our letter dated 27 February 2009 ("Our Letter") and maintain that the summary of our interaction with the Sunday Age was correctly set out in Our Letter.

With respect to your discussion under point 2, we maintain that the content of OUf

Letter was an accurate statement of the state of this legal proceeding.

We confinn that service will be effected in accordance with our client's instructions and it is anticipated that we will serve the Originating Process next \yeek.

Please advise if you have instructions to accept service by 12.00 noon on Tuesday 14 April 2009.

If you have any further queries, please contact Jordana Dymond of our office.

Yours faithfully, SLI ERS LAWYERS

Daniel Oldham Partner daniel@slidders,com.au

Jordana Dymond Lawyer [email protected]

L EVEL I , 318 KING STREET. MELBOURNE V IC .3000

OX 3087 1 MELBOURN E S TOCK EI<<:;HAN GE VI C i PO BOI< 13288 LAW COURTS POST OFFICE, MELBOU RN E VIC 80 10

T + 61 .3 964 0 0002 ) F' + 61 .3 9640 0090 ) WWW. SLIDOERS.COM .AlJ

ABN 78105490444 SLIDOERS L",WYERS PTY LTD

Freehills

Mr Daniel Oldham Partner Slidders l awyers

[email protected]

Dear Daniel

14 April 2009 Matter 81523827

By email

SP Australia Networks (Distribution) ltd & SP Australia Networks (Transmission) ltd ats Leo Keane Supreme Court of Victoria Proceeding No 4788 of 2009

We refer to your leiter dated 9 April 2009.

We have instructions 10 accept service of the originating process in Supreme Court of Victoria Proceeding No 4788 of 2009.

Yours sincerely

Ruth Overington Senior Associate Freehills

+61 39288 1946 +61 421 643204 [email protected]

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101 Col~n$ Streel Melbourne VIC 3000 Australia GPO 60>; 12eA Melbourne ViC 3001 Australia

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KAA-3 (in the Affadavit Sworn 24 03 11)

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Transcript of KAA-3 (in the Affadavit Sworn 24 03 11)