In a chilly school hall among the trees in Perth’s eastern fringe, the chief justice of the supreme court of Western Australia, Wayne Martin , leaned into the microphone and interrupted again.
“So you draw a distinction between the top of the pole and the bottom of the pole?” he asked.
“Yes, your honour.”
In the rows of plastic seats, repurposed from their usual duty of school assemblies, sit 139 plaintiffs in a class action against the state-owned electricity company Western Power for a bushfire that destroyed or damaged many of their homes. That answer prompted an angry muttering.
The status conference for the class action was held in the sports centre next to the Eastern Hills senior high school in Mount Helena , after work hours on Wednesday so as many plaintiffs as possible could attend. About 90 did and watched stoically as the quarrel of lawyers mapped out the case.
The pole in question is a power pole. It stood on Granite Road in Parkerville until 12 January 2014 when it fell and sparked a bushfire that burned through the suburbs of Parkerville, Stoneville and Mount Helena, destroying 57 homes and damaging many others.
So the question of who owns the pole is crucial.
Everyone agrees that damage caused by rot or termites caused the pole to fall. The plaintiffs in the class action, run by the law firm Slater and Gordon, posit that Western Power, as the owner or at least the service provider whose network ran through the pole, had a responsibility to inspect and maintain it, and that if it had fulfilled this responsibility it would have spotted the damage.
They also argue that Theiss, an engineering company contracted to Western Power, bears some responsibility. The company had carried out an inspection in July 2013 and replaced a pole immediately adjacent to the one that later caused the bushfire. A councillor for the plaintiffs, Lachlan Armstrong QC , said a competent inspection would have found signs of damage and resulted in a report and replacement of the pole.
The power pole stood on a property owned by 83-year-old Noreen Campbell . It’s one of about 200,000 private power poles in the state.
Brahma Dharmananda SC , the council for Western Power, said it would argue Campbell owned the pole, and that its “obligation to take reasonable precaution only goes to the supply of electricity to the point at which the power passes to the owner”.
Asked by Martin where that meant Western Power’s responsibility ceased, Dharmananda replied: “At the top of the pole, your honour. We say that’s where supply ends.”
Seven weeks have been set aside to sort out who owns the pole. Campbell, who is named in the defence outlined by both Western Power and Theiss, is not now part of the case.
“Having done that, it now puts the onus on the plaintiff group to consider, now that the case has been formally put by the defendants against the landowner, whether we all also join suit,” Slater and Gordon’s Rory Walsh said. Walsh was the lawyer for the Black Saturday bushfire class action that delivered a record-breaking settlement of $494m.
It’s not the first time Western Power has faced a class action by bushfire victims. In 2012 the company paid out $3m to victims of the 2009 Toodyay bushfire after the matter was settled out of court with no admission of guilt or responsibility.
That legal fight also began as a sports-hall hearing in the wheatbelt town, which is a further 50km out of Perth.
Keith Ferguson is one of the landowners in the Parkerville case. His Stoneville home lost three sheds and half its backyard in the fire; only the quick action of the neighbour’s son saved the house.
Talking to Guardian Australia outside the hearing, Ferguson spoke scathingly of the lawyer-speak, describing it as “a lot of duck shoving”.
“Who owns the pole? I mean, really. They are going to debate it until they decide that no one owns the pole,” he said.
But he was impressed that the chief justice had made the 45-minute drive into the hills to hold the hearing locally.
“My wife, who is still in there, is grieving still,” he said. “We have no intention of moving.”
Greg Jones, from the Stoneville and Parkerville progress committee, is the de facto spokesman for the plaintiffs. Blinking under bright television lights, Jones also praised the court for coming to them.
“Most of the people I just spoke to are really very happy with the proceedings,” he said. “It’s the beginning of something that is going to take some time, but it is happening.”
Jones said the impact of the fire had not faded away just because the majority of insurance claims had come through. “A lot of people have struggled financially, emotionally, and some are still struggling.
“What it is going to mean for people is they will get answers for things they need to know about this fire, like how did it happen and how do we stop it happening again.”
A directions hearing will be held at the supreme court in Perth on 10 December.
