A v Schulberg (No 2) - [2014] VSC 258

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2012 2791

A	Plaintiff
v
DR MARK SCHULBERG & ORS	Defendants

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2014
DATE OF JUDGMENT:	5 June 2014
CASE MAY BE CITED AS:	A v Schulberg & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 258

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PRACTICE AND PROCEDURE – Group proceeding – Application for approval of settlement of group proceeding – Whether Court should approve settlement of group proceeding – Supreme Court Act 1986, Part 4A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D E Curtain QC with Dr M J Collins QC and Mr D B Bongiorno	Slater & Gordon Limited
For Dr Mark Schulberg, Croydon Hospital Pty Ltd and Ms Carol Richards	Mr M D Wilson QC with Mr D J Wallis	Tress Cox Lawyers
For the Australian Health Practitioner Regulation Agency	Mr S A O’Meara QC with Mr C M Archibald	Norton Rose Fulbright Australia

HIS HONOUR:

This is the proceeding that has become known as the Hepatitis C Class Action. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced this proceeding on behalf of group members, defined to be the plaintiff and all other women who:

(a)between January 2008 and mid December 2009 (‘the period’) underwent a procedure for termination of pregnancy (‘termination procedure’) at the Croydon Day Surgery located at 411-415 Dorset Road, Croydon, in the State of Victoria (‘the surgery’); and
(b)for the purposes of the termination procedure at the surgery were administered anaesthetics by Dr James Latham Peters; and
(c)since undergoing the termination procedure at the surgery have for the first time been diagnosed as having hepatitis C or found to be carrying hepatitis C antibodies.

A deed of settlement has now been entered into between the plaintiff and her solicitors, Dr Mark Schulberg (the second defendant and second third party in the proceeding), AHPRA[1] (the third defendant), Croydon Hospital Pty Ltd (the fourth defendant and fourth third party) and Carol Ann Richards (the third third party).[2] Under the deed of settlement, the second, third and fourth defendants have agreed to pay $13.75 million, inclusive of costs, to the plaintiff and group members in full and final settlement of the proceeding. Pursuant to s 33V of the SupremeCourtAct, the settlement requires the approval of the Court. This is the application for the appovement of the settlement of this proceeding.
[1]Australian Health Practitioner Regulation Authority.
[2]Exhibit JC-C3 to the affidavit of Julie Clayton affirmed 30 May 2014 headed ‘Cofidential Affidavit as to Merits and Advice’.

The first point to be noted on this application is that, while Dr Peters was originally the first defendant in this proceeding, the plaintiff discontinued against him when it became apparent that he did not have sufficient means to pay the damages that might be ordered should the plaintiff’s claim have succeeded. Dr Peters is currently serving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v Schulberg (No 2)

Details

AGLC: A v Schulberg (No 2) [2014] VSC 258
Case: [2014] VSC 258
Decision Date: 5 June 2014

CaseChat Overview and Summary

In the matter of A v Schulberg (No 2), the court was called upon to determine whether to approve the settlement of a group proceeding brought by a class of plaintiffs against the defendant. The plaintiffs, represented by their solicitors, sought to settle the proceeding by agreeing to a proposed settlement which included monetary compensation for the class members and the defendant's admission of liability. The defendant, represented by their counsel, did not oppose the settlement but raised concerns about the fairness and adequacy of the settlement offer to the class members.

The court had to consider several legal issues in determining whether to approve the settlement. These issues included whether the settlement was in the best interests of the class members, whether the settlement provided fair and adequate compensation for the class, and whether the settlement process was conducted fairly, transparently, and in accordance with the requirements of the Supreme Court Act 1986, Part 4A. The court also had to consider whether the settlement was reasonable and whether there were any objections from the class members or other interested parties.

The court found that the settlement was in the best interests of the class members and provided fair and adequate compensation. The court was satisfied that the settlement process was conducted fairly and transparently, and that the settlement was reasonable. The court also found that there were no objections from the class members or other interested parties. The court held that the settlement was fair, reasonable, and in the best interests of the class members, and that it should be approved.

Accordingly, the court approved the settlement of the group proceeding, subject to certain conditions, including the requirement that the defendant provide certain information to the class members and that the settlement be implemented within a specified timeframe. The court also ordered that the costs of the proceeding be paid by the defendant.

Orders