Burke v Ash Sounds Pty Ltd (No 4) - [2020] VSC 581

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2017 00891

BETWEEN:

MICHELA JOY BURKE	Plaintiff
v
ASH SOUNDS PTY LTD trading as THE FALLS MUSIC AND ARTS FESTIVAL (ABN 67 160 019 152)	Defendant

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2020
DATE OF RULING:	9 September 2020
CASE MAY BE CITED AS:	Burke v Ash Sounds Pty Ltd (No 4)
MEDIUM NEUTRAL CITATION:	[2020] VSC 581

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PRACTICE AND PROCEDURE – Application for approval of settlement of group proceeding – Supreme Court Act 1986 (Vic) Part 4A – Whether terms of settlement fair and reasonable – Whether settlement distribution scheme fair and reasonable – Whether claim for legal fees and disbursements reasonable – Settlement approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr TP Tobin SC	Maddens Lawyers
For the Defendant	Mr PA Scanlon QC with Ms M Lang	Lander & Rogers

HER HONOUR:

This proceeding arises out of events that took place at the Falls Music and Arts Festival (‘festival’) in Lorne, Victoria on 30 December 2016. The defendant, Ash Sounds Pty Ltd, was the organiser of the festival. The plaintiff, Michela Joy Burke, and group members were patrons of the festival. The plaintiff claims damages for herself and group members for injuries suffered as a result of a crowd crush (‘the crush’) at the festival on 30 December 2016.

The parties have agreed, subject to the Court’s approval, to settle the proceeding on the basis that the defendant will pay to the plaintiff $5,700,000 (in addition to payments already made to six group members of $1,275,000) (‘the settlement sum’) inclusive of interest and costs, on the terms set out in the settlement agreement executed by the parties (‘the settlement agreement’).

These are my reasons for approving the settlement distribution scheme (SDS), which is at Annexure A to these reasons. This ruling does not address the plaintiff’s solicitor’s application for costs, which will be determined in a further ruling.

The crush

The festival is a large multi-day music festival, held over four days over the New Year’s Eve and January period. It is held annually in different cities across Australia, including Lorne, and hosts contemporary music performances as well as other art forms. The venue in which the festival was held is a largely undeveloped landholding. Acts perform on temporary stages and patrons camp onsite for the duration of the festival.

At approximately 10pm on 30 December 2016, the group members were present at a performance in ‘grand theatre’ tent. The tent was fitted with two small exits which led to another stage where the headline act was due to commence performing. The group members and other patrons were attempting to exit the grand theatre tent when where was a crowd surge. The plaintiff and group members were injured in the crush of people that ensued. The nature of the injuries sustained range from bruising and scratches to extreme ‘burn-like’ grazing, fractured limbs…

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.

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Details

Case: [2020] VSC 581
Decision Date: 9 September 2020

CaseChat Overview and Summary

The case of Burke v Ash Sounds Pty Ltd (No 4) involved an application for approval of a settlement of a group proceeding. The applicant, Burke, sought approval for a settlement in the Supreme Court of Victoria. The settlement concerned a group of plaintiffs who had brought an action against Ash Sounds Pty Ltd, a company involved in the operation of a music venue, alleging breaches of consumer law and seeking damages, statutory penalties, and legal costs.

The court had to determine several legal issues, including whether the terms of the settlement were fair and reasonable, whether the distribution scheme for the settlement fund was fair and reasonable, and whether the claim for legal fees and disbursements was reasonable. The court examined the fairness of the settlement amount in relation to the potential risks and costs of continuing the litigation, the reasonableness of the proposed distribution of the settlement fund among the plaintiffs, and the necessity and proportionality of the legal fees and disbursements claimed by the plaintiffs’ lawyers.

The court found that the settlement terms were fair and reasonable, taking into account the potential risks and costs of continuing the litigation, the strength of the plaintiffs' case, and the benefits of the settlement for the plaintiffs. The court also found that the distribution scheme for the settlement fund was fair and reasonable, as it provided for an equitable distribution of the settlement amount among the plaintiffs. Additionally, the court considered the claim for legal fees and disbursements to be reasonable, given the complexity and volume of the litigation and the efforts of the plaintiffs’ lawyers. Based on these findings, the court approved the settlement and ordered that the settlement be implemented according to the terms and conditions outlined in the court's judgment.

Orders