Dawson v Insurance Australia Limited (No 2)
[2025] VSC 417
•14 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S ECI 2024 02663
| DEBRA GAYE-ANN DAWSON and ORS (according to the attached Schedule) | First Plaintiff |
| v | |
| INSURANCE AUSTRALIA LIMITED (ACN 000 016 722) | First Defendant |
| INSURANCE MANUFACTURERS OF AUSTRALIA PTY LIMITED (ACN 004 208 084) | Second Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 14 July 2025 |
CASE MAY BE CITED AS: | Dawson v Insurance Australia Limited (No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 417 |
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GROUP PROCEEDINGS – Consolidated proceeding – Whether the extant group costs order should continue to apply – Whether plaintiffs should apply for new group costs order – Whether extant group costs order should be varied – Extant group costs order should continue to apply according to its terms – No reason to vary – Supreme Court Act 1986 (Vic) s 33ZDA(3).
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HIS HONOUR:
On 11 March 2025 her Honour Justice Nichols consolidated two proceedings Dawson & Anor v Insurance Australia Limited & Anor (S ECI 2024 02663) (‘the Dawson proceeding’) and Inglis v Insurance Australia Limited (S ECI 2024 06648) (‘the Inglis proceeding’), with the consolidated proceeding to be identified with the same proceeding number as the Dawson proceeding.[1] For ease of identification I refer to proceeding number S ECI 2024 02663 prior to 11 March 2025 as the ‘Dawson proceeding’ and after that date as the ‘consolidated proceeding’.
[1]Dawson v Insurance Australia Limited [2025] VSC 92 (‘Consolidation Reasons’).
In the Dawson proceeding, on 20 December 2024, I made a group costs order pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic) (‘the extant GCO’).[2] The extant GCO provides for the legal costs payable to Slater and Gordon Limited (‘Slater and Gordon’), the solicitors for the plaintiffs, to be calculated as 27.5 per cent (inclusive of GST) of the amount of any award or settlement that may be recovered in the proceeding.
[2]Dawson & Anor v Insurance Australia Ltd & Anor [2024] VSC 808 (‘GCO Reasons’).
A question has arisen as to whether the extant GCO should continue in the consolidated proceeding or whether the circumstances of consolidation require a new GCO or for the extant GCO to be varied.
The defendants say the plaintiffs should file an application for a GCO and evidence in support, and point to factors which have changed as a result of consolidation and which might warrant a reconsideration of the 27.5 per cent. The plaintiffs accept that some matters have changed following consolidation, but say that it is nonetheless appropriate to have the GCO rate in the consolidated proceeding fixed at 27.5 per cent.
For the reasons which follow, a GCO at 27.5 per cent remains appropriate to ensure justice is done in the consolidated proceeding.
I do not regard it as necessary for the plaintiffs to bring a new application for a GCO in the consolidated proceeding. In December 2024 I made a GCO in proceeding S ECI 2024 02663, that proceeding continues and so does the extant GCO, unless varied under s 33ZDA(3) or set aside.
The plaintiffs have now filed evidence:
(a)a second confidential affidavit of Benedict Tobin Hardwick affirmed 27 June 2025 which corrected two minor errors in Mr Hardwick’s first confidential affidavit which was filed in support of the GCO application in the Dawson proceeding; and
(b)a third confidential affidavit of Benedict Tobin Hardwick affirmed 27 June 2025, which I discuss below.
I should say that I am satisfied that the matters addressed in those affidavits are appropriately confidential, including from the defendants and their legal representatives.
None of the reasons which demonstrated the appropriateness of a GCO in December 2024 have changed as a result of consolidation.[3] A GCO remains appropriate in order to ensure justice in the proceeding.
[3]GCO Reasons [16].
This leaves the question of the ongoing appropriateness of the GCO percentage.
The allegations in the consolidated proceeding are substantially the same as those in the Dawson proceeding.[4] As a result, I am satisfied there is no material difference in the novelty, complexity, risks or likelihood of success in the consolidated proceeding as compared to the Dawson proceeding. Further, insofar as the rate in the extant GCO order was fixed by reference to comparative rates in other proceedings, I am satisfied that a comparison now would provide no basis for a downward movement in the rate.
[4]Consolidation Reasons [3(b)].
A number of things have changed following consolidation. The evidence of Mr Hardwick demonstrates that:
(a)the class size has increased;
(b)the estimated total global losses have increased;
(c)the range of likely settlement outcomes has changed;
(d)the budget has increased, but efficiencies mean it is less than the combined budgets in the Dawson proceeding and the Inglis proceeding; and
(e)the estimated Return on Investment (ROI) for Slater and Gordon has increased.
In his third confidential affidavit Mr Hardwick provides detail regarding the matters referred to in the previous paragraph. As I have indicated above, I am satisfied that the detail in relation to those matters should remain confidential, including from the defendants and their legal representatives.
The defendants say there is a potential increase in the solicitor’s reward because of the increase in the size of estimated total losses without a proportionate increase in risk, given the cost efficiencies arising from consolidation. They point to this as a reason why a 27.5 per cent rate for the GCO may no longer be appropriate. In making that submission the defendants do not have access to the second and third confidential affidavit of Mr Hardwick.
Having regard to the evidence of Mr Hardwick, I am satisfied that the 27.5 per cent rate specified in the extant GCO remains appropriate to ensure justice is done in the consolidated proceeding.
My reasons are as follows:
(a)an assessment of an appropriate GCO percentage is not a purely mathematical exercise involving the input of known quantities, the application of a formula and the calculation of a percentage. It is a multi-factorial analysis requiring the application of judgement taking into account all relevant circumstances;
(b)the fact that some relevant circumstances change will not then necessarily imply that the percentage specified in a GCO should be varied under s 33ZDA(3);
(c)the potential reward to Slater and Gordon was one factor, amongst a number, which the Court considered in determining the rate in the extant GCO; and
(d)here, whilst the potential reward for Slater and Gordon or ROI has, on Mr Hardwick’s calculation, increased in the consolidated proceeding, I am not satisfied that the extent of that increase, taken together with the other factors which informed the setting of the percentage in the extant GCO, is such as to warrant a change in the GCO percentage.
In the circumstances, I am satisfied that the extant GCO should continue to apply according to its terms in the consolidated proceeding.
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SCHEDULE OF PARTIES
S ECI 2024 02663
BETWEEN
DEBRA GAYE-ANN DAWSON First Plaintiff - and - ANGELA SUSAN WILLIAMS Second Plaintiff - and - ANDREW JOHN INGLIS Third Plaintiff - and - INSURANCE AUSTRALIA LIMITED (ACN 000 016 722) First Defendant - and - INSURANCE MANUFACTURERS OF AUSTRALIA PTY LIMITED (ACN 004 208 084) Second Defendant
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