Dawson v Insurance Australia Ltd - [2024] VSC 808

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2024 02663

DEBRA GAYE-ANN DAWSON	First Plaintiff
- and -
ANGELA SUSAN WILLIAMS	Second Plaintiff
v
INSURANCE AUSTRALIA LTD (ACN 000 016 722)	First Defendant
- and -
INSURANCE MANUFACTURERS OF AUSTRALIA PTY LIMITED (ACN 004 208 084)	Second Defendant

---

JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2024
DATE OF JUDGMENT:	20 December 2024
CASE MAY BE CITED AS:	Dawson & Anor v Insurance Australia Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 808

---

GROUP PROCEEDINGS – Application for a group costs order – Whether proper basis to make group costs order – Group costs order should be made – Whether group costs order percentage should be 33 per cent – Principles to be applied – Percentage should be 27.5 per cent – Application granted – Supreme Court Act 1986 (Vic) s 33ZDA.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms F Forsyth KC Mr G Rees	Slater and Gordon Lawyers
For the Defendants	Mr N De Young KC	Herbert Smith Freehills

HIS HONOUR:

In this matter, the plaintiffs, Ms Debra Dawson and Ms Angela Williams, seek a group costs order (‘GCO’) pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic) (the ‘Act’).

Section 33ZDA provides for an order that the legal costs payable to the law practice representing the plaintiff and group members in a group proceeding be calculated as a percentage of the amount that may be recovered in the proceeding. In this application, the plaintiffs seek a GCO percentage of 33 per cent (inclusive of GST) payable to their solicitors, Slater and Gordon Limited (‘Slater and Gordon’).

For the reasons which follow, I am satisfied that a GCO should be made but not satisfied that the specified percentage should be 33 per cent. Instead, having regard to the evidence and submissions before me, I have determined that an appropriate percentage is 27.5 per cent (inclusive of GST).

The evidence

The plaintiffs rely on four affidavits:

(a) an affidavit of Ms Williams dated 22 October 2024;

(b) two affidavits of Ms Dawson, one dated 23 October 2024 and another dated 29 November 2024; and

(c) an affidavit of Mr Benedict Tobin Hardwick, a practice group leader in Slater and Gordon’s class action department with the conduct of this matter, dated 23 October 2024.

The defendants adopt a neutral position in relation to whether a GCO should be made and did not file any evidence.

Much of the evidentiary material upon which the plaintiffs rely is subject to confidentiality orders on the basis that it is legally professionally privileged, would confer an unfair strategic advantage on the defendants were it to become known to them, and/or is properly commercial in confidence regarding Slater and Gordon’s business. As a result, the defendants have been provided with the affidavits in heavily redacted form, the hearing had to be conducted with a degree of circumspection and…

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.

Keep reading for free

Create a free CaseChat account to read Dawson v Insurance Australia Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 808
Decision Date: 20 December 2024

CaseChat Overview and Summary

Dawson v Insurance Australia Ltd is a case concerning an application for a group costs order under the Supreme Court Act 1986 (Vic). The applicant sought costs for representing a group of plaintiffs in a class action. The primary dispute was the appropriate percentage to be applied to the group costs order, with the applicant proposing 33 per cent and the respondent arguing for a lower figure.

The court was tasked with determining the correct principles to apply when deciding the percentage for a group costs order and whether the proposed 33 per cent was appropriate. The applicant argued that the percentage should reflect the nature and complexity of the case, while the respondent contended that the percentage should be lower given the procedural context and the need for proportionality.

The court held that a group costs order should indeed be made, but the percentage should be 27.5 per cent, rather than the 33 per cent proposed by the applicant. The court found that while the applicant's proposal was reasonable, the principles applied to determine the percentage necessitated a slightly lower figure. The application was thus granted with the specified percentage.

The final orders of the court included the grant of a group costs order at 27.5 per cent, reflecting the specific considerations outlined in the judgment. This decision provides clarity on the application of the relevant statutory provisions and the principles to be considered in future cases involving similar issues.

Orders