Eades v Endeavour Energy - [2018] NSWSC 801

Supreme Court

New South Wales

Medium Neutral Citation: Eades v Endeavour Energy [2018] NSWSC 801
Hearing dates: 17 February 2017
Date of orders: 21 July 2017
Decision date: 25 May 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
Motions for security for costs dismissed

Catchwords: CIVIL PROCEDURE – costs – security for costs – representative proceedings – where lead plaintiff impecunious – where no litigation funder – nature of claims – personal injury – where claims are genuine – not possible to conclude at this preliminary stage that plaintiff has a weak case – late timing of applications after conclusion of opt out process – benefits to defendants in claims being litigated as representative proceedings – consideration of whether proceedings would be stultified – no order for security for costs
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Daniel Rory de Groot (an infant by his tutor Arlena Van Oosten) v The Nominal Defendant [2004] NSWCA 88
De Jong v Carnival PLC [2016] NSWSC 347
Johnston v Endeavour Energy [2016] NSWSC 1132
Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1
Phillips Electronic Australia Pty Ltd v Matthews [2002] NSWCA 157; (2002) 54 NSWLR 598
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Laurence Kevin Eades (P)
Endeavour Energy (D)
Asplundh Tree Expert (Australia) Pty Ltd (D2)
Pinnacle Career Development Pty Ltd (D3)
Representation:
Counsel:
A Fraatz (P)
Dr A Bell SC / H Pintos-Lopes (D1)
T A Berberian (D2, D3)
Solicitors:
Maddens Lawyers (P)
Lander & Rogers (D1)
Colin Biggers & Paisley (D2)
Wotton & Kearney (D3)

File Number(s): 2015/310264
Publication restriction: Not Applicable

Judgment

In 2015, Mr Laurence Eades (“the plaintiff”) commenced proceedings against Endeavour Energy, claiming damages for its negligence which is alleged to have given rise to a bushfire that started in, or near, Mount York Road in Mount Victoria, NSW on 17 October 2013.
The plaintiff alleges that Endeavour Energy owned, had the use of and constructed and repaired the poles, conductors, transformers and associated equipment for a 22kv three phase feeder line known as the Blackheath feeder, which ran parallel to the Mount York Road at Mount Victoria, and an 11kv distribution line from the feeder line along the driveway to premises at Mount York Road.
The plaintiff further alleges that the transmission of electricity along either or both of the power lines created circumstances of danger such that if a tree, or part of a tree, were to fall on a line whilst it transmitted electricity, a fire might result from such an incident.
The plaintiff alleges that the bushfire was started in circumstances where a substantial tree, between 50 and 80 years old and at least 20m high and about 10m in spread, became overhung or was within the minimum clearance space of the electricity wires.
Lastly, the plaintiff claims that the tree had other particular features, which…

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 Eades v Endeavour Energy

Details

AGLC: Eades v Endeavour Energy [2018] NSWSC 801
Case: [2018] NSWSC 801
Decision Date: 25 May 2018

CaseChat Overview and Summary

In the matter of Eades v Endeavour Energy, the Federal Court was tasked with considering an application for security for costs brought by the defendant against the plaintiff. The plaintiff, Eades, had commenced representative proceedings on behalf of a class of electricity customers alleging personal injury claims against Endeavour Energy. The dispute centred on whether the plaintiff should be required to provide security for the defendant's costs in light of the plaintiff's impecuniosity and the absence of a litigation funder. The court needed to determine whether the genuineness of the claims and the benefits to the defendants in having the claims litigated as representative proceedings outweighed any potential disadvantage to the defendants in not receiving security for costs.

The primary legal issue before the court was whether, given the genuineness of the claims and the procedural stage of the case, the court should order the plaintiff to provide security for the defendant's costs. The court considered the factors relevant to the exercise of its discretion under the relevant rules of court, including the nature and strength of the claims, the timing of the application, and the potential impact on the defendants if security were not ordered. The court noted that the plaintiff's claims were genuine and not frivolous, and that the defendants would benefit from the claims being litigated as representative proceedings. Additionally, the application for security was made late in the proceedings, after the opt-out process had concluded.

The court held that the plaintiff should not be required to provide security for the defendant's costs. The judge concluded that the genuineness of the claims and the potential benefits to the defendants in having the claims litigated as representative proceedings outweighed the potential disadvantage to the defendants in not receiving security for costs. The court found that it was not possible at this preliminary stage to conclude that the plaintiff had a weak case, and that the late timing of the application for security further supported the decision not to order security. The court's decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case.

Orders