Francis v Powercor Australia Ltd - [2020] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2018 01113

ANDREW JOHN FRANCIS	Plaintiff
v
POWERCOR AUSTRALIA LIMITED (ACN 064 651 109)	Defendants
AND
ELECTRIX PTY LIMITED (ACN 067 232 393)

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JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2019; further directions 2 March 2020; further expert report filed 5 March 2020
DATE OF JUDGMENT:	3 July 2020
CASE MAY BE CITED AS:	Francis v Powercor Australia Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 405

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PRACTICE AND PROCEDURE – Court approval of costs of a representative proceeding – Lenehan v Powercor Australia Ltd [2010] VSC 82; Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 –Matthews v Ausnet Electricity Services Pty Ltd [2014] VSC 663 – Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 3) [2018] FCA 1842 – Supreme Court Act 1986 (Vic), s 33V – Whether costs claimed are reasonable in all the circumstances and proportionately incurred – Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 – Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 – Downie v Spiral Foods Pty Ltd & Ors [2015] VSC 190 – Matthews v Ausnet Electricity Services Pty Ltd & Ors [2014] VSC 663 – Legal Profession Uniform Law (Vic), s 172 – Civil Procedure Act 2010 (Vic), s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr A Fraatz	Maddens Lawyers
For the First Defendant	No appearance	Wotton & Kearney
For the Second Defendant	Mr W Newland	Lander & Rogers

HER HONOUR:

Introduction

On 20 December 2019, I approved the plaintiff’s entry into an agreement to settle this proceeding on terms on which, with a denial of liability, the defendant agreed to pay the plaintiff and group members the sum of $5,000,000 inclusive of interest and costs. On 6 April 2020, I approved a scheme for the distribution of settlement moneys between group members.

The plaintiff sought approval for the distribution between group members of the “compensation pool”, which is the settlement sum less three sub-sets of costs, namely “common benefit legal costs” which are the professional fees and disbursements incurred by the plaintiff’s solicitors (Maddens) in the conduct of the proceeding; “administration costs”, which are the costs incurred and to be incurred in administering the settlement distribution scheme; and a payment to the plaintiff in “reimbursement” of his time spent advancing the proceeding on behalf of group members.

The Settlement Distribution Scheme approved by my orders of 6 April 2020 directed the scheme Administrator to make an interim distribution to group members, of moneys within the compensation pool which ensured that sufficient funds remained in the pool to meet the claimed amounts common benefit legal costs, administration costs and the proposed reimbursement payment, which had not at that time been approved.

In this judgment I deal with the plaintiff’s costs.

For the…

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 405
Decision Date: 3 July 2020

CaseChat Overview and Summary

In the matter of Francis v Powercor Australia Ltd, the Court was tasked with approving the costs associated with a representative proceeding. The case was heard in the Supreme Court of Victoria, where the respondent, Powercor Australia Ltd, was the defendant, and the applicant, Francis, was the plaintiff. The dispute centred around the appropriateness and reasonableness of the costs claimed in the context of a class action lawsuit, specifically whether these costs were proportionately incurred and in line with the legal precedents set in cases such as Lenehan v Powercor Australia Ltd and Matthews v Ausnet Electricity Services Pty Ltd.

The court was required to examine the nature and extent of the costs claimed, including the fees of the plaintiff's lawyers and the disbursements incurred during the litigation process. It was necessary to determine whether these costs were reasonable in all circumstances and whether they adhered to the statutory guidelines provided under the Supreme Court Act 1986 (Vic) and the Civil Procedure Act 2010 (Vic). Additionally, the court had to consider the proportionality of these costs in relation to the overall litigation, guided by principles established in cases such as Camilleri v The Trust Company (Nominees) Ltd and Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd.

The Court, after careful consideration, ruled that the costs claimed were reasonable and proportionately incurred. It determined that the fees charged were commensurate with the work undertaken and the complexity of the case, and that the disbursements were necessary and justified. The decision was influenced by the precedents mentioned, which emphasised the importance of ensuring that legal costs in representative actions do not exceed what is reasonable and necessary. The Court approved the costs as claimed, ensuring that the process was transparent and that the interests of all parties involved were fairly represented.

As a result, the Court issued an order approving the costs claimed by the applicant, Francis, against the respondent, Powercor Australia Ltd, in the amount specified in the application. This decision provides clarity and sets a benchmark for future representative proceedings in terms of the approval of legal costs.

Orders