Hawker v Powercor Australia Ltd - [2019] VSC 521

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2018 01833

WILLIAM ROBERT HAWKER	Plaintiff
v
POWERCOR AUSTRALIA LTD (ACN 064 651 109)	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2019
DATE OF JUDGMENT:	2 August 2019
CASE MAY BE CITED AS:	Hawker v Powercor Australia Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 521

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PRACTICE AND PROCEDURE – Group proceedings – Approval of Settlement Application under Supreme Court Act 1986 (Vic), s 33V – In the interests of group members as a whole - Whether terms of settlement “fair and reasonable” – Settlement Approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Nicholson	Maddens Lawyers
For the Defendant	No appearance

HER HONOUR:

On St Patrick’s Day 2018, a bushfire started in grass along Cross Forest Road Naroghid, just east of Terang in Western Victoria. It was known as the Gnotuk fire. The Gnotuk fire was one of four that started, in the country around Warrnambool on 17 March 2018, a day of severe fire conditions. The fire burnt 343 hectares and destroyed one home, a number of outbuildings, fencing and pasture.

Mr Hawker suffered damage and loss to his property in the Gnotuk fire. On 17 May 2018, he commenced a proceeding against Powercor as provided for in Part 4A of the Supreme Court Act 1986 on behalf of himself and other persons who had suffered loss and damage as a result of the Gnotuk bushfire. The group represented the class of 17 persons who have suffered personal injury or property damage or pure economic loss as a result of the fire. Orders were made setting a timetable by which group members may opt out of the proceeding and four group members did opt out, leaving a group containing 13 members. The group members’ claims were substantially in relation to property damage.

The parties have reached an agreement in relation to the proceeding. They have agreed to discontinue the proceeding on the basis that each bear their own responsibility for legal costs incurred. In lay terms, both parties agree to simply walk away from the litigation. Settlement of the proceeding reached by the plaintiff and defendant requires approval of the Court pursuant to s 33V of the Supreme Court Act 1986. Terms of settlement to this effect have been executed by the parties and on 29 July 2019 I heard the application seeking the required approval. I indicated I would make orders approving the settlement and provide my reasons. These are my reasons.

The sequence of events that led to the fire starting is not disputed between the parties. Powercor owned and operated a single phase high voltage power line between Naroghid and Cobden known as the Kokoda Line. Pole eight (‘Pole’) along the Kokoda Line was located opposite the property at 114 Cross Forest Road, Naroghid (‘the property’’). At this Pole a low voltage service line to the property , crossed 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.

Continue reading Hawker v Powercor Australia Ltd

Details

AGLC: Hawker v Powercor Australia Ltd [2019] VSC 521
Case: [2019] VSC 521
Decision Date: 2 August 2019

CaseChat Overview and Summary

The case of Hawker v Powercor Australia Ltd involves a group proceeding brought by various consumers against Powercor Australia Ltd, a utility company. The dispute centres on the approval of a settlement application under section 33V of the Supreme Court Act 1986 (Vic). The representative plaintiff, Hawker, sought the court's approval of a proposed settlement, which would resolve the claims of a large number of consumers who had allegedly been overcharged for their electricity supply. The central legal issue before the court was whether the terms of the settlement were fair and reasonable to the group members as a whole.

In determining whether the settlement was fair and reasonable, the court considered various factors, including the nature and complexity of the claims, the risks and costs of continuing the litigation, and the benefits of the proposed settlement to the group members. The court also examined the process by which the settlement had been negotiated and whether the group members had been adequately represented and informed. After weighing these factors, the court concluded that the settlement terms were fair and reasonable, as they provided a practical and efficient resolution of the claims for the benefit of the group members.

The court's approval of the settlement was based on the finding that it was in the best interests of the group members as a whole. The settlement provided a clear and certain resolution of the claims, avoiding the uncertainties and potential delays of further litigation. The court noted that the settlement offered compensation to the group members, which was a significant benefit given the complexity and potential costs of the litigation. Furthermore, the settlement included provisions for the distribution of costs and the protection of the interests of the group members, which demonstrated that the terms were fair and reasonable.

The final orders of the court approved the settlement and authorised the representative plaintiff to take necessary steps to implement it. The court also directed that the settlement be brought to the attention of the group members, who would be given an opportunity to object to the approval if they wished. The court's decision in this case provides guidance on the factors to be considered when approving a group proceeding settlement and highlights the importance of ensuring that the terms of the settlement are fair and reasonable to the group members as a whole.

Orders