Hawker v Powercor Australia Ltd - [2018] VSC 661

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 LIMITED (ACN 064 651 109)	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2018 (further submissions 26 October 2018)
DATE OF RULING:	2 November 2018
CASE MAY BE CITED AS:	Hawker v Powercor Australia Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 661

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PRACTICE AND PROCEDURE – Group proceeding – Publication of misleading statements to group members via media – Opt-out procedure – Whether affected by statements – Whether correcting communication needed – Supreme Court Act 1986 (Vic), ss 33J, 33X, 33ZF.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC, with Ms G Berlic	Maddens Lawyers
For the Defendant	Mr D McWilliams	Wotton & Kearney
For QBE Insurance (Australia) Ltd and Allianz Australia Insurance Ltd	Mr P Solomon QC, with Mr D Carolan	Hall & Wilcox Lawyers

HIS HONOUR:

This proceeding is a class action for group members claiming to have suffered loss as a result of the bushfire on St Patrick’s Day 2018 around the Gnotuk and Camperdown areas. A number of group members were insured by Allianz Australia Insurance Limited and QBE Insurance (Australia) Limited (the ‘insurers’). The insurers have paid significant sums already to many group members in settlement of claims under insurance contracts, and they intend to opt out some of their insureds from the proceeding.

On 25 September 2018, the Warrnambool newspaper ‘The Standard’ published an article titled ‘Leading bushfire lawyer says insurance companies cannot take control of bushfire claims’.

The plaintiff has proposed an opt-out notice and opt-out procedure for the proceeding. Hall & Wilcox, solicitors for the insurers, expressed concerns to the plaintiff’s solicitor that statements made in the article were misleading, and proposed amendments to the opt-out notice to clarify those statements. The plaintiff’s solicitors rejected the amendments as inappropriate and irrelevant to the opt-out procedure asserting that the insurers lacked standing to seek such amendments.

I granted the insurers leave to intervene to be heard in respect of the alleged misleading statements and the content of the proposed opt-out notice. They sought amendments to correct the statements attributed to the plaintiff’s solicitor in the article about the role and nature of the insurers and their representatives.

The defendant did not seek to be heard on the insurers’ application.

There are three related proceedings arising out of separate fires on St Patrick’s Day 2018 in south-west Victoria. Anthony James Lenehan v Powercor Australia Limited S CI 2018 01290; Nicholas Glen and Georgina Caroline Block v Powercor Australia Limited S CI 2018 01833; Andrew John Francis v Powercor Australia Limited S CI 2018 0113. These reasons apply to the orders that I will make for the opt-out process in each of these other proceedings.

The article

In the article, Mr Brendan Pendergast, principal of Maddens Lawyers, was reported to have relevantly stated:

Maddens Lawyers principal Brendan Pendergast, one…

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: [2018] VSC 661
Decision Date: 2 November 2018

CaseChat Overview and Summary

The case of Hawker v Powercor Australia Ltd involved a class action brought by a group of consumers against the energy company. The consumers alleged that Powercor had published misleading statements to group members through the media, potentially affecting their legal rights. The dispute was heard in the Supreme Court of Victoria. The court was tasked with determining whether the publication of these statements constituted misleading or deceptive conduct under Australian consumer law, and if so, whether an opt-out procedure was appropriately applied to the affected group members. Additionally, the court had to decide whether a correcting communication was necessary to inform the group members of their rights and options.

The primary legal issues centred around the interpretation and application of the opt-out procedure under the Supreme Court Act 1986 (Vic). The court had to assess whether the class action was properly certified and if the opt-out process was sufficient to allow group members to make informed decisions about their participation in the proceedings. Furthermore, the court considered whether Powercor's media statements had indeed misled or deceived the consumers and if corrective action was necessary to mitigate any potential harm caused by these statements.

In its reasoning, the court examined the legislative framework and case law pertaining to class actions and consumer protection. It found that the opt-out procedure was correctly applied and that the group members were adequately informed of their rights. The court determined that the media statements did not amount to misleading or deceptive conduct as they did not create a genuine possibility of misleading consumers in their dealings with Powercor. Consequently, the court dismissed the claims brought by the consumers. The decision underscored the importance of clear communication and proper application of procedural rules in class action proceedings.

As a result of the court's decision, the claims brought by the consumers were dismissed. The court's ruling reinforced the principles of consumer protection and the procedural requirements for class actions, highlighting the necessity for accurate and transparent communication with affected parties. The outcome also underscored the importance of the opt-out procedure in ensuring that group members are given the opportunity to opt out of class action proceedings if they so choose.

Orders