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Johnston v Endeavour Energy

Johnston v Endeavour Energy

Case [2016] NSWSC 1132 18 August 2016

Class Actions

Compensatory Damages

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Johnston v Endeavour Energy [2016] NSWSC 1132
Hearing dates: 15 July 2016
Date of orders: 15 July 2016
Decision date: 18 August 2016
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
Provisional approval given to proposed settlement.

Catchwords: CLASS ACTION – fire at Springwood – tree fell on live conductors – proceedings brought against power company – in principle settlement arrived at after five week trial – consideration of proposed settlement distribution scheme – whether fair and reasonable in interests of class members – motions brought by insurance intervenors for payment from settlement – reasons for provisional approval of settlement – prospects of success of claim an important factor – date fixed for objections to be made – proposed settlement fair and reasonable – provisional approval given.
Legislation Cited: Civil Liability Act 2002 (NSW) – s 43A
Civil Procedure Act 2005 (NSW) – Pt 10
Legal Profession Act 2004 (Vic)
Legal Professional Uniform Law Application Act 2014 (Vic)
Cases Cited: ACCC v Chats House Investments Pty Ltd & Ors [1996] 71 FCR 250; FCA 1119
Courtney v Medtel Pty Limited (No 5) [2004] FCA 1406; 212 ALR 311
Darwalla Milling Co Pty Ltd v F Hoffman-La Roche & Ors Ltd (No 2) [2006] FCA 1388; 236 ALR 322
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19
Lopez v Star World Enterprises Pty [1999] ATPR 41 – 678 at 42 – 670; [1999] FCA 104
Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 16) [2013] VSC 74
Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 6) [2011] FCA 277
Rod Investments (Vic) Pty Ltd v Abeyratne & Ors [2010] VSC 457
Rowe v AusNet Electricity Services Pty Ltd and Ors [2015] VSC 232
Thomas v Powercor Australia Limited [2011] VSC 614
Wheelahan & Anor v City of Casey & Ors [2011] VSC 215
Williams v FAI Home Security Pty Ltd (No 4) [2000] 180 ALR 459; [2000] FCA 1925
Wong v Silkfield [2000] FCA 1421
Category: Principal judgment
Parties: Sean Johnston – Plaintiff
Endeavour Energy – 1st Defendant
Insurance Australia Group (IAG); Allianz; AAI Limited; CommInsure – Insurance Intervenors
Representation:
Counsel:
Mr G Dalton QC/Mr A Fraatz – Plaintiff
Mr JJ Hutton – First Defendant
Mr AP Coleman SC/Mr RM Foreman – IAG
Mr DS Weinberger - Allianz
Solicitors:
Maddens Lawyers - Plaintiff
Lander & Rogers Lawyers – First Defendant
William Roberts Lawyers - IAG
Gells Lawyers - Allianz

File Number(s): 2014/148790

Judgment

HIS HONOUR:

Nature of proceeding

The proceeding arises out of a bush fire, which started at Linksview Road, Springwood, on 17 October 2013 (the fire). It is a group proceeding brought under Pt 10 of the Civil Procedure Act 2005 (NSW) (the Act) by the plaintiff (Mr Johnston) on his own behalf and as a representative of all persons who suffered personal…

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 Johnston v Endeavour Energy

Details

AGLC: Johnston v Endeavour Energy [2016] NSWSC 1132
Case: [2016] NSWSC 1132
Decision Date: 18 August 2016

CaseChat Overview and Summary

In Johnston v Endeavour Energy, the plaintiffs sought compensation for damages caused by a fire that occurred at Springwood. The fire led to a tree falling on live electrical conductors, resulting in significant disruption to the local community. The case was brought against Endeavour Energy, the power company responsible for the distribution network in the area, by a class action on behalf of affected residents. The dispute centred on the adequacy of the compensation provided by the power company and whether the proposed class action settlement was fair and reasonable for the class members.

The primary legal issue before the court was whether the proposed settlement distribution scheme was fair and reasonable in the interests of the class members. Additionally, the court had to consider motions brought by insurance intervenors, who sought payment from the settlement funds. The court needed to weigh various factors, including the prospects of success of the claim, to determine the fairness of the settlement and to decide whether to grant provisional approval.

The court found that the proposed settlement was fair and reasonable, considering the evidence presented during the five-week trial. The prospects of success of the claim were deemed an important factor in the assessment of the settlement. The insurance intervenors' motions were also considered, and the court determined that the settlement adequately addressed their claims. Consequently, the court granted provisional approval of the settlement and set a date for any objections to be made. The court's decision balanced the interests of the class members and the intervenors, ensuring a fair outcome for all parties involved.

The court issued orders provisionally approving the settlement and setting a date for any objections to be made. The final orders would follow once all objections were considered and resolved.

Orders