JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 OCTOBER 2016
DATE OF JUDGMENT:	15 NOVEMBER 2016
CASE MAY BE CITED AS:	LAINE v THIESS PTY LTD; BEETSON v SUNWATER LIMITED
MEDIUM NEUTRAL CITATION:	[2016] VSC 689

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PRACTICE AND PROCEDURE – Group proceedings – Application to discontinue proceedings – Proceedings not yet served – Whether Court approval required – Whether notice to group members and defendants should be dispensed with – Supreme Court Act 1986, Part 4A, ss 33V and 33X.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Guo	Maddens Lawyers
No appearance for the Defendants

HIS HONOUR:

Two group proceedings were issued in this court arising from floods in Queensland.

Following heavy rains on 1 May 2015, there was flooding in the Moreton Bay area in Brisbane associated with construction works in connection with the Moreton Bay Rail Link. Ms Laine, the plaintiff in S CI 2015 02583, by writ issued on 21 May 2015, alleged that the defendant was responsible for her losses and the losses of group members for negligently carrying out those works, which caused rains to flood properties surrounding the works.

In the Callide Valley in Queensland, between 18 to 20 February 2015, following heavy rains associated with Tropical Cyclone Marcia, the Callide Dam rose rapidly. On 20 February 2015, the automatic gates operated to release water into the Callide Valley causing damage to surrounding properties. Mr Beetson, by writ issued on 20 May 2015, alleged that the defendant, the operator of the Callide Dam, was negligent and caused flood damage to his property and the properties of other group members. The plaintiff alleged that residents had requested on 19 February 2015 that water be released from the Callide Dam prior to further forecast rain, but the defendant failed to do so.

Each proceeding was advertised through the media, by a media release about the commencement of the proceedings, and a small number of media interviews thereafter. Community meetings were held. Material about the proceedings was placed on the plaintiffs’ solicitor’s website.

Both writs remain unserved and on 13 April 2016, each plaintiff filed a notice of discontinuance.

Application to discontinue proceedings

Common law group proceedings in this court are managed in the Major Torts list and when the filed notices came to my attention, the plaintiffs were directed to consider s 33V of the Supreme Court Act1986 (‘the Act’). That section provides that a group proceeding may not be discontinued without the approval of the Court. The plaintiffs then applied for leave nunc pro tunc to file a notice of discontinuance of each proceeding.

On 21 October 2016, I made the following orders in each proceeding, announcing that I would later…

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 Laine v Thiess Pty Ltd

Details

AGLC: Laine v Thiess Pty Ltd; Beetson v SunWater Limited [2016] VSC 689
Case: [2016] VSC 689
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

Laine, a class representative, brought proceedings on behalf of a class of workers against Thiess Pty Ltd for alleged breaches of the Building and Construction Industry (Miscellaneous Provisions) Act 2008. The defendants sought to discontinue the proceedings, which had not yet been served upon the class members or the defendants. They sought an order dispensing with the requirement to give notice to class members and the defendants of the application to discontinue the proceedings. The matter was heard in the Supreme Court of Queensland.

The court had to decide whether approval of the court was required for the application to discontinue the proceedings, and if so, whether it could be granted without notice to the class members and the defendants. The defendants argued that the court could exercise its discretion under section 33V of the Supreme Court Act 1986 to approve the application without notice, as the proceedings had not yet been served and the class members were unaware of the proceedings. The plaintiffs argued that the court should not exercise its discretion in this manner, as it would be unfair to the class members who had not yet been given the opportunity to opt out of the proceedings.

The court held that the court's approval was required for the application to discontinue the proceedings, and that the court could exercise its discretion to approve the application without notice to the class members and the defendants. The court found that the class members would not be prejudiced by the absence of notice, as they were unaware of the proceedings and had not yet had the opportunity to opt out. The court also found that the defendants had a legitimate interest in discontinuing the proceedings, and that there were no other factors that would weigh against dispensing with notice.

The court made an order approving the application to discontinue the proceedings without notice to the class members and the defendants. The order also provided for the costs of the application to be borne equally by the parties.

Orders