Lenehan v Powercor Australia Ltd - [2018] VSC 579

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2018 01290

ANTHONY JAMES LENEHAN	Plaintiff
v
POWERCOR AUSTRALIA LIMITED (ACN 064 651 109)	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2018
DATE OF JUDGMENT:	3 October 2018
CASE MAY BE CITED AS:	Lenehan v Powercor Australia Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 579	First revision 3 October 2018

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PRACTICE AND PROCEDURE – Group proceeding – Solicitors for the defendant made settlement offers directly to group members – Whether solicitors for defendant may communicate with group members and insurers – Whether communications misleading or unfair – Whether improper conduct on behalf of the defendant – Ordered that further correspondence be sent to group members – Supreme Court Act 1986 (Vic) s 33ZF.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Thompson QC, with Ms G Berlic	Maddens Lawyers
For the Defendant	Mr J Ruskin QC, with Mr D McWilliams	Wotton & Kearney
For the subrogated insurers	Mr P Solomon QC, with Mr D Carolan	Hall & Wilcox Lawyers

HIS HONOUR:

In this class action pursuant to Part IVA of the Supreme Court Act1986 (Vic), the plaintiff, and group members, claim to have suffered loss and damage as a result of the Terang/Cobden bushfire on Saint Patrick’s Day 2018. The proceeding is in its early stages and orders are yet to be made for an opt-out procedure.

At the heart of the present dispute is a letter dated 28 August 2018 from the defendant’s solicitors to group members inviting them to accept an offer for early settlement of their claims detailed in an enclosed settlement agreement. The defendant’s offer has been distributed in three ways.

Presently the size of the group has not been identified. Approximately 130 individuals have registered with the plaintiff’s solicitors to participate in the proceeding (‘registered group members’). The defendant has communicated with these members by sending a letter to the plaintiff’s solicitors enclosing the settlement agreement.

There is a second set of group members who have claimed upon their insurer for the loss and damage they have suffered (‘insured group members’). The exact number of members with insured, or under-insured, claims is unclear. Further, these two sub-groups are not mutually exclusive. There is likely to have been overlap. The defendant has communicated with the insured group members by sending the offer to the solicitors, Hall & Wilcox, acting for several insurers.

The defendant’s solicitors believed that 10 group members were neither registered group members nor insured group members and have sent the letter directly to them. Subsequent events reveal that two recipients of this direct correspondence may have been represented group members, but when the application came on for hearing, the plaintiff accepted that any such communication was inadvertent and did not press the point.

In the result, there were effectively 12 direct recipients of the relevant communication being the plaintiff’s solicitors, the insurers’ solicitors and 10 unrepresented…

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 Lenehan v Powercor Australia Ltd

Details

AGLC: Lenehan v Powercor Australia Ltd [2018] VSC 579
Case: [2018] VSC 579
Decision Date: 3 October 2018

CaseChat Overview and Summary

In the matter of Lenehan and others versus Powercor Australia Limited, the Court was tasked with considering a dispute involving a group proceeding, where the solicitors for the defendant had made settlement offers directly to the group members. The issue at hand was whether such direct communication by the defendant's solicitors was permissible, and if the communications were misleading or unfair. Additionally, the court had to determine whether there had been any improper conduct on the part of the defendant. The proceedings took place in the Supreme Court of Victoria.

The central legal issues that the court had to address were the admissibility of direct settlement communications made by the defendant's solicitors to the group members, and whether these communications were misleading, unfair, or constituted improper conduct. Furthermore, the court needed to consider the implications of these communications under the relevant statutory framework, specifically the Supreme Court Act 1986 (Vic) s 33ZF.

The court found that the direct communication by the defendant's solicitors to the group members was not inherently improper, but the content and manner of these communications needed to be scrutinised to ensure they were not misleading or unfair. The court emphasised the importance of transparency and fairness in such communications, and ordered that further correspondence be sent to the group members to ensure clarity and fairness. The court also highlighted the need for compliance with statutory requirements to maintain the integrity of the legal process.

As a result of the court's findings, it ordered that additional correspondence be sent to the group members to ensure that all communications were clear, fair, and in compliance with the relevant legal standards. The court's decision underscored the importance of proper conduct in group proceedings and the need for all parties to adhere to the legal framework governing such matters.

Orders