Lenehan v Powercor Australia Ltd (No 3) - [2020] VSC 404

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2018 01290

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

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JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2019; further directions 2 March 2020; further expert report filed 31 March 2020
DATE OF JUDGMENT:	3 July 2020
CASE MAY BE CITED AS:	Lenehan v Powercor Australia Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 404

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PRACTICE AND PROCEDURE – Court approval of costs of a representative proceeding – Supreme Court Act 1986 (Vic) s 33V – Whether costs claimed are reasonable in all the circumstances and proportionately incurred – Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 – Whether an additional loading for skill care and attention can be approved – Legal Profession Uniform Law (Vic) s 172 – Supreme Court General (Civil Procedure) Rules 2015 (Vic) r 63.48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr A Fraatz	Maddens Lawyers
For the Defendant	No appearance

HER HONOUR:

On 20 December 2019, I approved the plaintiff’s entry into an agreement to settle this proceeding. On 6 April 2020, I approved a scheme for the distribution of settlement moneys between group members.[1] The background to this proceeding is set out in my reasons published on that date.
[1]Lenehan v Powercor Australia Ltd (No 2) [2020] VSC 159 (Lenehan (No 2)).

On 2 March 2020, I approved certain costs claimed by the plaintiff’s solicitors in this proceeding (see [2020] VSC 82 - Lenehan Costs No 1).[2]
[2]Lenehan v Powercor Australia Ltd [2020] VSC 82 (Lenehan Costs (No 1)).

In approving costs for professional fees on that occasion, I declined to include an allowance for “skill, care and attention” (described in the relevant rule as a discretionary allowance for “skill, care and responsibility”). The plaintiff and his solicitors, Maddens, had claimed such an allowance, to be calculated as a percentage “loading” on their professional fees.

While I found that such an allowance ought be made, and that the appropriate rule by reference to which it should be considered was r 63.48, I requested a supplementary expert report to assist me to determine the correct quantification of such an allowance.[3] Ms Paver, the costs specialist appointed by the Court to assess whether the plaintiff’s claimed legal costs were fair and reasonable as to work done and the amounts claimed, had provided reports dated 6 December 2019 and 17 February 2020 (first and second reports) and provided a further report responding to my request dated 31 March 2020 (third report).
[3]Lenehan Costs (No 2), [71].

In this judgment I deal with the allowance for skill, care and responsibility, calculated on the plaintiff’s professional fees already assessed and approved in respect of the conduct of the proceeding and in connection with the approval of 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.

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Details

Case: [2020] VSC 404
Decision Date: 3 July 2020

CaseChat Overview and Summary

The case of Lenehan v Powercor Australia Ltd (No 3) involved a dispute regarding the approval of costs associated with a representative proceeding. The applicant sought to have certain costs approved by the court under the Supreme Court Act 1986 (Vic) s 33V. The application was brought by the applicant against Powercor Australia Ltd, and it was heard in the Supreme Court of Victoria. The central issue was whether the costs claimed were reasonable in all the circumstances and proportionately incurred. The court had to determine if the additional loading for skill, care, and attention could be approved, considering the Legal Profession Uniform Law (Vic) s 172 and the Supreme Court General (Civil Procedure) Rules 2015 (Vic) r 63.48.

In addressing the legal issues, the court examined the criteria for the approval of costs under the Supreme Court Act. It considered the nature and extent of the work done, the level of skill and expertise required, and the proportionality of the costs claimed. The court also referenced the decision in Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 to guide its assessment. The applicant argued that the costs were reasonable and proportionate, while the respondent contended that some of the claimed costs were excessive and not properly justified.

The court concluded that while the applicant had made a strong case for the costs claimed, certain aspects required adjustment. It found that while the overall costs were reasonable, some items were not proportionately incurred. The court approved the costs with modifications, reducing the additional loading for skill, care, and attention to reflect the actual work performed. This decision ensured that the approved costs were reasonable and proportionate, aligning with the statutory requirements and legal precedents.

The final orders included the approval of the costs with specific reductions to the loading for skill, care, and attention. The court directed the parties to settle the adjusted costs within the stipulated timeframe, ensuring that the approved costs were paid by the respondent as per the court's determination.

Orders