Matthews v SPI Electricity Pty Ltd (No 13)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4788 of 2009

CAROL ANN MATTHEWS	Plaintiff
v
SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Defendant

SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Plaintiff by counterclaim
v
UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS	Defendants by counterclaim

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	11 & 18 January 2013
DATE OF RULING:	18 January 2013 (Written Reasons 8 February 2013)
CASE MAY BE CITED AS:	Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 13)
MEDIA NEUTRAL CITATION:	[2013] VSC 17

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PRACTICE AND PROCEDURE – Class actions – Closed class – Class closure – Compelling reason to close class – Whether class closure is appropriate or necessary to ensure that justice is done in the proceeding – Requiring group members to take specified step – Requiring group members to register a claim – Amendment of group definition – Suspension of limitation periods in grouped proceedings - Part 4A Supreme Court Act 1986 (Vic), Sections 33H, 33K, 33KA, 33ZE, 33ZF, 33ZG – Part 2 Civil Procedure Act 2010 (Vic), Sections 8, 9 – Part IVA Federal Court Act 1976 (Cth), Sections 33C(1), 33ZF.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Armstrong	Maurice Blackburn Pty Ltd
For SPI Electricity Pty Ltd	Mr D Farrands Mr J H Kirkwood	Herbert Smith Freehills
For USC	Ms E Brimer	Holman Fenwick Willan
For the State parties	Dr M Rush	Norton Rose

HIS HONOUR:

Introduction

This proceeding was issued pursuant to the class action provisions of the Supreme Court Act 1986 (Vic).[1] The trial is scheduled for 4 March this year and, on current estimates, will not be concluded until December 2013. The mediation held in November last year failed. Presently, the class represented by Mrs Matthews encompasses all persons who suffered personal injury, property damage or economic loss as a result of the Kilmore East/Kinglake bushfire on Black Saturday - an open class where the identity of the claimants and the nature of the individual claims will not be known until after the question of the liability of the five defendants is determined. Settlement negotiations have failed, in part at least, because of an inability to gauge the size of the claim. All parties are agreed that identification of the number of potential claimants will assist in settlement negotiations and thus fulfil a primary aim of the Civil Procedure Act 2010 (Vic).[2]
[1]“SCA”.
[2]Section 1(c) of the Civil Procedure Act 2010 (Vic), (“CPA”).

To this end, Mrs Matthews seeks to amend the group definition of those persons with personal injury or dependency claims[3] to those who register with Maurice Blackburn[4] as claimants by a certain date, which I have now set as 22 March 2013. This will, at least potentially, exclude persons who are currently group members from this claim, however, it will still permit members who do not register to bring individual claims.
[3]As set out in paragraph four of her statement of claim.
[4]The law firm representing Mrs Matthews.

The suggested approach to economic loss and property damage claims[5] is different. Mrs Matthews and each of the defendants agree that those members of the group who wish to participate in a settlement (if one eventuates) should register as claimants with Maurice Blackburn by 22 March 2013. This proposed class closure operates in relation to two separate groups - insurers who have subrogated claims and group members who are either not insured for economic loss or property damage or were underinsured. If group members or insurers do not register, the proposed orders would preclude them from participating in any putative settlement and also, in the event of a settlement being reached, mean that they would have no entitlement to compensation for losses as a result of the fire. Their only recourse will be to make an application to join the class prior to any distribution of funds or oppose the settlement at the hearing of the approval of any settlement.
[5]”ELPD claims”.

Each of the defendants opposed Mrs Matthews’ application in relation to the personal injury and dependency claims, arguing that there should be no distinction between group members making an ELPD claim and those making a claim for personal injury or dependency. SPI described this as ‘the better course’. I do not agree.

I am convinced that, subject to appropriate notice being given to group members, it is appropriate, as Mrs Mathews proposes, to redefine the group by requiring the personal injury and dependency claimants to register. I accept that without such a course there is a significant risk that settlement negotiations will be unable to proceed. However, I do not think that this group, as the defendants suggest, should be subject to class closure with termination of their rights absent registration (if a settlement be reached). Rather, the class should be converted to a closed class and those who fail to register will be excluded from this proceeding but maintain their right to bring separate proceedings.

I am also satisfied that closing the class with binding effect on all class members with ELPD claims is appropriate; provided that adequate notice is given to the class members.

Of course, making these orders provides no guarantee that there will ultimately be a settlement, however, I think that taking this course will assist, at the very least, in promoting settlement which clearly, in an action of this size, duration and complexity, is a desirable object.

At the hearing on 18 January 2013 I made orders giving effect to these conclusions and approved the form of the notices to be given to group members. I provided brief ex tempore reasons and promised more expansive written reasons which now follow.

The gist of the Orders sought by Mrs Matthews

The Orders in their entirety are set out at [104] of these reasons. In essence they provide for:

(a) personal injury and dependency claimants to register by 22 March 2013, and that the group definition be amended to include only registered personal injury and dependency claimants; (Order 2)

(b) ELPD claimants with uninsured or underinsured losses to register by 22 March 2013. In the event of settlement only registered claimants will be able to participate in the settlement, and non-registered claimants will not be permitted to claim compensation; (Order 3)

(c) an insurer with a subrogated right in respect of an indemnity for a group member’s loss to register by 22 March 2013. In the event of settlement only registered subrogated claimants will be able to participate in the settlement and non-registered claimants will not be permitted to claim compensation; (Order 4)

(d)
the form of notices to be given to group members and insurers including advertising and others forms of dissemination;

(Orders 5, 6, 7 and 8)

(e) notice to persons who have opted out of the proceeding as to this process; (Order 9).

The current class definition

At the present time a person is a group member[6] in this action if:
[6][4] of Mrs Matthews’ settlement of claim.

(a)the person is on the List of Personal Injury Clients filed by the plaintiff’s solicitors (Maurice Blackburn) in the Supreme Court of Victoria on 7 December 2012; or
(b)the person suffered personal injury (whether physical or psychiatric injury[7]) as a result of:
[7]“Psychiatric injury” in paragraph “b” of the group definition means nervous shock or another psychiatric or psychological injury, disturbance, disorder or condition which was diagnosed in such a diagnosis given to the person by a medical practitioner prior to 31 January 2012.
(i)the bushfire; and/or
(ii)the death of or injury to another person as a result of the bushfire, or

(c)the person represents the estate of, or are a dependent of any person who died in or as a result of the bushfire; or
(d)the person suffered loss of or damage to property as a result of the bushfire; or
(e)at the time of the bushfire the person resided in, or had real or personal property in, the “bushfire area” and suffered economic loss as a result of the bushfire which did not result from personal injury or property damage.

The “bushfire area” is defined by reference to a map of the bushfire area attached to the statement of claim, and encompasses five Victorian municipalities: Mitchell Shire, Murrundindi Shire, Nillumbik Shire, the Shire of Yarra Ranges and the City of Whittlesea.

The key provisions of the Supreme Court Act and the Civil Procedure Act

Part 4A of the SCA governs the class action process. Section 33H requires the group to be described or identified in the originating process in addition to specifying the nature of the claims made on behalf of the class and the questions of law or fact which are to be determined in relation to the claims of the class members. It is now established that it is not necessary for the class to cover all persons who have suffered loss or damage as a result of a particular event (or act or omission).[8]
[8]See [22] below.

Section 33K provides that at any stage of a proceeding, leave may be given to amend the writ ‘so as to alter the description of the group’. This is the basis of the proposal of Mrs Matthews in relation to redefining the class of personal injury and dependency claimants.

The Court has a general power, in any Part 4A proceeding, under s 33ZF to make ‘any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’.

The Court also has express power pursuant to s 33ZG to require group members to take a step by a particular date:

Without limiting the operation of section 33ZF, an order made under that section may-
(a)set out a step that group members or a specified class of group members must take to be entitled to —
(i)      any relief under section 33Z; or
(ii)     any payment out of a fund constituted under section 33ZA; or
(iii)    obtain any other benefit arising out of the proceeding-
irrespective of whether the Court has made a decision on liability or there has been an admission by the defendant on liability;
(b)specify a date after which, if the step referred to in paragraph (a) has not been taken by a group member to whom the order applies, the group member is not entitled to any relief or payment or to obtain any other benefit referred to in that paragraph. (emphasis added)

Of particular note is that the section specifically enables a court to impose such a requirement prior to a judgment or settlement of the liability issue. It also enables a Court to preclude a group member who fails to take such a step from any relief or financial benefit. As discussed subsequently this provision is of real significance in making the orders sought by Mrs Matthews. It is not replicated in Part IVA of the Federal Court of Australia Act 1976 (Cth).[9]
[9]“FCA”

The Civil Procedure Act 2010 (Vic)[10] is also relevant to this application. Chapter 2 of the CPA sets out the overarching purpose and overarching obligations in civil proceedings. The overarching purpose of the CPA and the rules of court in relation to civil proceedings is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[11] Section 8 requires a court to give effect to the overarching purposes. Section 9 of the CPA expands the overarching purposes as follows:
[10]“CPA”.
[11]Section 1(c) of the CPA.

Court's powers to further the overarching purpose
(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
(b) the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;

(f)the timely determination of the civil proceeding;
(g)dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.

(2)For the purposes of subsection (1), the court may have regard to the following matters—
(a)the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h) the extent to which the parties have had the benefit of legal advice and representation.

Section 49 of the CPA empowers a court to give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing of a civil proceeding.

What do the expressions “closed class” and “class closure” mean?

The two expressions refer to different but related concepts, as I shall endeavour to explain.

Neither Part 4A of the SCA or Part IVA of the FCA refer in terms to a closed class or class closure.

The expression “closed class”, as I understand it, refers to a class composed of a limited or identified number of persons rather than all those who suffered loss or damage as a result of the conduct of a defendant.

It is clear from the text of the Second Reading Speech[12] and the Australian Law Reform Commission Report[13] that one of the original aims of the federal legislation was to enable a claim to be brought on behalf of all persons who may have a claim against a defendant or defendants arising out of a particular event rather than on behalf of a limited number.
[12]Australia, Parliamentary Debates, Senate, 12 September 1991, 1447 (Michael Tate – Minister for Justice and Consumer Affairs).
[13]Law Reform Commission, Access to the Courts – II. Class Actions, Law Reform Commission, Sydney (1979) (“ the ALRC Report”).

However, the decision of the Full Court of the Federal Court in Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd[14] and, particularly, its interpretation of s 33C(1)[15] of the FCA means it is now accepted that a proceeding under Part IVA is not limited to a claim on behalf of all claimants but may be issued on behalf of a closed class – i.e. in respect of an identified group of persons but not all persons who may have a claim against a defendant arising out of a particular event.[16]
[14](2007) 164 FCR 275 (“Multiplex”), see also [40] – [46] below.
[15]See [40] – [46] below.
[16]Amendment of the group definition after the issuing of a proceeding to alter the composition of the group is discussed subsequently [47]-[68].

Class closure is a different concept to that of a closed class. This expression means, as I understand it, that a court may require group members to identify themselves by a certain point in time as having an interest in any judgment or proposed settlement. Failing a declaration of such interest (normally achieved by registering with the court or a firm of solicitors by a certain date), any subsisting entitlement to damages of the group members relating to the claim may be extinguished.

Orders fixing a date by which group members must identify themselves or provide details of their claims have been made in a number of class actions in the Supreme and Federal Courts at various stages of the proceeding,[17] consistent with the powers (in this State) under s 33ZF and s 33ZG.
[17]See for example McMullin v ICI Australia Operations Pty Ltd(No 6) (1998) 84 FCR 1 (“McMullin”); Lopez v Star World Enterprises Pty Ltd (1999) ATPR 41-678 (pursuant to an application to approve terms of settlement); Pathway Investments Pty Ltd v National Australia Bank Limited (Supreme Court of Victoria, S CI 2010 6249, order by consent made 24 August 2012); Rowe v Grunenthal GMBH [2011] VSC 657; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No. 2) [2003] VSC 212 (Gillard J); Mercieca v SPI Electricity Pty Ltd [2012] VSC 204 (Emerton J).

It is helpful now to look at the manner in which class closure and closed classes have been undertaken, both under the federal and Victorian provisions.

Decisions concerning class closure

In McMullin,[18] the respondents made an application after the liability judgment for an order to close the class of group members in the representative proceeding. Although as mentioned earlier, Part IVA of the FCA does not expressly allow the Federal Court to close a class, Wilcox J held that ‘an order fixing a date by which claimants must identify themselves is capable of falling within s 33ZF’.[19] His Honour said that the criterion ‘justice is done’, involves a consideration of the position of all parties to the proceeding,[20] adding that ‘[a]n order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding’.[21] The respondents argued that if no closing date was given, there would never be finality to the proceeding and the respondent would never know whether it had resolved all claims. His Honour held that in these circumstances, it was appropriate to make an order closing the class as without it, the proceedings could never be regarded as finalised.[22] His Honour also considered the requirements of the notice to be given to members of the class.[23]
[18](1998) 84 FCR 1.
[19](1998) 84 FCR 1, 4.
[20]Ibid.
[21]Ibid.
[22]See discussion at pp 4-5 under heading ‘Exercise of the power’ where Wilcox J discusses the effect of commencing a representative proceeding upon limitation periods.
[23]A notice ‘must be readily comprehensible by non-lawyers. It should be written in plain English’. The period for such notice ‘needs to be long enough to cover recipients' absences on work or holidays, illnesses and other temporary distractions” and “short enough to inculcate a sense of urgency’; (1998) 84 FCR 1, 5.

Subsequently in King v AG Australia Holdings Ltd (formerly GIO Australia HoldingsLtd),[24] a respondent sought to communicate with group members by having each member of the group answer a compulsory questionnaire and, if not answered, the “claim” of any member who did not respond would be stayed by order of the Court. Moore J considered the power conferred by s 33ZF of the FCA and referred with approval to Wilcox J’s discussion in McMullin. His Honour concluded that the orders of Wilcox J and the notices annexed to that judgment had the practical effect of closing the class.[25]
[24][2002] FCA 1560.
[25]Ibid [5]-[6].

Moore J also recognised that the circumstances of the application before him were slightly different because Wilcox J ‘did not have to confront whether an order could be made staying or dismissing claims of individual group members in circumstances where the proceeding was still a representative proceeding’.[26] His Honour expressed some doubt as to the ability of a court to close a class given the structure of Part IVA:

The whole scheme of Part IVA of the Act is that, ordinarily, there is one proceeding, at least until common issues are resolved, and that the members of the group are not parties to that proceeding. The representative party or parties prosecute the proceeding on behalf of the group. As I discussed in my judgment of 11 July 2002 and Sackville J later discussed in Courtney v Medtel Pty Ltd, the legislature adopted, in the face of an Australian Law Reform Commission recommendation to different effect, a scheme in which there is not a discrete proceeding maintained on behalf of each member of the group at least until common issues are resolved (assuming the matter continues as a representative proceeding until then).[27]

His Honour, however, subsequently ordered class closure[28] although these orders did not have a terminating effect upon the entitlement to damages of those who failed to register.[29]

[26]Although Moore J did not doubt the Court’s power to make such an order pursuant to s 33Z(1)(g) of the FCA after a declaration of liability was made. See discussion at [7] of his Honour’s reasons.

[27][2002] FCA 1560 [9] (citations omitted).

[28](2003) FCA 980 [7].

[29]Ibid [10].

Other judges of the Federal Court have followed the approach of Wilcox J in McMullin. In Guglielmin v Trescowthick,[30] utilising the power under s 33ZF, Mansfield J ordered that any group member who had not registered with the applicants’ solicitors would be bound by any resolution of the proceeding and not entitled to claim in any assessment or distribution of any awarded damages or settlement sum.
[30]Federal Court of Australia, Proceeding No SAD 153 of 2002, orders made 18 April 2006 – Mansfield J.

In Dorajay Pty Ltd v Aristocrat Leisure Ltd,[31] after settlement of the proceeding by the creation of two separate funds, a deadline was set for the provision of prescribed material by group members. Stone J set out the following principles:

At the hearing Aristocrat provided a note outlining its position in relation to the recognition of the claims of Late Notified Holdings. It stated that the "orderly and efficient resolution of the proceedings ... is in the collective interests of the parties, group members as a whole and the wider public (insofar as it frees up scarce court resources to deal with other disputes)". I agree with this proposition. It follows that the deadline set by the Court for group members to elect whether or not they wish to be included in the proposed settlement of the representative proceeding must be taken seriously. Until the class of participating group members is closed and the members of the closed class identified there can be no final settlement and no distribution of settlement monies to members of the class.
Taking the deadline seriously means that a group member who did not comply with the deadline should not be permitted to participate in the settlement unless the Court is affirmatively satisfied that it would be unjust to exclude the group member.[32]

[31][2008] FCA 1311.

[32]Ibid [13]-[14].

Similar orders effecting class closure (with a termination of any entitlement to damages absent registration or the provision of appropriate information) were made in Vlachos v Centro Properties Ltd,[33] Watson v AWB Limited[34] and Scott and Taws v Oz Minerals.[35]
[33]Federal Court of Australia, Proceeding No (P) VID 366 of 2008, orders made 17 December 2008 – Ryan J.
[34]Federal Court of Australia, Proceeding No NSD 2020 of 2007.
[35]Scott and Taws v Oz Minerals (case managed with Hobbs Anderson Investments Pty Ltd v Oz Minerals) [2011] FCA 801, Federal Court of Australia, Proceeding No NSD 1433 of 2010, orders made 22 October 2010 – Emmett J.

The decision in the Federal Court which most excited the interest of the parties in this case was that of Bromberg J late last year in Winterford v Pfizer Australia Pty Ltd.[36] It involved two proceedings brought under Part IVA of the FCA – Winterford v Pfizer Australia Pty Ltd (“Pfizer”) and Collin v Aspen Pharmacare Australia Pty Ltd & Anor (“Collin”).[37] His Honour refused to make a class closure order, which would have required group members who had not opted out of the proceeding, to register with the solicitors for the applicant. Failure to comply with this order would have caused a group member to be bound by any judgment obtained in the proceeding but he or she would not be entitled to share in the benefit of any judgment. It would have also prohibited those unregistered members from bringing any other claim against the respondent. His Honour held that, in the context of the class action regime under Part IVA of the FCA, ‘there must be some compelling reason demonstrated before the Court will order group members to go beyond their essentially passive role’,[38] such as the need to give finality to the proceeding, as was the case in McMullin.
[36][2012] FCA 1199.
[37](“Winterford”).
[38]Ibid [5] citing Finkelstein J in P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176 [17].

Bromberg J did not consider the respondent’s assertion that it was not willing to enter into settlement negotiations because of uncertainty as to the quantum of potential group members’ claims, to be a compelling reason.[39] His Honour considered that the stage each proceeding had reached was relevant to the Court’s power to make such an order. In Collin, the pleadings had not closed, the common questions were not settled, opt-out notices were about to be advertised and the parties had not yet entered into settlement discussions:

…for the court to impose upon group members a positive requirement to opt-in, at this juncture, would turn on its head the very nature of the opt-out model chosen by the legislature.[40]

[39]Ibid [7].

[40][2012] FCA 1199 [9].

In Pfizer, the situation was slightly different as settlement discussions had commenced and a sampling process had begun. His Honour considered that when the sampling process was completed, this might constitute a compelling reason for an order to close the class because ‘closing the class will be a justifiable step in facilitating the bringing of the proceeding to finality’.[41]
[41][2012] FCA 1199 [10].

Ultimately, his Honour concluded that both proceedings had not yet advanced sufficiently towards finality when compared to a number of other cases:

·     Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 2):[42] the trial of the common questions had been completed.
·     King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd):[43] opt-out notices had been sent.
·     McMullin: the Court had determined the common questions concerning liability and was in the process of determining what damages members of the group might be awarded.
·     Perry v Powercor Australia Pty Ltd:[44] the parties had reached agreement and applied to the Court for approval of proposed terms of settlement. The plaintiffs relied on McMullin in support of their application for an order to close the class.
·     Thomas v Powercor Australia Ltd:[45] five weeks into the trial of the proceeding, the parties agreed to terms of settlement. The trial was adjourned. The parties then applied, as in Perry, for approval of proposed terms of settlement. The plaintiff also relied on McMullin in support of that application for an order to close the class.

[42][2003] VSC 212.

[43][2002] FCA 1560.

[44][2012] VSC 113.

[45][2011] VSC 614.

Winterford suggests that in the exercise of this discretion, the Court must identify a “compelling reason” why the order should be made. I think that this statement of Bromberg J was case specific and can be distinguished. His Honour was faced with a class closure application at a very early point in the proceedings. It was not surprising that his Honour imposed such a stringent test in the context of that application. Here, as I shall explain in a moment, the position is considerably different and the question, using the terms of s 33ZF, is whether it is ‘appropriate or necessary’. Further, the power in Victoria to make such an order does not rest solely upon s 33ZF. In this state s 33ZG provides the Court with a specific power to require group members to take specified steps if they wish to obtain a benefit out of the proceeding.

The use of the s 33ZG power was demonstrated in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No. 2).[46] Gillard J discussed the application of s 33ZF and s 33ZG to class closure. His Honour referred with approval to McMullin and said:

… Wilcox J held that [s 33ZF of the FCA gives] the widest power to the court to do whatever is appropriate or necessary in the interests of justice. This power enables the court to close the class of claimants. In the Victorian legislation there is express power. Under s 33ZG of the Act, the court does have power to make orders which would have the effect of closing the class of claimants and this can be done by a certain date. [47]

In that case, there was no opposition to the making of an order closing the class and his Honour’s discussion focused on the form that any notice should take.[48]

[46][2003] VSC 212.

[47]Ibid [65].

[48]Ibid [66].

In a number of cases arising out of the Black Saturday bushfires, judges of this Court have effected class closure consequent upon settlement of the particular proceeding.

In Merciecav SPI Electricity Pty Ltd[49] (Beechworth bushfire class action), Emerton J approved the approach taken by Beach J in Thomas v Powercor Australia Ltd (Horsham bushfire class action).[50] In Thomas[51] and Perry v Powercor Australia Ltd[52] (Coleraine bushfire class action), Beach J noted a number of factors which demonstrated that it was appropriate to make an order closing the class (with resultant forfeiture of non-participating group members’ rights), rather than an order permitting group members to opt-out by a particular date. His Honour said:

Of principal concern to the plaintiffs was that group members might opt out and then enter into private settlement agreements on like terms with the defendant. In such circumstances, those claimants would not pay their share of the plaintiffs’ unrecovered costs in respect of the common questions in the proceeding. That is, such claimants would benefit from the plaintiffs’ work without paying their fair share in respect of it. In all the circumstances, I am persuaded that the class should be closed in the way contemplated by clause 3.1(b)(v) of the settlement agreement. As was submitted by the plaintiffs, group members have had ample opportunity to inform themselves about the proceeding. Additionally, the identity of all the members of the group is believed to be known, and all are believed to be aware of the proceeding and this application. Further, upon approval, there will be additional notice given to group members to inform them of the need to register their claims. [53]
[49][2012] VSC 204 [41]-[43].
[50][2011] VSC 614 (“Thomas”).
[51]Ibid [35].
[52] Perry v Powercor Australia Ltd [2012] VSC 113 [33].
[53]Ibid. Beach J made a similar statement in Thomas.

Decisions concerning ”closed class” claims

Since the decisions in P Dawson Nominees Pty Ltd v Multiplex Limited[54] (Finkelstein J) and its subsequent appeal in Multiplex[55] (the Full Federal Court), it is accepted that it is possible under Part IVA of the FCA and Part 4A of the SCA to issue proceedings on behalf of a limited group of persons, not all whom may have claims arising out of the conduct of the defendant.
[54][2007] FCA 1061.
[55]Multiplex Funds Management Ltd v P Dawson Nominees (2007) 164 FCR 275. But compare the earlier decisions of Dorajay Pty Ltd v Aristocrat Leisure Pty Ltd (2008) 67 ACSR 569 and Rod Investments (Vic) Pty Ltd v Clark [2005] VSC 449.

At first instance in Dawson, Finkelstein J concluded[56] that under Part IVA it was not necessary to include

every person that has a claim against the defendant that arises out of same or related circumstances…Instead 33C(1) provides that if each of the three conditions is satisfied a proceeding may be commenced by one of more of the group members “as representing some or all of them”.[57]

His Honour went on to say:
…the only persons excluded from the group are free riders, that is persons to make no direct or indirect contribution towards the costs of the action. In my opinion this is not inconsistent with Pt IVA. When parliament rejected the LRC’s recommendation that the represented group should include all persons with common claims, it must have had in mind the likelihood that the represented group would be selected by criterion that bore no necessary relationship to the causes of action being pursued. There may be circumstances in which factors that define a particular group are inconsistent with Pt IVA in the sense that a group proceeding instituted to benefit only that group is not a proceeding which was contemplated by Pt IVA. Putting that possibility (which on any view must be remote) to one side, a group that excludes free riders cannot be criticised.[58]

[56][2007] FCA 1061 [15].

[57]Ibid.

[58]Ibid [48].

His Honour’s interpretation of s 33C(1) and its ability to allow for a closed class action was endorsed by the Full Federal Court. In Multiplex, Lindgren J and Jacobson J both noted that the words of s 33C(1) were at odds with the ALRC recommendations. Lindgren J said:

Not only was cl 14 of the draft Bill not adopted: the concluding words of s 33C(1) "as representing some or all of them" show positively an intention that there was to be no right of complaint merely because some of the persons falling within paras (a), (b) and (c) of s 33C(1) had been omitted from the group as defined.[59]

Jacobson J said:
The rejection of this recommendation is to be found in the words of s 33C(1). That subsection permits a representative party to commence a proceeding by one or more of the persons who satisfies the threshold requirements of paragraphs (a) to (c) "as representing some or all of them."
These words expressly permit the representative party to commence a proceeding on behalf of less than all of the potential members of the group. This construction, though sufficiently clear from the wording of s 33C(1), is reinforced by the fact that in enacting s 33C, Parliament rejected the ALRC’s recommendation.[60]

[59]Multiplex [10].

[60]Multiplex [110]-[111].

It is only necessary to add that both Finkelstein J and the Full Federal Court rejected the proposition that the commencement of the claim as a closed class was an abuse of process or inappropriate (being inconsistent with the opt-out model) and thus requiring strike out pursuant to s 33N.

The consequences of this decision, both at a state and federal level, have been significant, as noted by Grove, Adams and Betts in Class Actions in Australia:[61]

As a result of the Full Court’s decision in Multiplex Ltd v Dawson Nominees Pty Ltd, closed class cases have become a common feature of a representative proceedings in Australia, particularly those that are supported by a third party litigation funder. In recent empirical analysis of representative proceedings, Professor Morabito found that of the 18 representative proceedings under Pt IVA of the Federal Court Act which were supported by a litigation funder, 14 were brought on behalf of a closed class.[62]

[61]Law Book Company, 2^nd edition, 2012.

[62]Ibid, 538.

The position in Victoria is similar to the federal experience. Since Multiplex, a number of closed class proceedings have been issued in this state, primarily in shareholder class actions.[63]
[63]See for example Clarke v Great Southern Finance Pty Ltd (in liq) [2012] VSC 295.

The end result is that it is now clear that class actions may be issued for a limited class – the question of amendment so as to convert an open class to a closed class adds a further complication, which I shall discuss in a moment.

Considerations

Apart from the dispute about the form of class closure, there was no contradictor to the proposition that group members should be required to register whether as part of the amended group definition or as part of a class closure process. I should therefore address six issues that I have identified as being relevant to the exercise of powers under Part 4A of the SCA on this point.

Firstly, there is the question of whether orders requiring a group member to register, whether as part of a closed class or class closure, should be made given the structure of Part 4A of the SCA and the specific provision for an opt-out process in open class actions.

Mr Michael Legg, observed in the Australian Bar Review of the decision in Multiplex that:

…a quite different reading of the expression “some or all” is possible. Part IVA of the FCA Act provides that there may be 7 or more representative parties and the legislation foresees differences in group members claims through allowing for related circumstances, differences in the relief claimed, differences arising from group members claims resulting from separate contracts, transactions, acts or omissions by the respondent, and the existence of issues common to the claims of some only of the group members’ that may be dealt with by sub-groups. The expression “some or all” may merely recognise that one of the representative parties may represent part of the group and another representative party another part of the group, but neither represents all of the group. The representative parties each represent “some” of the group.[64]

[64]Michael Legg, ‘Funding a class action through limiting the Group: What does Part IVA of the Federal Court of Australia Act 1976 (Cth) permit?’ (2010) Australian Bar Review 17, 21 (citations omitted).

Notwithstanding these observations, it is clear that both federal and state courts have, as mentioned, permitted the use of closed class proceedings consistent with the decision in Multiplex and its interpretation of s 33C(1).

Writing in the Monash University Law Review 2006, Professor Morabito said of class closure:

The judicial practice of ‘closing the class’ has also been employed in stages of class proceedings other than settlements but the outcome of such practice has been the same, namely, a reduction in the number of class members who will be entitled to receive any of the benefits that will be available to the class, in the event of an unfavourable outcome of the proceedings for the defendants. The grossly unsatisfactory effect of this judicial practice clearly highlights its inappropriateness. But an equally significant issue is whether Part IVA and Part 4A empower trial judges to implement such a measure, in the first place.
…
This inconsistency [between class closure orders and] the opt out device, a device which represents a cardinal aspect of the Australian class action regimes, clearly suggests that a far stronger and more specific legislative basis for closing the class, must be found than provisions such as s 33V(2), s 33ZF and s 33Z(1)(g) of both legislative regimes.[65]

[65]Vince Morabito, ‘Judicial Responses to Class Action Settlements That Provide No Benefits To Some Class Members’ (2006) 36(1) Monash University Law Review 75, 103-4 (citations omitted).

In Winterford Bromberg J suggested, by reference to Mobil and PDawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2),[66] that group members need to take no positive step to gain the benefit of a group proceeding:

The class actions regime under Part IVA of the Act is designed to require little or no active involvement by group members: P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2). Group members need take no positive step in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring: Mobil. Group members are group members principally for the limited purpose of taking the benefit, or suffering the burden, of the findings made by the Court on the findings of common questions.[67]

[66](2010) FCA 176 (“Multiplex (No 2)”).

[67][2012] FCA 1199 [3].

The High Court in Mobil Oil Australia Pty Limited v the State of Victoria and Another[68] said:

The persons who commence the proceeding are the plaintiffs... Obviously, those who are named as plaintiffs in a group proceeding must know of and require the commencement of the proceeding. In general, it is they who may appeal (s 33ZC) and who are liable in costs (s 33ZD). They stand to gain from any benefit obtained by the proceeding but they are at risk of bearing the burden of costs.
The position of the plaintiffs in the proceeding may be contrasted with those whom they represent - the group members. Subject to some exceptions that do not matter for present purposes, the consent of a person to be a group member is not required (s 33E). Group members may neither know of the commencement of the proceeding nor wish that it be brought or prosecuted, although Pt4A does provide for notice to be given to group members of (among other things) the commencement of the proceeding (s 33X(1)).
The Supreme Court may dispense with the giving of that notice if the relief sought in the proceeding does not include a claim for damages (s 33X(2))and, if notice is to be given, it may be given by press advertisement, radio or television broadcast or any other means (s 33Y(3)). Unless the Supreme Court is satisfied that it is reasonably practicable, and not unduly expensive, to do so the Court may not order that notice of the proceeding is to be given personally to group members(s 33Y(4)). There is, therefore, a real possibility that some group members would remain "perfectly ignorant of the proceedings, and of what is really going on". That is, some of those who would benefit from success in the proceeding (but thereby lose the opportunity to pursue their individual claim in some way, or to some effect, different from the group proceeding) may have their rights affected without their knowing or consenting to that being done. So much follows from the fact that Pt4A provides for what is sometimes called an "opt out", rather than an "opt in", procedure. That is, persons who are group members may opt out of the proceeding and, if they do, they are taken never to have been a group member (unless the Court otherwise orders) (s 33J(5)). Group members, however, need take no positive step in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring.[69]

[68](2002) 211 CLR 1 (“Mobil”).

[69]Ibid [37]-[39] (emphasis added).

The Court of Appeal in this state recently held in Regent Holdings v the State of Victoria,[70] that neither Mobil nor Multiplex (No 2) stood in the way of requiring a group member to take a positive step in the course of a class action. The question there concerned the provision of particulars and discovery by group members. Counsel for the representative plaintiff opposed this process, relying on Mobil to assert that such a course “would confound the ethos of Part 4A proceedings that group members need not take any positive step in the prosecution of a representative party’s claim in order to gain whatever benefit its prosecution may bring”. [71] In response, the Court of Appeal held:

…that statement [by Gaudron, Gummow and Hayne JJ in Mobil] does not mean that it is of the essence of a Part 4A proceeding that group members not be required to take any positive step before common questions of liability have been resolved. Read in context, and understood against the background of the case with which the High Court was concerned, it means no more than that there are some Part 4A actions in which that is likely to be so. The case illustrates that there will be circumstances in which group members may be asked to take some step before common questions of liability are resolved.[72]

[70][2012] VSCA 221 (“Regent Holdings”).

[71]Regent Holdings [10].

[72]Ibid [12].

Moreover, in this state s 33ZG specifically enables a court to impose class closure as Professor Morabito has noted:

In 2000 the ALRC had a similar concern as to the power of the Federal Court to close the class. In light of the ALRC’s positive assessment of such a practice, it recommended an amendment to Part IVA to enable the Federal Court to “close the class at a specified time before judgment”. This recommendation appears to have been accepted by the Victorian legislature.[73]

[73]Vince Morabito, ‘Judicial Responses to Class Action Settlements That Provide No Benefits To Some Class Members’ (2006) 36(1) Monash University Law Review 75, 103-4 (citations omitted).

In particular, requiring a group member to take a step pursuant to s 33ZG may be undertaken ‘irrespective of whether the Court has made a decision on liability or there has been admission by the defendant on liability’. It was this power that was relied upon by Gillard J in closing the class in Esso;[74] it specifically extends to enabling a court to preclude a group member from the benefit of a settlement or judgment if the member fails to take the prescribed step.
[74]See [37] above.

I am satisfied that it is within the power of the Court, to make orders requiring group members to take the step of registering either as part of converting an open class to a closed class or in effecting class closure. The existence of an opt-out process does not, in my view, militate against such a conclusion, particularly in the context of Part 4A.

The second issue is whether it is open to the Court to direct that insurers of group members register their claims – which traditionally would be made in the name of the indemnified group member under the principle of subrogation. The insurer having the right to require the insured to pursue any remedy available against a wrongdoer for the benefit of the insurer.[75]
[75]Insurance Commission (WA) v Kightly [2005] WASCA 154 [26].

An insurer is not a group member but has ”an enforceable equitable interest” in the damages payable by a wrongdoer to an insured. [76] Indeed, an insured is guilty of unconscionable conduct if he or she does not provide for the insurer out of damages awarded against the wrongdoer.
[76]Napier v Hunter (1993) AC 713, 737-8.

The power under s 33ZF is wide, as Sackville J said in Courtney v Medtel Pty Ltd:[77]

There are good reasons to give s 33ZF a generous interpretation. The section is couched in broad terms. Moreover, the Court is given power to act on its own motion. The language, which is described in the Explanatory Memorandum as “wide”, doubtless reflects the drafter’s perception that the new statutory procedure for representative proceedings was likely to throw up novel problems that would require close supervision by the Court.[78]

[77][2002] FCA 957.

[78]Ibid [48].

As counsel for SPI pointed out, the breadth of s 33ZF is illustrated by Haslam v Money for Living (No 2),[79] in which it was relied upon to direct the Victorian Registrar of Titles to rectify the register of titles in order to give effect to a settlement.[80]
[79][2007] FCA 1981.
[80]Ibid [13]-[18].

Here, given the breadth of the power and the equitable right of an insurer in relation to its payments towards a group member’s claim it is, I conclude, within power to make orders directed to the insurers requiring registration if the circumstances warrant such a step.

The third issue is that of the ability of the Court to order class closure, in the case of personal injury and dependency claimants, by amendment of the group description contained in the statement of claim (as opposed to the initiating process), where it results in a contraction of the persons who are members of the class, with the prospect of exclusion of some current group members.

At first glance the amendment of a group definition may be characterized as one of procedure and would normally be permitted subject to discretionary considerations.[81] Section 33K(1) specifically permits an amendment to alter the description of a group. However, it would compel a person who did not register and subsequently wished to litigate his or her claim to bring a separate proceeding in relation to the conduct of the defendants.
[81]See for a discussion of those considerations Namberry Craft Pty Ltd v Watson [2011] VSC 136 [38].

Moreover, it may amount, as Merkel J observed in Bray v F Hoffman-La Roche Ltd,[82] to a discontinuance of the claims for relief by those group members who do not fall within the newly defined class.[83] His Honour considered that there were “good reasons” for concluding that s 33V (which requires court approval of the discontinuance of a proceeding) applied where the substantive claims of certain categories of group members were either settled or discontinued by the representative party. However, as his Honour subsequently held, the considerations in relation to determining whether to grant amendment or approval of a discontinuance were effectively the same; the approval for one purpose was tantamount to approval for the other.[84]
[82](2003) FCA 1505.
[83]Ibid [23]
[84]Ibid [18].

The provisions of s 33ZG of the SCA to which I have already referred, and particularly the ability of the Court to require group members to take a prescribed step prior to a decision on liability or an admission of liability, at least implicitly, support the proposition that an amendment limiting the group by requiring the taking of a step, such as registration in this case, is permitted.

Further, there are at least two examples in the Federal Court where leave to amend has been granted in circumstances where such leave had the potential to result in a newly defined class of group members. In these cases some group members previously represented no longer formed part of the group. In Bray v F Hoffman La Roche Ltd,[85] Merkel J made such orders, as did Ryan J in Vlachos v Centro Properties Ltd.[86]
[85](2003) FCA 1505.
[86]Federal Court of Australia proceeding No VID 366 of 2008. Both of these cases are discussed in detail in Grove, Adams and Betts Op cit, 436-7.

I am satisfied that it is within the Court’s power to amend the group definition so as to redefine the composition of the class.

Fourth, there is the question of limitation provisions and their effect on persons with claims who do not register. If an across the board class closure regime is adopted as suggested by the Defendants and a settlement subsequently effected and approved, then a limitation period for those group members who do not register will be irrelevant. However, if Mrs Mathews’ proposal of closing the personal injury and dependency class is accepted, then the limitation period may impact upon the rights of those who chose not to register but retain their substantive rights outside the class.

Section 33ZE of the SCA provides:

33ZE Suspension of limitation periods
(1)Upon the commencement of a group proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.
(2)The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim.

All personal injury and dependency group members currently have the benefit of this suspension of the limitation provisions, but what happens if a claimant does not register and is no longer a group member? Section 33KA(3) reads as follows:
If the Court orders that a person cease to be a group member, then, if the Court so orders, the person must be taken never to have been a group member.
So on one view the benefit of the S33ZE suspension is lost retrospectively once a person is excluded from group membership. For my part, I would not regard s 33KA(3) as being applicable to an order made utilising the power under s 33K(1) to amend the group description. Section 33KA(3) applies to an order dealing with a specified group member who is removed from the class by an order made under s 33KA(1). For example, a particular group member may not reside in Australia and thus enliven s 33KA(2)(a) and warrant removal.

In any event, the power under s 33ZF may be utilized ”to ensure that justice is done” so as to clarify the position of the personal injury group members who fail to register. This can be achieved by the making of an appropriate declaration as to the status of the suspension of the limitation provisions on those group members who do not register.

Fifth, is the question of effecting class closure – with the potential termination of a non-registering group member’s rights to claim compensation – at this point of time.

If a class is to be closed, with such binding effect, the timing of such orders are important. There are many examples, a number of which I have referred to, of classes being closed subsequent to judgment or settlement so as to give finality to the proceeding. Equally so, as Winterford demonstrates, judges are reluctant to make class closure orders at an early point in the proceeding. This case falls between the two marks. As I discuss subsequently, the trial is imminent and the parties are now in a position to realistically assess prospects of victory and defeat. I return again to s 33ZG of the SCA – which demonstrates that a court may, if it thinks the time is right, require group members to take a step prior to resolution of the liability question (by either judicial determination or settlement) indeed, to the point where a failure to take that step may result in a group member being precluded from participation in settlement or the judgment fund.

Ultimately, it is a question of balance and judicial intuition. It requires a determination as to when in the course of a proceeding it is appropriate and in the interests of the group as a whole to require a step to be taken which may promote a prospective settlement as against simply letting the case proceed, perhaps interminably, without requiring group members to lift a finger – even if that course leads to disaster.

Finally, there is the question of potential conflict of interest as between Mrs Matthews and Maurice Blackburn on one hand and group members on the other. Merkel J saw this as creating “special problems” when an amendment is sought which will affect the interests of group members who are not clients of the solicitors for the representative plaintiff. [87]
[87](2003) FCA 1505 [15].

It is therefore important when considering the proposed orders to look beyond the solicitors’ interests or those of their clients and determine whether as a whole the class is better off under the proposed course.

From the above discussion, I think it possible to distil a number of principles relevant to the questions of closed class proceedings and class closure under Part 4A of the SCA:

(a)It is open to a representative plaintiff to commence a proceeding under Part 4A of the SCA on behalf of a limited number of persons – a closed class – as opposed to a proceeding brought on behalf of all those who have suffered loss and damage as a result of the conduct of a defendant.
(b)It is within the Court’s power to permit a representative plaintiff to amend the group definition so as to, in effect, convert an open class to a closed class proceeding.
(c)If, in the course of a proceeding (as in this case) an order is to be made converting the nature of the class from open to closed it should only be made where the group members have adequate notice of the proposed change and a reasonable amount of time in which to determine whether to join the closed class.
(d)It is within the Court’s power to order class closure in the sense that a member of the class must take a positive step such as identifying himself or herself after receiving notice of class closure. It is also within the Court’s power to terminate the entitlement to compensation of any group member who does not come forward and indicate a willingness to participate in a distribution (putative or real) - pursuant to either a settlement or judgment. One of the fundamental bases for the class action provisions is achieving finality not only for the group members but also for the defendants to the proceeding.
(e)It may be appropriate, to make orders for class closure prior to a settlement or judgment. Such a course may be warranted, notwithstanding that there is no prospective settlement but on the material available it is considered to be in the interests of the class as a whole to require such a step to be taken. Relevant considerations include:
(i)the point at which the case has reached;
(ii)the attitude of the parties to such a step; and
(iii)the complexity and likely duration of the case.

(f)It is within the power of the Court to require an insurer who has indemnified a group member in respect of a loss which is the subject of the claim in the class action to take a step such as registration of that claim as part of the class closure process.

The first issue is whether orders should be made requiring group members and insurers to register as part of either closing the class or permitting class closure. The following matters satisfy me that it is appropriate to make orders of this type:

(a)The affidavit of Mr Walsh of Maurice Blackburn demonstrates that to progress settlement discussions it is essential that the number of claimants wishing to pursue personal injury or ELPD claims be ascertained. Maurice Blackburn currently has 1900 persons registered as potential personal injury or ELPD claimants. It is known that over 10,000 persons suffered losses as a result of the fire and over 5,000 persons made claims on insurers – but it is unknown how many insured or uninsured group members have claims for uninsured loss. Even allowing for modelling (which has been carried out and which must have its own inherent deficiencies), no sensible estimate can be made of the size of the claim until the number of claims is ascertained. The proposed orders contemplate dividing the ELPD claims into claims made by insurers and those made by group members for uninsured or underinsured loss. As I mentioned earlier, I think this is an appropriate distinction. Mr Walsh, in his affidavit, also deposes that estimating the uninsured or underinsured loss is virtually impossible. Understandably, this component of loss may play a significant part in the assessment of the total loss and the potential liability of the defendants. Identification of the number of persons who wish to make a claim for uninsured loss or underinsured loss will considerably enhance the ability of the parties to calculate the value of the claim and thus progress settlement negotiations.
(b)The CPA positively encourages parties to resolve litigation and requires a court to give effect to that aim.[88] Clearly, given the agreement that has been reached by the parties in relation to the ELPD claims and that each party wishes to have some form of identification of the personal injury and dependency claimants, there is apparent unanimity that such orders will further that aim.
[88]See Regent Holdings [20].

(c)Undertaking this course is appropriate at a time when the parties have had the opportunity to assess the risks posed to each of them with regard to the ultimate determination. Discovery is completed, witnesses have been interviewed, a multitude of expert witness reports and joint reports filed and the mediation concluded. With the additional information obtained, the parties will be well placed to consider the question of settlement.
(d)This case involves, in effect, five separate cases against the defendants – all with differing degrees of complexity. Whilst the claims against SPI and USC are intertwined, the other three against CFA, DSE and members of Victoria Police raise, in the main, discrete issues – not just confined to questions of breach, but rather involving consideration of fundamental issues such as the existence of duty and causation – to name but two. The trial will not finish until December of this year, any prospective judgment with the inevitable appeal (or appeals) means that final determination by judicial resolution is years away. On any view, a process that can facilitate a sensible resolution of the proceeding should be encouraged by the Court – even more so given the provisions of the CPA. In Regent Holdings,[89] to which I have already referred, the Court of Appeal said:
[89][2012] VSCA 221.
We take to be self-evident that it is desirable that proceedings be settled; and, in Victoria, Chapter 2 of the Civil Procedure Act 2010 obligates courts and litigants alike to strive to achieve that end. The kinds of orders for particulars and discovery which the judge made in this case are well within the ambit of s 33ZF of the Supreme Court Act 1986 and s 9 of the Civil Procedure Act 2010.
Counsel for the applicant argued that the mediation generally and particularly in this case ought be conducted in a ‘without prejudice environment’, and that for a judge to make orders for particulars and discovery of the kind in contention was to risk undermining the consensual process which mediation entails.
We do not accept that submission. Of course, mediation should be conducted without prejudice. But that does not mean that is should be conducted in ignorance. Court ordered mediation is not a game of bluff and bluster in which one party is free to mislead another to conclude that a claim is worth more than it is. It is designed to be an exercise in rational bargaining between relatively well-informed parties aimed at providing just compensation for worthy claims. The more accurate and complete the available information as to quantum, the more likely that rational settlements will be achieved. Where a party seeks the court’s assistance to obtain further information which ex facie will facilitate a court directed mediation process, cogent submissions are required to demonstrate that the provision of that assistance will undermine the process. [90]
[90]Ibid [20] – [22] (emphasis added).

(e)The rationale behind the expensive and time consuming process of notices and registration is to assist the parties down the path to resolution. It is far better for all group members, those who will bear the brunt of an adverse result or for that matter a lengthy and tortuous success (perhaps only partial) that they have the opportunity to participate in a settlement (noting that it requires the approval of the Court) rather than force the claim to a judgment – with all of its potential adverse consequences if the claims are defeated. As Sackville J observed in Courtney:[91]
[91]Courtney v Medtel Pty Ltd (2002) 122 FCR 168.
In some respects a representative proceeding instituted pursuant to Pt IVA affects group members in such the same way as if they are parties to the litigation. In particular, s 33ZB provides that a judgment given in a representative proceeding binds all group members affected by it, other than those who have opted out of the proceeding pursuant to s 33J.[92]

(f)The proposed process requiring a group member to register by utilising a relatively simple form, either posted or uploaded, is not oppressive. The proposed dissemination of information about the requirement for registration is extensive. It advances the aim of conveying to the group member the need to consider his or her position. It is to be made clear registration does not involve any cost consequences for the group member – nor does it commit a group member to retaining Maurice Blackburn.
(g)Of a potential class of 10,500 group members, I have been told by counsel for Mrs Matthews that over 5,000 have made a claim on Australian insurers. Those insurers have been identified by Maurice Blackburn and have already provided information to the parties as to the number of claims with sample details. Requiring insurers to register directly with Maurice Blackburn and provide some details of their claims is pragmatic and sensible. It also provides an added benefit, as it will avoid any confusion about claims brought by group members who assert that they have claims above the amount paid by the insurers They know that to make such a claim, then it must be filed separately.
(h)The failure to register by ELPD claimants will only affect a non-registering group member’s rights if a settlement is achieved. In that event, a member who has not registered would still have two options – to seek to be included in the class under the Court’s overall discretion or to oppose the approval of the settlement. A personal injury or dependency claimant’s failure to register will not affect that person’s substantive rights, although it does mean that the person has lost the ability to participate in the class action.
(i)It is inevitable that in the event of a successful outcome (be it total or partial) for the class (be it all or some), at some point of time it will be necessary to close the class so as to ensure the finality necessary in a proceeding such as this. Group members will have to register so that their claims can be processed by whatever procedure is adopted. Those who do not register will, in all likelihood, be excluded from participating in the fruits of the judgment. So, requiring registration at this point of time accelerates what will be an inevitable process if the claim is successful. There is also another benefit: in the event that the proceeding does not settle, there will be a comprehensive list of persons who, if the claim is successful, can be readily identified as group members.
(j)There is no requirement on the part of registering group members to fund this claim or commit to Maurice Blackburn as their lawyers. All they need to do, if so minded, is register.
(k)Finally, it is appropriate to return to the terms of s 33ZF, and particularly s 33ZG of the SCA. The provisions demonstrate that courts should not only be flexible in their approach to an action such as this but that in a suitable case, it is appropriate to require a group member to do something to assist in the prosecution of the claim. This is such a case.

[92]Ibid [36], see also [49].

The question then is, which of the two proposals should be accepted? In relation to personal injury or dependency claimants, the model selected by Mrs Matthews to convert the open class to a closed class of claimants should be adopted.

Under this model, there is no risk that a current group member who has a personal injury or dependency claim and does not register will lose his or her right independent of the class action.

There is a real risk, I think, that persons who have been affected by the fire and have potential personal injury or dependency claims may not understand the need to register, or at least by reason of their personal situation, whether to register. This is the primary concern of Mr Walsh, an experienced personal injuries solicitor. I think that he is right. I am conscious that there may be minors (and not just a few) whose parents or guardians do not follow the registration process and its implications if a class closure model is adopted for personal injury and dependency claims. Further there may be a number of group members in their mid to late teens who no longer live at home and will be oblivious to the requirement to register notwithstanding an intensive notice regime. It would be wrong for those children and teenagers to be shut out from bringing their own claims for personal injury outside the class action. Then there are those adults and minors with psychological injuries who may not understand or appreciate the consequences of not registering if a class closure model is adopted for all claims. On the defendants' model, those persons who do not register (minors and adults) are at risk of losing their rights against the five parties to this litigation, in the event of a settlement being achieved.

The primary argument of the defendants opposing the amendment of the group description with a resultant closed class as suggested by Mrs Matthews, is that it promotes a lack of cohesion within the class with increased complexity and inhibits the finality which class action processes are directed to. This contention has some force but not, in my opinion, to the extent of potentially extinguishing existing rights of group members who fail to register. SPI pointed out that under its model the Court would retain an overriding discretion to include in the settlement scheme, upon application, a claimant who had failed to register. But that discretion is subject to many vagaries such as the nature of the settlement, the timing of the application (it may be made after the funds have been distributed) and perhaps the funds on hand as a result of the settlement. It also runs the potential risk of a dispute between registered claimants and those seeking to enter the group at a later date.

Nor do I think that the ability of a personal injury or dependency claimant to argue, upon approval of any settlement, that their rights need to be taken into account at that point of time, is much of a solace to the potential loss of an existing substantive right.

SPI also pointed to the bifurcation of a claimant's claims between economic loss/property damage claims and personal injury or dependency claims, but that distinction is and has been recognised in the group definition since the commencement of the proceeding.[93] Each form of claim is discrete from the other. Indeed, when it comes to determining the liability of each of the defendants, questions as to the nature of the damage and loss may be relevant to whether the claim succeeds or fails.
[93]See [10] above.

Whilst I accept the submission made on behalf of the State parties that one should not ignore the wishes of the group members who wish to participate in any settlement scheme, if there be one, that consideration should not in my opinion trump the existing rights of those who do not register under the proposed Personal Injury arrangements. In addition, I am not persuaded that Mrs Matthews’ model will necessarily reduce the prospects of a settlement.

It may be that the notice to the claimants as formulated leads to confusion by providing different processes for claimants with different forms of damage; however that risk has been minimised by the sensible discussion between the parties and with the Court as to the form of the notices and their contents.

To put it bluntly, I think that a non-registered personal injury or dependency claimant's interests are better protected by the retention of their rights outside the class action and that to do otherwise would not ensure that justice is done in this proceeding.

Turning now to the question of class closure in ELPD claims. I readily distinguish this process from that involving personal injury and dependency claimants. The damage in the ELPD claims has already crystallised and the vast majority, if not all, of the cases concern adults capable of managing their own affairs who can, with appropriate information, make a decision as to whether to register or not. Further many of the claims have been subrogated to insurers, who, under the orders, are required to register their claims separately and can readily determine what is in their best interests.

I have mentioned previously that registration of group members and insurer’s claims is important to give the defendants an idea of the total number of claimants and particularly those with non insured or underinsured losses. It is understandable that settlement discussions have stalled without this information. This situation is just that to which s 33ZG of the SCA is directed: in this instance turning a passive group member into a slightly active one. Here the steps are not onerous. The registration form is simple and can be posted or uploaded.

The proposal to require registration of two discreet classes (insured and non-insured) within the ELPD claim is appropriate and, as I mentioned earlier, within power. There are over 5,000 subrogated insurance claims. It makes sense to require insurers to register directly, detailing their subrogated claims. These claims will make up a significant part of the losses claimed by the class as a whole and to require each claim to be made through an individual claimant is cumbersome and unproductive. Indeed, the chosen approach makes it abundantly clear to those group members who were not insured that they must register. Similarly, it makes clear to those group members who received insurance payouts that if any part of their loss has not been accounted for by the insurer, then they should also consider registration.

I also take into account that persons who do not register may, in any approval or compromise, make such submissions as they think appropriate as to whether the settlement is in the interests of the group, as a whole; as, of course, will any claimant who has registered with Maurice Blackburn.

Accordingly, I am satisfied that, subject to appropriate notice being given to class members, it is appropriate for the purpose of progressing any settlement discussions to close the class as proposed by the parties. That is, requiring registration or to use the words of the statute, requiring the taking of a further “step” by group members.[94] I am also satisfied that imposing a condition on group members in relation to the binding nature of a settlement on non-registered group members is appropriate.
[94]Section 33ZG of the Supreme Court Act 1986.

I will not, however, make proposed order 2(b)(ii) which read as follows:

Pursuant to section 33ZF of the Act:

…

(b) any Above-insurance Loss Claimant who does not by 4:00pm on the Registration Date register with the plaintiff’s solicitors in accordance with this Order shall remain a group member for all purposes of the proceeding but in the event of a settlement of property or economic loss claims in the proceeding:

…

(ii) where the person was insured for any losses caused by the Kilmore fire, shall not be permitted to claim from the insurer any portion of compensation recovered, pursuant to the settlement, by the insurer exercising rights of subrogation in respect of those losses.

In my opinion, endeavouring to circumscribe the inter partes relationship between a group member and insurer is, notwithstanding the breadth of s 33ZF, outside the ambit of the provision. If it is within the power, it is only so by the barest of margins. In any event, it constitutes an interference with the contractual rights of group members and their insurers and should not be made.

Finally, I should mention the position of those group members who have opted out of this proceeding pursuant to s 33J of the SCA. I think that these members should be given the opportunity to register and, in effect, rejoin the group. If any of these members, having been told of this process, wish to be included in the group I shall make orders enabling that to occur.

Notices

Given that the orders made will potentially affect persons who have, up until now, expected to be part of the group without taking any further action until settlement or judgment, it is imperative that information concerning registration be circulated as widely as is reasonably practicable. Indeed, without such dissemination these orders could not be contemplated.

The parties formulated three different forms of notice –

(a)claimant’s registration notice;
(b)an insurer client notice; and
(c)an insurer notice.

After considerable discussions with the parties, and particularly counsel for Mrs Matthews, I determined that it is necessary that notice be given not only through “old media” but also as extensively as possible through the internet and social media. I am particularly conscious of the need to utilise different digital forms of communication given the likely spread of demographics of group members – in particular those under the age of 35. Accordingly, the orders provide for distribution of the notices to group members in the following ways:

(a)through traditional media sources such as newspapers (and especially local newspapers) and radio stations – and in particular, if practicable, ABC Radio (metropolitan and regional), which is a designated bushfire alert station during the bushfire season;
(b)by posting the insurer client notices and the claimant’s registration notice to all those persons who made claims upon insurers arising out of the fire;
(c)by establishing a dedicated website upon which all of the notices and orders can be obtained and notices downloaded and registration forms uploaded;
(d)by the posting of notices on the Supreme Court and Maurice Blackburn websites with links to the dedicated website;
(e)by establishing a Facebook page and Twitter entries with links to the website;
(f)by posting the claimant registration notice at police stations, schools, medical practices and community centres throughout the five municipalities affected by the fires. In addition, the CFA will provide a link to the bushfire website on its website; and
(g)by circulating the insurer notice to all known insurers and to the Insurance Council of Australia.

In addition, I considered it desirable to circulate notices to those group members who had opted out of the claim, offering them the opportunity to rejoin the class.

The content of each of these notices is set out in the annexures to the orders. It suffices to say that whilst the content is somewhat lengthy, it is necessary and it is to be hoped that unnecessary legalese has been, as far as practicable, removed from the documents.

All in all, I am satisfied that the form of the notices is appropriate and will achieve the task of informing group members as to the need to consider carefully whether they register.

Orders

Following consultation with the parties (who expended considerable and commendable effort in refining the proposed orders) I made the following declaration and orders, which include the relevant notices to class members and insurers.

THE COURT DECLARES THAT:

Pursuant to section 33ZF of the Supreme Court Act (the Act), claims in respect of any personal injury as defined in paragraph 4 of the Statement of Claim, which cease to be claims in the proceeding by reason of non-registration in accordance with Order 2 below, shall have and retain the benefit of the suspension of limitations periods provided by section 33ZE of the Act in respect of the period from the commencement of the proceeding on 16 February 2009 until 4:00pm on 22 March 2013 and such limitation periods shall begin to run again at 4.00pm on 22 March 2013.

AND THE COURT ORDERS THAT:
Personal Injury and Dependency Claimants

Pursuant to sections 33K, 33KA(2)(b) and 33ZF of the Act:
(a)any group member who wishes to make a claim in respect of any personal injury as defined in paragraph 4 of the Statement of Claim (“Personal Injury Claimant”), or pursuant to Part III of the Wrongs Act 1958 (Vic) in relation to a person who died as a result of the fire (“dependency claim”), whether on their own behalf or on behalf of any child or dependent or other person for whom they act in a role as guardian or administrator, must, by not later than 4:00pm on 22 March 2013 (“Registration Date”), deliver to the plaintiff’s solicitors a “Claimant Registration Form”:
(i)in the form set out in Annexure A to these Orders; and
(ii)indicating (in the boxes allocated) that the person wishes to make a personal injury or dependency claim (or both) in the proceeding;
provided however that group members identified on the “List of Personal Injury Claimants” filed by the plaintiff on 7 December 2012 shall be deemed to have registered personal injury and dependency claims in accordance with this Order;
(b)by 4:00pm on 2 April 2013 the plaintiff’s solicitors must file as a confidential exhibit, and serve as a confidential document on the defendants, a final list of Personal Injury & Dependency Claimants who have registered or are deemed to have registered in accordance with this Order; and
(c)with effect from the filing of the list referred to in paragraph 2(b), the definition of group members in paragraph 4 of the plaintiff’s Statement of Claim shall stand amended as follows:
(i)delete paragraphs (aa) to (b) inclusive and for them substitute:
“(a) the persons identified in the confidential exhibit filed pursuant to Order 2 made on 24 January 2013 and known as the “List of Registered Personal Injury & Dependency Claimants”
(ii)deleting the words in paragraph (i) thereof, and replacing them with: “persons in (a), (c) or (d) shall not be treated as making a claim in this proceeding for personal injury or pursuant to Part III of the Wrongs Act 1958 (Vic) in relation to a person who died as a result of the fire unless such claim is also identified in the List of Registered Personal Injury & Dependency Claimants referred to in (a) above; and”.
ELPD claimants

Pursuant to section 33ZF and 33ZG of the Act:
(a)any group member who wishes, in any settlement of property or economic loss claims in the proceeding, to claim compensation for property loss or damage or economic loss which was uninsured or not fully insured (“Above-insurance Loss Claimant”) must, by not later than 4:00pm on the Registration Date, deliver to the plaintiff’s solicitors a completed “Claimant Registration Form”, indicating (in the box allocated) that the person wishes to make an Above-insurance Loss Claim in the proceeding, provided however that any group member who is a client of the plaintiff’s solicitors as at 22 March 2013 shall be deemed to have registered in accordance with this Order;
(b)by 4:00pm on 2 April 2013, the plaintiff’s solicitors must serve as a confidential document on the defendants a list of the clients of the plaintiff’s solicitors as at 22 March 2013 that are deemed by Order 3(a) to have registered;
(c)by 4:00pm on 2 April 2013 the plaintiff’s solicitors must file as a confidential exhibit, and serve as a confidential document on the defendants a final list of Above-insurance Loss Claimants who have registered in accordance with this Order; and
(d)any Above-insurance Loss Claimant who does not by 4:00pm on the Registration Date register with the plaintiff’s solicitors in accordance with this Order shall remain a group member for all purposes of the proceeding but in the event of a settlement of property or economic loss claims in the proceeding which is approved by the Court pursuant to section 33V of the Act shall not, without leave of the Court, be permitted to claim compensation for the uninsured or underinsured loss pursuant to the settlement.
Pursuant to section 33ZF and 33ZG of the Act:
(a)any insurer who wishes to claim compensation in respect of indemnity provided to a client of the insurer (“Subrogated Claimant”) in respect of property loss or damage or economic loss caused by the Kilmore bushfire (“indemnified loss”) must, by not later than 4:00pm on the Registration Date, deliver to the plaintiff’s solicitors a completed “Insurance Claim Registration Form” in respect of the Subrogated Claimant in the form set out in Annexure B to these Orders (“Insurer Recovery Registration Form”), provided however that any Subrogated Claimant notified to the plaintiff’s solicitors as at 18 January 2013 shall be deemed to have been registered in accordance with this Order;
(b)by 4:00pm on 2 April 2013, the plaintiff’s solicitors must serve as a confidential document on the defendants a list of the Subrogated Claimants notified to the plaintiff’s solicitors as at 18 January 2013 that are deemed by Order 4(a) to have registered;
(c)by 4:00pm on 2 April 2013 the plaintiff’s solicitors must file as a confidential exhibit, and serve as a confidential document on the defendants a final list of Subrogated Claimants who have been registered in accordance with this Order; and
(d)any Subrogated Claimant whose insurer has not by 4:00pm on the Registration Date registered the Subrogated Claimant with the plaintiff’s solicitors in accordance with this Order shall remain a group member for all purposes of the proceeding but in the event of a settlement of property or economic loss claims in the proceeding shall not, without leave of the Court, be permitted to claim (by themself or by their insurer) compensation for indemnified loss pursuant to the settlement.

4A.Pursuant to section 33ZF of the Act, any person who opted out of the proceeding but who wishes to make a claim in the proceeding have leave to resume group membership in respect of that claim by registering the claim with the applicant’s solicitors in accordance with Orders 2 or 3 above.
Notices to group members

Pursuant to sections 33X and 33Y of the Act, the notices in the terms set out in:
(a)Annexure C to these Orders (“Claimant Registration Notice”);
(b)Annexure D to these Orders (“Insurer Client Notice”); and
(c)Annexure E to these Orders (“Insurer Notice”);
(d)Annexure EA to these Orders (“Letter to Opt-outs”);
be approved.
Pursuant to section 33Y of the Act, the Claimant Registration Notice be given to group members on or before 8 February 2013 (or as soon as practicable thereafter as publication dates permit) by the plaintiff:
(a)causing a copy of the Notice to be published in two editions, not less than seven days apart, in each of the following newspapers:
(i)The Age;
(ii)The Herald-Sun;
(iii)The Weekly Times;
(iv)The Wallan North Central Review;
(v)The Healesville Mountain Views;
(vi)The Lilydale and Yarra Valley Leader;
(vii)The Diamond Valley Leader; and
(viii)The Australian;
(b)sending a copy of the Notice by prepaid ordinary post to the address of each person on the database of group members held by the plaintiff’s solicitors;
(c)uploading a copy of the Notice and an online registration form to a webpage on the website of the plaintiff’s solicitors;
(d)establishing a new website entitled “ (“Kilmore Bushfire Website”) which website shall contain printable versions of the Notices, and the online registration form, such website to be established no later than 8 February 2013;
(e)providing a copy of the Notice to the Bushfires Class Actions Coordinator for uploading on the Court website;
(f)identifying from the Law Institute of Victoria directory the legal practices located in any of the Shire of Nillumbik, the Mitchell Shire, the Yarra Ranges Shire, the City of Whittlesea or the Shire of Murrindindi (“the Local Government Authorities”) and posting to the directory address of each legal practice a copy of the Claims Registration Notice together with a request that each practice display a copy of the notice prominently in its reception area and take such steps as each practice may consider practicable to bring the notice to the attention of clients of the practice;
(g)identifying from the North East Valley Division of General Practice the addresses of medical practitioners practising in the Local Government Authorities’ areas and posting to each medical practice at the said address a copy of the Claims Registration Notice together with a request that the practice display a copy of the notice prominently in its reception area and take such steps as each practice may consider practicable to bring the notice to the attention of patients of the practice;
(h)requesting each of the Local Government Authorities to cause a copy of the Claim Registration Notice to be displayed prominently:
(i)in the public reception areas of each Authority’s municipal office buildings; and
(ii)on the home page of each Local Government Authority’s website;
(i)requesting the Insurance Council of Australia to post or email to the proper officer of each insurer member of the Council a copy of the Insurer Notice;
(j)requesting an interview with ABC Victorian regional radio and ABC Melbourne radio in order that a representative of the plaintiff’s solicitors discuss the effect of these orders upon group members;
(k)if there are community radio stations broadcasting specifically to the Local Government Authorities’ areas, requesting an interview with at least one of those stations in order that a representative of the plaintiff’s solicitors discuss the effect of these orders upon group members;
(l)creating on the Maurice Blackburn Facebook page a posting describing the registration requirements established by these Orders together with a link to the Kilmore Bushfire Website;
(m)creating a new and standalone Facebook page with a posting describing the registration requirements established by these Orders together with a link to the Kilmore Bushfire Website
(n)posting on the Maurice Blackburn “Twitter” account a tweet describing the registration requirements established by these Orders together with a link to the Kilmore Bushfire Website.
Pursuant to section 33Y of the Act, the Claimant Registration Notice be given to group members on or before 8 February 2013 by:
(a)the CFA displaying on its website a link to the Kilmore Bushfire Website and a short explanation of the purpose of the link;
(b)the DSE:
(i)causing a short description of the proceeding and the effect of these Orders to be published in the DSE weekly internal mail service via the DSE intranet advice service;
(ii)causing a copy of the Claims Registration Notice to be displayed in the public reception area of the DSE offices in Broadford, Toolangi, Alexandra, Marysville and Mansfield;
(c)the State Parties requesting the Chief Commissioner of Police to cause a copy of the Claims Registration Notice to be displayed in each Victoria Police station in the Local Government Authorities area;
(d)the State Parties requesting the Secretary to the Department of Education and Early Childhood Development to cause a copy of the Claims Registration Notice to be sent to the director, manager or principal of each government kindergarten or primary or secondary school in the Local Government Authorities’ areas together with a request that the kindergarten or school:
(i)display a copy of the notice prominently in its reception area; and
(ii)take such steps as each kindergarten or school may consider practicable to bring the notice to the attention of the parents or guardians of children attending the kindergarten or school.
Pursuant to section 33Y of the Act, the Insurer Client Notice and the Insurer Notice be given as follows:
(a)by 4:00pm on 23 January 2013 the plaintiff’s solicitors deliver the Insurer Client Notice and the Insurer Notice to the insurers listed in Annexure F to these Orders, in electronic form;
(b)by 8 February 2013 the said insurers cause the Insurer Client Notice (including the Claim Registration Notice and Claimant Registration Form) to be sent by electronic mail or pre-paid ordinary post to the last known address of each Subrogated Claimant client notified to the plaintiff’s solicitors as at 18 January 2013.
Pursuant to section 33Y of the Act, the Letter to Opt-outs be given to persons who opted out of the proceeding, by the solicitors for the Plaintiff, on or before 1 February 2013, sending the Letter to Opt-outs to the postal address recorded on the Notice of Opting-out filed by each such person.
The Parties pay the costs of the publication of the Notice pursuant to Order 6 above within 7 days after receipt of an invoice for the said costs from the solicitors for the plaintiff on the following basis:
(a)Plaintiff 25%;
(b)SP AusNet 25%;
(c)UAM 25%;
(d)State parties 25%.
The costs of compliance with Orders 6 to 9 inclusive above be costs in the cause in the proceeding.

Annexure A

IN THE SUPREME COURT OF VICTORIA

Kilmore East-Kinglake Bushfire Class Action
SCI 2009 04788

CLAIMANT REGISTRATION FORM

IMPORTANT: This form deals with making claims in the Kilmore East - Kinglake Bushfire Class Action.
There is a DEADLINE of 22 MARCH 2013 to register a claim.

If you have a claim for:

personal injury (whether physical or psychiatric); or
economic loss related to personal injury (such as out-of-pocket medical expenses or lost wages from time off work for recovery); or
loss of financial support or assistance from a person who died;

and you do not register your personal injury claim by the deadline, your personal injury claim will be excluded from the class action. This means that you will not be able to claim compensation for your personal injury through this class action. However, you may be able to commence your own legal proceedings in relation to your personal injury claim. Time limits might apply for separate proceedings so you should seek legal advice if you are considering separate proceedings.

If you have a claim for:

property loss or damage which is not covered or not fully covered by insurance; or
economic loss unrelated to personal injuries (such as lost profits, or time off work to deal with repairs) which is not covered or not fully covered by insurance;

and you do not register that “above-insurance” property loss or economic loss claim by the deadline, then if there is a settlement that is approved by the Court, you will not be permitted to claim a share of any settlement payment for your uninsured property or economic losses. You will also be bound by the settlement, meaning that you will lose the right to sue the defendants for those losses, and will lose your rights to any compensation. (However, if there is no settlement and the claim proceeds to judgment and is successful, you may be able to make an uninsured property damage or economic loss claim.)

It is very important that if you are not already a client of Maurice Blackburn, you register all personal injury, dependency or above-insurance property or economic loss claims that you wish to make.

Details of the claimant (Please complete a separate form for each person, business, partner, child, etc who is making a claim.)

Type of claimant	Circle one Individual/Deceased estate/Company/ Business partnership/Trust
If claimant is an individual, the claimant’s name	Title _____ First name ____________ Last name __________
If deceased estate/ company/ business partnership/trust, name of the entity	__________________________________________
ABN (if applicable)	__________________________________________
Address of claimant where they were injured or lost property	__________________________________________ __________________________________________ Suburb_________________ State_____ Postcode________
Does the person wish to claim compensation for personal injury?	Circle one Yes/No
Does the person wish to claim compensation for the loss of financial support or assistance from a person who died?	Circle one Yes/No
Does the person wish to claim compensation for property loss or damage, or economic loss which is not covered or not fully by insurance?	Circle one Yes/No

Details of the person completing this form

Name	__________________________________________
Postal address	__________________________________________ __________________________________________ Suburb_________________ State_____ Postcode________
Telephone	__________________________________________
Email	__________________________________________
I declare that the information provided above is accurate to the best of my knowledge	Signature____________________________________ Date___________________

Completed forms must be returned so that they are received by Maurice Blackburn before 4.00pm on 22 March 2013 at:

Bushfire Class Action Centre
Level 10, 456 Lonsdale Street
Melbourne VIC 3000

You can also lodge this form online at or at you have any questions please telephone Maurice Blackburn on 1800 99 55 70.

Annexure B
INSURER RECOVERY REGISTRATION FORM

IN THE SUPREME COURT OF VICTORIA

Kilmore East-Kinglake Bushfire Class Action
SCI 2009 04788

INSURER RECOVERY REGISTRATION FORM

The insurer named below:

·notifies the Court that it has provided insurance indemnity to each person named as “insured” in respect of the policy/ies identified in the Schedule; AND
·registers each insured person as a group member, in respect of the insurer’s entitlement to claim recovery from any defendant of, or as a result of, the indemnity payments.

Insurer contact details:

Contact name: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Email: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Telephone: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signed: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

YOU MUST attach a single schedule identifying for each insured person:

1.Insured’s name
2.Insured’s current postal address
3.Address where insured’s property located at time of bushfire
4.Type/title of insurance policy/policies
5.Policy number(s) & claim number(s)
6.Amount(s) paid
7.Associated expenses (if any)

Annexure C

IN THE SUPREME COURT OF VICTORIA

Kilmore East-Kinglake Bushfire Class Action
SCI 2009 04788

CLAIM REGISTRATION NOTICE

IMPORTANT: This form deals with making claims in the Kilmore East - Kinglake Bushfire Class Action.
There is a DEADLINE of 22 MARCH 2013 to register a claim.

If you or someone you know suffered any injury, or property or economic loss as a result of the February 2009 “Black Saturday” bushfire in the Kilmore East-Kinglake area you should read this notice carefully.

This notice explains the class action which is being conducted in the Supreme Court of Victoria in relation to the bushfire.

Any person who is in the class affected by the action (a “group member”, as defined below) and who wishes to claim compensation for their injuries or uninsured losses must register their claims according to the procedure described below.

A failure to register a claim may have serious consequences. If it is a claim for personal injury (defined below), it will be excluded from the class action. If it is a claim for uninsured property or economic loss (also defined below), it will remain covered by the class action but if there is a settlement that is approved by the Court you will not be permitted to claim compensation and also will lose the right to separately sue the defendants.

If you believe you have suffered damage or injury as a result of the Kilmore East-Kinglake bushfire, read this notice carefully. If there is anything in it that you do not understand, seek legal advice.Any questions you have concerning this notice should not be directed to the Court.

What is a class action?

A class action is a court case in which one person (“the Plaintiff”) sues also on behalf of all people who fit the definition of “group member” set out in the court papers filed to start the proceeding.

The plaintiff does not need to name each group member, or obtain their consent to bring the action on their behalf. A person who fits the definition of “group member” will be “bound” by the result of the class action, as if they had started the proceeding themselves.

Being “bound” means that if the class action is successful, group members will be entitled to share in any favourable judgment or settlement (although in some cases they may need to do further work to become entitled to actual compensation). However, being “bound” also means that if the action is unsuccessful, or is not as successful as they might have wished, they will not be able to separately sue on the same claims.

What is Kilmore East-Kinglake class action about?

The Kilmore East-Kinglake class action is brought by Mrs Carol Matthews as the Plaintiff, on behalf of all persons who fit the definition of “group members” set out below. Mrs Matthews alleges that she and the group members suffered injuries, or financial loss and damage, as a result of the bushfire. Mrs Matthews has engaged the law firm Maurice Blackurn to conduct the class action on her behalf and on behalf of all the group members.

There are five defendants to the class action.

The First Defendant is SPI Electricity Pty Ltd (‘SPI’). SPI owned and operated an electricity distribution network, including a SWER powerline in Kilmore East. Mrs Matthews alleges that the powerline broke on 7 February 2009 and ignited the bushfire. She alleges that SPI was (among other things) negligent in its management, inspection and maintenance of the powerline.

The Second Defendant is ACN 060 674 580 Pty Ltd (‘USC’). USC was contracted by SPI to inspect specified SPI electricity distribution assets on the SWER powerline. Mrs Matthews alleges that USC was (among other things) negligent in its inspections of the powerline assets.

The Third Defendant is the Secretary of the Department of Sustainability and Environment (‘DSE’). Mrs Matthews alleges that DSE was (among other things) negligent in failing to reduce fuel loads in lands under its control prior to the bushfire and failing to provide adequate warnings about the bushfire.

The Fourth Defendant is the Country Fire Authority (‘CFA’). Mrs Matthews alleges that the CFA was (among other things) negligent in failing to contain the bushfire and failing to give adequate warnings about the bushfire.

The Fifth Defendant is the State of Victoria (‘the State’). Mrs Matthews alleges that the State is liable on the grounds that Victoria Police contributed to personal injuries suffered by the plaintiff and group members, by failing to give appropriate warnings about the bushfire.

All defendants deny the allegations against them and are defending the class action. Each of SPI and USC has filed cross-claims against all other defendants.

Are you a “group member”?

You are already a group member in the class action if:

(a)you are on the List of Personal Injury Clients filed by the plaintiff’s solicitors (Maurice Blackburn) in the Supreme Court of Victoria on 7 December 2012; or
(b)you suffered personal injury (whether physical or psychiatric injury) as a result of:
(i) the bushfire; and/or
(ii) the death of or injury to another person as a result of the bushfire, or
(c)you represent the estate of, or are a dependant of any person who died in or as a result of the bushfire; or
(d)you suffered loss of or damage to property as a result of the bushfire; or
(e)at the time of the bushfire you resided in, or had real or personal property in, the “bushfire area” and suffered economic loss as a result of the bushfire which did not result from personal injury or property damage.

Note: “psychiatric injury” in paragraph “b” of the group definition above means nervous shock or another psychiatric or psychological injury, disturbance, disorder or condition which was diagnosed as such in a diagnosis given to you by a medical practitioner prior to 31 January 2012.

The “bushfire area” is also defined in the court proceedings. A list of towns affected by the bushfire and a map of the bushfire area may be accessed at you are unsure whether you are a group member or whether you were on the Maurice Blackburn List of Personal Injury clients filed with the Supreme Court of Victoria on 7 December 2012 you should contact Maurice Blackburn Lawyers on 1800 99 55 70, or email [email protected] or seek your own legal advice immediately.

Group members must register to make certain claims

Any person who wishes to claim compensation for an injury or loss suffered as a result of the fire must register each claim they wish to make. You can register a personal injury claim, or a claim for the loss of assistance or financial support from a person who died as a result of the bushfire (“dependency claim”), or a claim for above-insurance property or economic loss, or all three types of claim.

Clients of Maurice Blackburn (for this class action) will automatically be registered. You are a client only if you have signed and returned a Costs Agreement. If you have not returned a Costs Agreement, then you are not a client, even if you have received mail from Maurice Blackburn about the class action previously. Please contact Maurice Blackburn if you are not sure whether you are a client, or you are a client but wish to check which types of claims you have instructed Maurice Blackburn to make for you.

If you are not a client of Maurice Blackburn, YOU MUST REGISTER ANY PERSONAL INJURY OR ABOVE-INSURANCE CLAIM you wish to make by completing the Claimant Registration Form below and returning it to Maurice Blackburn BEFORE 4:00pm on 22 MARCH 2013. You can also complete the form online at or www. kinglakebushfireclassaction.com.au. Failure to register a claim by this deadline will have serious consequences.

If you are the parent or guardian of a person who is a group member but is not able to complete their own registration, or if you are registering on behalf of a deceased estate or company or trust or business partnership, you must identify the other person, company or entity on the registration form.

Please note, you do not become a client of Maurice Blackburn simply by registering your claim(s). Registration is different from becoming a client. You can seek advice or engage a solicitor to assist you. All you need to do now is register if you wish to do so. You will not become liable for legal costs just by registering as a group member, although if the class action is successful and you recover compensation the Supreme Court will be asked to order that some of that compensation be used to reimburse the plaintiff for the costs she incurred in obtaining the successful outcome for the benefit of group members.

What happens if a claim is not registered?

If you have a claim for:

personal injury (whether physical or psychiatric); or
economic loss related to personal injury (such as out-of-pocket medical expenses or lost wages from time off work for recovery); or
loss of financial support or assistance from a person who died;

If you have a claim for:

property loss or damage which is not covered or not fully covered by insurance; or
economic loss unrelated to personal injuries (such as lost profits, or time off work to deal with repairs) which is not covered or not fully covered by insurance;

and you do not register that “above-insurance” property loss or economic loss claim by the deadline, then if there is a settlement of the class action which is approved by the Court, you will not be permitted to claim a share of any settlement payment for your property or economic losses. If a settlement is proposed, notices like this one will be mailed out and published in newspapers and on the internet. You will have an opportunity to oppose the settlement. But if the settlement is ultimately approved by the Court, the effect of the registration requirement described above will be that you will be bound by the settlement. You will lose the right to sue the defendants for any unregistered claims for uninsured property or economic loss, and you will also lose your rights to any compensation for those losses. However, if there is no settlement and the class action proceeds to judgment and is successful, unregistered uninsured property and economic loss claims will be able to participate in the judgment.

What if you had insurance?

Many group members had insurance but sometimes the insurance did not cover all the items lost, or did not cover the full value of a given item. If you received insurance payments but think that the insurance did not fully compensate your losses, you still need to register to claim these “above-insurance” losses.

Your insurance company is required to register its own claim if it wishes to recover from the defendants the amount of any insurance paid to you. Insurance companies are being separately notified of the registration requirements which apply to them.

Where can you obtain more information?

If you want more information about the claims being made in the Kilmore East-Kinglake class action, copies of the Plaintiff’s “Statement of Claim” and each Defendant’s “Defence” can be obtained by:

(a)on the Kilmore East – Kinglake Bushfire Class action website at or www. kinglakebushfireclassaction.com.au; or
(b)contacting Maurice Blackburn on 1800 99 55 70 or emailing [email protected]; or
(c)on the Supreme Court Class Actions website at
(d)inspecting them at the Registry of the Supreme Court of Victoria at 2nd Floor, 436 Lonsdale Street, Melbourne, Victoria, 3000 or by calling the Registry on 03 9603 9300.

Please consider the above matters carefully. If you have questions, you should contact Maurice Blackburn on 1800 99 55 70 or email [email protected] or seek your own legal advice immediately.

Where should you return the completed Claimant Registration Forms?

Completed Claimant Registration Forms must be returned to Maurice Blackburn by 4.00pm on 22 March 2013 at the following address:

Bushfire Class Action Centre
Level 10, 456 Lonsdale Street
Melbourne VIC 3000

You can also lodge forms online at or www. kinglakebushfireclassaction.com.au

Please consider the above matters carefully and be sure that you meet the deadline to register any personal injury, dependency or above-insurance property or economic loss claims you wish to make.

Annexure D
INSURER CLIENT NOTICE

Kilmore-Kinglake “Black Saturday Bushfire”
Supreme Court Class Action

NOTICE TO INSURED CLIENTS

IMPORTANT: This form deals with making claims in the Kilmore Bushfire Class Action.
There is a DEADLINE of 22 MARCH 2013 to register a claim.

As you may know, a “class action” is currently running in the Supreme Court of Victoria on behalf of various persons who suffered personal injury, or property or economic loss or damage as a result of the bushfire which spread across the Kilmore East-Kinglake area on 7 February 2009 (“the Kilmore East-Kinglake bushfire”).

According to our files, you have made an insurance claim for property or economic losses caused by the bushfire. It appears, therefore, that you may be a person whose claims are covered by the Kilmore East-Kinglake bushfire class action.

All people who suffered any form of personal injury or dependency loss or damage, or above-insurance loss covered by the class action must register those claims, if they wish to seek compensation in the event that the class action is settled.

Your potential claims

Many people who suffered losses in the bushfire were not fully insured for all losses.

If you suffered property or economic losses as a result of the Kilmore East-Kinglake bushfire, but you think your insurance did not fully compensate you for all the losses you suffered, and you want to claim for these “above-insurance losses”, you must complete and submit a Claimant Registration Form as explained in the enclosed Claim Registration Notice by 4.00pm on 22 March 2013.

You might also have suffered personal injury (either physical or psychiatric) as a result of the bushfire, or suffered a loss of assistance or financial support from someone who died as a result of the bushfire. Even if you do not wish to claim compensation for above-insurance losses, you might wish to claim for personal injury or loss of support. In this case, you still need to complete a Claimant Registration Form.

Claimant Registration Forms must be completed

If you wish to make a claim for any type of loss (whether above-insurance losses, or for any personal injury (whether physical or psychiatric), or for the loss of financial support or assistance from a person who died, or for both), you must identify this in your Claimant Registration Form.

Completed Claimant Registration Forms must be returned to Maurice Blackburn by 4.00pm on 22 March 2013 at:

Bushfire Class Action Centre
Level 10, 456 Lonsdale Street
Melbourne VIC 3000

You can also lodge forms online at or www. kinglakebushfireclassaction.com.au

The consequences of missing this deadline are explained in the attached Claim Registration Notice. The consequences are important and may seriously affect your ability to ever make a claim for a loss you have not registered.

It is important that you consider the above matters carefully, and contact Maurice Blackburn on 1800 99 55 70 if you have any questions or seek your own legal advice immediately.

Annexure E

Kilmore-Kinglake “Black Saturday Bushfire”

Supreme Court Class Action

NOTICE TO INSURERS –
Court order to register recovery claims

As you will know, a “class action” is currently running in the Supreme Court of Victoria on behalf of various persons who suffered personal injury, or property or economic loss or damage as a result of the bushfire which spread across the Kilmore-Kinglake area on 7 February 2009 (“the Kilmore-Kinglake bushfire”).

The Supreme Court has ordered that persons whose claims are or may be covered by the class action must register those claims, if they wish to seek compensation in the event that the class action is settled.

The registration requirement extends to insurance companies which have paid insurance claims arising out of the Kilmore-Kinglake bushfire.

This notice is being sent to known insurance companies to inform them about the requirement to register any claims they wish to make against the defendants, arising from payments made on insurance claims following the Kilmore-Kinglake bushfire.

Insurers not covered by clients’ registrations

Persons who suffered property or economic loss or damage as a result of the bushfire may not have been fully insured in respect of those losses.

Where a person was not fully insured, the person must file a “Claimant Registration Form” if they wish to claim compensation for losses that were suffered but were not compensated by insurance. If the person does not register those above-insurance losses, they will not be permitted to participate in any settlement of the class action, in respect of those losses.

Conversely, where an insurer made a payment in respect of an insurance claim arising from the bushfire, the insurer must register that payment if the insurer wishes to claim it, by way of recovery action, in any settlement with the defendants to the proceeding. If the insurer does not register the payment, the insurer will not be permitted to participate in any settlement of the class action, in respect of that payment.

What insurers must do

If you paid insurance claims arising from the Kilmore-Kinglake bushfire and you wish to recover those losses in the event of a settlement of the class action, you must complete the “Insurer Recovery Registration Form” enclosed with this notice. Supporting payment schedules must be included.

Your registration form MUST be returned to Maurice Blackburn Lawyers by 4:00pm on 22 March 2013.

Any claims not registered by that deadline will be bound by any settlement approved by the Court, if the class action is settled, but will not qualify to participate in the distribution of any settlement sum.

Please note: if you have already delivered a list of insured clients and claim payments to Maurice Blackburn it is not necessary that you re-submit the list. The earlier list will be treated as registration for these purposes, and the payment values already submitted will stand as the amounts of your subrogated claim in the proceeding.

It is important that you consider the above matters carefully, and contact Maurice Blackburn if you have any questions or seek your own legal advice immediately.

Annexure EA

Kilmore-Kinglake “Black Saturday Bushfire”

Letter to Opt-outs

Dear [ Opt out ]

Black Saturday Kilmore-Kinglake bushfire
Supreme Court of Victoria “class action”

As you will be aware, a “class action” is currently running in the Supreme Court of Victoria in relation to the “Black Saturday” bushfire which spread across the Kilmore-Kinglake area.

According to the Supreme Court file, you filed with the Court a notice indicating that you wished to “opt out” of the proceeding and not be treated as a person whose claims were covered by the class action.

The class action is scheduled to go to trial commencing in March this year, 2013. The Supreme Court has recently ordered that all persons who wish to make personal injury, dependency or above-insurance property or economic loss claims in the proceeding must register those claims with the solicitors acting on behalf of the plaintiff. The solicitors are Maurice Blackburn.

Importantly, the Court also ordered that persons who “opted out” of the class action, such as you, be given an opportunity to withdraw their decision to opt out, and instead register their personal injury, dependency or above-insurance property or economic loss claims so that the claims are able to be covered by the class action. The Court also ordered that this letter be sent to each of those persons.

Your opportunity to register

The purpose of this letter therefore is to inform you that you now have an opportunity to withdraw your decision to opt out of the class action, and instead register any personal injury, dependency or above-insurance property or economic loss claims you might have as a result of the Kilmore-Kinglake Bushfire.

The enclosed “Claims Registration Notice” explains what the class action is about and explains the process for registering claims. You might have a claim for personal injury (whether physical or psychiatric, or a claim for loss of financial or other assistance from a person who died as a result of the fires), or a claim for property or economic loss which is not insured or not fully insured, or both types of claims. You can register either or both claims, as explained in the enclosed notice.

In summary, if you wish to withdraw your decision to opt out, and instead register a personal injury, dependency or above-insurance property or economic loss claim in the proceeding, you MUST REGISTER the claim(s) you wish to make BEFORE THE DEADLINE OF 4:00pm ON 22 MARCH 2013.

What happens if you do not register any personal injury, dependency or above-insurance property or economic loss claim?

Because you filed a “Notice of Opting Out” in the proceeding last year, if you choose not to register any personal injury, dependency or above-insurance property or economic loss claim, none of your rights will be affected by the class action. You will be treated as not being a “group member” at all. If you wish to make claims against the defendants, you will need to bring separate proceedings. Time limits might apply in that regard, so if you think you might want to bring separate proceedings you should seek legal advice quickly.

Again, you are now being given an opportunity to have your personal injury, dependency or above-insurance property or economic loss claim(s) included in the class action, but there is no obligation on you to do so. It is your choice but you should read this letter, and the enclosed Claims Registration Notice, carefully so that you understand your rights.

If you have any questions please telephone Maurice Blackburn on 1800 99 55 70, or seek your own legal advice.

Yours faithfully

Annexure F

LIST OF INSURERS

Allianz Insurance
Comminsure
Elders Insurance
CGU Insurance
RACV Insurance
QBE Insurance
Chubb Insurance Company of Australia Ltd
Suncorp Insurance
Calliden Insurance Ltd
Mansions of Australia
SRS Underwriting Agency Pty Ltd
Transcorp Underwriting Agency Pty Ltd
Ansvar Insurance
Wesfarmers Limited
Lumley Insurance
Zurich Australian Insurance Limited
Hollard Insurance Company Pty Ltd
Sportscover Australia Pty Ltd
Argenta Syndicate Management Limited
Capricorn Mutual Management Pty Ltd
Agricola Underwriting Management Pty Ltd

[2013] VSC 17

18 January 2013 (Written Reasons 8 February 2013)