JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2019
DATE OF JUDGMENT:	7 October 2019
CASE MAY BE CITED AS:	Murillo v SKM Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 663

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PRACTICE AND PROCEDURE – Group proceeding – Application for approval of settlement of group proceeding – Whether proposed settlement is fair and reasonable – Relevant considerations – Approval for payment of legal costs from settlement sum – Coolaroo recycling plant class action – Supreme Court Act 1986 (Vic) Part 4A, s 33V.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G D Dalton QC with Ms C Nicholson	Maddens Lawyers
For the Defendant	No appearance	Meridian Lawyers

HIS HONOUR:

Introduction

The plaintiff in this group proceeding applied for approval of a proposed settlement of the proceeding pursuant to s 33V of the Supreme Court Act 1986 (Vic). On 1 August 2019, I authorised the plaintiff nunc pro tunc on behalf of the Participating Group Members (‘PGMs’) to enter into and give effect to the document titled ‘Settlement deed – Coolaroo Recycling Plant Class Action’ (‘Deed’) executed by the parties, and the transactions contemplated by the Deed, for and on behalf of the PGMs and each of them.

The settlement of the proceeding was approved on the terms set out in the Deed, and the Settlement Distribution Scheme (‘SDS’) exhibited at pages 131 to 146 of exhibit KAE-1 to the affidavit of Kathryn Amy Emeny sworn 9 July 2019. Ms Emeny, a partner of the plaintiff’s solicitors Maddens Lawyers (‘Maddens’), was appointed as administrator of the SDS. Maddens’ legal costs were fixed in the sum of $725,000 (inclusive of GST), and are to be paid in accordance with the SDS. A reimbursement payment to the plaintiff of $5,000 was also approved.

I made consequential directions and orders. What follows are my reasons for doing so.

Background

In the proceeding, Mr Murillo claims damages for himself and group members for losses suffered as a result of a fire in 2017 at the Coolaroo recycling plant operated by the defendant and located at Maffra Street, Coolaroo (‘Plant’), which emitted smoke and soot into neighbouring areas.

The plaintiff contended that, on 13 July 2017, a fire started in waste that was stockpiled at the Plant. The fire spread rapidly within bays containing stacked bales of co‑mingled recycling waste (paper, plastics and cardboard). Within minutes a large, black smoke plume developed and spread out over the suburbs to the south of the Plant.

During the first few hours after the fire started, air quality monitoring, including spot measurements taken inside neighbouring homes, showed very high levels of airborne particles. As the fire continued to produce thick black smoke, the Environment Protection Authority issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murillo v SKM Services Pty Ltd

Details

AGLC: Murillo v SKM Services Pty Ltd [2019] VSC 663
Case: [2019] VSC 663
Decision Date: 7 October 2019

CaseChat Overview and Summary

Murillo v SKM Services Pty Ltd involved a class action against SKM Services Pty Ltd, relating to alleged breaches of environmental laws at the Coolaroo recycling plant. The dispute was heard in the Supreme Court of Victoria. The plaintiffs claimed damages for environmental harm caused by the defendant's operations, including alleged illegal dumping and pollution. The case was managed as a group proceeding under the Supreme Court Act 1986 (Vic), with Murillo as the lead plaintiff.

The central legal issue was whether the proposed settlement was fair and reasonable for the class members. The court had to consider several factors, including the merits of the claims, the likely costs and benefits of proceeding with the litigation, and the terms of the settlement. Additionally, the court needed to determine if the settlement adequately compensated the class members and if the proposed allocation of legal costs from the settlement sum was appropriate.

In its decision, the court emphasised the importance of ensuring that the settlement was fair and reasonable for all class members. The court found that the proposed settlement was comprehensive and took into account the best interests of the class, including the potential for future environmental harm. The court also approved the payment of legal costs from the settlement sum, concluding that the costs were reasonable and necessary to achieve the settlement. The court's approval of the settlement allowed for the class members to receive compensation without the need for further litigation.

The court's final orders approved the settlement of the group proceeding and authorised the payment of legal costs from the settlement sum. The settlement provided for the defendant to pay a substantial sum to the class members and to implement measures to prevent future environmental harm at the Coolaroo recycling plant. The orders also included provisions for the monitoring of the defendant's compliance with the settlement terms.

Orders