JUDGE:	BEACH J
WHERE HELD:	Hamilton
DATE OF HEARING:	29 March 2012
DATE OF JUDGMENT:	29 March 2012
CASE MAY BE CITED AS:	Perry v Powercor
MEDIUM NEUTRAL CITATION:	[2012] VSC 113

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PRACTICE AND PROCEDURE – Group proceeding – Application for approval of settlement of group proceeding – Whether Court should approve settlement of group proceeding – Black Saturday Coleraine bushfire – Supreme Court Act 1986, Part 4A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T.P. Tobin SC with Mr A.J. Fraatz	Maddens
For the Defendant	Mr A.T. Schlicht	Wotton & Kearney

HIS HONOUR:

Introduction

On 7 February 2009, Black Saturday, a bushfire started on farmland at Balochile Road, some five kilometres north-west of Coleraine. Over about eight hours, the fire burnt approximately 713 hectares. It destroyed a house, farm buildings and many other structures. There was widespread loss of crops, pastures, livestock, yards, fences, trees, smaller vegetation and farm and other equipment. The Cyprus trees comprising the former First World War Avenue of Honour on each side of the Glenelg Highway west of Coleraine were also razed.

Tracey Joanne Perry and Terrence Raymond Sagar, the plaintiffs, lived on a property at Harrow Road, Coleraine. Their home and its contents, together with fencing, trees, pasture, out-buildings, water tanks and other infrastructure, was destroyed by the fire. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiffs commenced a group proceeding, or class action, on behalf of all those who suffered loss of or damage to property as a result of the fire. The fire was caused by a live power conductor detaching from the top of a pole, descending into a belt of trees, arcing with a tree and causing ignition of vegetation beneath the tree. The conductor, the line of which it was a part and the pole upon which the line was supported were all owned and maintained by Powercor Australia Limited, the defendant. The claim against the defendant was pleaded in negligence, nuisance and breach of statutory duty (s 75 of the Electricity Safety Act 1998[1]).
[1]At the time of the fire, s 75 of the Electricity Safety Act 1998 relevantly provided that:
“A network operator must take reasonable care to ensure that all parts of an upstream network … that it owns or operates –
(a) are designed, constructed, operated and maintained in accordance with the regulations; and
(b) are safe and operated safely.
Penalty:1500 penalty units.”

The trial of this proceeding was due to commence on 16 April 2012. It was estimated that the trial would take four weeks.

Terms of settlement (headed “Heads of Agreement”) of the proceeding have now been executed by the plaintiffs and the defendant. The essential terms of the settlement agreement provide for a settlement of 55% of each claimant’s losses assessed according to certain…

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 Perry v Powercor Australia Ltd

Details

AGLC: Perry v Powercor Australia Ltd [2012] VSC 113
Case: [2012] VSC 113
Decision Date: 29 March 2012

CaseChat Overview and Summary

Perry v Powercor Australia Ltd involved a group proceeding against Powercor Australia Ltd, stemming from the devastating Black Saturday bushfires in Coleraine. The plaintiffs, including the lead plaintiff Perry, sought damages for property damage and loss allegedly caused by Powercor's negligence during the bushfires. The matter was before the Supreme Court of Victoria, which was asked to approve the settlement of the group proceeding.

The primary legal issue before the court was whether it should approve the settlement of the group proceeding, which had been negotiated between the plaintiffs and Powercor. The court needed to consider the appropriateness of the settlement amount and the fairness of the process, particularly in light of the significant damages claimed and the public interest in efficiently resolving mass tort litigation. The court also had to evaluate the settlement's compliance with the provisions of the Supreme Court Act 1986, Part 4A, which governs group proceedings.

The court found that the settlement was fair, reasonable, and in the best interests of the plaintiffs. It noted the complexity of the claims and the extensive negotiations that had taken place. The court was satisfied that the settlement amount was commensurate with the damages suffered by the plaintiffs and that the process had been conducted fairly and transparently. The court also considered the benefits of the settlement, including the avoidance of prolonged litigation and the potential for quicker compensation for the affected parties. As a result, the court approved the settlement of the group proceeding.

Orders