Place v Powercor Aust Ltd - [2013] VSC 6

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT WARRNAMBOOL

COMMON LAW DIVISION

No. S CI 2010 1099

TERRENCE ERNEST PLACE	Plaintiff
v
POWERCOR AUSTRALIA LIMITED	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Warrnambool
DATE OF HEARING:	31 January 2013
DATE OF JUDGMENT:	1 February 2013
CASE MAY BE CITED AS:	Place v Powercor Aust Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 6

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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 Weerite-Pomborneit bushfire – Supreme Court Act 1986, Part 4A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.P. Tobin SC with Mr G.D. Dalton and Mr A.J. Fraatz	Maddens
For the Defendant	Mr D.E. Curtain QC with Mr D. McWilliams and Mr D.J. Wallis	Wotton & Kearney

HIS HONOUR:

Introduction

On 7 February 2009, Black Saturday, a bushfire started in dry grass on the southern verge of the Princess Highway about 500 metres east of the Weerite railway overpass between Pomborneit and Weerite in Western Victoria. The fire started about 35 metres from the Colac to Camperdown high voltage power line. The fire consumed approximately 1300 hectares, including a large part of a dairy farm owned by the plaintiff, Mr Terrence Place. The Colac to Camperdown high voltage power line was at all relevant times owned and operated by Powercor Australia Limited, the defendant.

Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff 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 trial of this proceeding commenced on 3 September 2012 before J. Forrest J, and concluded on 13 November 2012. Judgment was due to be delivered by his Honour on 19 December 2012. However, on that date, terms of settlement (headed “Heads of Agreement”) were executed by the plaintiff and the defendant. The essential terms of the settlement agreement provide for a payment of 100% of each claimant’s loss, plus interest calculated in accordance with the Supreme Court Act from 1 January 2013 at the rate fixed under s 2 of the Penalty Interest Rates Act 1983 plus party/party costs. Section 33V of the Supreme Court Act provides that a group proceeding may not be settled without the approval of the Court. This is the application for the approval of the settlement of this proceeding.

The parties’ cases at trial

The plaintiff’s case was that the fire commenced as a result of the clashing of two or more conductors which emitted at least one hot aluminium particle, causing the grass on the southern side of the highway to catch fire. The plaintiff contended that the risk of conductors clashing with the potential to cause a fire was well known to Powercor both generally, and particularly, in relation to the Colac to Camperdown high voltage power line. The plaintiff’s case was that, given the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Place v Powercor Aust Ltd

Details

AGLC: Place v Powercor Aust Ltd [2013] VSC 6
Case: [2013] VSC 6
Decision Date: 1 February 2013

CaseChat Overview and Summary

In the case of Place v Powercor Australia Limited, the plaintiff, Mr. Place, brought an action against the defendant, Powercor Australia Limited, on behalf of a class of persons who suffered losses due to the Black Saturday Weerite-Pomborneit bushfire. The dispute centred around an application for the approval of a settlement of a group proceeding under the Supreme Court Act 1986, Part 4A. The court was required to decide whether it should approve the settlement of the group proceeding.

The legal issues before the court were whether the proposed settlement was fair, reasonable and in the best interests of the class members. The court considered the terms of the settlement, the benefits and drawbacks for the class members, and the process by which the settlement was reached. The court also had to consider whether the settlement complied with the requirements of the Supreme Court Act 1986, Part 4A.

After considering the arguments presented by both parties and the relevant legal principles, the court approved the settlement of the group proceeding. The court found that the settlement was fair, reasonable and in the best interests of the class members. The court was satisfied that the settlement process was transparent and that the class members had been adequately represented. The court also found that the settlement complied with the requirements of the Supreme Court Act 1986, Part 4A.

The court ordered that the settlement be approved and that the parties take such steps as were necessary to implement the settlement. The court also ordered that the costs of the application be paid by the defendant. This decision provides guidance on the approval of settlements in group proceedings and the considerations that the court will take into account in making its decision.

Orders