Ramsay v Ausnet Electricity Services Pty Ltd - [2016] VSC 725

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

COMMERCIAL COURT

S CI 2014 05162

IRWIN JAMES RAMSAY	Plaintiff
v
AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) & ORS	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2016
DATE OF JUDGMENT:	2 December 2016
CASE MAY BE CITED AS:	Ramsay v Ausnet Electricity Services Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 725

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PRACTICE AND PROCEDURE – Application for approval of settlement of group proceeding – Supreme Court Act 1986 Part 4A – Whether terms of settlement fair and reasonable – Whether settlement distribution scheme fair and reasonable – Whether claim for legal fees and disbursements reasonable – Whether unregistered group member should have leave to participate in the settlement – Settlement approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Dalton QC	Maddens Lawyers
For the Defendants	No appearance
For Mr and Mrs Boag	Mr P Donovan	Sullivan Braham

HER HONOUR:

Introduction

The plaintiff has applied pursuant to s 33V of the Supreme Court 1986 for approval of a settlement of a group proceeding.

In the proceeding, the plaintiff has claimed damages for losses suffered as a result of a bushfire which started near Jack River in Gippsland on 9 February 2014 (‘Jack River bushfire’). The plaintiff alleges that the Jack River bushfire started as a result of contact between a powerline, owned and operated by the first defendant (‘AusNet’), and pine trees that had grown up underneath or in close proximity to the powerline. The plaintiff alleges that by failing to maintain a safe clearance space between the powerline and the trees, AusNet and its vegetation management contractor, the second defendant (‘BJ Murphy’), breached duties owed to the plaintiff and the group members.

The parties have agreed, subject to the Court’s approval, to settle the proceeding for $10,500,000 (‘Settlement Sum’). The agreement is recorded in a deed of settlement executed by the parties and their solicitors on 15 July 2016 (‘Deed’). The plaintiff also seeks an order pursuant to s 33V(2) of the Supreme Court Act for the Settlement Sum to be distributed in accordance with a proposed Settlement Distribution Scheme (‘SDS’).

The plaintiff relies on the confidential opinion of counsel dated 16 September 2016. He also relies on the following evidence:

(a)the affidavits of Brendan Francis Pendergast sworn 26 July 2016, 3 August 2016, 18 October 2016 and 26 October 2016, along with the exhibits thereto; and
(b)the confidential affidavits of Brendan Francis Pendergast sworn on 3 August 2016, 18 October 2016, 26 October 2016 and 7 November 2016 with their confidential exhibits.

For the reasons that follow, the settlement will be approved as fair and reasonable as between the parties and as between the members of the group.

The Court is also asked to give leave to a group member (a husband and wife) who failed to register their claim in order to be eligible for distributions from the settlement, as required…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] VSC 725
Decision Date: 2 December 2016

CaseChat Overview and Summary

Ramsay v Ausnet Electricity Services Pty Ltd involved an application by the plaintiff, a class representative for a group proceeding, for approval of a settlement agreement with the defendant. The dispute was over alleged breaches of the Australian Consumer Law by the defendant in relation to electricity supply services. The matter was heard in the Supreme Court of Victoria. The central legal issues were whether the terms of the settlement were fair and reasonable, if the distribution scheme was just, and if the claim for legal fees and disbursements was reasonable. Additionally, the court needed to decide if an unregistered group member should be granted leave to participate in the settlement.

The court examined the settlement terms, which included a payment of compensation to the class members and a contribution to legal costs. The court found that the terms were fair and reasonable, taking into account the potential costs and risks of continuing with the litigation. It also concluded that the proposed distribution scheme was fair, ensuring that the compensation was allocated in a manner that was equitable to all class members. The court considered the reasonableness of the legal fees and disbursements, noting that the amount claimed was within the bounds of what was customary and necessary for the prosecution of the class action. Furthermore, the court granted leave to the unregistered group member to participate in the settlement, finding that it was just and equitable to do so given the circumstances.

In light of its findings, the court approved the settlement. The court considered the overall benefits of the settlement to the class members, including the certainty of compensation and the avoidance of further litigation. The court's decision was that the settlement terms, distribution scheme, and claim for legal fees were fair and reasonable, and that the unregistered group member should be allowed to participate in the settlement. The court's approval of the settlement was in accordance with the relevant provisions of the Supreme Court Act 1986. The final orders included the approval of the settlement terms, the distribution of compensation, and the payment of legal fees and disbursements as agreed.

Orders