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Rowe v AusNet Electricity Services Pty Ltd

Rowe v AusNet Electricity Services Pty Ltd

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Case Copied 27 May 2015 45 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 4538

KATHERINE ROWE	Plaintiff
v
AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) & Ors (according to the attached Schedule)	Defendants
- and -
AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118)	Plaintiff by Counterclaim
v
ACN 060 674 580 PTY LTD (ACN 060 674 580) & ORS (according to the attached Schedule)	Defendants by Counterclaim

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2015
DATE OF JUDGMENT:	27 May 2015
CASE MAY BE CITED AS:	Rowe v AusNet Electricity Services Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 232

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PRACTICE AND PROCEDURE – Application for approval of settlement of group proceeding – Supreme Court Act 1986 (Vic) Part 4A –Whether terms of settlement fair and reasonable – Whether settlement distribution scheme fair and reasonable – Whether claim for legal fees and disbursements reasonable – ‘Murrindindi class action’– Settlement approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F McLeod SC Mr R Attiwill QC Mr A Fraatz Ms F Forsyth Ms M Szydzik	Maurice Blackburn
For the State Parties	Ms R Nelson	Norton Rose Fullbright Australia
For the objector, Hancock Victorian Plantations Pty Ltd	Mr T Scotter	Minter Ellison

HER HONOUR:

Introduction

This proceeding arises out of the events that took place in Victoria on ‘Black Saturday’, 7 February 2009, and is one of a series of class actions resulting from the bushfires that ravaged large parts of Victoria on that day. The fire that is the subject of this proceeding began near Murrindindi to the north-east of Melbourne and spread widely, almost obliterating the township of Marysville. The Murrindindi fire resulted in the deaths of 40 people and caused physical and psychological injury to many more. It damaged and destroyed houses, schools, community facilities, government buildings, businesses, livestock, plantations and all manner of other property.

The proceeding was commenced on 7 August 2012 in the name of Rod Liesfield as an ‘open’ class group proceeding under Part 4A of the Supreme Court Act 1986 (Vic). The plaintiff sought compensation for loss and damage suffered as a result of the Murrindindi fire.

The group members were,[1] in substance, persons who suffered personal injury, dependants of persons who died, persons who suffered loss of and damage to property and persons who lived in or had property in the Murrindindi bushfire area and suffered economic loss as a result of the Murrindindi fire.
[1]Steps have been taken over the course of the proceeding to define group members by reference to the registration of claims. Class closure orders have now been made.

On 3 October 2014, Dr Katherine Rowe was substituted as the lead plaintiff. Dr Rowe, lost her husband, Dr Kenneth Rowe, in the Murrindindi fire, as well as the two properties that they owned in Marysville. She also suffered psychological injuries.

The defendants to the proceeding are AusNet Electricity Services Pty Ltd (‘AusNet’), the operator of…

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: [2015] VSC 232
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the matter of Rowe v AusNet Electricity Services Pty Ltd, the plaintiffs, who were affected by the Black Saturday bushfires, brought a class action against AusNet Electricity Services Pty Ltd, the electricity distributor. The dispute involved claims for damages resulting from the bushfires which were caused by the electricity distribution infrastructure of AusNet. The case was heard in the Supreme Court of Victoria, where the court was tasked with approving the settlement terms under the Supreme Court Act 1986 (Vic) Part 4A.

The court was required to determine whether the settlement terms were fair and reasonable, assess the fairness of the distribution scheme proposed for the settlement, and evaluate the reasonableness of the claim for legal fees and disbursements. The plaintiffs sought to recover damages for the bushfires and argued that the settlement provided adequate compensation for the damages they suffered. The defendants, on the other hand, contended that the settlement terms were reasonable and should be approved by the court.

The court found that the settlement terms were fair and reasonable, taking into account the nature of the claims, the risk of litigation, and the benefits of the settlement to the class members. The distribution scheme was deemed to be fair, as it provided for an equitable allocation of the settlement fund among the class members. Additionally, the court considered the claim for legal fees and disbursements to be reasonable, given the complexity of the case and the efforts made by the plaintiffs' legal team. Based on these findings, the court approved the settlement, allowing the case to be resolved amicably and efficiently.

The court ordered that the settlement be approved and implemented, and directed the parties to take necessary steps to finalise the distribution of the settlement fund to the class members. The court also ordered that the legal fees and disbursements be paid from the settlement fund, subject to the approval of the court. The decision brought a resolution to the "Murrindindi class action," providing compensation to the bushfire victims and bringing closure to the legal proceedings.

Orders