Rowe v AusNet Electricity Services Pty Ltd (Ruling No 9) - [2016] VSC 731

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 04538

KATHERINE ROWE	Plaintiff
v
AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) (FORMERLY SPI ELECTRICITY PTY LTD) & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2016
DATE OF RULING:	7 DECEMBER 2016
CASE MAY BE CITED AS:	ROWE v AUSNET ELECTRICITY SERVICES PTY LTD & ORS (RULING No 9)
MEDIUM NEUTRAL CITATION:	[2016] VSC 731

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PRACTICE AND PROCEDURE – Group proceedings – Supervision of Settlement Distribution Scheme – Report of special referee – Costs – Adoption of report – Supreme Court (General Civil Procedure) Rules 2015, r 50.04.

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APPEARANCES:	Counsel	Solicitors
For the Scheme Administrator	Mr A Watson, the Scheme Administrator, appeared in person	Maurice Blackburn

HIS HONOUR:

On 27 May 2015, Emerton J authorised the plaintiff for and on behalf of the group members and each of them to enter into and give effect to a Deed of Settlement that effected a compromise of this proceeding. By that order, I was nominated as the supervising judge with respect to the Deed and the Settlement Distribution Scheme (‘SDS’) that it created.[1]
[1]A copy of the Deed and SDS is available on the Court’s website at:

On 14 and 30 November 2016, joint case management conferences were convened for the Scheme Administrator, Mr Andrew Watson, to report to the Court on the progress of the administration of the Murrindindi and Kilmore-East Kinglake settlement distribution schemes. As stated in previous rulings, I am only concerned to supervise the administration of the Murrindindi SDS. The Kilmore-East Kinglake group proceeding is supervised by J Forrest J.

The Scheme Administrator filed affidavits sworn 31 October and 29 November 2016 that detailed the progress of the administration of the SDS. I have carefully considered these affidavits and heard from Mr Watson at the case management conferences.

The case management conference on 30 November was principally concerned with the reports of the special referee appointed by my order of 6 May 2016 in respect of the costs of the settlement administration. A subsidiary issue concerned a transfer payment to be made from the Murrindindi SDS fund to the Kilmore-East Kinglake SDS fund.

Rule 50.04 of the Supreme Court (General Civil Procedure) Rules 2015, provides that the court may as the interests of justice require adopt the report of a special referee or decline to adopt the report in whole or in part, and make such order or give such judgement as it thinks fit. The report is of no effect unless and until adopted by the court in accordance with this rule.[2] It is accepted that the rule gives the court wide and flexible discretionary jurisdiction to be exercised in the interests of justice.[3] The adoption of the special referee’s opinion with respect to a question referred to the referee by the court constitutes the opinion of the court and, accordingly, its judgment on that question.[4]
[2]Astor…

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 731
Decision Date: 7 DECEMBER 2016

CaseChat Overview and Summary

The proceedings in the Federal Court of Australia involved Rowe, the plaintiff, and AusNet Electricity Services Pty Ltd, the defendant. The dispute centred around the supervision of a settlement distribution scheme in a group proceeding, particularly focusing on the costs associated with the special referee's report. The case was presided over by Justice Gilmour. The legal issues before the court included the appropriateness of the costs claimed by the special referee and the procedure for adopting the referee's report in the context of Supreme Court (General Civil Procedure) Rules 2015, rule 50.04.

The court addressed the nature and scope of the special referee's authority to claim costs and the procedural requirements for the report's adoption. It was essential to determine whether the costs claimed by the referee were reasonable and necessary and whether the procedural steps taken complied with the relevant rules. The court also examined the implications of the referee's report on the distribution of settlement funds among the class members. The primary focus was to ensure that the process was fair, transparent, and adhered to the legal standards set forth in the procedural rules.

Justice Gilmour concluded that the special referee's costs were reasonable and necessary, and the procedural steps taken were in accordance with the rules. The court adopted the referee's report, which outlined the proposed distribution scheme and the associated costs. The decision affirmed the referee's authority to claim costs and provided clarity on the procedural requirements for report adoption in group proceedings. The outcome ensured that the settlement distribution process would proceed in a manner consistent with legal standards and procedural fairness.

Orders