JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	1 November 2019, 21 July 2020
DATE OF JUDGMENT:	17 August 2020
CASE MAY BE CITED AS:	Schmid v Skimming & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 493

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PRACTICE AND PROCEDURE – Group proceedings – Approval of Settlement Application under Supreme Court Act 1986 (Vic), s 33V – In the interests of group members as a whole - Whether terms of settlement ‘fair and reasonable’ – Settlement approved – Whether costs claimed are reasonable in all circumstances and proportionately incurred – Whether uplift fee in conditional costs recoverable – Uplift fee of 25% recoverable – Whether additional loading for skill care and attention can be approved – Scale loading of 12% approved – Whether special grounds arise out of the nature and importance or the difficulty or the urgency of the case – Special grounds not identified, Supreme Court (General Civil Procedure) Rules 2015 (Vic) ss, 63.34, 63.48.

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APPEARANCES: 1 November 2019

Counsel

Solicitors

For the Plaintiff

Ms Nicholson

Maddens Lawyers

For the Second Defendant

Mr Campion

Hall & Wilcox

APPEARANCES: 21 July 2020	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin QC and Mr A. Fraatz	Maddens Lawyers
For the Second Defendant	Mr G. Ioannides	Hall & Wilcox
For the Fourth Defendant	Mr L. Macdonald	Hall & Wilcox

HER HONOUR:

Mr Skimming and Mrs Johns owned adjoining rural properties at 260 Finns Rd Scotsburn. The conditions on 19 December 2015 were hot and blustery and it was a day of total fire ban. Even so Mr Skimming used the tractor and slasher to cut the grass on Mrs Johns property on that day and a bushfire started from sparks discharged from the machinery.

Victoria Police and Country Fire Authority investigated the cause of the fire. The police investigation observed a twisted, bent and dented star picket on the ground in the Johns paddock. They concluded that there was a possibility that contact between the slasher blades or some other metallic part and the star picket could have created a spark.

On 8 December 2016, Mr Schmid commenced a group proceeding as provided for in Part 4A of the Supreme Court Act 1986 (Vic) (the ‘Supreme Court Act’) on behalf of himself and others who had suffered loss and damage as a result of the bushfire. Initially proceedings were against Mr Skimming only.[1] Upon further investigation, detailed below, Mrs Johns was joined as a second defendant. Mr Skimming held a home insurance policy with the third defendant, Auto & General Insurance Company Ltd who were joined as a party upon their denial of liability to Mr Skimming. The fourth defendant, generally known as Agrison, is pleaded to be the manufacturer of the tractor and the slasher used by Mr…

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 Schmid v Skimming

Details

AGLC: Schmid v Skimming [2020] VSC 493
Case: [2020] VSC 493
Decision Date: 17 August 2020

CaseChat Overview and Summary

In the Supreme Court of Victoria, Schmid brought proceedings against Skimming on behalf of a class of consumers under the Australian Consumer Law. The case involved a dispute regarding the approval of a settlement application under the Supreme Court Act 1986 (Vic), s 33V. The central issue before the Court was whether the terms of the settlement were fair and reasonable for the class members, and whether the costs claimed by the applicants were reasonable and proportionately incurred. Additionally, the Court needed to determine if a 25% uplift fee in the conditional costs was recoverable and if a 12% loading for skill, care, and attention could be approved. The Court also considered whether special grounds existed, as per Supreme Court (General Civil Procedure) Rules 2015 (Vic) ss 63.34 and 63.48.

The Court began by examining the fairness and reasonableness of the settlement terms, noting that the settlement provided significant benefits to the class members while avoiding the risks and costs of litigation. The Court found that the settlement was in the best interests of the class as a whole. Regarding the costs, the Court assessed the reasonableness of the uplift fee and the loading for skill, care, and attention. The Court concluded that the 25% uplift fee was appropriate given the conditional nature of the costs, and the 12% loading was justified by the skill and care required in the case. The Court did not find any special grounds that would warrant additional costs.

In its decision, the Court approved the settlement and the associated costs. The Court held that the terms of the settlement were fair and reasonable for the class members, and the costs claimed were proportionately incurred. The 25% uplift fee in the conditional costs was recoverable, and a 12% loading for skill, care, and attention was approved. The Court found no special grounds to warrant additional costs. Consequently, the settlement was approved, and the case was concluded.

Orders