Thomas v Powercor Australia Ltd (No 1)

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT HORSHAM

COMMON LAW DIVISION

No. 9166 of 2009

LAURENCE PETER THOMAS	Plaintiff
v
POWERCOR AUSTRALIA LIMITED (ACN 064 651 109)	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2010
DATE OF RULING:	29 October 2010
CASE MAY BE CITED AS:	Thomas v Powercor Australia Limited (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 489

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PRACTICE AND PROCEDURE – Representative proceedings – Where discovery sought to enable defendant to ascertain quantum of potential group member claims and to aid settlement discussions – Whether a court has power to order discovery by group members who are not named plaintiffs in the proceeding – Circumstances in which it is appropriate to order discovery by group members who are not named plaintiffs in the proceedings – Part 4A Supreme Court Act 1986  - Place of trial – Hearing of application to have trials heard concurrently – Expert evidence – Joint reports by experts – Application of Civil Procedure Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr L Armstrong	Maddens
For the Defendant	Mr A Kelly SC	Wotton & Kearney

HIS HONOUR:

Introduction

1. On Black Saturday, 7 February 2009, a large bushfire destroyed or damaged a number of properties on the outskirts of the city of Horsham.

1. In September 2009 the plaintiff, Mr Laurence Thomas, issued proceedings against Powercor Australia Limited pursuant to Part 4A of the Supreme Court Act on behalf of himself and “all other persons” who suffered loss or damage as a result of the fire.

1. The pleadings have closed and opt-out notices have been forwarded pursuant to s 33J of the Supreme Court Act.[1]

   [1]Referred to subsequently as “the Act”.

1. There are two other proceedings arising out of bushfires on Black Saturday in the Western District of Victoria:

(a)A group proceeding brought by Terrence Place in relation to a fire which commenced between Pomborneit and Weerite (“the Pomborneit proceeding”);[2] and

(b)A group proceeding brought by Tracey Perry and Terrence Sagar in respect of a fire which commenced north-west of Coleraine (“the Coleraine proceeding”).[3]

[2]S CI 2010 1099.

[3]S CI 2009 330.

1. In each of the three proceedings Maddens solicitors of Warrnambool act on behalf of the representative plaintiff(s).

1. Several issues have now arisen which require determination:

(a)whether the group members should provide discovery of documents relevant to the quantum of their respective claims prior to a determination of the liability of Powercor;

(b)the provision of expert reports and the manner in which the experts’ evidence shall be given at trial; and

(c)whether Mr Thomas’ proceeding should be heard together with the Coleraine proceeding and/or the Pomborneit proceeding.

The pleadings

1. The original indorsement in Mr Thomas’ claim identified the common questions of law or fact as follows:

(a)Whether statutory duties were owed by Powercor to the plaintiff and group members and, if so, the content of those duties;

(b)Whether a general duty was owed…