Williams v Ausnet Electricity Services Pty Ltd - [2017] VSC 474

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 5296

STEVEN ELLIOT WILLIAMS	Plaintiff
v
AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) & Ors (according to Schedule)	Defendants

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2017
DATE OF JUDGMENT:	28 August 2017
CASE MAY BE CITED AS:	Williams v AusNet Electricity Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 474

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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 are fair and reasonable — Whether settlement distribution scheme is fair and reasonable — Whether amount for legal fees and disbursements reasonable — ‘Mickleham bushfire class action’ — Settlement approved but quantum of costs not approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Andrew Fraatz and Claire Nicholson	Maddens
For the Defendants	No appearance

HER HONOUR:

The plaintiff has applied pursuant to s 33V of the Supreme Court Act 1986 (Vic) for approval of a proposed settlement of a group proceeding. He claims damages for himself and group members for losses suffered as a result of a bushfire which started on 9 February 2014 on the eastern side of the Mickleham Road Reserve between Mount Ridley Road and Bardwell Drive, Mickleham.

The day of the Mickleham fire was a day of total fire ban for the whole of Victoria. At noon, the automatic weather station at nearby Tullamarine Airport recorded that the temperature was 39.8 degrees Celsius, the wind was from the north-west at 50 kilometres per hour, gusting to almost 80 kilometres per hour, and the relative humidity was 6.83 per cent.

It is the plaintiff’s case that the Mickleham bushfire started as a result of a large stem from a sugar gum tree (‘Tree’) failing and falling onto powerlines owned and operated by the first defendant, AusNet Electricity Services Pty Ltd (‘AusNet’). The plaintiff alleges that AusNet was negligent, breached statutory duties and committed nuisance by failing to implement reasonable systems for the identification and removal of hazard trees in the vicinity of its overhead network.

The start of the fire was seen by a number of eye witnesses driving along Mickleham Road. These witnesses saw the stem of the Tree fall onto the powerlines and saw the fire start in the grass below almost immediately. The fire spread rapidly, and soon reached the urban fringe of Mickleham, where it destroyed a number of homes and damaged many others, including the plaintiff’s home. During the afternoon, the wind swung around to the south-west, pushing the fire front to the north. The fire continued to burn for four days, and it ultimately burnt beyond Kilmore, some 42 kilometres to the north. In total, the Mickleham bushfire burnt 22,590 hectares within a perimeter of 221 kilometres, destroyed 17 houses, many more outbuildings, and kilometres of fencing.

Apart from AusNet, there are three other defendants to the proceeding: Hume…

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: [2017] VSC 474
Decision Date: 28 August 2017

CaseChat Overview and Summary

The parties involved in this case were Williams, as the lead plaintiff, and Ausnet Electricity Services Pty Ltd, which was sued on behalf of a class of individuals affected by the Mickleham bushfire. The dispute centred around an application for the approval of a settlement of a group proceeding under the Supreme Court Act 1986 Part 4A. The legal issues that the court had to decide were whether the terms of the settlement were fair and reasonable, whether the distribution scheme for the settlement was fair and reasonable, and whether the amount allocated for legal fees and disbursements was reasonable. The case was heard and decided by the Supreme Court of Victoria.

The court examined the settlement agreement and found that while the terms of the settlement were fair and reasonable, the distribution scheme needed to be adjusted. The court determined that the amount allocated for legal fees and disbursements was reasonable, but the distribution scheme needed to be reviewed to ensure fairness to all class members. The court emphasised the importance of ensuring that the settlement benefits all class members equally and that the process was transparent and fair.

The court approved the settlement in principle but withheld approval for the quantum of costs until further evidence was provided. The court directed that the distribution scheme be revised to ensure fairness and equality among all class members. The court also directed that further evidence be provided regarding the costs to ensure they were reasonable and justified. This decision highlighted the importance of ensuring that settlement agreements are fair and equitable for all parties involved.

The final orders of the court approved the settlement in principle but withheld approval for the quantum of costs until further evidence was provided. The court directed that the distribution scheme be revised to ensure fairness and equality among all class members. The court also directed that further evidence be provided regarding the costs to ensure they were reasonable and justified. The court's decision emphasised the importance of ensuring that settlement agreements are fair and equitable for all parties involved and that the process is transparent and fair.

Orders