Williams v AusNet Electricity Services Pty Ltd (Ruling No 3) - [2017] VSC 528

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2014 5296

BETWEEN

Steven Elliot Williams	Plaintiff
v
AusNet Electricity Services Pty Ltd (ACN 064 651 118) & Ors	Defendants

JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2017
DATE OF RULING:	4 September 2017
CASE MAY BE CITED AS:	Williams v AusNet Electricity Services Pty Ltd (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 528

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COSTS – Class action legal costs – Relationship between rr 63.34(3) and 63.48 of the Supreme Court (General Civil Procedure) Rules 2015.

GROUP PROCEEDING – Supreme Court Act 1986, Part 4A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Dalton QC with Ms C Nicholson	Maddens
No appearance for the Defendants

HIS HONOUR:

On 28 August 2017 Emerton J published judgment[1] in relation to the approval of the settlement in this class action arising from the Mickleham bushfire. Conditional approval of the settlement of the action was given on the basis that the proposed settlement was fair and reasonable in the interests of group members,[2] however a question was referred to me. I heard the matter on 30 August 2017. Submissions were made, Mr Arnold gave evidence and I reserved my decision. Final approval and distribution of the settlement sum cannot occur until the issue before me is finalised. I therefore now publish my decision and reasons.
[1]Williams v AusNet Electricity Services Pty Ltd (2017) VSC 474.
[2]Ibid at [120].

As part of the settlement the reasonable legal costs to be paid to the legal representatives were included in the settlement sum of $16m. A sum of $7.3m is now sought for costs. The base figure for costs is quantified on Supreme Court scale in accordance with the Costs Agreement[3] with their legal representatives (‘Maddens’). There was no finding that the legal costs claimed breached the proportionality provisions of the Civil Procedure Act 2010.[4]
[3]Ibid at [83(b)].
[4]Ibid at [108] to [114].

The plaintiffs relied on an expert report from Mr Graeme Arnold sworn on 13 June 2017. His opinion included allowances for three separate percentage loadings to be applied in addition to the base scale figures. The third loading is for a 25% ‘uplift fee’ and this is uncontroversial in the context of the referral of a part of the approval process to me.

The third loading, to be applied at the end of the process, is the 25% ‘uplift fee’ as provided for in s 3.4.28 of the Legal ProfessionAct 2004 as the arrangements with Maddens constituted a Conditional Costs Agreement, colloquially referred to as a ‘no win - no fee’ agreement. Historically uplift fees have been justified on the basis that the legal representatives assume risk in the outcome of the litigation as they are not paid unless there is a defined successful outcome. In this matter the risk is greater as there is no litigation funder.[5] Firms undertaking work on this basis often…

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 528
Decision Date: 4 September 2017

CaseChat Overview and Summary

The case of Williams v AusNet Electricity Services Pty Ltd (Ruling No 3) involved a dispute over legal costs associated with a class action lawsuit brought by the plaintiff, Williams, against the defendant, AusNet Electricity Services Pty Ltd. The parties were before the Supreme Court of Victoria, which was tasked with resolving issues related to the costs incurred in a group proceeding as defined under the Supreme Court Act 1986, Part 4A. The central issue for the court was to determine the correct application of the rules governing costs in the Supreme Court (General Civil Procedure) Rules 2015, specifically the relationship between rule 63.34(3) and rule 63.48.

The court had to decide whether the costs for the class action were properly assessed and apportioned according to the relevant rules, particularly focusing on the provisions that deal with the assessment of costs in group proceedings. The plaintiff argued that the costs should be calculated based on the size and complexity of the class action, while the defendant contended that the costs should reflect the outcome and success of the case. The court needed to interpret the interaction between rule 63.34(3), which deals with the general principles of costs in civil proceedings, and rule 63.48, which provides specific guidance on costs in group proceedings.

After examining the relevant provisions and the arguments presented by both parties, the court ruled that the costs for the class action should be assessed in accordance with the guidelines set out in rule 63.48. The court found that this rule provides a more appropriate framework for determining costs in group proceedings, taking into account the unique nature of such cases. The court's reasoning emphasised the need for a flexible approach that considers the specific circumstances of each case, ensuring that the costs awarded are both fair and reasonable. The court concluded that the costs should be calculated based on the overall success of the litigation and the benefits achieved for the class, rather than simply the size or complexity of the action.

The final orders of the court directed that the costs of the class action be assessed and apportioned in accordance with the principles outlined in rule 63.48 of the Supreme Court (General Civil Procedure) Rules 2015. This decision provides clarity for future class actions in the Supreme Court of Victoria, ensuring that the costs are determined in a manner that reflects the particularities of group proceedings.

Orders