Williams v AusNet (Ruling No 4) - [2017] VSC 619

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2014 5296

STEVEN ELLIOT WILLIAMS & ORS	Plaintiffs
v
AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) & ORS (ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers (submissions dated 6 September 2017)
DATE OF RULING:	18 October 2017
CASE MAY BE CITED AS:	Williams & Ors v AusNet & Ors (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2017] VSC 619

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PRACTICE AND PROCEDURE – Settlement of a group proceeding approved but quantum of legal costs referred to an Associate Justice – Quantum of legal costs – Supreme Court Act 1986 (Vic) Part 4A, ss 33ZF and 33ZJ – Williams v AusNet Electricity Services Pty Ltd [2017] VSC 474.

COSTS - Relationship between rr 63.34(3) and 63.48 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Class action legal costs – What is fair and reasonable in the circumstances – Williams v AusNet Electricity Services (Ruling No 3) [2017] VSC 528.

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

HIS HONOUR:

Introduction

This class action was settled for $16 million inclusive of costs. The settlement was approved by a Judge of the Court in August 2017.

The Judge referred a question relating to a portion of the costs payable to the lawyers for the representative plaintiff, Steven Williams, to an Associate Justice in the Costs Court. The Associate Justice swiftly provided the answer, and this ruling sets out why I made an order of $6.6 million for costs to be paid to the lawyers for Mr Williams.

Background

Steven Williams issued this class action under Part 4A of the Supreme Court Act1986 (Vic) (the Act) on behalf of all group members[1] who suffered injury, loss or damage as a result of a bushfire which occurred on 9 February 2014 at Mickleham. Maddens Lawyers (the lawyers) acted on his behalf and on behalf of the class.
[1]Williams v AusNet Electricity Services Pty Ltd [2017] VSC 474 (28 August 2017) [71] (‘Reasons’).

The fire started when a large gum tree fell onto overhead powerlines on a total fire ban day. Mr Williams alleged a breach of statutory duties and nuisance due to a failure to implement reasonable systems to identify and remove hazardous trees near the overhead powerlines.[2] The fire burned for four days and destroyed 17 houses and 22,590 hectares within a 221-kilometre perimeter.[3]
[2]Ibid [1]-[3].
[3]Ibid [4] and [5].

The proceeding was originally issued as an ‘open’ class. Pursuant to orders of the Court in May 2015, the class was closed and there are now 372 registered group members (and their insurers).[4]
[4]Ibid [13]-[15].

In February 2017, the defendants, AusNet Electricity Services Pty Ltd, Hume City Council, Active Tree Services Pty Ltd and Homewood Consulting Pty Ltd settled the…

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 Williams v AusNet (Ruling No 4)

Details

AGLC: Williams v AusNet (Ruling No 4) [2017] VSC 619
Case: [2017] VSC 619
Decision Date: 18 October 2017

CaseChat Overview and Summary

In the matter of Williams v AusNet (Ruling No 4), the parties involved were the plaintiffs, led by Williams, and the defendant, AusNet. The dispute centred around the settlement of a group proceeding, with a particular focus on the quantum of legal costs to be awarded. This case came before the Court in the context of the Supreme Court Act 1986 (Vic) Part 4A and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), specifically addressing the costs associated with class action litigation.

The central legal issues that the Court had to resolve included the interpretation and application of sections 33ZF and 33ZJ of the Supreme Court Act 1986 (Vic) in relation to the approval of the settlement and the allocation of legal costs. Additionally, the Court examined the relationship between rules 63.34(3) and 63.48 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to determine what constitutes a fair and reasonable award of costs in the circumstances of a class action.

The Court found that the settlement itself was appropriate and in the best interest of all parties involved. However, in addressing the quantum of legal costs, the Court deemed it necessary to refer the matter to an Associate Justice for a detailed assessment. This decision was made to ensure a thorough and fair evaluation of the costs, taking into account the complexity and nature of the litigation. The Court's reasoning was grounded in the principles of fairness and reasonableness, ensuring that the costs awarded were proportionate to the work done and the risks undertaken.

The Court ultimately approved the settlement but deferred the determination of the quantum of legal costs to an Associate Justice. This decision aimed to provide a more nuanced and detailed examination of the costs, ensuring that the final award would be just and equitable for all parties involved.

Orders