Dawson v Insurance Australia Limited

(a) a second confidential affidavit of Benedict Tobin Hardwick affirmed 27 June 2025 which corrected two minor errors in Mr Hardwick's first confidential affidavit which was filed in support of the GCO application in the Dawson proceeding; and

(b) a third confidential affidavit of Benedict Tobin Hardwick affirmed 27 June 2025, which I discuss below.

1. I should say that I am satisfied that the matters addressed in those affidavits are appropriately confidential, including from the defendants and their legal representatives.
2. None of the reasons which demonstrated the appropriateness of a GCO in December 2024 have changed as a result of consolidation.[3] A GCO remains appropriate in order to ensure justice in the proceeding.
3. This leaves the question of the ongoing appropriateness of the GCO percentage.
4. The allegations in the consolidated proceeding are substantially the same as those in the Dawson proceeding.[4] As a result, I am satisfied there is no material difference in the novelty, complexity, risks or likelihood of success in the consolidated proceeding as compared to the Dawson proceeding. Further, insofar as the rate in the extant GCO order was fixed by reference to comparative rates in other proceedings, I am satisfied that a comparison now would provide no basis for a downward movement in the rate.
5. A number of things have changed following consolidation. The evidence of Mr Hardwick demonstrates that:

(a) the class size has increased;

(b) the estimated total global losses have increased;

(c) the range of likely settlement outcomes has changed;

(d) the budget has increased, but efficiencies mean it is less than the combined budgets in the Dawson proceeding and the Inglis proceeding; and

(e) the estimated Return on Investment (ROI) for Slater and Gordon has increased.

1. In his third confidential affidavit Mr Hardwick provides detail regarding the matters referred to in the previous paragraph. As I have indicated above, I am satisfied that the detail in relation to those matters should remain confidential, including from the defendants and their legal representatives.
2. The defendants say there is a potential increase in the solicitor's reward because of the increase in the size of estimated total losses without a proportionate increase in risk, given the cost efficiencies arising from consolidation. They point to this as a reason why a 27.5 per cent rate for the GCO may no longer be appropriate. In making that submission the defendants do not have access to the second and third confidential affidavit of Mr Hardwick.
3. Having regard to the evidence of Mr Hardwick, I am satisfied that the 27.5 per cent rate specified in the extant GCO remains appropriate to ensure justice is done in the consolidated proceeding.
4. My reasons are as follows:

(a) an assessment of an appropriate GCO percentage is not a purely mathematical exercise involving the input of known quantities, the application of a formula and the calculation of a percentage. It is a multi-factorial analysis requiring the application of judgement taking into account all relevant circumstances;

(b) the fact that some relevant circumstances change will not then necessarily imply that the percentage specified in a GCO should be varied under s 33ZDA(3);

(c) the potential reward to Slater and Gordon was one factor, amongst a number, which the Court considered in determining the rate in the extant GCO; and

(d) here, whilst the potential reward for Slater and Gordon or ROI has, on Mr Hardwick's calculation, increased in the consolidated proceeding, I am not satisfied that the extent of that increase, taken together with the other factors which informed the setting of the percentage in the extant GCO, is such as to warrant a change in the GCO percentage.

1. In the circumstances, I am satisfied that the extant GCO should continue to apply according to its terms in the consolidated proceeding.

INSURANCE MANUFACTURERS OF AUSTRALIA PTY LIMITED (ACN 004 208 084)

[1] Dawson v Insurance Australia Limited [2025] VSC 92 ('Consolidation Reasons').

[2] Dawson & Anor v Insurance Australia Ltd & Anor [2024] VSC 808 ('GCO Reasons').