Johnston v Endeavour Energy - [2016] NSWSC 1132 - NSWSC 2016 case summary — Zoe

Johnston v Endeavour Energy - [2016] NSWSC 1132 - NSWSC 2016 case summary — Zoe

The principles that govern an application for approval of a settlement of a group proceeding are well established: 1. The central question for the Court is whether the proposed settlement is fair and reasonable in the interests of the group members as a whole (Rowe v AusNet Electricity Services Pty Ltd and Ors [2015] VSC 232 at [49] - [51]; Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 16) [2013] VSC 74 (Matthews) at [34]; Wheelahan & Anor v City of Casey & Ors [2011] VSC 215 (Wheelahan) at [57] (EmertonJ) citing ACCC v Chats House Investments Pty Ltd & Ors [1996] 71 FCR 250; FCA 1119 at 258 (Branson J) (Chats House). 2. There will rarely be one single or obvious way in which a settlement should be framed, either between group members and the defendants (inter partes aspects) or in relation to sharing the compensation among group members (inter se aspects) - reasonableness is a range and the question is whether the proposed settlement is within that range (Darwalla Milling Co Pty Ltd v F Hoffman-La Roche & Ors Ltd (No 2) [2006] FCA 1388; 236 ALR 322 at 336 [40] (Jessup J) (Darwalla). 3. It is not the task of the Court to "second-guess" or go behind the tactical or other decisions made by the plaintiff's legal representatives, but rather to satisfy itself that the decisions are within the range of reasonable decisions according to the known circumstances and the reasonably perceived risks of the litigation (Matthews, Darwalla, see also Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 6) [2011] FCA 277 at [22] (Flick J) (Pharma); Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [12] (Modtech) (Gordon J). 4. In assessing the fairness and reasonableness of a proposed settlement the court relies heavily upon the candid, frank and confidential opinions provided to it by the plaintiff's legal representatives requiring them to disclose the factors which were material to the decision to accept the settlement (Thomas v Powercor Australia Limited [2011] VSC 614 at [18] (Beach J) (Powercor); Wheelahan at [75]; Rod Investments (Vic) Pty Ltd v Abeyratne & Ors [2010] VSC 457 at [11] and [18] (Almond J) (Abeyratne); Lopez v Star World Enterprises Pty [1999] ATPR 41 - 678 at 42 - 670; [1999] FCA 104 (Finkelstein J) (Lopez). 5. The factors adopted in Williams v FAI Home Security Pty Ltd (No 4) [2000] 180 ALR 459; [2000] FCA 1925 (Williams) indicate some of the considerations typically relevant to an assessment of an application for approval. As Goldberg J pointed out in Williams, this is a useful but not exhaustive guide. Those considerations are: 6. (A) The complexity and duration of the litigation. 7. (B) The reaction of the class to the settlement. 8. (C) The stage of the proceedings. 9. (D) The risks of establishing liability. 10. (E) The risks of establishing damages. 11. (F) The risks of maintaining a class action. 12. (G) The ability of the defendants to withstand a greater judgment. 13. (H) The range of reasonableness of the settlement in light of the best recovery; and 14. (I) The range of reasonableness of the settlement in light of all of the attendant risks of litigation. 15. The factors in Williams are largely directed to the reasonableness of a compromise inter partes. They are, however, also relevant to a consideration of the agreements reached with the insurance intervenors. The procedure should likewise be fair and reasonable "inter se". 16. An important consideration is whether group members were given timely notice of the critical elements so that they had an opportunity to take steps to protect their own position if they wished. Once appropriate notice is given, the absence of objections or other response action from group members is a relevant consideration in support of the settlement and all its elements (Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19 (Stone J) (Aristocrat); Abeyratne at [22]; Horsham at [15], [25). 17. Where a group member objects to the settlement, an important question is whether the objector is prepared to assume the role and risks of being lead plaintiff. It is easy for group members who face no adverse costs risk to want a plaintiff to fight to the very end. The weight to be given to objections will diminish where the objector is unwilling or unable to take on all of the economic and other burdens which the plaintiff otherwise bears (Wong v Silkfield [2000] FCA 1421 at [24] - [30] (Spender J)).

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The supplementary confidential opinion prepared by counsel in light of the terms of the revised SDS makes it clear that the proposed settlement is fair and reasonable in the interests of group members. The very significant compromise made by the insurers is evident from the percentage reimbursement amounts set out in the fourth column of the tables.
The same principles previously set out in relation to the approval of the settlement as between Mr Johnston and Endeavour, apply also to the insurance intervenors' settlement. In summary, therefore, the revised SDS must be: 1. Fair and reasonable having regard to the strength of the insurers' claims to entitlement against group members with mixed claims; and 2. In the interests of all group members who will bound by the settlement. The application of principles The amount offered to each group member
The revised SDS provides for the payment of $18 million by Endeavour to Mr Johnston and the group members and sets out a scheme of distribution of the settlement monies to group members. It also seeks to provide for equity as between: 1. Insured and insurer. 2. Group members who are and are not insured. 3. Group members who have both a subrogated claim and an above insurance claim and other group members (mixed claims); and 4. Group members on whose behalf only a subrogated claim has been made and other group members.
By way of overview, all group members will receive exactly the same proportion of their assessed claims. The assessment process treats equally all group member claims which have not been assessed to date by independent assessors. To the extent that the scheme relies upon self-assessment of property loss claims, the scheme makes a uniform adjustment based upon extensive work performed by the solicitors in estimating the quantum of the claim across the group in a transparent and equitable fashion to address the apparent over estimation of property loss claims by group members which emerged during the course of the proceeding.
The scheme is similar to that approved by me in the More proceeding (this was a second representative proceeding against Endeavour arising from the same fire by 39 individuals and entities). Both schemes draw upon the significant experience of the legal representatives in each case in class action settlement schemes generally and also in assessments of claims of this kind, as well as the circumstances of the claim group specifically.
I accept that the scheme has been deliberately designed so that the costs and time associated with its administration is commensurate with the sums to be distributed to group members. An important aspect of the scheme is that the relatively modest compensation which the group members will receive not be reduced by expensive and time consuming individual assessments of group member claims. I have referred to the main operative parts of the scheme and commented on them as appropriate. I have not referred to every part of the scheme. Scheme administrator
The scheme administrator is to be the principal in charge of the Class Actions Department of Maddens, or another person nominated by that principal. The administrator and administrator's staff are under a duty to the Court to administer the scheme fairly according to its terms and are obliged under the scheme to act properly on behalf of the group members as a whole. The administrator has the same immunities from suit as a Judge of the Supreme Court of New South Wales. This is appropriate, given that they are administering a Court approved scheme.
By written notice the administrator may require an RGM to provide and verify by further declaration or otherwise such additional information as the administrator may require. The administrator is otherwise entitled to treat as accurate information provided by RGMs or held by the administrator for the purposes of calculating each RGM's distribution from the settlement distribution fund.
The administrator is entitled to rely upon information provided or obtained to date in calculating RGM entitlements but may at its absolute discretion take into account additional information pertaining to a head of loss which the RGM has not previously notified to Maddens and/or is likely to have a material impact on a RGM's assessment notice.
I accept that these discretions will assist to ensure an orderly, timely and fair administration of the scheme. Costs and reimbursement payment
The settlement distribution fund is to be allocated between RGMs in accordance with the loss assessment formula set out therein. This is subject to the further adjustment required by the settlement with the insurance intervenors which is set out in the revised SDS.
After receipt of the settlement sum from the defendant, and payment of it into the settlement distribution fund, the administrator will pay: 1. The Common Benefit Legal Costs, as approved by the Court to Maddens; and 2. The reimbursement payment to the lead plaintiff, Mr Johnston. Legal costs
Ms Harris, an independent costs consultant, has assessed the legal costs. Mr Johnston relies upon her assessment being the report exhibited to the first confidential Harris affidavit.
The proper approach to the task of evaluating the overall reasonableness of a proposed costs deduction from a class action settlement has been considered on several occasions. The applicable principles have recently been set out by Osborne JA in Matthews. In Courtney v Medtel Pty Limited (No 5) [2004] 212 ALR 311; FCA 1406 at [61] (Medtel) (Sackville J) described his expectation as to the content of the material to be provided to the Court: "61 It is for the reasons I have given that I suggested to [the applicant] that evidence should be presented from an independent solicitor or costs consultant, directed to the following matters: (i) the reasonableness of the terms of the fee and retainer agreements (including the provisions for ancillary services, interest and an uplift factor); (ii) whether the fees and disbursements actually charged by the Solicitors have been calculated in accordance with the fee and retainer agreement; (iii) confirming that, so far as the solicitor or costs consultant can determine, no significant portion of the fees and disbursements charged by the Solicitors have been inappropriately or unnecessarily incurred in conducting the proceedings on behalf of Mr Courtney and the represented group. I made it clear that I did not expect the evidence to involve an exhaustive review of the files maintained by the Solicitors. I had in mind an overview that could be undertaken over a period of about two days."
The bases for the solicitors' charges for fees and disbursements are set out in the "Conditional Costs Agreement" entered between the solicitors and Mr Johnston, which is set out in the first confidential Harris affidavit. Maddens have provided updated costs estimates to Mr Johnston from time to time during the proceeding.
The "Opt Out Notices" distributed to group members, approved pursuant to the order made by Garling J on 1 August 2014, specifically notified group members of the likelihood of a requirement to apply some portion of any eventual recovered sum towards reimbursing Mr Johnston for any costs not recovered from the defendant.
Ms Harris broadly approved as reasonable the rates at which professional fees were charged and disbursements incurred (in respect of barristers, expert witnesses and other contractors, such as loss adjustors). Where she considered that any costs should not be allowed deductions were made by her. The end result of that extensive work was that Ms Harris calculated an amount that could properly be charged for legal costs (fees and disbursements). That amount is set out in the summary of opinion at paragraph 17 of the first confidential affidavit of Ms Harris.
The costs agreements under which Maddens and some of Mr Johnston's counsel team have acted throughout their engagement have been "conditional" costs agreements. Maddens act entirely on a "no win no fee" basis. Some counsel acted on a part conditional basis pursuant to which a portion of fees was paid on being invoiced, but the balance would be due only upon a "successful outcome" as defined in the various costs agreements. In accordance with the practice permitted by the Legal Profession Act (Vic) now applicable under s 182 Legal Professional Uniform Law Application Act 2014 (Vic) an "uplift" of 25% of the conditional component of the fees will be payable in the event the settlement is approved. Ms Harris has noted and endorsed those provisions as reasonable.
Although the proportion of legal costs as to the total settlement sum is high, I have concluded as a result of the analysis carried out in both the confidential Harris affidavits, that the substantial amount of work done by Mr Johnston's representatives was unavoidable in the context of complex and hard fought litigation, and that the group members would not have recovered any amount at all from Endeavour had the proceeding not been instituted. Reimbursement costs
The scheme provides for $25,000 to be paid to Mr Johnston. This payment is intended to compensate him for the time, inconvenience and burden associated with taking on and discharging the obligations of lead plaintiff in attending to matters on behalf of group members.
The appropriateness of compensating class representatives was established in Darwalla. Jessup J recognised that he was dealing with a then novel request for payment outside the normal categories allowed in litigation. His Honour held that it was: "76 … prima facie reasonable that particular parties who have sacrificed valuable time and incurred expenses in the interests of prosecuting [a] proceeding on behalf of group members as a whole should be able to look to the corpus of the settlement sum for some degree of compensation and reimbursement. More importantly, perhaps, I would hold that group members who have benefited from the proceeding could not be heard to deny the reasonableness of such a proposition."
Jessup J emphasised two matters: 1. First, the absence of a "scale" governing such payments required a conservative approach to their quantification; and 2. Second, consideration should be given to the question whether some of the time or expense in question related to issues that were specific to the representatives' personal claim rather than issues raised for the benefit of the group overall. His Honour approved the reimbursement payment, both in concept and in quantum.
The proposed payment here is not said to be an exact valuation of the time or expense incurred by the lead plaintiff, rather Mr Johnston's lawyers have nominated a fixed sum. I am told that Mr Johnston was not asked to keep time records of his attendances but that his lawyers estimated the number of hours that he spent in attendances. I accept that any assessment of the reasonableness of the proposed payment must recognise that the burden on Mr Johnston in this proceeding was probably greater than that of the lead plaintiffs in Darwalla or Modtech. This was not a commercial action for recovery of cartel rents or lost share-market investment. The proceeding involved a catastrophic bush fire. Mr Johnston accepted the burden of conferences with solicitors and then counsel and having to provide particulars of his claim. He testified about his personal losses in a public forum.
I take into account that the proposed payment is modest and that all RGMs have been notified in the notice sent to them. I consider that the payment is fair and reasonable having regard to the interests of the group members generally and I have no difficulty in approving it. Distribution to registered group members
Distributions to group members from the revised SDS will be made pro rata in the proportion which the final assessed value of each group members claim bears to the aggregate of all final assessed claims. I accept that this will ensure a fair distribution of the settlement funds.
A methodology for property loss assessments is set out within the scheme. In summary, the scheme adopts assessments conducted by independent loss assessors. Self-assessments will be uniformly revised down according to Schedule A of the revised SDS. This is based on reports by Professor Gordon to the effect that most such claims have been over estimated. That conclusion was arrived at by his independent assessment of a number of such claims. The reduction will be uniform across all self-assessed property loss claims.
I accept that such an approach is reasonable because of the relatively modest distribution amount available under the scheme. Detailed assessment of property losses are not in the interests of group members due to the significant cost involved and the delays in processing many hundreds of claims. For that reason, I also accept as fair and reasonable that there is no review of an assessment notice which issues under the Scheme.
There are approximately 54 personal injury (PI) claims. The scheme provides that after settlement approval, the administrator will arrange for the personal injury claims to be assessed (pro bono) by Mr Johnston's senior counsel, Mr Tobin SC. Mr Tobin SC in considering and valuing each PI claim may in his sole discretion refer a group member for medico legal assessment and/or confer with the group member. The justification for this simplified mode of assessment of personal injury claims was the need for a cost efficient yet robust assessment procedure, given the relatively modest likely distribution to be made to most group members with personal injury claims under the scheme.
I accept that such a scheme is fair and reasonable and note that provision is also made with respect to group members' potential obligations to reimburse any government agencies that may have paid them statutory benefits or to reimburse insurers. That latter circumstance is dealt with when setting out the effect of the distribution to the insurance intervenors. Review
Given the modest amount available for distribution, I accept as fair and reasonable that a determination by the administrator of assessed loss is binding with no right of review or appeal. This, of course, is subject to administrative errors or a slip. Rights of review or appeal would be costly and disadvantage other group members, given the modest distribution amount available. It would also significantly delay the administration of the scheme and the distribution of payments. Persons under a disability
Where the scheme administrator believes that a group member is or may be a person to whom Division 4 of the Act applies, the administrator must identify the appropriate personal representative and notify the group member, the proposed personal representative and the Court accordingly. Decision making relating to participation in the scheme then reverts to the group member's personal representative. All steps to be taken in respect of that group member under the scheme will be taken by the personal representative.
Once the various steps required by the scheme have been completed, the administrator will then make an application to the Court for orders reflecting the terms of s 75 of the Act for approval of the compromised claim by the group member. I accept that this process is fair and reasonable and has due regard to the rights of a disabled RGM. Scheme costs
The administration costs of the scheme, including all professional costs and disbursements incurred by the administrator, are to be paid from the settlement distribution fund. The scheme provides that the administration costs are to be paid from interest earned on the settlement sum before reducing the principal sum payable to group members.
Fees payable in respect of work performed by Maddens in connection with the administration of this scheme will be charged at rates which have been approved by the independent costs consultant as reasonable commercial rates.
Administration costs are to be disbursed from the distribution fund as the costs are invoiced to the scheme administrator. The administrator may refer any issues arising in relation to the scheme to the Court for determination or advice.
I accept that the scheme administrator is entitled to a reasonable remuneration for managing the scheme and that the procedure identified is fair and reasonable and provides an acceptable amount of transparency. Effect of the revised SDS and the agreements with the insurance intervenors
The revised SDS does not alter the assessment of claims or the pro-rata distribution of the compensation pool between group members: 1. Who are not insured; and 2. Group members on whose behalf only a subrogated claim has been made.
The revised scheme also does not alter the pro-rata amount distributed on a claim by claim basis where group members have mixed claims. However, the distribution to the group member is subject to an adjustment to the extent agreement has been reached with the group member's insurer or insurers as to reimbursement in respect of insurance payouts to the group member.
Only group members partially insured by insurers within IAG, Allianz including Club Marine, insurers within the AAI Group, and/or CommInsure, will be affected. It is clear that no question of fairness between affected group members with mixed claims and other group members arises.
If group members are partially insured by insurers within the IAG group, Allianz including Club Marine, insurers within the AAI Group, and/or CommInsure the distribution to affected group members will be subject to an adjustment. This adjustment will be calculated by multiplying the total agreed insurer reimbursement (set out in Table 1 above) by the proportion which the individual insurer payment to a group member bears to the total insurance payout made to group members by the relevant insurer.
In each case the insurer reimbursement, as a proportion of the total payment to group members as a result of the fire, is less than the amount of approximately 4.5% of total assessed losses expected by the administrator to be recovered by individual members. I accept that it is a superior outcome for group members than that achieved for the group in Matthews. It will result in relation to mixed claims in group members recovering a higher proportion of their uninsured loss where a group member has the benefit of a compromise achieved with the insurer. I accept that it represents a significantly better outcome than if priority were afforded to insurers, as group members would not receive any distribution at all.
The extent of the insurer compromise in each instance reflects the legal uncertainty as to priority between insurer and insured. The slightly higher insurer reimbursement amount achieved by IAG reflects the existence of an agreement recorded in a letter from William Robert's Lawyers to Maddens Lawyers dated 3 September 2015 and the partial performance of that agreement by IAG.
The insurance intervenor agreements also compromise the insurers' entitlement to a distribution in respect of group members on whose behalf only a subrogated claim has been made. The extent of the agreement is set out in Table 2 above which provides certainty to other group members who are uninsured or who have mixed claims.
For the reasons set out when considering the prospects of success in the proceeding of the group members generally and of the application by the insurance intervenors, it is clear that absent this settlement the prospects of success by the group members generally was poor and in the case of the insurance intervenors much of the settlement distribution sum would have been expended on costly litigation. The prospects of success in the proceeding
The most compelling reason for my grant of provisional approval of the revised SDS is that I consider the prospects of success of the RGMs against Endeavour to be poor. While it is not appropriate for me to disclose the detailed analysis of liability set out in the first confidential opinion of counsel, I wish to identify in general terms the principal difficulties for the class members.
Although it is not free of doubt, it is likely that Endeavour would have been found to have owed a duty to exercise reasonable care to Mr Johnston and the other class members. Even so, the precise formulation of the duty and its content could have been difficult.
Breach of duty gave rise to considerable difficulty for Mr Johnston. It was common ground that Endeavour engaged contractors to carry out an inspection of vegetation near power lines throughout its large area of responsibility which included the power lines on Linksview Road. At no time did Endeavour or any of its contractors detect the fact that the tree was rotten and therefore at substantially increased risk of failing and falling onto the power lines.
This was not surprising given the difficulties which the experts referred to in identifying the particular problem with the tree. The evidence appears to be that the internal rot could not be seen by looking at the tree but would have required more extensive testing, e.g. striking the trunk with a sounding mallet or probing beneath the bark with some implement. The obvious comment is that such investigations would only have been warranted if there were visible indicia pointing to the possibility that the tree had internal decay. There was considerable disagreement amongst the experts as to the existence, prominence and significance of the signs (if any) which were present.
If, as seems likely, s 43A of the Civil Liability Act 2002 (CLA) applied to the claim a further difficulty existed in proving breach of duty. To succeed Mr Johnston would have had to establish that Endeavour's failures were "in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power". To the extent that evidence would have been given as to the practices of other electricity distribution companies in Australia, that evidence would have been to the effect that Endeavour's practices were not substantially different from other distributors.
In addition to breach of duty, causation presented a significant obstacle to Mr Johnston's success in the proceeding. The claim was that if Endeavour had engaged vegetation inspectors with appropriate training and had properly directed them to identify hazardous trees, they would have detected that the tree was rotten and it would have been removed before the fire. For the reasons already given in relation to breach of duty, such trained personnel had they been employed would not have been able to identify that the tree was rotten without more invasive testing. That assumes that there would have been some visual trigger to require such additional testing. Not only was that latter consideration controversial, the expert evidence concerning it was in conflict.
The conclusion I have reached is that had the trial proceeded to judgment, it is unlikely that Mr Johnston would have succeeded in establishing liability. There are some other lesser considerations which also favour a conclusion that the modified SDS is a fair and reasonable result and is in the interests of group members as a whole. The settlement finalises the proceedings against Endeavour and avoids the risk that even if Mr Johnston obtained judgment at first instance, there would be an appeal which might delay finality for some years. The settlement also limits the legal costs which would otherwise increase substantially in order to finalise the trial and any appeals.
The application by the insurance intervenors also gives rise to liability issues. This is addressed in the second confidential opinion of Mr Johnston's counsel, in the fifth confidential Pendergast affidavit. The opinion of counsel is that the revised SDS, insofar as it reflects the risk to group members in the application by the insurers, is fair and reasonable and in the interests of all group members.
The major problem with the application by the insurer intervenors is that there is considerable legal uncertainty as to whether or not (and if so to what extent) the insurers' rights of subrogation under general law entitle them to be reimbursed from the settlement sum, or to otherwise recover from the insured group members distributions made to them under the original SDS. The nature of that uncertainty was summarised by Dixon J in Matthews.
There is also a dispute and considerable uncertainty as to the application of: 1. The policies of insurance between insured group members and the insurance intervenors. 2. The 3 September 2015 agreement between IAG and Maddens Lawyers. 3. The standing of non-IAG insurers to make the application; and 4. The insurers' rights to restrain distribution of the settlement sum under the original SDS.
As already indicated, the significant extent of the insurer compromise, as set out in the Schedules, reflects the legal uncertainty as to priority between insurer and insured in the proceedings. What is clear is that, had there not been an agreement between the insurers and Mr Johnston as to reimbursement, further litigation would have ensued which would have significantly reduced what is already a modest settlement sum. I have concluded that the agreement reached between the plaintiff and the insurance intervenors is in the interests of all group members and for the reasons already indicated, represents a fair and reasonable resolution of the dispute. What is the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer
For the reasons set out above, I have concluded that there is little likelihood of the group members obtaining judgment for an amount in excess of the settlement offer. This also applies to the agreement reached with the insurance intervenors. The terms of advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding
My opinion in relation to the settlement proposal and the agreement between Mr Johnston and the insurance intervenors accords with that of his counsel, i.e. not only are the proposals to the advantage of group members but they are fair and reasonable and in the interests of all group members who will be bound by the settlement. The likely duration and costs of the proceedings if continued to judgment
Had the matter not settled, the estimated length of the proceedings against Endeavour was a trial of up to 10 weeks. The proposed settlement with Endeavour was reached during a short break in the trial after the conclusion of the lay evidence and before the commencement of the expert evidence. Given the involvement of numerous experts, including three who would have travelled from the United States and others from interstate, the costs of the second half of the trial would have been considerable.
I accept that the settlement with Endeavour avoids incurring the costs of the remainder of the trial, removes the prospect of appeal proceedings and avoids other consequential matters such as an adverse costs order. I have concluded that the settlement of the proceedings is very much in the interests of the group members.
Similarly, in relation to the insurance intervenors, the agreements reached avoid incurring the costs of determining the applications and likely appeal proceedings. The attitude of group members to the settlement
The orders sought by Mr Johnston and which I have made include a process for group members to oppose the final settlement of the proceeding against Endeavour and also the agreements reached with the insurance intervenors. As of the date of this judgment, it is not known if any of the group members will object to the proposed settlement. Conclusion
For the above reasons, I accept that the inter partes aspects of the settlement with Endeavour reflect an appropriate compromise within complex litigation having regard to the risks for group members in the proceeding. Moreover, the settlement does not differentiate between group members and as such no question arises as to whether it is fair and reasonable inter se. Similar considerations apply to the agreements reached between Mr Johnston and the insurance intervenors.
It is for the above reasons that I gave provisional approval to the proposed settlement and to the proposed documentation to be sent to group members.