Plaintiff v Defendant

2 Laurence Peter Thomas, the plaintiff, lives and farms a property with his wife at West Road, Drung. Some parts of his property were damaged or destroyed in the fire. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced a group proceeding, or class action, on behalf of all those who suffered loss of or damage to property as a result of the fire. The fire was caused by a live power conductor coming into contact with vegetation. The conductor, the line of which it was a part and the pole upon which the line was supported were all owned and maintained by Powercor Australia Limited, the defendant. The claim against the defendant was pleaded in negligence, nuisance and breach of statutory duty (s 75 of the Electricity Safety Act 1998[1]).

3 On 5 September 2011, the trial of this proceeding commenced before J. Forrest J, sitting in Horsham. The trial proceeded for five weeks. At the close of the fifth week, terms of settlement were provisionally agreed between the parties and the trial was adjourned. At the time of the adjournment, the lay evidence had been completed but expert evidence, which was being given by nine witnesses concurrently, was continuing. It was estimated by the parties that the completion of that concurrent evidence and the closing addresses would require a further five to eight days of hearing.

4 Terms of settlement of the proceeding have now been executed by the plaintiff and the defendant. The essential terms of the settlement agreement provide for a settlement of 55% of each claimant's losses assessed according to certain principles either agreed, or to be determined by the Court, plus penalty interest (from the date of issue of the proceeding) plus party-party costs. Section 33V of the Supreme Court Act provides that a group proceeding may not be settled without the approval of the Court. This is the application for the approval of the settlement of this proceeding.

5 The settlement agreement provides for a payment of 55% of each claimant's losses, together with penalty interest from the date of issue of the proceeding plus party-party costs. These costs include the costs of each assessment. The settlement agreement deals comprehensively with, amongst other things, the amount of the settlement, the notification of claimants, claims assessment procedures, claims assessment principles, the payments of claims and mutual releases. Whilst it is not necessary to set out all of these terms, it is necessary to refer to the claims assessment principles set out in the settlement agreement.

6 The claims assessment principles agreed between the parties are set out in clauses 5.1 to 5.4 of the settlement agreement. Those clauses provide:

"5.1 Save as provided in clause 5.2 below, all issues regarding the assessment of losses will be determined by the Court, and the principles fixed by the Court or agreed in clause 5.2 ('Assessment Principles') shall be applied in accordance with this agreement to the claims of all PGMs [participating group members/claimants].

5.2 The following special provisions for the assessment of PGMs' losses shall apply:

(a) garden/amenity trees (ie, over 4m tall) will be assessed at $1100.00 per tree;

(b) farm/utility trees will be assessed at $100 per tree;

(c) non-tree vegetation (ie, under 4m tall, eg, shrubs, bushes, lawns) to be valued at retail price to replace;

(d) the questions whether work completed by the labour of a PGM or by volunteers is compensable, and the measure of any such compensation, are to be determined by the Court, save that if the Court determines the work is compensable and is to be measured by an hourly labour rate the rate is agreed at $25.00 per hour, and it is further agreed the rate shall only be payable upon delivery of a statutory declaration from the PGM verifying (as a best estimate where necessary) the hours applied in performance of the work;

(e) the losses of the Horsham Golf Club;

(i) will be paid as to 55% of their assessed value plus interest; but

(ii) will not be assessed in accordance with the Assessment Principles but rather referred to mediation to be completed within 120 days after Court approval or if the mediation is not successful then referred to the trial Judge for determination.

5.3 The appendix to this agreement titled 'Appendix 1 - Principles for the Assessment of Compensation' forms part of this agreement and subject to clauses 5.1 and 5.2 is part of the Assessment Principles.

5.4 If during the implementation of the claims assessment procedure Maddens or Powercor become aware of a category of loss not addressed by the Court in its determination of the plaintiff's damages claim or by clause 5.2 above, the parties shall make reasonable efforts to agree the principles for assessing that loss but absent agreement may apply to the Court for a determination of the issues of principle regarding the compensability and measurement of losses in that category and the principles so determined shall form part of the Assessment Principles."

7 Appendix 1, referred to in clause 5.3, is in the following terms:

"APPENDIX 1 (in addition to the principles enunciated in clause 5 of the Settlement Agreement)

PRINCIPLES FOR THE ASSESSMENT OF COMPENSATION

1.1 The Group Member to establish the nature and amount of the fencing replaced;

1.2 A material cost of $4,591 per kilometre for fencing replaced;

1.3 A labour cost for fencing replaced if incurred and paid by the Group Member of $2,800 per kilometre.

2.1 The Group Member to establish the extent of fire damage to stockyard.

2.2 Materials used to repair or replace the stockyard will be paid by the Defendant at cost incurred and paid.

2.3 Labour will be paid at cost if incurred and paid by the Group Member.

3.1 The Group Member to establish the loss.

3.2 A cost of agistment of sheep at $0.30/head/week.

3.3 A cost of agistment of cattle at $4.00/head/week.

3.4 Purchase of hay at cost as incurred and paid.

1. Repairs to house, barn, bridge, front gate and any other items damaged by fire

4.1 The Group Member to establish the item lost or damaged and extent of loss or damage.

4.2 The Group Member to be paid material and labour costs incurred and paid to repair or replace.

4.3 Any betterment to be excluded.

4.4 If the item is not replaced or repaired, then payment will be on diminution in value.

5.1 The Group Member to establish the items lost or damaged.

5.2 The Group Member to be paid the material and labour costs incurred and paid to repair or replace items lost.

5.3 Any betterment to be excluded.

5.4 If the item has not been replaced or repaired, then any payment will be based upon diminution in value.

6.1 The Group Member to establish the items lost or damaged.

6.2 The Group Member to be paid the material and labour costs incurred and paid to repair or replace items lost.

6.3 Any betterment to be excluded.

6.4 If the item has not been replaced or repaired, then any payment will be based upon diminution in value.

7.1 The Group Member to establish the extent of damage to water supply caused as a consequence of the fire.

7.2 The Group Member to be paid for materials and labour incurred for replacement and paid by the Group Member.

7.3 Any betterment to be excluded.

8.1 The Group Member to quantify loss of livestock trading.

8.2 Any quantification provided to be accompanied by financial records for the calendar years 2007 and 2008.

8.3 Loss of profit on livestock trading will be allowed in principle subject to quantification and established legal principles of proof of loss and recoverability.

9.1 The Group Member to provide details of loss of livestock and market value of livestock at date of loss.

9.2 The Defendant will pay market value of livestock at date of loss."

8 Whilst clauses 4.3, 5.3, 6.3 and 7.3 of Appendix 1 provide in respect of the items covered by those clauses that "any betterment to be excluded", I was informed by the plaintiff's counsel that the parties agreed that a claimant would not, as a matter of ordinary principle, be entitled to recover as damages costs incurred in erecting replacement infrastructure to the extent that the new infrastructure involved "adding any extras" (to use the words of Lord Denning in Harbutt's Plasticine Limited v Wayne Tank & Pump Co Limited[2]). The parties are agreed that the question of principle as to what constitutes "betterment" is one of the matters which the trial judge will rule on following the delivery of this judgment. The parties having left the betterment issue to the trial judge obviates the need for me to give it any further consideration.

9 Much has been written concerning the principles to be applied when considering an application for the approval of a proposed compromise of a group proceeding.[3] In Australian Competition and Consumer Commission v Chats House Investments Pty Ltd,[4] Branson J said, in dealing with s 33V(1) of the Federal Court Act:[5]

"The purpose intended to be served by s 33V(1) is obvious. It is appropriate for the court to be satisfied that any settlement or discontinuance of representative [group] proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent."

10 In this case, the Court must be satisfied that the proposed compromise is in the interests not only of the plaintiff, but also all group members who will be bound, if the compromise is approved, including those who are not represented by the plaintiff's solicitors, Maddens.

11 In Wheelahan v City of Casey,[6] Emerton J summarised the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4)[7] and Jessup J in Darwalla Milling Co Pty Ltd v F Hoffman La Roche Limited (No 2)[8] in the following terms:[9]

"In Williams v FAI Home Security Pty Ltd, Goldberg J described in general terms the task of the Court on an approval application:

Ordinarily the task of a court upon an application such as this, is to determine whether the proposed settlement or compromise is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement.

Goldberg J referred to a number of matters that the Court will take into account in determining what is fair and reasonable. The matters referred to by his Honour were the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of group members to the settlement.

Jessup J, in Darwalla Milling Co Pty Ltd v HoffmanLa Roche Ltd, observed that his review of subsequent judgments of the Court under s 33V did not disclose any pattern of systematic consideration of these matters in the way, for example, of a checklist, and that the case before him involved specific problems and issues which no predetermined list could ever hope to anticipate. He also commented that those factors threw little light on the proper resolution of the rather difficult inter se issues that arose in the proceeding before him."[10]

"It is true that in practice every case must be dealt with on its own merits, and by reference to specific factors which might raise serious doubts as to fairness and the like. However, although in the present matter the 'inter se issues' - that is, the way in which the settlement sum is to be distributed among group members - is one of the principal issues of concern, the Williams factors provide useful guidance, and I propose to assess the reasonableness and fairness of the settlement by reference to those factors, although I do not propose to use them as a checklist."[12]

13 With respect, I agree with the approach adopted by Emerton J in Wheelahan. The Williams factors are a useful guide, but the application for approval must involve consideration of the specific factors relevant to this proceeding which might raise issues as to the fairness or appropriateness of the proposed compromise - either between the parties, or between the plaintiff and individual group members.

14 In Darwalla, Jessup J described the "practical judicial approach" by the Court to be to identify any features of a settlement that are obviously unreasonable or unfair, a task which would come more easily to a court than the obverse one of assessing the reasonableness and fairness of the settlement in an environment generally devoid of negative indications. Hence, where some group members object to a settlement and state their reasons for objecting, such reasons will provide a convenient focus by reference to which the court will decide matters of fairness and reasonableness.[13] However, in the present case, no group member has come forward to object. Indeed, to the contrary, the evidence suggests there are no group members who oppose the settlement.[14]

15 Whilst the absence of any objection by a group member results in there being no "convenient focus" as referred to by Jessup J, this cannot distract the Court from the task of critically evaluating the proposed compromise in all respects.[15] That said, the absence of objection to the proposed settlement (which settlement has been extensively advertised) is a relevant factor to be taken into account in favour of its approval.[16]

16 In any group proceeding, there are a number of potential outcomes that might be regarded as fair and reasonable, both between the parties and between the plaintiff and group members. In Darwalla, Jessup J expressed the view that it is not the court's function under s 33V to second guess a plaintiff's advisers as to the answer to the question whether the plaintiff ought to have accepted the defendant's offer:

"The court's function is, relevantly, confined to the question whether the settlement was fair and reasonable. There will rarely, if ever, be a case in which there is a unique outcome which should be regarded as the only fair and reasonable one. In settlement negotiations, some parties, and some advisers, tend to be more risk-averse than others. There is nothing unreasonable involved in either such position and, under s 33V, the court should, up to a point at least, take the [plaintiffs] and their advisers as it finds them. Neither should the court consider that it always knows more about the group members' businesses than the [plaintiffs], or more about the actual risks of the litigation than their advisers. So long as the agreed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it should be regarded as qualifying for approval under s 33V."[17]

17 As part of this application, I was provided with the trial transcript and an electronic copy of all of the documentary exhibits tendered at trial. Additionally, the plaintiff tendered a confidential advice from the plaintiff's trial counsel. This advice dealt comprehensively with, amongst other things, the issues of liability, the plaintiff's prospects of success and the appropriateness of the proposed compromise.

18 Having considered the evidence given up to the point when agreement was reached and the opinion of the plaintiff's trial counsel, I have formed the view that on the question of liability, the proceeding was finely balanced. In my view, the plaintiff would have established the cause of the fire he contended for and that the defendant owed a relevant duty to each group member. The central question was the issue of breach. In my view, this was (and was always going to be) finely balanced in the sense that it is as likely as not that the plaintiff would have succeeded on this issue. Even if it could be said that the plaintiff was marginally in front on this issue, it could not be said that his case was so strong as to take the proposed 55% settlement out of the range of possible settlements which the Court ought to consider as fair and reasonable. That said, having considered the evidence and the advice of the plaintiff's counsel, I am of the view that 55% represents a fair and reasonable compromise having regard to the plaintiff's risks with respect to liability.

19 It was submitted on behalf of the plaintiff that the proposed compromise involved no discount for "quantum risk" as such. That is, the quantum of each claimant's losses is to be assessed according to principles either agreed between the parties or adjudicated by the Court. The quantum thus fixed is then payable at the agreed rate of 55% of the assessment (plus the interest and costs to which I have already referred). Nevertheless, the claims assessment principles involve elements of compromise between the parties. For example, garden/amenity trees over four metres tall will all be assessed at $1100 per tree. These elements of compromise need to be examined.

20 Having examined these issues, it is sufficient to say that insofar as the claims assessment principles involve a compromise between the plaintiff and the defendant, I am satisfied that the various compromises are within the ranges of results open on the evidence. Further, in respect of some issues, there is a "swings and roundabouts" element to the compromise in the sense that some of the agreed amounts to be allowed may be too low in some cases, but these are just as likely (as the plaintiff's counsel submitted) to be offset by corresponding cases where the relevant allowance is generous to the same extent the other way.

21 A further matter to take into account on these issues is that the claims assessment principles will almost certainly allow for claims to be paid at an earlier point in time, and without the need for more costs to be incurred in conducting mini-trials on issues that have now been agreed. These cost and time savings are in the interests of the plaintiff and group members. For these reasons I am satisfied that the claims assessment principles are fair and reasonable as between the parties, and in the interests of group members.

Is the settlement fair and reasonable between group members?

22 The present settlement may be contrasted with many other group proceeding settlements where the defendant (or defendants) offer a sum of money to be split between group members and a sum of money for costs. In such cases, there are often real issues as to the appropriateness of the method and mechanism by which amounts are to be divided between group members or particular classes of group members.

23 In the present case, the offer to pay 55% of the assessed value of each claim, together with penalty interest and party-party costs (including the costs of each assessment) means that, by definition, the plaintiff and group members will each receive an amount that is fair and reasonable by reference to the amounts received by each other group member. Unlike some other group proceedings, this is not a case where any group member has come along and complained that his or her interests have been compromised in the interests of providing more generous treatment to other group members.

24 Having considered the issues, I have come to the conclusion that a settlement involving a fixed percentage of group members' losses, together with penalty interest and costs is fair and reasonable as between the plaintiff and group members. However, it remains necessary to consider four specific matters:

(a) the fairness of the claims assessment principles as between group members;

(b) the separate treatment of the Horsham Golf Club;

Fairness of the claims assessment principles between group members

25 It is possible that the application of the claims assessment principles may be more generous in respect of one group member than they are in respect of another. However, it is, as I have said, to be noted that no group member has made any such complaint. Further, on the evidence, it cannot be said that any of the claims assessment principles manifest a more generous approach to any particular class of group members than any other class of group members. For the same reasons I consider the claims assessment principles to be fair and reasonable between the parties, I consider them to be fair and reasonable between the plaintiff and group members. The claims assessment procedures will facilitate the ultimate finalisation of the proceeding at an appropriately reduced cost. This is, as I have said, in the interests of all group members.

26 Clause 5.2(e)(ii) of the settlement agreement provides that the losses of the Horsham Golf Club will not be assessed according to the claims assessment principles - but rather will be mediated before them being referred (if the mediation is unsuccessful) to the trial judge for determination. As a result of the fire, the Horsham Golf Club lost its clubhouse and more than 8,200 trees. It also claims trading losses which it alleges were caused by the fire.

27 The evidence discloses that the Club is the single largest claimant "by a long margin". Further, its losses are, at least arguably, different in nature and quality from the losses suffered by all other group members. I was informed that one of the reasons for carving the Golf Club out of the claims assessment principles and referring its losses to the Court is this was thought to be the simple solution to a problem that might otherwise have impeded the settlement of the balance of group members' claims. In my view, the approach taken is fair and reasonable. I accept the submission that the separate treatment given to the Horsham Golf Club's claims involves no unfairness against the Club or against any other group members.

28 As I have noted above, the proposed compromise involves the defendant paying the party-party costs of the proceeding, including the costs of each group member's assessment of his or her or its claim.

29 Throughout this proceeding, the plaintiff's solicitors have acted on a no win, no fee basis. The plaintiff's counsel have also acted on a conditional basis. I was informed that all counsel proposed to charge a 25% uplift fee as permitted by the Legal Profession Act 2004 on the conditional component of their fees and that the plaintiff's solicitors likewise proposed to charge a 25% uplift on their professional costs. Having heard argument, I have formed the view that there is nothing inappropriate, unfair or unreasonable in this course. It seems to me that this proceeding is the paradigm example of a case where an uplift fee on the conditional component of professional fees, as contemplated by the Legal Profession Act 2004, is appropriate.[18]

30 The payment of party-party costs by the defendant will not cover all of the costs incurred by the plaintiff in pursuing the common questions in this proceeding. The plaintiff seeks to have that shortfall shared between himself and group members in proportion to the amount the plaintiff and each group member recovers. The plaintiff submits that this proposal is "eminently fair and reasonable". I agree. There is no reason why the plaintiff should be burdened on his own with the unrecovered costs in respect of the common questions in the proceeding. There is every reason why these should be shared amongst the plaintiff and participating group members. Those who benefit from the plaintiff's work should share the costs of the work with the plaintiff. Further, sharing the costs pro rata reflects each relevant person's interest in the proceeding. To use the words of the plaintiff, this course is eminently fair and reasonable.

31 At present, the class in this proceeding is an open class. That is, the group members are defined as all persons who suffered loss of or damage to property as a result of the fire. There are no additional criteria closing the class (either by registration or entering into some relevant agreement or otherwise).

32 The plaintiff submits that in order to bring finality to matters (so far as a group proceeding can), it is necessary to close the class. Clause 3.1(b)(v) of the settlement agreement requires the plaintiff to apply for orders:

"requiring the group members who wish to claim compensation in respect of the claims made on their behalf in the proceeding register their claims with Maddens ... by a date to be fixed by the court ..., failing which the group members shall remain group members and be bound by the compromise but not entitled to participate in the claims assessment procedure provided in this agreement unless agreed by Powercor or permitted by order of the court".

33 However, in clause 3.2(a) of the settlement agreement, the parties acknowledge that the making of orders of the kind referred to in clause 3.1(b)(v) "is in the discretion of the court, and this [settlement] agreement is not conditional upon such orders being made".

34 The plaintiff supports his application for an order in accordance with clause 3.1(b)(v) by reference to authority such as McMullin v ICI Australia Operations Limited.[19] Initially, I was of the view that it may not be entirely fair to group members who do not wish to participate in the settlement to make orders which would result in the forfeiture of their rights in the event that they did not register their claims by a particular date. A way around this would have been to make orders permitting group members to opt out pursuant to s 33J within some relatively defined period. This is the course that has been taken in a number of cases: see for example Lopez v Star World Enterprises Pty Ltd.[20]

35 Whilst my initial view was to make such an order, in argument I was persuaded by counsel for the plaintiff that this course would not be appropriate. Of principal concern to the plaintiff was that group members might opt out and then enter into private settlement agreements on like terms with the defendant. In such circumstances, those claimants would not pay their share of the plaintiff's unrecovered costs in respect of the common questions in the proceeding. That is, such claimants would benefit from the plaintiff's work without paying their fair share in respect of it. In all the circumstances, I am persuaded that the class should be closed in the way contemplated by clause 3.1(b)(v) of the settlement agreement. As was submitted by the plaintiff, group members have had ample opportunity to inform themselves about the proceeding: a thorough process of publishing the original commencement and opt out advertisements was undertaken in mid-2010; there was considerable news media coverage of the trial; and there has now been a further round of advertisements and mail-outs in respect of the notice of proposed settlement. Further, upon approval, there will be a additional notice published and mailed out to inform known and unknown group members of the need to register their claims.

36 The settlement of this proceeding entered into between the plaintiff and the defendant will be approved: it is both fair and reasonable as between the parties and as between the plaintiff and group members.

37 Subject to any further submission as to the form of appropriate orders, I propose to make orders in the following terms:

(1) Pursuant to sections 33V, 33ZF, 33ZG and 33ZJ of the Supreme Court Act, 1958 ("the Act"), settlement of the proceeding upon the terms set out in the document titled "Settlement Agreement" signed by the parties ("Settlement Agreement") is approved.

(2) Pursuant to section 33ZF of the Act, persons who filed Notices of Opting Out in the proceeding have leave to withdraw the said Notices and resume group membership by registering with the plaintiff's solicitors in accordance with paragraph 3 below.

(3) Pursuant to section 33ZG of the Act, group members (including persons referred to in paragraph 2 above) who wish to claim compensation in respect of the claims made on their behalf in the proceeding register their claims with Maddens Lawyers ("Maddens") by 28 February 2012, in default of which the group member shall not, without further order of the Court or the consent of the defendant, be entitled to participate in or obtain any payment pursuant to the claims assessment procedure set out in the Settlement Agreement.

(4) Pursuant to sections 33X and 33Y of the Act, the form and content of the notice to group members, informing them of the making of Orders (1), (2) and (3) above, set out in Annexure A to these Orders ("Settlement Approval Notice") is approved.

(5) Pursuant to section 33X of the Act, by 4:00pm on 15 December 2011, notice of the approval of the settlement of the proceeding upon the terms set out in the Settlement Agreement be given to group members by the plaintiff, by his solicitors, causing the Settlement Approval Notice to be:

(a) published in two weekday editions of the Wimmera Mail-Times newspaper;

(b) where the database of registered group members maintained by the plaintiff's solicitors contains:

• (i) an e-mail address for a group member - emailed to that email address;
• (ii) a postal address for a group member - sent by ordinary pre-paid post to that postal address;

(c) uploaded to the website of the plaintiff's solicitors; and

(d) uploaded to the Court's website.

(6) By 4:00pm on 22 December 2011, the plaintiff by his solicitors file and serve an affidavit as to compliance with Order ( 5) above.

(7) Pursuant to section 33ZF, alternatively section 33ZG, alternatively the inherent jurisdiction of the Court:

(a) each group member who becomes entitled to a payment of compensation in consequence of the Settlement Agreement apply the compensation entitlement first in reimbursement of the plaintiff for the difference between those costs incurred by the plaintiff in respect of the common questions in the proceeding and recovered from Powercor ("recovered costs") and the total costs incurred by the plaintiff in respect of the common questions in the proceeding (that difference being the plaintiff's "unrecovered costs"); and

(b) the reimbursement amount payable by each group member referred to in (a) be calculated by multiplying the total amount of the plaintiff's unrecovered costs by the proportion which the individual group member's compensation entitlement bears to the total value of all compensation entitlements assessed in favour of the plaintiff and group members.

(8) The reimbursements ordered pursuant to Order (7) above be payable and paid to the plaintiff's solicitors, and the said solicitors have leave to calculate and deduct the reimbursement payment of each group member prior to disbursing from their trust account the balance of the compensation entitlement of the group member.

(9) Pursuant to section 33ZF of the Act, Maddens and Powercor each have leave to apply to the Court for orders in respect of any issue arising in relation to the administration of the Settlement Agreement.

(10) The further conduct of the proceeding, including the hearing of any application for orders pursuant to Order (9) above, be referred to the trial judge.

(11) Within 14 days of Maddens disbursing from their trust account the final balance of compensation entitlements to the plaintiff and group members, the plaintiff by his solicitors file and serve an affidavit as to the completion of the claims assessment procedure set out in the Settlement Agreement.

(12) Following the filing of the affidavit referred to in Order (11) above, the proceeding be dismissed with no order as to costs, save for orders made pursuant to taxation of costs in accordance with the Settlement Agreement or in connection with orders made pursuant to Order (9) above.

[1] At the time of the fire, s 75 of the Electricity Safety Act 1998 relevantly provided that:

"A network operator must take reasonable care to ensure that all parts of an upstream network ... that it owns or operates -

(a) are designed, constructed, operated and maintained in accordance with the regulations; and

[2] [1970] 1 QB 447, 468.

[3] See for example Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250; Lopez v Star World Enterprises Pty Ltd [1999] FCA 104; (1999) ATPR 41-678; Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459; Darwalla Milling Co Pty Ltd v F Hoffman La Roche Limited (No 2) [2006] FCA 1388; (2006) 236 ALR 322; Taylor v Telstra Corporation Limited [2011] FCA 2010; Rod Investments Pty Ltd v Abeyratne [2010] VSC 457 and Wheelahan v City of Casey [2011] VSC 215.

[4] (1996) 71 FCR 250, 258.

[5] The equivalent of s 33V(1) of the Supreme Court Act.

[6] [2011] VSC 215.

[7] (2000) 180 ALR 459.

[8] [2006] FCA 1388; (2006) 236 ALR 322.

[9] [2011] VSC 215, [59]-[61].

[13] Wheelahan v City of Casey [2011] VSC 215, [63].

[14] See the affidavit of John Francis Madden sworn 11 November 2011.

[15] Cf Wheelahan v City of Casey [2011] VSC 215, [64].

[16] Cf P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029, [23] and Rod Investments (Vic) Pty Ltd v Abeyratne [2010] VSC 457, [22].

[17] Darwalla v F Hoffman La Roche Limited (No 2) [2006] FCA 1388; (2006) 236 ALR 322, 339 [50]. See further, Wheelahan v City of Casey [2011] VSC 215, [110] (Emerton J).

[18] See s 3.4.28 of the Legal Profession Act.

[19] (1998) 84 FCR 1, 2-3.

[20] [1999] FCA 104; (1999) ATPR 41-678.