IN THE SUPREME COURT OF VICTORIA Not Restricted AT ...€¦ · It assumes a role akin to that of a guardian, not unlike the role a Court assumes when approving infant compromises”.5

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE COMMON LAW DIVISION MAJOR TORTS LIST

S CI 2018 01290

ANTHONY LENEHAN Plaintiff v POWERCOR AUSTRALIA LIMITED (ACN 064 651 109)

Defendant

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JUDGE: Nichols J

WHERE HELD: Melbourne

DATE OF HEARING: 16 December 2019; further directions hearings on 20 December 2019 and 2 March 2020; further material filed on 16, 18 and 20 December 2019, 14 and 20 January 2020, 20 and 28 February 2020, 16 March 2020 and 1 April 2020.

DATE OF JUDGMENT: 6 April 2020

CASE MAY BE CITED AS: Lenehan v Powercor Australia Ltd (No 2)

MEDIUM NEUTRAL CITATION: [2020] VSC 159

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PRACTICE AND PROCEDURE – Group Proceedings – Application for approval of settlement – Whether proposed settlement and settlement distribution scheme are fair and reasonable – St Patrick’s Day bushfire near Terang – Williams v FAI Home Security Pty Ltd (2000) 184 ALR 459 – Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663 – Supreme Court Act 1986 (Vic), pt 4A, s 33V.

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APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr T.P. Tobin SC with Mr A Fraatz

Maddens Lawyers

For the Defendant No appearance For the Insurer Objectors Mr L.W.L Armstrong QC

with Mr D Carolan Hall & Wilcox Lawyers

Lenehan v Powercor Australia Ltd (No 2) 1 JUDGMENT

HER HONOUR:

Introduction

1 On 29 October 2019, the parties reached a settlement of this proceeding conditional

upon Court approval pursuant to s 33V of the Supreme Court Act 1986 (Vic). On

terms including a denial of liability the defendant agreed to pay the plaintiff and

group members the sum of $17.5 million inclusive of interest and costs. On 20

December 2019, I approved the plaintiff’s entry into the settlement agreement.

2 I did not on that occasion approve the plaintiff’s proposed scheme for the

distribution of settlement moneys between group members (the Proposed SDS), or

the plaintiff’s solicitors’ application for costs. I required the plaintiff to submit a

revised settlement scheme dealing with matters I raised, and to submit further

material in support of the settlement distribution scheme. The plaintiff has

submitted further material since December 2019.

3 These are my reasons for approving the settlement distribution scheme which is at

Annexure A to these reasons (the Approved SDS).

4 One substantive issue concerning the proposed SDS was disputed. Insurers

including Allianz, IAG and QBE made payments to group members in response to

claims by them on insurance policies, following the bushfire. Those losses were

registered with the plaintiff’s solicitors (Maddens). The Proposed SDS contemplated

that where a group member’s assessed loss includes loss in respect of which a

payment had been made by a registered insurer, the insurer would be entitled to

recover a portion of the group member’s assessed entitlement, as determined by the

scheme Administrator in her discretion, applying the provisions of the SDS. Allianz,

IAG and QBE objected to that part of the Proposed SDS. The dispute between them

and the plaintiff (the Insurance Dispute) concerns the manner in which the

respective entitlements of the insured group members and insurers will be

determined. It involves questions of legal principle. The parties filed further

material on that issue in March 2020. I have not yet decided the Insurance Dispute.


5 On 2 March 2020 I approved most but not all aspects of the plaintiff’s application for

the costs of the proceeding.1 I have not yet approved any costs anticipated but not

yet incurred, nor have I yet approved any allowance for a loading on professional

fees for “skill, care and attention”. On 2 March 2020 I directed that a further report

be filed in respect of the claimed loading on professional fees.

6 On 16 March 2020 Maddens filed material in support of an application to make an

interim distribution of the settlement funds, prior to the approval of the SDS.

7 The Approved SDS is substantially in the revised form provided by Maddens, and

allows for interim distributions of the settlement funds.

8 Once I have decided the Insurance Dispute I will deliver a further judgment

approving supplementary provisions of the SDS that will implement the decision

made at that time in respect of the allocation of settlement funds as between insured

group members and their insurers.

9 The Approved SDS requires the Administrator to make a first interim distribution

that will comprise the bulk of the settlement pool, leaving a remainder that must be

adequate to cover funds yet to be allocated as between insured group members and

their insurers, costs yet to be approved or incurred, and the entitlements of group

members who are under a disability, whose compromises require individual

approval.2

10 My reasons for approving the settlement of the proceeding (by orders made on 20

December 2019) are also set out here.

The proceeding

11 On 17 March 2018, a bushfire ignited near the intersection of the Princes Highway

and Peterborough Road at Terang, Victoria. The fire travelled in a south-easterly

1 Lenehan v Powercor Australia Ltd [2020] VSC 82. 2 Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).


direction and burnt over areas of peat at Lake Cobrico and Lake Elingamite, which

were still burning on 10 April 2018.

12 The plaintiff commenced this proceeding on 10 April 2018 on behalf of all persons

who suffered personal injury, loss or damage to property, or pure economic loss as a

result of the Terang bushfire, and the legal personal representatives of any deceased

persons suffering such injury or loss.

13 The plaintiff was the owner of property at Elingamite, which was damaged by the

fire. He claims to have suffered damage to, and loss of, plant and machinery,

livestock and hay, loss of and damage to contents of his home and expenses

including for temporary accommodation. He also claims damages for personal

injury.

14 The defendant is a major electricity distributor that owned and managed the

electrical assets at the location of the fire’s ignition. The plaintiff contended that

conductors on a power-line came into contact, or were within sufficiently close

proximity to each other to cause a discharge or “arc” of electric current between

them. Discharged electricity, heat or sparks ignited nearby grass or other flammable

material, causing the fire. The plaintiff alleged that the Terang bushfire was caused

by the defendant’s breaches of its statutory duties under the Electricity Safety Act

1998 (Vic) (the ES Act) and by its negligence, including by failing to design or

maintain the power-lines to ensure that a safe distance was maintained between the

conductors, or to identify that the clearance between conductors was within the

required standard. The plaintiff also claimed that the defendant caused a nuisance,

by which he and a sub-group of group members suffered loss.

15 The defendant denied liability. It maintained, among other things, that the scope of

any duty or obligation was limited by the ES Act and associated regulatory

framework and that it took reasonable care in the management of its network – that

is, it did not breach any duties owed to the plaintiff and group members, if such

duties were owed.


16 On 15 February 2019, the Court made orders closing the class of group members by

requiring that group members wishing to claim compensation in any settlement of

the proceeding must register with the plaintiff’s solicitors, Maddens Lawyers, by 22

March 2019. Ninety-one group members registered to participate.

17 The parties attended judicial mediation on 3 to 4 October 2019 and again on 16

October 2019. The trial commenced in the Warrnambool circuit on 21 October 2019

on an estimate of three to four weeks. After six days of trial, the parties reached a

settlement.

Governing Principles

18 Section 33V of the Supreme Court Act 1986 provides that a group proceeding may not

be settled without the approval of the Court. If a Court gives approval, it may make

such orders as it thinks fit with respect to the distribution of any money paid under

the settlement. Unless the Court is satisfied that it is just to do so, an application for

approval of compromise of a group proceeding must not be determined unless

notice has been given to group members.3

19 The principles governing applications of this kind are well-established.

20 The Court must consider whether the proposed settlement is a fair and reasonable

compromise having regard to the claims made on behalf of the group members who

will be bound by the settlement, and whether it is in the interests of group members

as a whole and not just in the interests of the plaintiff and defendant.4 As the Full

Court of the Federal Court said in Australian Securities & Investments Commission v

Richards, the Court’s role in this context, “is important and onerous. It is protective.

It assumes a role akin to that of a guardian, not unlike the role a Court assumes

when approving infant compromises”.5 Specifically, the Court is protective of group

3 Supreme Court Act 1986, s 33X(4). 4 See, for example, Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663 (Matthews v AusNet),

[34]; Downie v Spiral Foods Pty Ltd [2015] VSC 190 (Downie v Spiral Foods), [45]; Murillo v SKM Services Pty Ltd [2019] VSC 663 (Murillo), [29].

5 Australian Securities & Investments Commission v Richards [2013] FCAFC 89, [8] (citations omitted); quoted in Murillo, [30].


members who are not represented by the plaintiff’s solicitors, and therefore are

absent from the process, but may be prejudiced by the settlement.6

21 Typically, the factors that Courts consider on an application to approve a settlement

of a representative proceeding include those discussed by Goldberg J in Williams v

FAI Home Security Pty Ltd,7 namely:

(a) the amount offered to group members;

(b) the prospects of success in the proceeding;

(c) the likelihood of the group members’ obtaining judgment for an amount

significantly in excess of the settlement offer;

(d) the terms of any advice received from counsel and from any independent

expert in relation to the issues which arise in the proceeding;

(e) the likely duration and cost of the proceeding if it had continued to judgment;

and

(f) the attitude of the group members to the settlement.

22 That list, obviously enough, is not prescriptive of the factors relevant to any

particular case.

23 The Court must reach independent satisfaction of the fairness of the proposed

settlement. It is not sufficient to simply assess whether the opinions of the plaintiff’s

or parties’ legal advisers appear reasonable on their face.8

24 That said, as Jessup J observed in Darwalla, there will rarely be a case in which a

unique outcome should be regarded as the only fair and reasonable one, and so long

6 Murillo, [30]. 7 (2000) 184 ALR 459 at 465 [19]. 8 Matthews v AusNet, [37]; Downie v Spiral Foods, [44].


as the agreed settlement falls within the range of fair and reasonable outcomes, it

should be regarded as qualifying for approval.9

25 The fairness of the settlement as between all group members must also be

considered. The Court ought to examine the internal workings of the settlement and

consider whether there is any differentiation between the treatment of individual

group members and, in particular, their entitlement to an award.10 If differentiation

exists, then it is necessary to determine whether that differentiation is fair and

reasonable.11

The proposed settlement

26 As noted earlier, the parties agreed to settle the proceeding on the basis that the

defendant would pay $17.5 million to the plaintiff and group members, conditional

upon approval of the settlement by the Court, with the defendant denying liability.

The settlement sum was subsequently paid into a joint controlled moneys account to

be released to Maddens within seven days of the Court’s approval of the settlement.

The agreement provided that all claims in the proceeding were fully and finally

settled and the plaintiff discharged and released the defendant from any related

future claims. A list of registered group members was annexed to the settlement

agreement.

Notices to group members

27 Once the plaintiff made the application for approval of the settlement, the Court

required notice of the settlement and of the plaintiff’s application for the Court’s

approval of the settlement, to be given to group members. Notices were published,

as directed, by post and, where available, by email, on the Maddens’ website, on the

Supreme Court website, and in a weekday edition of the Terang Express

Newspaper. The plaintiff was also directed to notify group members of the Court’s

9 Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 [50]. 10 Downie v Spiral Foods, [51]. 11 Downie v Spiral Foods, [53].


approval of the settlement in December 2019, and notices were published as

directed.

28 No group member objected to the proposed settlement or the proposed SDS.

Is the settlement fair and reasonable as between the parties?

29 I am satisfied that the settlement is fair and reasonable as between the parties, and is

in the interests of group members as a whole.

30 In short, in circumstances in which the plaintiff and group members, for the most

part, have good claims, the settlement has achieved what amounts to a high

proportion of the likely damages obtainable by the plaintiff and group members, in

the event that the matter had proceeded to judgment. Settlement negotiations were

thorough and appear to have produced the best outcome obtainable short of

proceeding to judgment.

31 In reaching that view I have considered the detailed material provided to me

including several affidavits sworn by the plaintiff’s solicitor, Ms Emeny, and the

confidential opinion of counsel who were engaged to represent the plaintiff and

group members at trial. Although I ought not and do not merely adopt the opinions

of the plaintiff’s legal representatives, I have been assisted by that material.

32 Counsel’s opinion and Ms Emeny’s affidavits address (among other things):

(a) The circumstances of the bushfire and factual matters relevant to the cause of

the fire and Powercor’s alleged liability;

(b) The procedural history of this litigation;

(c) The likelihood, in their respective opinions, of the plaintiff establishing

liability against Powercor. On this subject, the materials address:

(i) Powercor’s assets and system for addressing the risk of clashing

conductors, including asset inspection records created before the fire

and previous maintenance of the relevant power lines;


(ii) Legal principles governing whether Powercor owed the plaintiff and

group members a duty of care, and how that question is informed by

the regulatory regime, including the technical regulatory framework;

(iii) Scope of duty and breach of duty. It is the plaintiff’s claim that, despite

Powercor’s defence asserting that the failure mechanism was unknown

to it, the failure mode was actually foreseen by Powercor as was

evident from its maintenance system. The materials consider the

expert evidence filed by the plaintiff and Powercor, including on

minimum clearance distances;

(iv) The risks faced by the plaintiff raised by Powercor’s defence and its

expert and factual evidence, including the prospect that Powercor’s

maintenance and asset inspection policies may have ultimately been

regarded as reasonable precautions against the risk of clashing

conductors;

(d) The amount of the settlement sum relative to the value of group members’

claims;

(e) The Proposed SDS – the fairness of the proposed distribution of moneys

between group members, including the sharing of costs between them.

33 On the question of liability, it should be noted that Powercor admitted that the

Terang bushfire was caused by the 22 kV conductors at the relevant pole coming into

electrical contact with each other, resulting in the emission of sparks from the point

of contact which ignited a fire in flammable material at the base of the subject pole.

The plaintiff’s case was that the clearance between conductors was grossly

inadequate, unsafe and non-compliant with relevant standards. The plaintiff sought

to establish at trial that both the relevant industry standard and Powercor’s own

internal standard required a degree of vertical separation between conductors to

reduce and most probably eliminate the risk of clashing conductors in foreseeable


conditions, and that the assets in question were not configured to provide that

clearance.

34 The substance of Powercor’s defence (stated generally) was that it had identified the

risk of clashing between electrical conductors and spans at risk of clashing, and had

reasonable systems in place to address the risk: its relay equipment was state of the

art; its records did not disclose a history of clashing; conductors clashing is an

extremely infrequent event caused by various means and is difficult to diagnose.

The risk of conductors clashing at or around the pole was not reasonably capable of

ascertainment, applying a standard of reasonable care.

35 Having regard to the material before me, including the confidential opinions of the

plaintiff’s legal practitioners (which were confidential in that and insofar as they

disclosed privileged information for the purpose of seeking approval of this

settlement), I approach the settlement approval on the basis that the plaintiff and

group members had good prospects of establishing liability, subject to some risk of

failing, and that the issues in contention were of relatively narrow compass. The

claims for pure economic loss were, however, likely to face more significant

difficulty.

36 On the question of the quantum of the settlement, the plaintiff’s advisors considered

that with discounts applied, including to allow for the prospect that aspects of the

group members’ damages claims would not be established, and assuming that costs

were allowed in the sum claimed (as opposed to the amounts ultimately to be

approved by the Court), the settlement sum represented approximately 92% of the

value of the claims of the plaintiff and group members, including costs.

37 The plaintiff’s assessment of the likely total value of the claim necessarily involves

estimation, projection and the making of assumptions. Aspects of the methodology

by which quantum was ascertained were convoluted because the process was

commenced for the purposes of assessing damages for mediation including for

putting an assessment to the defendant in the course of negotiation. That work was


later employed, with modification, as a basis on which quantum was assessed for a

different purpose, namely, placing material before this Court to establish that the

settlement was adequate.

38 It was not unreasonable for the plaintiff’s advisors to approach the quantification of

the damages claim in that way, and it must be accepted that in the course of an

exercise of this kind, it will in many cases (like this one) not be possible to arrive at a

precise quantification of the likely damages obtainable assuming the counter-factual

(that the matter had proceeded to judgment and subsequent assessment of

individual damages claims), without incurring disproportionate expenditure over a

lengthy period of time.

39 That said, I consider the plaintiff’s assessment of the likely quantum of the claim to

be reasonably founded, accepting that it is an estimate. The material demonstrates

that the plaintiff’s solicitors have reached an informed view about quantum, based

upon a number of data points – none of which by itself is determinative but which

together indicate that the assessment is sound. The plaintiff’s material sufficiently

discloses a rationale for the assessment and the steps involved in making it. The

steps included the following:

(a) Group members personally and individually completing workbooks

identifying the items of loss that they claimed (that is, a self-assessment).

Maddens provided assistance to group members to complete their self-

assessments;

(b) The collation by Maddens of all information provided in workbooks to

formulate an initial assessment of potential quantum for the group;

(c) The preparation of particulars and analysis of the damages claims for ten

group members intended to serve as examples (as opposed to a randomised

or representative sample) of the damages claims made by group members;


(d) Separately, the selection of a random sample of 35 group member within a

number of bands or stratas based on the asserted values of their claims.

Those claims were individually assessed by loss assessors appointed by

Maddens. The assessors included a forensic accountant, an agribusiness loss

assessor and registered valuer, an agricultural scientist and dairy consultant, a

landscape architect and a loss adjuster. The loss assessors undertook site

inspections where relevant and prepared reports for Maddens for each claim.

Where claims included general damages, Maddens (not the loss adjusters)

made those assessments. Maddens and junior counsel reviewed the loss

assessors’ reports.

(e) The results of the assessments produced in that process were averaged within

each strata and extrapolated to arrive at a value of the total quantum of the

claims of all group members. The plaintiff relied on a statistical analysis

which posited that on the basis of the sample group member assessments, the

total damages claim was in the range of $17.2 million to $25.2 million. Ms

Emeny’s evidence was that the recoverable losses would fall within an

unspecified lower range, because the basis for the statistical analysis (the

sample group member assessments) had not allowed for “errors and

recoverability risks”. I place little weight on the statistical analysis by itself, in

circumstances where it has not been tested (as would be the case if evidence

of that kind was relied upon in an adversarial context). As I have said earlier,

there were numerous inputs to the plaintiff’s assessment – this was merely

one of them.

(f) The loss assessment reports for the 35 sample group members and the

statistical analysis were prepared for the purposes of attempting to settle the

proceeding. Maddens subsequently re-analysed the claim assessments in

order to identify any errors and inconsistencies.

(g) During that process Maddens applied broad discounts (extrapolated to the

group as a whole) that they considered appropriate having regard to their


experience of the rate at which claimants tend to recover damages when

individually assessed. For claims for property damage and consequential loss

a discount of 20% was applied to each claim. For the small number of claims

confined to purely economic loss, a discount of 70% was applied to take into

account the real risk that those claimants would not establish that Powercor

owed them a duty of care, and because of the risk of failing to establish

causation (in this context, establishing that the claimed economic losses were

attributable to the Terang fire and not to extraneous causes). I am satisfied

that those discounts were fair and reasonable.

(h) Twenty-nine group members were identified as having personal injury

claims. Medical records were obtained for all of them. Each claimant

completed a detailed questionnaire with the assistance of a law clerk, after a

one to two hour interview. Five group members were referred to a medico-

legal expert and obtained certificates of assessment certifying that they had

suffered serious injuries within the meaning of the Wrongs Act 1958 (Vic). The

time for referral by the defendant of those claimants to the Medical Panel had

not expired at the time the proceeding was settled. Mr Tobin SC was briefed

by Maddens to prepare (and did prepare) an assessment of the value of each

personal injury claim. Maddens (and Mr Tobin SC) applied a one third

discount to the value of each assessment, to account for individual risks of

recovery, for the purposes quantifying the claim. I am satisfied that that

approach was fair and reasonable for present purposes.

40 Ms Emeny deposed to the course of negotiations conducted throughout the

proceeding, including the exchange of offers of compromise and Calderbank offers,

and a mediation in held before Efthim AsJ in October 2019. That evidence

establishes that the plaintiff’s advisors reached a well-founded view that the

settlement ultimately reached was appropriate.

41 I am satisfied in all the circumstances that the benefits of the settlement – namely

payment of a very high proportion of the likely damages obtainable based on a


reasonable assessment of quantum and the certainty of that result – is clear and that

the settlement is the interests of group members as a whole.

Is the settlement fair and reasonable as between group members?

42 The Approved SDS is set out in full in the Annexure to these reasons. I am satisfied

that it is fair and reasonable as between group members. The ways in which it

differentiates between group members are reasonable and principled. The Scheme is

likely to operate fairly, simply and efficiently, principally because, in the

circumstances, it entails individual assessments of group members’ claims, for the

most part utilising information already provided by group members in the course of

the proceeding. The particular features of the Scheme worthy of observation are the

following:

(a) The Scheme will be administered by Ms Kathryn Emeny of Maddens (the

Administrator). She retains responsibility for the administration of the

Scheme but is entitled to call on Maddens’ personnel and resources, and on

the assistance of counsel and experts in discharging her role.

(b) The Scheme requires that each group member’s loss be individually assessed.

No group member’s claim will be determined merely on the basis of an

extrapolation of the assessments of other claims.

(c) The Administrator is obliged to use reasonable endeavours to ensure that the

information relating to group members’ claims, on which she relies, is

accurate.

(d) For property damage, consequential loss and pure economic loss claims the

assessments will be made principally on the records already held by

Maddens. As discussed above, for the purposes of the proceeding to date,

Maddens have engaged in extensive work assessing quantum, including

engaging loss assessors to prepare detailed assessments of approximately one

third of the claims of group members. Where those assessments have been

made, the Administrator may adjust them, to ensure that the result is a


reasonable assessment of the group member’s loss that is as accurate as

possible, having regard to the available information. For group members

whose claims were not included in the “sample” claims assessed earlier, the

assessment will be principally based on their self-assessment, with

adjustments by the Administrator, again to ensure that the result is a

reasonable assessment of the group member’s loss that is as accurate as

possible, having regard to the available information. Although the process for

the assessment of claims differs as between those group members whose

claims were sampled earlier and those whose claims were not, the objective

and the applicable standard for both groups is the same. The Administrator is

entitled to seek further information from group members if she considers it is

necessary in order to properly assess their claims.

(e) As noted above, in assessing the value of the claims during the course of the

proceeding and for the purposes of establishing the appropriateness of the

settlement, Maddens applied “discounts” of 20% and 70%, respectively, to the

claims for property damage and consequential loss, on the one hand, and the

claims for purely economic loss respectively, on the other. These same

“discounts” are allowed in the assessments to be made under the Scheme.

Employed in this context, their function is to reflect the relative risks that

claimants in either group would face were they to proceed to judgment

(including by way of an individual assessment following a determination of

common issues). Although the relative “discounts” have been struck on a

global basis, they are fair and reasonable in my assessment. They allow for an

appropriate differentiation between those two classes of claims, on the basis

of their relative prospects of succeeding. They take into account potential

difficulties in proving loss and in establishing liability.

(f) Claims for personal injury will be assessed individually, by Mr Tobin SC, who

is experienced in personal injury law. The assessment will be primarily based

on the information collected by Maddens to date. It will take into account


whether the magnitude of the group member’s injury is likely to satisfy the

thresholds specified under the Wrongs Act 1958 (Vic). A group member may

be referred to a medico-legal assessment if the Administrator or Mr Tobin SC

considers it necessary for the purposes of assessing the claim. The group

member may decline to attend a medico-legal assessment, in which case the

assessment of their claim will proceed on the basis of the available

information. If the assessment does proceed, the group member will bear the

costs of the assessment, capped at $5,000. It is reasonable that the

Administrator and Mr Tobin have available to them the assistance of medico-

legal assessments. It is also reasonable that group members for whom such

an assessment is considered necessary meet the cost of that assessment,

particularly given that the referral may be declined by the group member.

(g) The assessments, made in the ways discussed above, will be used to calculate

each group member’s proportionate entitlement to a share of the

compensation pool.

(h) The Scheme requires the Administrator to notify group members of their

assessed entitlements, before making any distributions. Group members are

afforded the opportunity to notify the Administrator of any administrative

error, slip or omission in the notice of assessment within 10 days of receipt of

the notice. The Administrator is required to review the assessment on receipt

of notice of any such error and may revise the assessment at her discretion. In

my view, although the capacity for review of the assessments is nominal, in

the circumstances of this case, where detailed individual assessments of

claims is to occur, that is not a feature of the Scheme that renders it unfair or

unreasonable.

Persons under a disability

43 Rule 15.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides

that no compromise of a claim brought on behalf of a person under disability is valid

without the approval of the Court.


44 Maddens identified five group members that were persons under a disability, all of

whom were minors with claims for personal injury. They have engaged Senior

Counsel to prepare an assessment of the claims of each of those group members and

seek approval of the assessments of the claims.12

45 As I indicated to the parties, I will make orders referring the approvals of

compromises to an Associate Judge for hearing and determination. Any approved

assessments will be included in the pro rata calculation of the payments to be made

to group members.

12 Confidential Affidavit of Kathryn Amy Emeny (No 2) (4 December 2019), [24], [31]; Confidential

Affidavit of Kathryn Amy Emeny (No 3) (5 December 2019), [11]; Confidential Affidavit of Kathryn Amy Emeny (No 8) (20 January 2020), [7].

i

ANNEXURE A

Terang / Cobden Bushfire Class Action

Anthony Lenehan v Powercor Australia Ltd S CI 2018 01290

SETTLEMENT DISTRIBUTION SCHEME

Approved by the Honourable Justice Nichols by orders made on 6 April 2020

BACKGROUND and SUMMARY

This part of the Scheme does not have legal effect but is provided to assist group members to

understand how the Scheme will operate.

A. By an agreement executed on 29 October 2019, the plaintiff and the defendant agreed to

settle Supreme Court of Victoria Proceeding No. S CI 2018 01290, subject to the approval of

the Court. The Court approved the settlement on 20 December 2019.

B. This Scheme establishes a procedure for distributing between group members the settlement

sum to be paid by the defendant.

C. This Scheme is to be read with reference to the settlement agreement between the parties.

D. This Scheme provides for:

(a) the procedure for assessing the individual loss of Group Members;

(b) the pro rata calculation of the entitlement of each Group Member to a distribution from

the Compensation Pool.

E. Ms Kathryn Emeny, a principal in the Class Actions Department of Maddens Lawyers

(Maddens) will act as Administrator of the Scheme.

F. To assist the Administrator manage this Scheme:

(a) loss assessments prepared by Independent Loss Assessors and loss information and

supporting documentation provided to Maddens by Group Members, their insurers

and/or Registered Insurers to date will provide the basis of assessments under this

Scheme;

(b) the Administrator, at her discretion, may request additional information in relation to

losses suffered by each Group Member;

(c) if the Administrator does not receive a Group Member’s response to any request for

further information within 14 days, she will assess that Group Member’s entitlements in

accordance with the information in her possession.

ii

G. Any loss relating to a personal injury arising from the Terang / Cobden Bushfire will be

considered by a barrister experienced in personal injury law. An assessment of the Group

Member’s loss for personal injury will be made by the Administrator after this process.

H. The Administrator will be assisted by Maddens and will be entitled to recover the reasonable

administration costs of this Scheme including reasonable costs related to the assessment of

Group Members’ loss and damage. Such costs are to be assessed by an independent costs

consultant and are subject to approval by the Court.

I. Group Members who seek specific legal advice, or require other work beyond the routine information-gathering and assessment tasks undertaken by the Administrator, will be entitled to retain other solicitors as they wish but at their individual cost.

J. The Court will have ongoing supervision over the implementation of this Scheme.

K. The operative provisions of this Scheme are set out below.

OPERATIVE CLAUSES

1. Interpretation

1.1 In this Scheme, the following terms have the meanings defined (clause references are

references to the clauses of this document unless otherwise specified):

Administration Costs means the disbursements (including the costs of any expert advisers

and barristers) and costs incurred by the Administrator in connection with the administration

of this Scheme, including assessing Group Member claims and administering the Scheme

(but not including Medico-Legal Assessment Costs as outlined in clause 5.8), which costs

have been assessed by an independent costs consultant and approved by the Court.

Administrator means Ms Kathryn Emeny a principal in the Class Actions Department of

Maddens or another person appointed by the Court as Administrator of the Scheme.

Agreement means the settlement agreement executed by the plaintiff and his legal

representatives and Powercor Australia Ltd (ACN 064 651 109) and its legal representatives

dated 29 October 2019.

Assessment Entitlement means the amount of the proportionate entitlement of a Group

Member and/or Registered Insurer to compensation from the Compensation Pool calculated

in accordance with clause 6 of this Scheme.

Assessed Loss means the loss assessed by the Administrator based on the information

available as at the Settlement Date (including any assessment by an Independent Loss

Assessor) and provided by Group Members and/or Registered Insurers in relation to the

quantum of the Group Member’s loss and damage calculated in accordance with clause 5 of

this Scheme.

Claimant Records means a database or other records constructed by or on behalf of

Maddens to contain the information for each Group Member and any information required to

identify the Group Member, including names, addresses and telephone numbers and all

insurance claims notified to Maddens.

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Claims means all manner of actions, suits, causes of action, arbitrations, debts, dues, costs,

claims, demands, verdicts and judgements either at law or in equity or arising under statute

and whether or not the facts, matters or circumstances giving rise to those Claims are known

to any Group Member at the date of the conclusion of the Scheme.

Common Benefit Legal Costs means professional fees and disbursements incurred by

Maddens in relation to the proceeding and the assessment of Group Member claims for the

purposes of mediation and preparation for trial, and in connection with obtaining Court

Approval of the settlement of the proceeding, and which have been assessed by an

independent costs consultant and approved by the Court.

Compensation Pool means the Settlement Sum less Common Benefit Legal Costs, less

Administration Costs and less the Reimbursement Payment.

Court means the Supreme Court of Victoria.

ELPD Claim/s means economic loss and property damage claims of Group Members.

Funds in Court means the office of the Senior Master.

Terang / Cobden Bushfire means the fire that started on 17 March 2018 near the intersection of the Princes Highway and Peterborough Road, Terang in the State of Victoria.

Group Member means a person defined as a Group Member in the Amended Statement of Claim filed in the Proceeding on 21 June 2019 who has registered with Maddens and is identified in the List of Registered Group Members set out at Appendix 1 of the Agreement and where the context admits, includes a reference to an insurer of the Group Member who is a Registered Insurer in respect of that Group Member.

Independent Loss Assessors means independent experts engaged by Maddens for the

purposes of undertaking assessments of the sample Group Members’ ELPD Claims for the

purpose of this Proceeding including Vincents, Agribusiness Valuations Australia, Technical

Assessing, OMJ Consulting, Gurnett Ryan Property Valuers and XUrban.

Insurer Assessed Entitlement means the component of the total Assessment Entitlement of a Group Member that is payable to the Group Member’s Registered Insurer pursuant to the Group Member’s obligation to account to the said insurer.

Maddens means Maddens Lawyers ABN 94 831 504 106.

Order 15 Group Member means a person who is a person under a disability within the meaning of order 15 of the Rules.

PEL Claim/s means pure economic loss claim/s of Group Members.

PI Claim/s means personal injury claim/s of Group Members as defined in paragraph 5(a) of the Amended Statement of Claim filed in the Proceeding on 21 June 2019.

Plaintiff means Anthony James Lenehan.

Proceeding means Lenehan v Powercor Australia Ltd, Supreme Court of Victoria, Proceeding No (S CI 2018 01290).

Registered Insurer means any insurer which has registered subrogated losses caused by the Terang / Cobden Bushfire with Maddens.

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Reimbursement Payment means the payment made to the plaintiff in the sum of $30,000, as approved by the Court.

Rules means Supreme Court (General Civil Procedure) Rules 2015.

Scheme means the terms of this Settlement Distribution Scheme as approved by the Court.

Senior Master means the Senior Master of the Supreme Court of Victoria.

Settlement Approval means the making of orders granting approval of the terms of settlement of the Proceeding and the Scheme by the Court pursuant to section 33ZF of the Supreme Court Act 1986 (Vic) including provisional approval by the Court (subject to determination of any objections to the Scheme).

Settlement Date means 29 October 2019.

Settlement Distribution Fund means a controlled moneys account as defined in the Legal Profession Act 2004 to be established by Maddens with Westpac Banking Corporation to hold moneys for the purpose of the Scheme, and where the context admits, will include a reference to all moneys in the account.

Settlement Sum means the amount of AUD$17,500,000.00, plus any interest accruing on that Sum in the Settlement Distribution Fund.

1.2 Headings are for convenience only and do not affect interpretation. The following rules apply

unless the context requires otherwise:

(a) the singular includes the plural, and the converse also applies;

(b) a gender includes all genders;

(c) if a word or phrase is defined, its other grammatical forms have a corresponding

meaning;

(d) a reference to a person includes a corporation, trust, partnership, unincorporated

body or other entity, whether or not it comprises a separate legal entity;

(e) a reference to dollars and $ is to Australian currency;

(f) a reference to anything done by any person includes a reference to the thing as done

by a director, officer, servant, agent, personal representative or legal representative

if permitted to be so done by law or by any provision of the Agreement or this

Scheme.

2. Scheme Administrator

2.1 The Settlement Distribution Fund shall be administered and applied by the Administrator. The

Administrator, at her discretion, may utilise the services of and may in administering the

Settlement Distribution Fund or Scheme as applicable delegate any power under this

Scheme to any persons employed or engaged by her including barristers, accounting or

other experts and rely upon their work, information and opinions.

2.2 In acting as Administrator (including any incidental functions) the Administrator's obligation is

to do so properly on behalf of the Group Members and Registered Insurers as a whole.

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2.3 Neither Maddens, the Administrator nor any person employed by Maddens will act as the

lawyer for any individual Group Member or Registered Insurer in relation to his, her or its

claim under the Scheme in relation to that Group Member’s individual claim for

compensation or Insurer Assessed Entitlement under the Scheme.

2.4 Following Settlement Approval and payment of the Settlement Sum in accordance with the

Agreement, the Administrator shall hold the moneys in the Settlement Distribution Fund

subject to and in accordance with the terms of this Scheme.

2.5 The Administrator may rely on any information or declarations provided by the Registered

Insurer of any Group Member as if such information has been provided by the Group

Member.

2.6 Notwithstanding anything elsewhere contained in this Scheme, the Administrator may at any

time correct any error, slip or omission occurring in the course of her administration of the

Scheme.

3. Group Member Information

3.1 The Administrator shall maintain the Claimant Records and use reasonable endeavours to

ensure the accuracy of the information they contain.

3.2 The Claimant Records shall contain the information for each Group Member provided by the

Group Member or obtained by the Administrator or Maddens including any information

provided by a Group Member’s insurer or a Registered Insurer or otherwise.

3.3 The Claimant Records shall include:

(a) assessments of ELPD Claims undertaken by Independent Loss Assessors for the

purpose of the Proceeding;

(b) assessments of PI Claims conducted in accordance with this Scheme; and

(c) assessments of each Group Member’s claim in accordance with the provisions of this

Scheme.

3.4 The accuracy of the information in the Claimant Records shall be deemed to be accepted by

each Group Member. The Administrator shall use reasonable endeavours to ensure the

accuracy of the information recorded in the Claimant Records.

3.5 Subject to clause 3.6, a Group Member shall not be entitled to amend the information

contained on the Claimant Records after the Settlement Date.

3.6 The Administrator may, in the Administrator’s absolute discretion, request and take into

account additional documentation or information in relation to a Group Member’s claim.

4. Information Held by Administrator and Basis of Assessment

4.1 Subject to clause 4.2:

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(a) for the purpose of the administration of this Scheme, information provided by Group

Members or held by the Administrator may be relied upon as accurate by the

Administrator, in her absolute discretion, when administering the Scheme; and

(b) each Group Member’s distribution from the Compensation Pool will proceed on the

basis of the information contained in the Claimant Records.

4.2 If in the Administrator's opinion, the information held in the Claimant Records or provided by

any Group Member or otherwise:

(a) insufficiently substantiates the claim or part of a claim made by a Group Member, the

Administrator, in her absolute discretion, may by written notice require the Group

Member to provide and verify by a further declaration or otherwise such further

information as the Administrator may require. If the Group Member does not provide

the further information in the form requested, within 14 days of such a request being

made, the Administrator may determine that the claim or part of the claim as the

case may be is not eligible for any distribution from the Compensation Pool;

(b) is sufficient notwithstanding that some information may not be included, the

Administrator, in her absolute discretion, may accept it as complete.

5. Assessment of Individual Entitlements

5.1 Within 14 days after Settlement Approval, the Administrator shall determine the Assessed

Loss and Assessment Entitlement for each Group Member, save in respect of group

members under a disability, for whom special provision is made under clause 13.

5.2 For the purpose of the application of this formula and the Scheme more generally, the joints

interests of Group Members will be treated as a single interest where appropriate — for

example, claims by spouses who jointly own a property.

5.3 The Administrator will create and maintain a database in the form of an Excel Spreadsheet

recording each Group Member’s Assessed Loss and Assessment Entitlement.

5.4 Each Group Member’s Assessed Loss will be determined by the Administrator based upon

the information held by Maddens in relation to that Group Member’s loss, including

assessment reports prepared by Independent Loss Assessors, and:

(a) any adjustment to ELPD claims in accordance with clause 5.6 below; and/or

(b) any adjustment to PEL Claims in accordance with clause 5.7 below.

Economic Loss and Property Damage (ELPD) Claims

5.5 In respect of ELPD Claims each Group Member’s information contained in the Claimant

Records will be the basis of the assessment of the ELPD claim for each Group Member.

5.6 For the purposes of the Compensation Pool, Group Member’s ELPD claims will be assessed

on the following bases:

(a) for the Plaintiff, in accordance with the agreement reached with the

defendant with respect to quantum;

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(b) for Group Members:

(i) on the basis of the assessments conducted by Independent Loss

Assessors and/or the Administrator subject to any reductions or

increases considered necessary by the Administrator to ensure that the

assessment reflects a reasonable assessment of the Group Member’s

loss that is as accurate as possible having regard to the available

information; then

(ii) reduced by 20% on account of the difficulties in proving losses claimed

by Group Members.

5.7 For the purposes of the Compensation Pool, Group Member’s PEL Claims will be assessed

on the following basis:

(a) on the basis of the assessments conducted by Independent Loss Assessors

and/or the Administrator subject to any reductions or increases considered

necessary by the Administrator to ensure that the assessment reflects a

reasonable assessment of the Group Member’s loss, that is as accurate as

possible having regard to the available information; then;

(b) reduced by 70% on account of the particular difficulties in establishing and

proving PEL losses claimed by Group Members.

Personal Injury (PI) Claims

5.8 In respect of PI Claims:

(a) Each Group Member’s information contained in the Claimant Records and any

supporting documentation has been or will be provided to Mr Timothy Tobin SC who is

experienced in personal injury law.

(b) Once Mr Tobin SC receives the information, he will consider whether a Group Member

has suffered a compensable injury and if in his opinion there is such injury, deliver an

assessment valuing the PI Claim within 21 days or such longer period as the

Administrator considers in her absolute discretion to be warranted for any individual

Group Member, including any extension of time required to allow for a referral to a

medico-legal assessment (as provided by clause 5.8(e)) (PI Assessment).

(c) Mr Tobin SC, in considering the value of the PI Claim, may at his sole discretion

confer with the Group Member.

(d) The assessment of Mr Tobin SC referred to in 5.8(b) above will be limited to:

(i) an assessment of whether the magnitude of the Group Member’s injury is likely to

satisfy the threshold level under the Wrongs Act 1958 (Vic) as defined in section

28LB;

(ii) whether a Group Member has suffered any loss of earnings or loss of capacity for

employment; and

(iii) a desk top assessment of the Group Member’s PI Claim undertaken on the basis

of the information contained in the Claimant Records and any other available

supporting documentation provided to Mr Tobin SC pursuant to clause 5.8(a).

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(e) The Administrator may advise a Group Member that they will be referred for a medico-

legal assessment if:

(i) she considers that such an assessment is necessary in order to determine

whether that Group Member is likely to satisfy the threshold level under the

Wrongs Act 1958 (Vic) as defined in section 28LB, or in order to otherwise assess

the Group Member’s claim; or

(ii) she is advised by Mr Tobin SC that a referral is necessary for the reasons in sub-

paragraph (i).

(f) In the event of referral to a medico-legal assessment:

(i) the Administrator shall notify the Group Member of the referral, including details of

the assessment time, place and location with a request the Group Member attend;

(ii) the Group member may elect not to attend the assessment;

(iii) should the Group Member decline or fail to attend the assessment, Mr Tobin SC

shall proceed to undertake an assessment of the PI Claim on the basis of the

information and materials available to him in accordance with clause 5.8(b) and

(d) above;

(iv) the outcome of medico-legal assessment, including any associated assessment

report, shall be provided to Mr Tobin SC who shall give consideration to the

assessment report when undertaking an assessment of the PI Claim in

accordance with clause 5.8(b) and (d) above;

(v) the legal costs associated with referral to the medico-legal assessment, if it

proceeds, shall be borne by the Group Member and shall not exceed $5,000

(Medico-Legal Assessment Costs).

6. Calculation of Aggregate Losses and Proportionate Entitlements to the Compensation Pool

6.1 Because the Compensation Pool is less than the total amount claimed by the Group

Members, each Group Member's Assessed Loss must be adjusted to reflect their entitlement to a proportion of the Compensation Pool. The intent of the formula for calculation of that Assessment Entitlement is that each individual Group Member will be compensated for an equal proportion of their total loss.

6.2 The aggregate loss is the Assessed Loss for all Group Members added together (group quantum).

6.3 Each Group Member’s proportion of the Compensation Pool for distribution will be calculated using the following pro rata distribution formula:

(Group Member Assessed Loss / group quantum) x 100 = Assessment Entitlement %

then

Compensation Pool x Assessment Entitlement % = Assessment Entitlement

6.4 Where a Group Member’s claim is for loss that was wholly or partly insured, the Assessed Loss will not include any allowance for loss adjuster fees or other administration fees incurred by the insurer.

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6.5 Where a Group Member’s Assessed Loss includes insured loss, the insurer will be entitled to recover a component of the Group Member’s Assessment Entitlement (Insurance Payment).

6.6 The Assessment Entitlement will be payable to the Group Member (minus any applicable Insurance Payment). Any Insurance Payment will be payable to the Group Member’s insurer.

6.7 The basis for the calculation of Insurance Payments has not yet been approved by the Court. Upon the Court determining that matter, the Administrator is to calculate the Insurance Payments and make distributions to Group Members and their Registered Insurers (as applicable) in accordance with clause 9.

7. Assessment Entitlement Notices

7.1 A Group Member together with his, her or its Registered Insurer (where applicable) will be

advised in writing of their respective Assessment Entitlements prior to distribution.

7.2 A Group Member and Registered Insurer (where applicable) will have 10 days, from the date

of issue of their Assessment Entitlement, to notify the Administrator of any administrative

error, slip or omission in the Assessment Entitlement.

7.3 In the event of a notification under clause 7.2, the Administrator shall:

(a) undertake a review of the Assessment Entitlement for the purposes of identifying or

considering any administrative error, slip or omission;

(b) at her sole discretion make a determination as to whether an administrative error, slip

or omission has occurred; and

(c) within 10 days issue a further Assessment Entitlement either correcting the

administrative error, slip or omission or confirming the original Assessment

Entitlement.

7.4 The accuracy of an Assessment Entitlement shall be deemed to be accepted by a Group

Member or Registered Insurer and shall be final under the Scheme if the Group Member

has not notified the Administrator of any administrative error, slip or omission in the

Assessment Entitlement within 10 days of the date of issue.

8. Group Member's Obligations, Indemnities and Reimbursement of Statutory Benefit Receipts

8.1 Each Group Member shall act honestly, and do all things necessary to ensure that any agent

or representative of the Group Member acts honestly, in anything done in or for the

purposes of participating in this Scheme and any person discharging any function or office

created by this Scheme shall be entitled to rely upon the honesty of the thing done.

8.2 Payment of compensation pursuant to this Scheme may be subject to obligations under

statutes and regulations. Accordingly, each Group Member indemnifies the Administrator

in respect of all such obligations, including but not limited to payments or repayments

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relating to the Australian Taxation Office, Social Security, Medicare, Worker Compensation

or any other statutory benefits paid to or for the benefit of the Group Member under this

Scheme.

8.3 If a Group Member has a legal obligation, whether by reason of statute, contract or

otherwise, to an agency, compensation payer or insurer to pay or repay a sum from the

amount payable to the Group Member under this Scheme, the Group Member shall, as a

condition of its entitlement to receive payment, indemnify the Administrator in respect of

any and all such obligations.

8.4 Without limiting any other obligation or discretion of the Administrator under this Scheme, for

the avoidance of doubt the Administrator may make such adjustments or withholdings from

any payment otherwise due to a Group Member pursuant to this Scheme as may be

necessary to:

(a) comply with any statutory or regulatory obligation to pay or refund any amount to a

statutory or other agency; or

(b) effect any indemnity given or equitable or contractual obligation owing by a Group

Member under this Scheme.

8.5 Where the agency administering any State or Federal scheme notifies the Administrator in

writing that any amount is payable to the agency from any payment payable to a Group

Member under this Scheme, the Administrator:

(a) shall pay the said amount to the agency prior to any final distribution of the balance of

the Group Member’s entitlements pursuant to this Scheme;

(b) shall notify the Group Member of the payment to the agency; and

(c) without affecting any other privilege or immunity under this Scheme, shall have no

further obligation to the Group Member in respect of the said amount;

but nothing in this section shall affect any right the Group Member or the agency might

have against each other in respect of the said amount.

9. Distribution of Compensation Pool

9.1 The Compensation Pool shall be allocated between Group Members on a pro-rata basis

according to the relative values of their Assessment Entitlement.

9.2 The Administrator may make interim distributions of the Compensation Pool, prior to the final

distribution of the Compensation Pool.

9.3 The Administrator shall make an interim distribution of the Compensation Pool within 14 days

of determining the Assessment Entitlement for each Group Member in accordance with

clause 6.3 (First Interim Distribution).

9.4 In making the First Interim Distribution:

(a) the Administrator must ensure that sufficient funds remain in the Settlement

Distribution Fund to meet each of the following:

xi

(i) Insurance Payments; and in any case the allowance for the purposes of this

clause is to be not less than the gross sum of the insurance payments made

to all registered group members in respect of their claimed losses arising out

of the Terang/Cobden bushfire;

(ii) the Assessment Loss of any Order 15 Group Members plus an allowance of

100% of those assessments, to account for the fact that the Assessed

Entitlements must be approved by the court and those amounts may be more

(or less) than the amounts assessed by the Administrator; and

(iii) Common Benefit Legal Costs, Administration Costs and the Reimbursement

Payment (whether approved by the Court as at the date of the First Interim

Distribution or yet to be approved; whether incurred or anticipated)

(the Clause 9.3 Reserve);

(b) subject to being satisfied that the funds remaining in the Settlement Distribution Fund

are sufficient for the purposes of the Clause 9.3 Reserve, the Administrator may

distribute the whole of the Compensation Pool less the Clause 9.3 Reserve, in the

First Interim Distribution;

(c) The assessment of the amount of funds required for the purposes of the Clause 9.3

Reserve is to be made in the Administrator’s absolute discretion.

9.5 Prior to any final distribution from the Settlement Distribution Fund, the Administrator will

cause:

(a) Common Benefit Legal Costs as approved by the Court to be paid to Maddens;

(b) Administration Costs as approved by the Court to be paid to Maddens;

(c) the Reimbursement Payment as approved by the Court to be paid to the Plaintiff.

9.6 If after the final distribution of the Compensation Pool to Group Members:

(a) any amount remains or is held in the Compensation Pool; or

(b) any cheque remains un-presented for a period of 90 days or such further period that

the Administrator otherwise deems appropriate;

the amount shall be distributed to Group Members, subject to clause 9.7.

9.7 At the Administrator's absolute discretion, the following amounts required to be distributed

under clause 9.6 may instead be paid to BlazeAid (a volunteer-based organisation that works

with families and individuals in rural Australia after natural disasters):

(a) if the total amount to be distributed is less than $5,000 the total amount; or

(b) if the amount to be distributed to any individual Group Member is less than $100, that

amount.

10. Immunity from Claims

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10.1 The completion of distributions made pursuant to clause 9 (including distributions made by

cheques that remain un-presented for 90 days) shall satisfy:

(a) all Claims made by Group Members (including the Plaintiff) in the Proceeding; and

(b) any Claims made by Group Members (including the Plaintiff) arising out of or relating

in any way to the facts matters or circumstances set out in the pleadings in the

Proceeding or any matter that is the subject of the Proceeding or has been the

subject of the Proceeding.

10.2 Upon final distribution of the Settlement Distribution Fund in accordance with this Scheme,

the Administrator shall have no further liability in respect of the Settlement Sum, the

Compensation Pool or the implementation of this Scheme.

10.3 Without limiting any other provision for immunity in this Scheme, the Administrator in relation

to this Scheme shall have the same immunities from suit as attach to the office of a judicial

officer of the Court.

11. Disclosures to Agencies and Insurers

11.1 Where necessary or reasonable for the purposes of this Scheme or compliance with any

statutory or contractual obligation owed by, or in respect of any compensation payable to

any Group Member, the Administrator may release to:

(a) a statutory or other agency;

(b) an insurer; or

(c) the Australian Taxation Office;

details of a Group Member's name, address, identifying particulars, tax file number and

any Assessment Entitlement relating to the claim.

12. Supervision by the Court

12.1. The Administrator may refer any issues arising in relation to the Scheme to the Court for

determination or advice.

12.2. Any costs incurred in any such referral to the Court made by the Administrator shall be

deemed to be a part of the Administration Costs.

13. Persons Under Disability

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Litigation Guardian

13.1. Where the Administrator believes that a Group Member is or may be an Order 15 Group

Member:

(a) the Administrator shall give written notice of that belief to:

(i) the Group Member;

(ii) the person who the Administrator proposes to appoint as the litigation guardian

for the Group Member; and

(b) unless the Group Member satisfies the Administrator that they are not a person to

whom Order 15 of the Rules applies, the person nominated as litigation guardian

shall, subject to giving their consent and the approval of the Court, be appointed by

the Court as the litigation guardian of that Group Member.

13.2. The Administrator shall notify Funds in Court of each Order 15 Group Member identifying the

contact details of the litigation guardian of each Order 15 and any other relevant details.

13.3. Where a Group Member is an Order 15 Group Member the operation of this Scheme shall be

modified as follows:

(a) any notices, correspondence or information required by this Scheme to be given to a

Group Member shall be given to the litigation guardian of the Group Member;

(b) except where otherwise provided by this Scheme or by the Administrator, anything

that is required by the Scheme or the Administrator to be done by a Group Member

shall be done by their litigation guardian; and

(c) any notice pursuant to clause 7 which may be given by a Group Member pursuant to

this Scheme will be given by the litigation guardian of the Group Member.

Procedure Facilitating Order 15 Approval

13.4. Where a Group Member is an Order 15 Group Member, the Administrator shall deliver to

Funds in Court:

(a) the Assessed Loss in relation to each such Group member;

(b) a report by Maddens detailing such background or other matters as the Senior Master

may require;

(c) confirmation that:

(i) the litigation guardian of the Order 15 Group Member was given notice of the

Assessed Loss and any review rights in accordance with this Scheme;

(ii) the time for making any request for review has expired; and

(iii) any review of an Assessed Loss by the litigation guardian of the Order 15

Group Member has been completed in accordance with this Scheme;

xiv

(d) a proposed form of order for each Order 15 Group Member including orders to the

effect that:

(i) pursuant to Order 15 of the Rules, approval be granted for a compromise of the

Group Member’s claim for the amount of the Assessment Entitlement; and

(ii) any distribution in respect of the Group Member pursuant to this Scheme be paid

to the Senior Master by payment into Court.

14. Administration Costs

14.1 Fees payable in respect of work performed by or on behalf of the Administrator pursuant to

this Scheme shall be assessed by an independent costs consultant and payment of those

costs to the Administrator will be subject to approval of the Court.

14.2 Notwithstanding any other provision of this Scheme, and without reducing any other rights

which the Administrator might have, any costs, expenses, taxies, levies, duties, charges,

fees or other imposts or obligations arising in connection with the administration of this

Scheme (including without limitation the creation, retention, investment or disbursement of

any part of the Settlement Distribution Fund) incurred by the Administrator over and above

the Administration Costs will be borne by the Administrator.

Approval of Administration Costs

14.3 All fees and disbursements payable to any person in relation to the administration of this

Scheme shall:

(a) form part of the Administration Costs of the Scheme;

(b) be identified in a report to the Court prior to any disbursement from the Settlement

Distribution Fund to the person claiming the costs or disbursements; and

(c) be disbursed from the Settlement Distribution Fund upon and to the extent of

approval by the Court.

14.4 Nothing in this Section shall affect any rights or obligations as between a solicitor and client

of that solicitor in respect of costs incurred pursuant to any retainer or costs agreement

between the solicitor and that client.

15. Notice

15.1 Any notice or document to be given (or delivered) pursuant to this Scheme shall be deemed to

be given (or delivered) and received for all purposes associated with this Scheme if it is:

(a) addressed to the person to whom it is to be given; and

(b) either:

xv

(i) delivered, or sent by pre-paid mail, to that person's postal address (being, in

respect of any Group Member, the postal address recorded in the Claimant

Records, as obtained from or directly from the Group Member);

(ii) sent by fax to that person's fax number (being, in respect of any Group Member,

the fax number provided by the Group Member) and the machine from which it

is sent produces a report that states that it was sent in full; or

(iii) sent by email to that person's email address (being, in respect of a Group

Member, the email address provided by the Group Member), and a server

through which it is transmitted produces a report that states that the email has

been sent to the inbox of the specified email address.

15.2 A notice or document that complies with clause 15.1 will be deemed to have been given (or

delivered) and received:

(a) if it was sent by mail to an addressee in Australia, three (3) clear business days after

being sent;

(b) if it is sent by mail to an addressee overseas, five (5) clear business days after being

sent;

(c) if it is delivered or sent by fax, at the time stated on the report that is produced by the

machine from which it is sent; and

(d) if it is sent by email, at the time it is sent.

15.3 Where a Group Member is not a natural person and where one person has been nominated

as the contact in respect of several Group Members, it is sufficient for the purpose of giving

notice that any of the provisions of clause 15.1 are complied with in relation to that nominated

person.

15.4 The Administrator's address, fax number and email address shall be as set out below unless

and until the Administrator notifies the Group Members otherwise:

Attention: Kathryn Emeny

Terang / Cobden Bushfire Class Action Proceeding

Maddens Lawyers 219 Koroit Street Warrnambool VIC 3280 Fax: (03) 5560 2000 Email: [email protected]

16. Time

16.1 The time for doing any act or thing under this Scheme may be extended by order of the

Court.

END OF SETTLEMENT DISTRIBUTION SCHEME

mailto:[email protected]

Documents

IN THE SUPREME COURT OF VICTORIA Not Restricted AT ...€¦ · It assumes a role akin to that of a guardian, not unlike the role a Court assumes when approving infant compromises”.5