Maddens hits road block in Gazette bushfire class action

Bushfire class actions are hard to run and harder to win, a lesson Maddens learned the hard way with its proceeding summarily dismissed as having no real prospect of success.

This was a class action brought on behalf of persons who claim to have suffered loss arising out of the 'Gazette Bushfire'; one of four bushfires on St Patrick's Day in 2018. The bushfire was ignited when a blue gum tree located at the perimeter of a commercial plantation fell on a powerline conductor. The plaintiff alleged that the defendant power supply company (Powercor) was negligent in failing to remove or prune the tree before the fire danger period in the summer of 2017-18.

In this judgment, John Dixon J summarily dismissed the proceeding pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) on the ground that the claim had no real prospects of success.

His Honour observed that the test for summary judgment under s 63 of the CPA is whether the claim has a 'real' as opposed to a 'fanciful' chance of success. However, while the power to dismiss an action should be exercised with caution, and Powercor thus carried a high onus of persuasion that the plaintiff should be denied the opportunity of a trial, it is not necessary to show that the relevant claims are 'hopeless' or 'bound to fail' (see [85]-[88]).

His Honour's decision to summarily dismiss the plaintiff's claim turned on the legislative framework governing Powercor's obligation to ensure that no part of a tree was within the minimum clearance space of its powerline conductor. Without delving into the minutiae of his Honour's comprehensive decision, he held that the evidence established that Powercor had acted consistently with its obligations under the relevant legislation and codes of practice.

Indeed, not only was the tree located outside the minimum clearance space established by the relevant code, the evidence indicated that the tree was not hazardous and appeared to be in good health. Furthermore, Powercor was also under an obligation pursuant to the applicable regulations not to remove a healthy blue gum, particularly in circumstances where it was located outside of the minimum clearance space. These factors led his Honour to conclude that the duty of care pleaded by the plaintiff was inconsistent with the legislative framework, and had no real prospect of success. His Honour also held that the plaintiff’s pleaded case with respect to foreseeability of harm, and his claim in nuisance, had no real prospect of success for similar reasons.

Case details

Block v Powercor Australia Ltd [2019] VSC 15

  • Supreme Court of Victoria, John Dixon J
  • 6 February 2019
  • Plaintiff's Solicitors: Maddens Lawyers; Defendant’s Solicitors: Wotton & Kearney;
  • Plaintiff's Funder: N/A

Read more on Austlii: Block v Powercor Australia Ltd [2019] VSC 15



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