Bushfire class action to go ahead

Bushfire class action to go ahead

09 May 2011

published by www.news.smh.com.au

Australia — A bid by electricity supplier SP Ausnet and Victoria Police to stop a class action by hundreds of Black Saturday bushfire victims from going to trial has failed.

SP Ausnet and the state – defendants in a class action by hundreds of Black Saturday victims – tried to have the proceedings dismissed.

SP Ausnet cited an abuse of process by the solicitors who issued the initial claim.
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But Victorian Supreme Court Justice Jack Forrest on Tuesday ruled the proceeding should stand, as the abuse was “not fatal” to the case going ahead.

He also added that potentially many thousands of claimants would be affected by an order dismissing the claim.

Solicitors Oldham Naidoo had issued proceedings for damages against power company SP Ausnet over Victoria’s February 2009, bushfires at Kilmore East and Beechworth.

The company is being sued for allegedly failing to maintain and monitor powerlines that sparked the blazes.

The firm named Leo Keane the representative plaintiff in the action, despite not gaining his permission.

Justice Forrest found the solicitors’ conduct was a “patent and egregious abuse of process”.

“The firm’s handling of the claim should be referred to the Legal Services Commissioner,” he said in his ruling.

“However, the consequences of that abuse of process should not result in the dismissal of the proceeding.”

In March this year, law firm Maurice Blackburn became aware of Oldham Naidoo’s unauthorised actions and brought its conduct to the court’s attention. It is now leading the class action and played no part in the abuse of process.

Carol Matthews has replaced Mr Keane as the lead plaintiff.

Justice Forrest said the court’s aim was to ensure that the abuse of process did not cause injustice to the parties.

“Potentially, many thousands of claimants would be affected by an order dismissing the claim,” he said.

“The prejudice is real both in terms of delay and in the financial sense.”

The Black Saturday bushfires killed 173 people when they devastated Victoria on February 7, 2009.

Victoria Police also applied to have the proceedings dismissed without going to trial.

But Justice Forrest found there was merit in the claim Victoria Police officers breached their duties by failing to give adequate warning to people threatened by fire and ruled the case should go to trial.

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