Class action proceedings begin as fire victims seek accountability

Class action proceedings begin as fire victims seek accountability


BEFORE lockdowns in SA and Vic caused the cancellation of a Cudlee Creek fire class action meeting at Lobethal, some key dates for proceedings were decided in the Supreme Court in Adelaide on Monday.


BEFORE lockdowns in SA and Vic caused the cancellation of a Cudlee Creek fire class action meeting at Lobethal, some key dates for proceedings were decided in the Supreme Court in Adelaide on Monday.

Special counsel for filers of the class action Maddens Lawyers, Brendan Pendergast, said the Court made various orders to advance the matter.

The process of discovery - the production of relevant documents - must be completed by September 3, while an opt-out notice from Maddens must be published on their website, in The Advertiser and The Courier by September 10.

"That notice gives a comprehensive explanation of what the class action is all about, and if people don't wish to participate they have the option to opt out of the class action," Mr Pendergast said.

Originally scheduled for Tuesday this week, Maddens Lawyers is expected to reschedule the Lobethal community meeting once the states' respective COVID-19 restrictions are eased.

A meeting scheduled for Wednesday at Yorketown to update residents on the Yorketown fire class action, also filed against SA Power Networks, was also cancelled.

Maddens is arguing that more could have been done by SA Power Networks to prevent the Cudlee Creek fire, which burned through 25,000 hectares, destroyed close to 100 homes and resulted in one death.

The state government's Office of the Technical Regulator found a large pine tree falling onto powerlines was the likely cause and cleared SAPN of any wrongdoing due to the tree being outside of its vegetation clearance zone.

Mr Pendergast said Maddens would argue the location of the fire is a high-risk bushfire area and the fire started on the fourth successive total fire ban, high-risk bushfire day.

"We say the power network could have and should have adjusted its setting on its reclosed devices to make sure if there was an issue with the line that it wasn't re-energised, it was immediately de-sensitized," he said.

"We say electricity, tinder-dry fuel and trees precariously located adjacent to powerlines in that location was just the most high-risk scenario one could imagine.

"All of those issues give rise to a very high obligation for the power network to conduct its operations with the greatest level of care and responsibility."

SAPN is maintaining its position that it will defend its actions based on the findings of the OTR report.

"An independent government report concluded the fire start was due to a tree falling from outside the vegetation clearance zone surrounding powerlines on private property, and that SAPN had acted in accord with its bushfire and vegetation management procedures and equipment settings," the spokesperson said.

"This forms the basis on which we will defend the class action."

Mr Pendergast said Maddens was disappointed to have to cancel the SA meetings, saying it was still the company's intention to conduct the meetings once they could travel to SA.

"It was going to be a great opportunity, now that the class action's on foot, to give a detailed explanation to fire victims and field questions," he said.

"In the meantime, we are encouraging people impacted by the fire to contact Maddens Lawyers and let us know they are property owners impacted by the fires.

"From our extensive bushfire litigation experience, it is important for people to start preparing an inventory or outline of their loss.

"That process gets harder with the passage of time."

Of the roughly 1000 people impacted by the fire, "several hundred" had registered, according to Mr Pendergast.


Required to live on-site to claim insurance, lead plaintiff Kris Thrower and wife Annie Whicker are reminded of the events of December 2019 every waking hour.

Living in a converted shed while their house gets rebuilt, the couple look out to a charred, bare landscape dotted with a few remaining black trees.

Scaffolding surrounds the house they hope to move into by Christmas.

Days, weeks, months, years of hard work to get their 13-hectare Woodside property in immaculate condition was quickly destroyed by the Cudlee Creek fire.

They lost their house, 2.4 kilometres of fencing, irrigation pipes, pumps, tanks, their extensive gardens, while many of the centuries-old stringybarks and gums in their surrounding paddocks were incinerated and the soils they stood in eroded.

Forced to camp with friends and find rental properties, the couple moved back to their property six months ago to meet a requirement to be able to claim insurance.

"The cleanup has been going on for 18 months," Mr Thrower said.

"We've had to roll up a mile and a half of fencing, have pumps and tanks replaced. The cleanup has been a massive, massive task.

"It has also had an impact on the viability of the business I run.

"It was nothing to do with COVID. I just couldn't spend time with the business because I was here meeting contractors, here moving things on the tractor, chainsawing black stumps, it goes on.

"I'm still coming to grips with living here even though we've been back at Woodside for six months."

As lead plaintiff in the class action, Mr Thrower will shoulder everyone's costs if the case is unsuccessful.

A big cross to bear, Mr Thrower remains determined to seek closure for his family, his friends and the wider community impacted by the Cudlee Creek fire.

"Personally I don't accept as a utility provider, or goods and services provider, that you can provide a utility or goods and services and take money for it, but say 'don't hold us liable for anything that might happen'," he said.

"I don't think SA Power Networks can decide what they will and won't be liable for.

"I'm really frustrated and angry about the way this has all happened and that's why I think it's important to make them accountable."

Their property may wear the physical scars of the Cudlee Creek fire, but Kris and Annie say the mental scars are just as evident in their everyday lives.

"I still don't sleep well," Mr Thrower said.

"I'm always on edge, it has made me really anxious. I'm still very angry and my anger lies at those who put us in this position."

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