A five-year, multi-million dollar class action, surrounding a bushfire on the doorstep of the ACT, has been dismissed by the NSW Court Of Appeal.
Maddens Lawyers launched a class action after 11 homes were destroyed in the Carwoola bushfire on February 17, 2017, a day of total fire ban.
The term "spark producing equipment" was crucial with courts deciding that definition included the various uses of power equipment which caused sparks.
The bushfire started when a Husqvarna K970 power cutter used by Advanced Plumbing and Drains Pty Ltd workers to cut steel reinforcement for a residential slab footing caused sparks that ignited dry grass in a nearby paddock.
Advanced Plumbing was placed in liquidation and its insurer CGU Insurance, which Maddens was suing, sought indemnity on several grounds, which were ultimately successful.
Expert evidence led to Justice David Davies in the Supreme Court finding CGU was entitled to deny cover to Advanced Plumbing because of its failure to comply with Australian Standards 1997 Safety in Welding and Allied Processes - Fire Precautions.
That meant Maddens could not pursue compensation for victims from the insurer.
That decision was appealed and then the appeal was dismissed on Monday.
The decision could be further appealed to the High Court if Maddens chose.
The bushfire 10 kilometres east of Queanbeyan burnt through 3500 hectares of land, destroyed 11 homes and damaged 12 more, with other losses including livestock, fencing, pastures and outbuildings.
On its website Maddens Lawyers claim to have successfully recovered more than $150 million in compensation on behalf of class action group members, dating back to the 1983 Ash Wednesday fires.
"The firm has been the driving force behind 24 class actions. Notable class actions include four proceedings arising out of Victoria's 2009 Black Saturday fires and the 2013 Blue Mountains fire in Springwood, which impacted more than 1000 property owners.
"In 2020, Maddens achieved two of the top ten largest class action settlements in Australia arising from the 2015 Scotsburn fire in Victoria and the 2009 Walla Walla fire in New South Wales."
In a statement to ACM on Tuesday, Maddens principal Kathryn Emeny said: "The NSW Carwoola Bushfire Class Action was commenced on behalf of in excess of 100 bushfire victims who suffered devastating losses following a major fire in 2017.
"A claim for compensation was advanced against CGU Insurance in its capacity as insurer for a plumbing company which undertook cutting works on a day of total fire ban, leading to the ignition of the fire.
"The claim was successful on all points bar one.
"CGU Insurance relied upon an exclusion clause and declined to cover the plumbing company for the ignition of the fire. As a result of the operation of this exclusion clause bushfire victims have been denied tens of millions of dollars in compensation.
"Throughout the course of the proceeding CGU Insurance contested all aspects of the claim, including the cause and circumstances of the ignition of fire.
"The Supreme Court later made orders awarding indemnity costs in favour of the plaintiff as a result of the costs and delay caused by CGU Insurance declining to admit facts pertaining to the ignition of the fire which were ultimately established.
"Maddens Lawyers will not be deterred in advocating on behalf of bushfire victims which we have been doing since 1983. Our class action department is actively advancing claims for compensation on behalf of thousands of people across Australia who would not otherwise have access to justice.
"We will continue to hold corporate defendants, insurance companies and wrongdoers to account," the statement said
In October 2019, ACM reported that Maddens Lawyers received a $725,000 payday after claiming almost two-thirds of the SKM's Coolaroo recycling plant fire class action settlement.
More than 200 members of the Maddens class action were to share in the $475,000 of the $1.2 million SKM has been ordered to pay - an average of just over $2000 each.
In February 2019 Supreme Court Justice John Dixon dismissed the St Patrick's Day bushfire Gazette class action claim as "fanciful" which accumulated a costly legal bill.
The Gazette bushfire near Hawkesdale was caused by a eucalypt tree falling on a powerline that ran through a blue gum plantation, sparking the ignition of nearby vegetation.
And in November 2018 Justice Dixon found that Maddens Lawyers' Brendan Pendergast, one of Australia's leading bushfire lawyers, had made misleading comments about St Patrick's Day fires legal action when he found the lawyer had clearly sought to persuade insured group members to deal with his firm and not deal with their insurers.
