Supreme Court New South Wales

• Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater [2014] NSWSC 1565
• Hearing dates: 05/11/2014, 06/11/2014
• Decision date: 07 November 2014
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1)Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005, the Statement of Claim filed 8 July 2014 be struck out.; (2)The plaintiff has leave to file and serve an amended statement of claim and any statement of particulars on or before 13 February 2015.; (3)Amended Notice of Motion of first defendant filed 5 November 2014 otherwise dismissed.; (4)Notice of Motion of second defendant filed 19 September 2014 otherwise dismissed.; (5)Notice of Motion of third defendant filed 17 September 2014 adjourned to 17 April 2015.; (6)The plaintiff to serve any expert report concerning dam operations upon which it proposes to rely at the hearing on or before 13 February 2015.; (7)Each defendant to file and serve its defence, verified in accordance with r 14.23 of the UCPR, together with a statement of the questions of law or fact which the defendant identifies as common to the claims of the group members on or before 10 April 2015.; (8)The matter be listed for a case management conference at 9.30am on 17 April 2015.; (9)The plaintiff is to serve on or before 29 May 2015: (a)all written statements, in accordance with r 31.4 of the UCPR, of the oral evidence which it intends to adduce in chief at the hearing, on any and all questions of fact relevant to that hearing; and; (b)all expert reports, in accordance with r 31.27 of the UCPR, of all expert evidence which it intends to adduce in chief at the hearing, on any and all questions of expert opinion relevant to that hearing.; (10)Each defendant is to serve on or before 25 September 2015: (a)all written statements, in accordance with r 31.4 of the UCPR, of the oral evidence which it intends to adduce in chief at the hearing, on any and all questions of fact relevant to that hearing; and; (b)all expert reports, in accordance with r 31.27 of the UCPR, of all expert evidence which it intends to adduce in chief at the hearing, on any and all questions of expert opinion relevant to that hearing.; (11)The plaintiff is to serve all lay and expert evidence in reply to the defendants lay and expert evidence on or before 29 October 2015. Such evidence to accord with the provisions of the UCPR referred to in Order 9 above.; (12)Each defendant is: (a)on or before 27 February 2015 (in the case of the second and third defendants); and; (b)on or before 10 April 2015 (in the case of the first defendant); to provide discovery, in accordance with r 21.2 of the UCPR, of all documents relating to the control, operation and management of Somerset Dam and Wivenhoe Dam (including, without limitation, all documents sent to or received by the Flood Engineers in connection therewith) in the period 1 December 2010 to 19 January 2011, excluding: (c)any document created after 19 January 2011, unless bearing a date within the period; (d)any document previously provided to the plaintiff by any of the defendants; and; (e)any document received in evidence at the Queensland Floods Commission of Inquiry and currently publically available on the Commission’s website; (13)The matter be listed for hearing commencing on 18 July 2016.; (14)The parties have liberty to apply, on 3 days’ notice, to restore the matter for directions.; The Court notes that: (15)The plaintiff will circulate a proposed document management protocol to the defendants with a view to the parties agreeing the same in advance of discovery being provided.; (16)Orders will be made in due course which provide for: (a)conclaves of expert witnesses, and the production of joint reports during the period November 2015 to February 2016; (b)the process of consensual, or else court-ordered mediation, during the period March 2016 to April 2016; and; (c)the undertaking of final pre-trial preparation during the period May 2016 to 15 July 2016.; (17)Order that the costs of the amended notice of motion of the first defendant and the notice of motion of the 2nd defendant be costs in the cause.; (18)Costs of the notice of motion of the 3rd defendant be reserved.

• Catchwords: PROCEDURE – civil – summary disposal – strike out statement of claim; application to - Uniform Civil Procedure Rules 2005, r 14.28 - representative proceedings – negligence – pleading - Civil Liability Act 2005 (Qld), s 9 – risk of harm – requirement to specifically plead – erroneous references in pleading – group members – closed class – geographically defined - pleading of group members deficient, whether – need to be more specifically pleaded as to geography and time, whether – proof of damage – common question of fact properly determined at hearing – pleading of foreseeability – defective, whether – greater specificity needed as to time at which damage was foreseeable and to whom, whether – not required – causation a matter for factual proof - breaches of duty – particulars – acts and omissions - acting unreasonably – failure to act reasonably – causation - pleading afforded defendants a fair opportunity to meet the case, whether – need to specify minimum available capacity by reference to dam height level – greater precision required in phrase ‘greater flooding’, whether – greater specificity in geography of flooding required – formulaic and repetitive allegations, whether – matter of convenience – claim extends over six weeks – many possible combinations of breach of duty – re-pleading
• Legislation Cited: Civil Liability Act 2003 (Qld); Civil Procedure Act 2005; Uniform Civil Procedure Rules 2005
• Cases Cited: Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40; Forrest v Australian Securities Investment Commission [2012] HCA 39; (2012) 247 CLR 486; Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; Young v Hones [2013] NSWSC 580
• Category: Procedural and other rulings
• Parties: Rodriguez & Sons Pty Ltd (P); Queensland Bulk Water Supply Authority t/as Seqwater (D1); Sunwater Ltd (D2); State of Queensland (D3)
• Representation: Counsel: S Finch SC / N Owens / R Yezerski (P); B O’Donnell QC / D Klineberg (D1); D Williams SC / N Neal (D2); G H Thompson QC / E Morzone / J Horton (D3); Solicitors: Maurice Blackburn (P); King + Wood Mallesons (D1); Norton Rose Fulbright (D2); Crown Solicitors (D3)
• File Number(s): 2014/200854

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Judgment

1. In January 2011, the Brisbane River and Bremer River (and their tributaries) flooded, causing substantial inundation to areas of south-east Queensland located downstream of the Wivenhoe Dam. That inundation caused significant damage to property, both real and personal, and significant interruption to businesses which operated in or throughout that area.

2. On 8 July 2014, Rodriguez & Sons Pty Ltd (“the plaintiff”) commenced proceedings in the Supreme Court of NSW. In so doing the plaintiff constituted the proceedings as representative proceedings pursuant to Pt 10 of the Civil Procedure Act 2005.

3. The first defendant is the Queensland Bulk Water Supply Authority, which trades as Seqwater. It is alleged that Seqwater owned and controlled the operations of the Wivenhoe Dam, and the Somerset Dam which is upstream of the Wivenhoe Dam.

4. The second defendant is Sunwater Ltd, which is a Queensland government owned corporation which is alleged to have been responsible for the conduct of flood operations for the two dams, and also responsible for establishing and maintaining a dedicated operations centre from which the flood operations could be conducted.

5. The third defendant is the State of Queensland, who is principally sued as the employer of one of the individual engineers engaged in the conduct of the flood operations centre.

The Statement of Claim

6. The Statement of Claim is a document of 380 paragraphs which alleges against the first two defendants, and against the individuals in their employ and in the employ of the third defendant, that they were negligent in the conduct of the flood operation centre, and in the conduct of flood operations, for the period from 1 December 2010 through to and including 11 January 2011.

7. The plaintiff divides that lengthy period into nine discrete nominated periods. They are:

1. Period 1   1 December 2010 to 16 December 2010.

2. Period 2   16 December 2010 to 24 December 2010

3. Period 3   2 January 2011

4. Period 4   3 January 2011 to 5 January 2011.

5. Period 5   6 January 2011

6. Period 6   7 January 2011

7. Period 7   8 January 2011

8. Period 8   9 January 2011

9. Period 9   10 January 2011 and 11 January 2011.

8. In respect of each of these periods, the essence of the plaintiff’s case is that having regard to the known features which were capable of real time measurement such as the quantity of water flowing into both Somerset and Wivenhoe Dams, the heights of various tributaries and rivers both upstream and downstream of the dams, the past and current rainfall quantities and intensities, and the predicted rainfall both in the catchment above the dams and in the catchments of the rivers, creeks and tributaries below the dams, the operators at the flood operations centre should have released, from time to time, significant quantities of water in accordance with the designated flood manual so that by the time the events of 9 and 10 January 2011 came to occur, there was sufficient available capacity in the two dams to avoid the enormous release of water which occurred on 10 and 11 January 2011 and which caused the flooding that the plaintiff alleges gave rise to the relevant damage.

9. As senior counsel for the plaintiff put it:

“At its heart – although there are complexities about it, no doubt, and there will be some considerable complexities when considering the expert evidence – the case is relatively simple. A flood event started on 2 December [2010]; it continued for six weeks until about 11 January [2011]. Notwithstanding that there was a continuous flood event, under the definitions in the manual, on three separate occasions in that period - 16 December, 24 December, 2 January - the flood officers declared the flood event over. Releases were stopped too soon, flood storage capacity wrongly decreased.”

10. The duty pleaded against each defendant is pleaded in similar terms. It is convenient to set out paragraph 144, which is a pleading of a duty alleged by Seqwater. The terms in which this paragraph is expressed are either identical to, or sufficiently similar to, other paragraphs alleging a duty of care to enable this to be the subject of concentration.

11. Paragraph 144 is in these terms:

“144.   In light of the facts and matters pleaded in paragraph 143, Seqwater, in its capacity as owner and occupier of Somerset Dam and Wivenhoe Dam, owed a direct … duty to Group Members:

(a) to take reasonable care in the conduct of Flood Operations at Somerset Dam and Wivenhoe Dam; and

(b) to ensure that reasonable care was taken by any third party engaged by or on behalf of Seqwater to conduct Flood Operations at Somerset Dam and Wivenhoe Dam;

to avoid the risk that a failure properly to conduct Flood Operations at Somerset Dam and Wivenhoe Dam would cause Greater Flooding downstream of Wivenhoe Dam.”

The term “Greater Flooding” is used to describe the following:

“1.   Flooding downstream of Wivenhoe Dam in circumstances where such flooding would not have otherwise occurred if flood operations were conducted properly; or

2.   Greater flooding downstream of Wivenhoe Dam than would occur if flood operations were conducted properly.”

12. It is necessary also to note pleadings with respect to breach of duty.

13. Again, these pleadings are in similar form with respect to each period. It is sufficient for present purposes to set out one example of such pleadings. The example used is that which refers to the first period. The relevant pleadings are:

“159.   At the time flood releases from Wivenhoe Dam were discontinued on 16 December 2010, a reasonably prudent flood engineer responsible for Flood Operations at Somerset Dame and Wivenhoe Dam:

a) would have had regard to the flood mitigation objectives in the Flood Mitigation Manual and the priority between them;

b) would have considered the likely effect of continuing inflows in determining whether the cease flood releases and Flood Operations;

c) would have considered the likely effect of continuing rainfall in determining whether to cease flood releases and Flood Operations;

d) would have considered forecase rainfall in determining whether to cease flood releases and Flood Operations;

e) would have considered the risk that future rainfall may exceed that predicted by the Bureau of Meteorology;

f) would have considered the risk that further rainfall might generate substantial runoff given previous rainfall;

g) would have considered the risk that a failure to continue Flood Operations and flood releases might result in there being insufficient available capacity in the flood storage compartments of Somerset Dam and Wivenhoe Dam to prevent large scale releases in case of further rain;

h) would have considered the current water levels of Lake Somerset and Lake Wivenhoe;

i) would have considered the magnitude of forecast rainfall and the likely impact such rainfall would have on dam water levels should it eventuate; and

j) would have considered whether water levels should be reduced below Full Supply Level given past rainfall, ongoing inflows and the likelihood of rainfall in the near future.

160.   Further, by reason of the matters pleaded at pagraphs 158-159, a reasonably prudent flood engineer responsible for Flood Operations at Somerset Dam and Wivenhoe Dam on 16 December 2010;

a) would have reasonably construed the Flood Mitigation Manual;

Particulars

A. A reasonably prudent flood engineer would have construed the Flood Mitigation Manual to require the Flood Engineers to use the weather forecast information supplied by the Bureau of Meteorology in determining release strategies for Somerset Dam and Wivenhoe Dam.

B. A reasonably prudent flood engineer would have construed the Flood Mitigation Manual to require the actions pleaded in paragraphs 160(b)-(d) and (g)-(i) below.

b) would have complied with the requirements of the Flood Mitigation Manual;'

Particulars

A. A reasonably prudent flood engineer would have complied with the Flood Mitigation Manual by taking the actions pleaded in paragraphs 160(c)-(d) and (g)-(j) below.

c) would have made reasonable predictions, and formed reasonable expectations, with respect to those matters in relation to which the Flood Mitigation Manual required the Flood Engineers to make predictions and form expectations, and would have acted in accordance with those predictions and expectations in complying with the requirements of the Flood Mitigation Manual;'

d) would have adhered to the dictates of the Flood Mitigation Manual in determining whether to continue Flood Operations and releases;

e) would have expected that the water levels in Lake Somerset and Lake Wivenhoe would continue to exceed their respective Full Supply Levels, such that a Flood Event was occurring;

f) would have considered that, according to the terms of the Flood Mitigation Manual, a Flood Event had been ongoing since on or around 2 December 2010;

g) would have continued Flood Operations and flood releases at Somerset Dam and Wivenhoe Dam on 16 December [2010];

h) would have caused Somerset Dam and Wivenhoe Dam to release water at rates substantially exceeding the rate of inflow;

i) would have made sufficient precautionary releases from Somerset Dam and Wivenhoe Dam to ensure that there was sufficient available capacity in the flood storage compartments of Somerset Dam and Wivenhoe Dam to avoid or minimise the risk that large scale releases would be required should further rainfall occur in accordance with, or in excess of, that forecast by the Bureau of Meteorology; and

j) would have continued Flood Operations until Lake Somerset and Lake Wivenhoe were no longer likely to exceed their respective Full Supply Levels.

Particulars

A. Flood Mitigation Manual, sections 1.1, 3.1, 8.4, 8.5, 9.4

161.   In the circumstances pleaded at paragraph 156-158, the Flood Engineers (or one or more of them):

a) failed to have regard to, or to accord sufficient weight to, one or more of the matters pleaded in paragraph 159; and

b) failed to do one or more of the things pleaded in paragraph 160.

16.2   By reason of the matters pleaded in the preceding paragraph, the Flood Engineers, or one or more of them, breached their duty of care to the plaintiff and other Group Members on 16 December 2010.”

14. It is to be observed that the breaches of duty alleged can readily fall into two categories which are set out in paragraph 161 above. The first is a category which relates to the integers to which reference may have been had by the flood engineers for the purpose of forming various opinions or which formed the basis upon which judgments were made, and the second category being allegations of the failure to take identified action or else omissions to act reasonably.

15. At the conclusion of dealing with the allegations of breach of duty for each period, the Statement of Claim pleads the events which are said to have been the immediate cause of damage which occurred due to flooding, and which events were the result of the various breaches pleaded. The immediate cause is pleaded in the following way:

“330.   Throughout 10 and 11 January 2011, the Flood Engineers released water from Wivenhoe Dam at substantial rates of discharge (between approximately 3,594m³/s and 11,561m³/s).

Particulars

(a) Seqwater, January 2011 Flood Event: Report on the Operation of Somerset Dam and Wivenhoe Dam, 2 March 2011, section 9.2, pp158-159.

331.   The water released from Wivenhoe Dam on 10 and 11 January 2011 was released at such volumes and at such rates that urban flooding downstream of Wivenhoe Dam was certain, alternatively, very likely to occur.”

16. Causation and loss is addressed at paragraph 342 and following. In paragraph 343, the plaintiff pleads that by reason of one or more of the breaches in the nine identified periods of time:

“… there was insufficient available capacity in Lake Somerset and Lake Wivenhoe in the period from the evening of 9 January to 11 January 2011 to store incoming inflows, or to mitigate effectively the effect of such inflows.”

17. The plaintiffs pleads that in the circumstances where there were ongoing rainfall and inflows into the dams, and the lack of available flood storage capacity which

“… necessitated the release of large volumes of water from Wivenhoe Dam in order to protect the structural integrity of Wivenhoe Dam.”

18. The Statement of Claim goes on to plead that the large volume releases would not have been necessary, or would have been of a smaller volume, had the floor engineers not committed one or more of the breaches of duty, and the large volume releases caused greater flooding downstream of the Wivenhoe Dam in circumstances which such flooding would not have been caused had there been no breach of duty.

19. The formula used with respect to the breaches, which becomes relevant to submissions recorded later, is the phrase “one or more of the breaches”.

20. This is to be observed from the introduction to paragraph 347, where the following is pleaded:

“347.   By reason of the matters pleaded in paragraph 342 to 346, the Flood Engineers’ Breaches, or one or more of them, caused loss or damage to the plaintiff.” (sic)

21. It is also relevant to note for the purposes of the issues shortly to be discussed, the definition of “group members”. That is set out in paragraph 6 of the Statement of Claim.

22. As I have earlier indicated, it relates to people who had an interest in land who suffered loss when their land was inundated or else whose use and enjoyment of that interest was interfered with by inundation of that or other land, people who owned personal property which was destroyed by the inundation and people who conducted businesses or enterprises which were affected adversely by the flood waters.

23. As well, the class is what is described as a “closed class” because, in order to be a member of the class, each person had to have entered into a litigation funding agreement as at the date of the commencement of the proceedings, or else have been indemnified by an insurer which had entered into a litigation funding agreement.

24. However, it is necessary to note the extent of the class geographically. One paragraph is sufficient because, again, a similar formula is used with respect to the others.

25. In paragraph 6(a)i), the geographical nature of the class is defined as follows:

“a)   held an interest in land … and:

i) who suffered loss or damage (whenever occurring) by reason of the inundation of that land by flood water from the Brisbane River or Bremer River (and their tributaries) in the period 9 January 2011 to 24 January 2011.”

26. The geographical nature of the class is also described in other ways as being “… land located downstream of Wivenhoe Dam”.

27. It cannot be doubted, and the plaintiff accepts, that potentially a very large area of land downstream of the Wivenhoe Dam was inundated by flood water.

Notices of Motion

28. The first and second defendants each filed Notices of Motion which principally sought relief pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (“UCPR”), striking out the plaintiff’s Statement of Claim. Alternatives orders were sought including orders for specific pleading and the provision of further and better particulars. The third defendant did not join in with the Notices of Motion to strike out the Statement of Claim, but sought the provision of specific particulars.

29. The hearing proceeded first by addressing the issue of the strikeout of the Statement of Claim.

30. During the course of submissions on the second day, and having had the benefit of consideration of the submissions, and discussion with the Bench on the first day, senior counsel for the plaintiff accepted that the Statement of Claim needed to be amended and indicated that his client wish so to do.

31. The basis of that acceptance related to two matters:

1. the manner in which various paragraphs had addressed the requirement to specifically identify and plead allegations by reference to the “risk of harm” as that phrase is used in s 9 of the Civil Liability Act 2003 (Qld); and

2. some minor corrections to erroneous references in various parts of the pleading.

32. Senior counsel for the plaintiff did not accept the validity of a number of other criticisms made by senior counsel for the defendants.

33. Accordingly, whilst the orders to be made are, with the exception of the question of costs, essentially agreed, it is appropriate for me to express in a relatively concise way, in order to assist the resolution of the issues between the parties with respect to the proper form of a statement of claim, my views on the issues argued so that, in any amended pleading, the chance of there being further time spent on pleading questions is minimised.

34. As well, having regard to the future program of case management, it is of importance to the parties that these views are expressed quickly so as to facilitate the further progress of the matter.

Uniform Civil Procure Rules

35. Rule 14.28 of the UCPR is in the following form:

“14.28 Circumstances in which court may strike out pleadings

(1)   The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2)   The court may receive evidence on the hearing of an application for an order under sub-rule (1).”

Principles to be applied

36. I have relatively recently set out the principles to be applied in considering whether a pleading is a sufficient pleading, and one which is not embarrassing or an abuse of process within the meaning of those phrases in r 14.28 of the UCPR. I will not set out in detail those principles here. They are well known, and my exposition of them can be seen in Young v Hones [2013] NSWSC 580 at [79]-[84].

37. As well, the High Court of Australia has recently pointed to possible difficulties when may be encountered when pleadings raise a number of alternative causes of action or material facts in a confusing way: see Forrest v Australian Securities Investment Commission [2012] HCA 39; (2012) 247 CLR 486. At [27] the plurality, French CJ, Gummow, Hayne and Kiefel JJ said:

“The task of a pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address, or perhaps even an appeal hearing, to map a path through it. In this case, there were hundreds, if not thousands, of alternative and cumulative combinations of allegations.”

38. The plurality judgment had earlier referred to, with approval, the judgment of Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517, where their Honours said that pleadings needed to state with sufficient clarity the case of the party whose pleadings they were, and that the opponent ought, as a matter of fundamental principle, have a proper opportunity of meeting the case against him.

39. However, as this is a representative proceeding, the question of the sufficiency of a pleading, in the sense of being a pleading which is not liable to be struck out pursuant to r 14.28, has to be considered in light of the nature of a representative action and its purpose.

40. In Phillip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487, Sackville J, with whom Spender and Hill JJ agreed on this issue, made remarks which are appropriate here with respect to pleading in a representative action. His Honour’s remarks were formulated in the specific context of the legislation and procedural rules which applied to the Federal Court of Australia. However, I see no reason why his Honour’s remarks are not applicable to proceedings in this Court of a representative kind. His Honour said:

“131.   The fact that part IVA of the Federal Court Act preserves the ordinary rules of pleading in representative proceedings does not, however, necessarily mean that the applicant in such proceedings is bound to plead material facts specific to each individual member of the represented class. The principal functions of pleadings are to furnish a statement of the case sufficient to allow the opposing party a fair opportunity to meet it:

●   to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and

●   to enable the opposing party to understand and assess the pleaded case for the purposes of settling the litigation …

…

133.   In the context of representative proceedings, it may be sufficient for the applicant to plead the case of each member of the represented class at a reasonably high level of generality. …

134.   Unless the rules of pleading permit this degree of flexibility, serious inroads would be made into the utility of the representative procedure established by Part IVA of the Federal Court Act. …

135.   … one of the key objectives of the representative procedure is to provide a genuine remedy where many people suffer small losses, but the total amount at stake may be large. To achieve this objective it may well be necessary and appropriate for the represented group to consist of a very large number of people … . If the individual claims of each member of the represented group had to be pleaded by reference to specific dates and events, the representative procedure might well be rendered ineffective for the very kind of group claim it is intended to facilitate.

136.   Whether proceedings at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached. The facts material to the claims of each member of the represented group might not be necessary to ensure that the respondent adequately understands the case made on behalf of the represented class and has a fair opportunity to meet that case. This may be the position, for example, where representative proceedings are brought in order to provide a mechanism to enable one or more common issues of law or fact to be resolved in a manner that binds the respondent and all class members, rather than to determine finally the claims of each class member. See Federal Court Act ss 33Q,33R.”

Submissions of Sunwater

41. The submissions of Sunwater were taken first. They were adopted by senior counsel for Seqwater, who added some further points. It is convenient to deal with these submissions.

42. Sunwater submitted that the pleading of the group members was defective because in order to enable duty and then the breach of duty to be properly understood and articulated, there needed to be specificity as to geography and time with respect to the group members. It was submitted that the pleading ought contain, conveniently by reference to a schedule if necessary, the street addresses of the land which suffered the inundation, the location of the personal property and the location of the businesses which were said to be interrupted by the flood.

43. It was submitted that the geographical requirement was necessary firstly to enable Sunwater to plead properly to the allegation that the risk of harm of the kind pleaded was foreseeable in the way envisaged by s 9(1)(a) of the Civil Liability Act; and secondly, in order to enable the determination of whether a duty existed at all. It was submitted that given the broad geographical spread described in the Statement of Claim of the group members, it was not possible for the defendants to determine whether the duty owed to one group of potential claimants might be in conflict with the duty owed to another group of claimants and, hence, they may be in a position of not being able to plead the absence of a duty having regard to their conflicting responsibilities.

44. This submission was also put on the basis that there would be an incoherence in the postulated duties: see Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [55], where the High Court said:

“More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.”

45. Sunwater also submitted that the street addresses were required to enable a proper understanding of whether the breach of duty alleged would have caused any damage to the various group members as alleged.

46. Seqwater adopted this submission and also put in a submission which was analogous, that the description of the class in paragraph 6 of the Statement of Claim was such that the street addresses were necessary because there may well be people within the class description who, it could be ascertained, did not suffer any damage at all and therefore were unaffected by the negligence.

47. When the proceedings were first before the Court on 15 August 2014, counsel for the plaintiff informed the Court that there were approximately 4,500 members of the group. There is no reason to think that this number has substantially changed.

48. I do not accept these submissions of the defendants. In my view there is no basis for a submission that unless the pleading discloses all of the street addresses of the group members, it ought be struck out.

49. There may well be group members who do not ultimately prove that they suffered any damage. That is of the nature of representative actions. But that issue falls to be determined at a much later stage of the proceedings.

50. A common question which it is suggested will arise, and will need to be determined, is whether a duty of the kind pleaded is owed to all of the members of the class. The fact that there may be some members of the class of whom it can be said that no duty is owed, is a question largely of fact, which will be determined at a hearing. I do not accept that the precise facts need to be pleaded at this stage. The duty will be, in any amended statement of claim, pleaded sufficiently according to the pleading rules.

51. It is sufficient to allege a duty owed to a broad range of people including the group members. I see no difficulty in the defendants pleading to such an alleged duty. The salient features upon which the plaintiff relies to create the duty are clearly pleaded. Whether or not those salient features are accepted by the defendants is a matter they can address in their defence, and even if they all were, a duty arises which is a matter can be addressed in the defence. If there are particular features upon which the defendants wish to rely to argue that a duty is not owed, then no doubt those matters can be pleaded as well.

52. There is no lack of coherence of the kind referred to in Sullivan’s case involved in the formulation the duty owed to group members. At best, the defendants’ submissions are reduced to the proposition that by acting reasonably with respect to one group of people located by geography, perhaps, or by type, then it cannot be said that if damage occurs to a different group of people, the defendant acted unreasonably.

53. This is no different from a submission of the kind which was contemplated as being available to a defendant when addressing breach of duty, by Mason J in Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47, where his Honour said:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.” (emphasis added)

54. Whilst this is a statement of a breach of duty of the common law, and I accept that the provisions of the Civil Liability Act have modified that expression, nevertheless, the underlying element remains applicable, namely that a court when considering if a defendant has acted unreasonably, must take into account any other responsibilities, including whether they be conflicting, which the defendant may have.

55. Sunwater also submitted that the pleading was defective because, particularly by reference to foreseeability, the pleading needed to address with greater specificity the time at which it was said that damage was foreseeable and to whom.

56. Counsel for Sunwater pointed to the fact that the allegations of negligence spread over a period of at least six weeks, and that it was not possible to discern from the pleading any causal link between an act of negligence at the start of the six week period and the damage which ultimately occurred.

57. I do not accept that such specificity of pleading is required.

58. The plaintiff addresses a continuing obligation for the defendants. The plaintiff says that conduct in the course of that period had certain consequences, and the question of whether conduct at one point in time or another had a particular consequence is a matter ultimately for factual proof and it is not necessary to be determined at this stage of the proceedings. In this respect the Statement of Claim is not defective.

59. The next submission dealt with that part of the pleading which alleged that breaches of duty occurred by reason of a failure on the part of the Flood Engineers or engineers to have construed the Flood Mitigation Manual, made reasonable predictions and formed reasonable expectations, adhered to “the dictates of the flood mitigation manual”, “considered that … a flood event had been ongoing”.

60. These allegations are to be found, by way of example, in paragraphs 160(a), (c), (d), (e) and (f). By reason of the provisions of paragraph 161(a) and then 162, the plaintiff pleads these as stand-alone particulars of negligence. The plaintiff sought to maintain those particulars of negligence.

61. In my view, those particulars are not proper particulars of a breach of duty.

62. The plaintiff’s claim is properly to be considered as, in a couple of respects, acting unreasonably, but in the vast majority of respects, as involving allegations of failing to act reasonably so as to release water at an earlier point in time, thereby creating sufficient available capacity in the Wivenhoe Dam.

63. Allegations of the kind to which the defendants take objection, and which I have addressed above, are allegations which relate to the thinking processes and the processes contributing to a judgment, if one was made, or perhaps the absence of a judgment, which were the steps on the way to either conduct which is criticised or the omission to act which is criticised. But, in my view, whilst the pleading gives the benefit of the features which may give rise to criticism, it is not correct to regard mental processes, in the circumstances of the pleading in this case, as being capable of constituting a breach of duty. In any new pleading, such allegations of breach of duty ought not be included.

64. Senior counsel for Sunwater next submitted that the manner of pleading meant that in considering questions of causation, the defendants were confronted with

“… a rolled up allegation that one or more of the 300 breaches (in innumerable combinations) have caused the plaintiffs and group members losses”.

65. This lead Sunwater to submit that it is impossible to discern from the pleading the real case which the plaintiff wishes to run and which the defendants will be required to meet. It is impossible to identify what breach or combination of breaches is said to have been causative of the plaintiff’s and group members’ loss.

66. Counsel for Seqwater, by reference to a chart of the level over the requisite period in the Wivenhoe Dam, sought to emphasise a similar point. That is, that as the pleading presently stands it is impossible for the defendants to known whether, if they did take action at an earlier point in time, it would have had any causal effect on the flooding, without the plaintiff specifying the consequences of that earlier action.

67. In my view, to the extent that the pleading does not include a paragraph, referrable to each of the selected nine time periods, which alleges that by the relevant point during the time period, the conduct of the defendants was negligent, because the level of the dam was no higher than a specified, and identified level, the pleading is defective.

68. In my view, in order to enable the defendants to properly understand the causation pleading, it is necessary for the plaintiffs to specify the appropriate level of available capacity by reference to dam height at a level for which they contend. I do not understand, after submission, that counsel for the plaintiff disputes this requirement.

69. In my view, providing a Statement of Claim includes such a specification, then notwithstanding the multitude of breaches pleaded, the defendants will be in a position to properly understand the case which they have to meet.

Submissions of Seqwater

70. Senior counsel for Seqwater adopted the submissions of Sunwater. To the extent that that is so, I have indicated my views on those submissions.

71. Senior counsel for Seqwater drew attention to the fact given that there were individual engineers on duty at different times throughout the six week period, that it was not possible for Seqwater to know whether the breaches which were alleged were ones for which they were responsible, they employing only two of the four engineers, unless the Statement of Claim descended to further particularity, namely, that it nominated the breaches by reference to each shift and each engineer.

72. I am not satisfied that requiring such level of specificity at this stage is necessary. In fact, requiring such level of specificity at this stage would result in a much more complex, much lengthier and much more prolix pleading. Such a pleading would not confirm with the overriding of purpose of s 56 of the Civil Procedure Act 2005. In any event, such specificity is not required, in my view, before the stage where evidence is produced.

73. Seqwater also drew attention to the need for there to be greater precision with respect to the phrase “Greater Flooding” in the Statement of Claim. Seqwater correctly submitted that, even if they had acted without negligence in the circumstances which occurred, there would have been some inundation downstream of the Wivenhoe Dam. Seqwater pointed to the fact that the Statement of Claim was deficient because it did not in any rational way define by reference to either maps or other geographical description, where in truth the floodwater which had been caused by negligence had occurred, and had affected properties.

74. I think this is a fair criticism, and in any future amended statement of claim it will be necessary for there to be addressed with some specificity where it is said that the greater flooding occurred.

75. Seqwater also submitted that the issues in the Statement of Claim were obfuscated by

“… the absence of hard figures to what rate of release should have been adopted, to what level the dam should have been lowered, or what amount of precautionary releases should have been made.”

76. I have already addressed the issue about the level of the dam. To that extent, I agree with Seqwater’s submissions.

77. However, I do not agree that the allegations of breach of duty are deficient and liable to be struck out because they do not contain precise rates of release or what volume of water ought have been released by way of precautionary releases.

78. These are matters which, if they do not appear adequately in the expert evidence, will need to be properly particularised by the plaintiff. The absence of them in the Statement of Claim does not make the Statement of Claim defective.

79. Seqwater also complained that many of the allegations of breach of duty were formulaic and devoid of any substantive content. The plaintiff submitted in response, that that was necessarily so because identical allegations of negligence are made which, for convenience, are divided into the nine time periods which I have set out above.

80. I accept the plaintiff’s submissions that the formulaic or repetitive nature of the allegations do not mean that this Statement of Claim is defective.

81. Seqwater also submitted that the pleading was compounded by:

“… literally thousands upon thousands of combinations of alleged breaches”.

82. There is no doubt that because the plaintiff’s claim extends over a period of six weeks, and addresses a continuous state of affairs, that there are many possible combinations of breach of duty. So much cannot be avoided. However, I have not been persuaded by the defendants that the allegations of breach of duty are inconsistent.

83. I accept the plaintiff’s submissions that the plaintiff is largely alleging a failure or omission to act so as to achieve a particular outcome. In my view there is no inconsistency, embarrassment or offence of the kind addressed by the High Court in Forrest.

84. I do not accept that the Statement of Claim is liable to be struck out on this basis for these reasons.

Summary

85. It will be necessary for the plaintiff’s Statement of Claim to be re-pleaded.

86. That is largely because of the failure of the plaintiff to address adequately the phrase “risk of harm” as it appears in the Civil Liability Act. As well, the plaintiff will need to address for the purposes of causation, with respect to each of the periods, the level of the dam which the plaintiff contends ought to have been the appropriate one so as to allow sufficient available capacity in the dam against the prospect of future events.

87. As well, the plaintiff will need to address its allegations of breach of duty by deleting those allegations which deal with states of mind, and limiting its claim for breach of duty to allegations of acting inappropriately or failing to act appropriately.

88. On the other hand, the other submissions of the defendants about greater specificity in some circumstances or embarrassing multiplicity or prolixity on the other, I do not accept.

Orders

89. The Court makes the following orders, including case management orders:

1. Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005, the Statement of Claim filed 8 July 2014 be struck out.

2. The plaintiff has leave to file and serve an amended statement of claim and any statement of particulars on or before 13 February 2015.

3. Amended Notice of Motion of first defendant filed 5 November 2014 otherwise dismissed.

4. Notice of Motion of second defendant filed 19 September 2014 otherwise dismissed.

5. Notice of Motion of third defendant filed 17 September 2014 adjourned to 17 April 2015.

6. The plaintiff to serve any expert report concerning dam operations upon which it proposes to rely at the hearing on or before 13 February 2015.

7. Each defendant to file and serve its defence, verified in accordance with r 14.23 of the UCPR, together with a statement of the questions of law or fact which the defendant identifies as common to the claims of the group members on or before 10 April 2015.

8. The matter be listed for a case management conference at 9.30am on 17 April 2015.

9. The plaintiff is to serve on or before 29 May 2015:

1. all written statements, in accordance with r 31.4 of the UCPR, of the oral evidence which it intends to adduce in chief at the hearing, on any and all questions of fact relevant to that hearing; and

2. all expert reports, in accordance with r 31.27 of the UCPR, of all expert evidence which it intends to adduce in chief at the hearing, on any and all questions of expert opinion relevant to that hearing.

10. Each defendant is to serve on or before 25 September 2015:

1. all written statements, in accordance with r 31.4 of the UCPR, of the oral evidence which it intends to adduce in chief at the hearing, on any and all questions of fact relevant to that hearing; and

2. all expert reports, in accordance with r 31.27 of the UCPR, of all expert evidence which it intends to adduce in chief at the hearing, on any and all questions of expert opinion relevant to that hearing.

11. The plaintiff is to serve all lay and expert evidence in reply to the defendants lay and expert evidence on or before 29 October 2015. Such evidence to accord with the provisions of the UCPR referred to in order 6 above.

12. Each defendant is:

1. on or before 27 February 2015 (in the case of the second and third defendants); and

2. on or before 10 April 2015 (in the case of the first defendant)

to provide discovery, in accordance with r 21.2 of the UCPR, of all documents relating to the control, operation and management of Somerset Dam and Wivenhoe Dam (including, without limitation, all documents sent to or received by the Flood Engineers in connection therewith) in the period 1 December 2010 to 19 January 2011, excluding:

3. any document created after 19 January 2011, unless bearing a date within the period;

4. any document previously provided to the plaintiff by any of the defendants; and

5. any document received in evidence at the Queensland Floods Commission of Inquiry and currently publically available on the Commission’s website

13. The matter be listed for hearing commencing on 18 July 2016.

14. The parties have liberty to apply, on 3 days notice, to restore the matter for directions.

The Court notes that:

15. The plaintiff will circulate a proposed document management protocol to the defendants with a view to the parties agreeing the same in advance of discovery being provided.

16. Orders will be made in due course which provide for:

1. conclaves of expert witnesses, and the production of joint reports during the period November 2015 to February 2016;

2. the process of consensual, or else court-ordered mediation, during the period March 2016 to April 2016; and

3. the undertaking of final pre-trial preparation during the period May 2016 to 15 July 2016.

17. Order that the costs of the amended notice of motion of the first defendant and the notice of motion of the 2nd defendant be costs in the cause.

18. Costs of the notice of motion of the 3rd defendant be reserved.

Amendments

20 March 2015 - Format amendment

Decision last updated: 20 March 2015