Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 28) [2021] NSWSC 467

Supreme Court New South Wales

Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 28) [2021] NSWSC 467 Hearing dates: 3 May 2021 Date of orders: 3 May 2021 Decision date: 04 May 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice: a. the information contained in: i. the list of group member objections filed by the plaintiff with the Court by email on a confidential basis on 20 April 2021; ii. the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked "Confidential – Limited", including its annexure; iii. the plaintiff's written submissions marked "Confidential – Limited"; and iv. the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked "Confidential – Limited", including its annexure b. be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except: i. the Court; ii. the plaintiff and its legal representatives; iii. the State and its legal representatives; iv. SunWater and its legal representatives; v. the funder and its legal representatives; vi. any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities; vii. Maurice Blackburn; viii. in relation to the Settlement Deed, other persons or entities in accordance with the terms of the Settlement Deed; and ix. with the exception of the Settlement Deed, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order. (2) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice: a. the information comprising: i. the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked "Confidential", including Exhibit RG-1; ii. the affidavit of Irina Lubomirska affirmed on 23 April 2021 and marked "Confidential", including its annexure; iii. the confidential opinion of the plaintiff's counsel; iv. the plaintiff's written submissions marked "Confidential"; v. the affidavit of the independent costs expert, including Exhibit KAR-1; and vi. the affidavits of Vavaa Mawuli affirmed on 30 April 2021 and 3 May 2021 and marked "Confidential" b. be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except: i. the Court; ii. the plaintiff and its legal representatives; iii. the funder and its legal representatives; iv. any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities; v. Maurice Blackburn; and vi. in relation to the Settlement Scheme, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order. (3) Pursuant to section 173 of the Civil Procedure Act 2005 (NSW) (the Act), the settlement be approved upon the terms set out in the: a. Settlement Deed, being Annexure A to the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked "Confidential"; and b. Settlement Scheme, being Tab 11 of Exhibit RG-1 referred to in the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked "Confidential". (4) Pursuant to section 183 of the Act, the plaintiff be authorised, nunc pro tunc, to enter into and give effect to the Settlement Deed for and on behalf of all group members (being those persons who fall within the definition in paragraph 6 of the Fifth Amended Statement of Claim filed on 29 September 2017 and who did not opt out of the proceeding). (5) Pursuant to section 179(a) of the Act, the persons affected and bound by the settlement are: a. the plaintiff; b. the State of Queensland (the State); c. SunWater Limited (SunWater); d. group members; e. Maurice Blackburn Pty Ltd (Maurice Blackburn); and f. Omni Bridgeway Limited (the funder). (6) Pursuant to section 183 of the Act, Maurice Blackburn be appointed as the administrator of the Settlement Scheme. (7) Pursuant to sections 173(2) and 183 of the Act, the following be approved and paid in accordance with the Settlement Scheme: a. the following reimbursement payments: i. Rodriguez & Sons Pty Ltd – $60,000; ii. Betty Keller and John Keller – $12,000 (in total); iii. Lynette Harrison – $8,000; iv. Lynette Lynch – $8,000; and v. Sharon Visser – $8,000; b. the plaintiff's legal costs in the amount to be advised to the Court (being the amount not included in the funder's costs); c. the funder's costs in the amount to be advised to the Court (being the funder's project costs less the legal costs); d. the funder's project management fee in the amount to be advised to the Court; e. future administration costs in the amount to be advised to the Court; and f. the funder's commission. (8) Maurice Blackburn has liberty to apply for further orders or directions in connection with the Settlement Scheme. Catchwords: CIVIL PROCEDURE — Representative proceedings — Application for approval of settlement between all group members and the second and third defendants — Court approval CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether necessary to prevent publication of evidence in support of the application for approval of settlement — Future appeal proceedings and proceedings before the trial judge — Order "until further order" Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 175, 176 Courts Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 12 Cases Cited: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657 Vairy v Wyong Shire Council [2002] NSWSC 881; (2002) 129 LGERA 10 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wyong Shire Council v Vairy [2004] NSWCA 247 Category: Consequential orders Parties: Rodriguez & Sons Pty Ltd (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Ltd (Second Defendant) State of Queensland (Third Defendant) Representation: Counsel: J Sexton SC / J Taylor (Plaintiff) D Klineberg (First Defendant) J Neal (Second Defendant) S Thompson QC SG / J Horton QC (Third Defendant) R Higgins SC (Omni Bridgeway Ltd)