New South Wales Supreme Court CITATION : Kosciusko Thredbo Pty Limited v State of New South Wales & Ors; Aymost Pty Limited & Ors v National Parks & Wildlife Service & Ors; Brindabella Ski Club Incorporated v National Parks & Wildlife Service & Ors; Mittara Pty Limited v National Parks & Wildlife Service & Ors; Alpine Leisure Club Limited v National Parks & Wildlife Service & Ors; Pindari Ski Club Co-operative Liimted v National Parks & Wildlife Service & Ors; Rarida Pty Limited v National Parks & Wildlife Service & Anor; Kosciusko Alpine Club Limited v National Parks & Wildlife Service & Anor; Leatherbarrel Lodge Co-operative Limited v National Parks & Wildlife Service & Anor; Teh v National Parks & Wildlife Service & Anor; Gunyang Ski Club Co-operative Limited v National Parks & Wildlife Service & Anor; Monck v National Parks & Wildlife Service & Anor; Hukins v State of New South Wales & Ors [2002] NSWSC 216 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20349/00; 20590/99; 20354/00; 10588/01; 20362/01; 20335/01; 20650/00; 20704/00; 20126/01; 20007/01; 20355/00; 322/01; 20/00 HEARING DATE(S) : Tuesday 19 March 2002 JUDGMENT DATE : 19 March 2002 PARTIES : Kosciusko Thredbo Pty Ltd v State of New South Wales, the Minister Administering the National Parks & Wildlife Act 1974, Roads & Traffic Authority of NSW, Oxbara Pty Ltd t/as Rye Plant Hire, Snowy Mountains Engineering Corporation Limited; Aymost Pty Ltd t/as House of Ullr & 19 others v National Parks & Wildlife Service, Roads & Traffic Authority of NSW and Lend Lease Corporation Limited; Brindabella Ski Club Incorporated v National Parks & Wildlife Service, Roads & Traffic Authority of NSW and AMP General Insurance; Mittara Pty Limited v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Alpine Leisure Club Ltd v National Parks & Wildlife Service & Roads and Traffic Authority of NSW; Pindari Ski Club Co-operative Ltd v National Parks & Wildlife Service, Minister Administering the National Parks & Wildlife Act 1974, Roads & Traffic Authority of NSW; Rarida Pty Limited t/as Winterhaus Lodge v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Kosciusko Alpine Club Limited v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Leatherbarrel Lodge Co-operative Ltd v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Margaret Jean Teh v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Gunyang Ski Club Co-operative Ltd v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; John Thomas Monck v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Wendy Hukins v The State of New South Wales, Roads & Traffic Authority of NSW, Snowy River Shire Council, Snowy Mountains Hydro-Electric Authority, Lend Lease Corporation Limited, Amalgamated Holdings and Kosciusko Thredbo Pty Limited JUDGMENT OF : Michael Grove J at 1 COUNSEL : Various as noted SOLICITORS : Various as noted CATCHWORDS : APPLICATION FOR SEPARATE TRIAL OF ISSUES DECISION : FURTHER DIRECTIONS; ORDER FOR TRIAL OF SEPARATE QUESTIONS IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Tuesday 19 March 2002 010588/01 - MITTARA PTY LTD v STATE OF NEW SOUTH WALES & 2 ORS 020729/01 - JOHN THOMAS MONCK v NATIONAL PARKS AND WILDLIFE SERVICE & 1 OR 020007/01 - MARGARET JEAN THE v STATE OF NEW SOUTH WALES & 1 OR 020590/99 - AYMOST PTY LIMITED t/as HOUSE OF ULLR & 24 ORS v STATE OF NEW SOUTH WALES & 2 ORS 020650/00 - RARIDA PTY LTD t/as THE WINTERHAUS LODGE v STATE OF NEW SOUTH WALES & 2 ORS 020704/00 - KOSCIUSKO ALPINE CLUB LTD v STATE OF NEW SOUTH WALES & 2 ORS 020354/00 - BRINDABELLA SKI CLUB INCORPORATED v STATE OF NEW SOUTH WALES & 2 ORS 020355/00 - GUNYANG SKI CLUB CO-OPERATIVE LIMITED v STATE OF NEW SOUTH WALES & 2 ORS 020126/01 - LEATHERBARREL LODGE CO-OP LTD v STATE OF NEW SOUTH WALES & 2 ORS 020362/01 - ALPINE LEISURE PTY LTD v STATE OF NEW SOUTH WALES & 2 ORS 020335/01 - PINDARI SKI CLUB CO-OPERATIVE LIMITED v STATE OF NEW SOUTH WALES & 2 ORS 020815/01 - WENDY ELIZABETH HUKINS v STATE OF NEW SOUTH WALES & 6 ORS 020349/00 - KOSCIUSKO THREDBO PTY LTD v STATE OF NEW SOUTH WALES & 5 ORS JUDGMENT 1 HIS HONOUR: The express purpose of the assembly today was to finalise the separate questions, which I indicated on an earlier occasion would be the subject of a trial commencing on 15 April next. In substance, I have three drafts tendered by counsel. It is convenient to nominate the counsel rather than their respective clients. 2 I have a series of questions proposed by counsel for the State of New South Wales and questions by Mr Alexis for a number of plaintiffs and questions from Mr White who appears for Kosciusko Thredbo and some additional questions by Mr Titterton, who appears for a number of plaintiffs, wishes to have added. 3 Mr White candidly acknowledged that his formulation in the drafting was done in order to accommodate the anticipated geotechnical evidence from an expert, Doctor Redmond. He has pointed out on several occasions that at this stage it is his report which appears to be the only one which appears to have been served in respect to previous directions. 4 The additional questions that were suggested by Mr Titterton for his clients seem to me to reduce the proposed exercise to a matter of particularity beyond which is desirable in the circumstances. I have the same view about Mr White's questions. 5 That leads me then to the two drafts tendered on behalf of the State interests and by Mr Alexis. I should add that there is support for the formulations that I just mentioned from various other parties being represented. I have already indicated that question 6 in Mr Alexis' document attracts me as one which ought to be included. 6 When I look at the balance of the questions as formulated in both the documents there is, obviously, a considerable amount of overlap. It seems to me, as I have said on several occasions, that it is desirable that we commence on this exercise and we commence promptly and punctually on 15 April next. 7 Accordingly, I have determined to order that the questions will be those in paragraphs 1 to 11 of the State interests draft and 1 to 6 in Mr Alexis' draft. 8 As I have said, it is obvious that there is a considerable amount of overlap in a number of those questions. 9 The order I make is that there be, in respect of all actions, a separate trial of questions as follows: 1. Was the landslide caused solely, or materially contributed to, by water which came from one or more leaking joints in the pipeline? 2. Was the landslide caused solely, or materially contributed to, by water which came from additional flows, if any, resulting from the construction of the Winterhaus Corner retaining wall? 3. Was the landslide caused, or materially contributed to, by both of the causes set out in paragraphs 1 & 2 above? 4. Was the landslide caused, or materially contributed to, by part of the slope above and to the south west of Carinya being poorly compacted, overly steep, marginally stable or vulnerable to a small elevation in either the groundwater table or groundwater pressure? If so, which part of the slope and which of those causes? 5. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline, was that leak solely the result of creep in the fill? 6. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline, was that leak solely the result of the direct or indirect impact of construction activity associated with the construction of the retaining wall? 7. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline, was that leak solely the result of the direct or indirect impact of construction activity associated with the resurfacing of the Alpine Way? 8. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline were the leak or leaks caused by more than one of the causes set out in paragraphs 5, 6 & 7 above? If so, which of those causes? 9. If the landslide was caused, or materially contributed to, by water which came from one or more leaking joints in the pipeline, was the pipeline inappropriately located, designed, constructed, approved, operated and/or maintained? 10. If the landslide was caused, or materially contributed to, by water which came from additional flows resulting from the construction of the Winterhaus Corner retaining wall, was the Winterhaus Corner retaining wall inappropriately designed, approved and/or constructed? 11. Which acts or omissions, if any, were responsible for the operative cause or causes of the landslide set out in paragraphs 1, 2 3 & 4 above, and to what extent? 12. Was the Thredbo landslide caused by: (a) the marginal stability of the slope above Carinya; (b) the existence and state of the Alpine Way; (c) the omission to improve the stability of the slope above Carinya (including the Alpine Way) in accordance with acceptable standards and accepted practice, before the landslide; (d) infiltration from the Winterhaus retaining wall drainage trench; (e) leakage from the water main; or (f) a combination of (a) (b )(c) (d) and/or (e) and if so, the extent of each cause. 13. If the Thredbo landslide was caused by leakage from the water main or such leakage contributed to the landslide, was the cause of such leakage: (a) construction activity associated with the construction of the Winterhaus retaining wall; (b) construction activity associated with the resurfacing of the Alpine Way following construction of the Winterhaus retaining wall; (c) soil creep; or (d) a combination of (a) (b) and/or (c), and, if so, the extent of each cause. 14. Was the slope above Carinya, and in particular the Alpine Way, designed, constructed, maintained and monitored in accordance with acceptable standards and accepted practice. 15. If the water main leaked, in a way that caused the landslide, did it do so by reason of the fact that it was located, designed, approved, constructed and/or maintained following construction, other than in accordance with accepted standards and accepted practice. 16. If there was infiltration from the Winterhaus retaining wall drainage trench, in a way that caused the landslide, did it do so by reason of the fact that the Winterhaus retaining wall was designed, approved, constructed and/or monitored following construction, other than, in accordance with acceptable standards and accepted practice. 17. Was the geotechnical advice from the RTA to the NPWS from August 1991 until the landslide, advice that a reasonably competent geotechnical engineer would have provided during that period in relation to the stability of the slope above Carinya? If not, what advice would a reasonably competent geotechincal engineer have provided to NPWS, in relation to the stability of the slope above Carinya, during that period? 10 Those are the questions then that will be tried commencing upon 15 April next. ********** Last Modified: 03/26/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.