Aymost Pty Ltd v State of New South Wales & Ors; Hecher & anor v State of New South Wales & Ors [2004] NSWSC 1309

New South Wales Supreme Court

CITATION : Aymost Pty Ltd v State of New South Wales & Ors; Hecher & anor v State of New South Wales & Ors [2004] NSWSC 1309 HEARING DATE(S) : 12/07/04 - 14/07/04 inclusive JUDGMENT DATE : 2 December 2004 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : See pars 114-115

CATCHWORDS : THREDBO LANDSLIDE - JOINT HEARING OF CLAIMS FOR "COMMERCIAL" LOSSES - DETERMINATION OF SEPARATE QUESTIONS RELATING TO THE CAUSES OF THE LANDSLIDE LEGISLATION CITED : s110K Supreme Court Act 1972 PARTIES : Aymost Pty Limited trading as House of ULLR & ors v State of New South Wales & Ors; Bernd Josef Hecher & Patricia Frances Hecher v State of New South Wales & Ors FILE NUMBER(S) : SC 20950/99; 20138/03 COUNSEL : L. Robberds QC with T. Alexis SC (Plaintiffs) P.R. Garling SC with S.A. Gregory and C.A. Webster (Defendants) SOLICITORS : Rockliffs (Plaintiffs) Frances Allpress (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J

Thursday 2 December 2004

20950/99 – AYMOST PTY LIMITED trading as HOUSE OF ULLR & ORS v STATE OF NEW SOUTH WALES & ORS

20138/03 - BERND JOSEF HECHER & ANOR v STATE OF NEW SOUTH WALES & ORS

INTERLOCUTORY JUDGMENT ON SEPARATE QUESTIONS

1 HIS HONOUR: On 30 July 1997, a landslip or slide occurred under the northern aspect of the Alpine Way, a road passing by habitations in the approximate southeasterly quadrant of Thredbo Village. It caused the destruction of two lodges and the loss of lives of occupants. Those lodges stood upon a slope descending towards the Thredbo River which courses along the bottom of a valley. The upper or southernmost of these lodges was Carinya which was subleased to Brindabella Ski Club and the lower, named Bimbadeen, was a "staff" lodge of the head lessee, Kosciusko Thredbo Pty Limited. The whole village lies within the Kosciusko National Park and the lessor is the National Parks and Wildlife Service. 2 The tragedy of the lost lives (and the rescue of a sole survivor in one lodge) is notorious and the disaster has taken its place in widely known history. An extensive coronial inquest was held and it is important at all times to distinguish that inquiry from the task presently being undertaken, namely the determination of civil litigation between parties. As is always the situation, findings in litigation inter partes are made upon the evidence which the disputants have chosen to put before the court. Although the volume of such evidence in this instance can be inferred to be similar in many respects to that which must have emerged in the inquest, I have not conducted an investigation and conclusions which I express, for example concerning the cause(s) of the landslide, should be understood as being made in the limited context of the issues in this civil litigation. There is no legitimate basis for comparison or contrast between the inquest findings and any findings in this litigation. 3 From time to time, about forty claimants participated in proceedings seeking awards of damages compensating them for losses alleged to have been caused, directly or indirectly, by the landslide. For reasons which need not now be explored, the number of continuing litigants fluctuated but eventually some thirty four claims were gathered for concurrent hearing. The substantial majority of these claims (but not all of them) sought recompense for financial losses to commercial operators, particularly losses said to have arisen out of the restriction upon access to the village during rescue, restoration and rehabilitation operations. 4 By their pleadings, not all claimants sued the same defendants although it was common to every case that the State of New South Wales (and/or its instruments, incorporated or unincorporated) was a defendant. In the light of what has now occurred it is not necessary to detail individual claimants, the respective opponents nor the more than sixty cross claims spawned by the litigation. 5 Interlocutory rulings directed, inter alia, to establishing a manageable hearing included an order for initial determination of a separate series of questions focussed largely upon the cause of the landslide. There was some contest between the numerous parties as to the draft of appropriate questions and a ruling was made specifying those which would be put to issue. This ruling was made on 19 March 2002 and the final formulation had essentially been derived from two particular drafts and, although recognizing that there was potential for some overlap, a scheduled hearing commencement date of 15 April 2002 was maintained. 6 During the hearing, the issue of question formulation was again raised by motion and some amendments were made pursuant to a ruling given on 27 September 2002. As then amended, those remain the relevant questions. It will be necessary to deal in particular with two entities referred to in the questions as either the "pipeline" or the "water main" and either the "Winterhaus Corner retaining wall" or the "Winterhaus retaining wall" or similar. The questions posed are as follows: