Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 7) [2016] NSWSC 1335

Supreme Court New South Wales

Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 7) [2016] NSWSC 1335 Hearing dates: 13 September 2016; Further Submissions received on 14 September 2016 Date of orders: 16 September 2016 Decision date: 21 September 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1 Subject to orders 2, 3 and 4, pursuant to rule 21.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) the defendants are to provide discovery to the plaintiff and each other of all documents in the following categories: (a) Any reports, studies, submissions, policies or briefs created or received by any of the defendants in the period 1 January 2005 to 31 March 2011 referring to: i) any actual or potential raising or lowering of the full supply levels for Somerset or Wivenhoe Dam, ii) the volume of water required for water supply in either of Wivenhoe Dam or Somerset Dam; or iii) any actual or potential decision to lower the volume of water stored in Somerset or Wivenhoe Dam below full supply level, (a1) Any correspondence in the period 1 January 2005 to 31 March 2011 to or from or copied to any of the lay deponents to any affidavit, or signatories to any witness statement, served by the defendants or any flood engineer on duty at Somerset or Wivenhoe Dam in the period 1 December 2010 to 19 January 2011, referring to: (i) any actual or potential raising or lowering of the full supply levels for Somerset or Wivenhoe Dam, ii) the volume of water required for water supply in either of Wivenhoe Dam or Somerset Dam; or iii) any actual or potential decision to lower the volume of water stored in Somerset or Wivenhoe Dam below full supply level; (bi) Reports or studies discussing or describing (but not merely referring to) the actual or intended capacity or ability of Somerset Dam to mitigate the effect of floods of specified magnitudes, created prior to 19 January 2011; (bii) Documents discussing or describing (but not merely referring to) the structural and operational constraints upon the safe operation of Somerset Dam during a flood event, created in the period 1 January 2005 to 1 January 2011; (c) Reports prepared pursuant to sections 7.2, 7.3 and 7.4 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam for the years 2009 to 2011; (d) Documents referring to the reliability, accuracy or use of rainfall forecasts in connection with the operation of Wivenhoe Dam or Somerset Dam created or received between 1 January 2009 and 19 January 2011; (e) Documents recording discussion of, proposals for, or reasons for, the changes introduced in Revision 7 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam; (g) Documents constituting, evidencing or recording: i) the terms of reference, instructions to, or matters to be considered by, the 2009 Review (as defined in paragraph 106(c) of the Amended Defence of the Second Defendant); ii) the documents or information considered or reviewed by the Review Panel (as defined in paragraph 106(f) of the Amended Defence of the Second Defendant) or by one or more members of the Review Panel as part of the 2009 Review; iii) the deliberations of the Review Panel; iv) any analysis prepared or considered by the Review Panel that discusses, assesses or describes the way in which Somerset Dam and/or Wivenhoe Dam should be used for flood mitigation; and v) any reports, decisions or recommendations of the Review Pane; (h) Documents recording discussion of, proposals for or reasons for, the creation of the Flood Procedure Manual titled Wivenhoe Dam, Somerset Dam, North Pine Dam, Leslie Harrison Dam, Uncontrolled Spillway Dams, Uncontrolled Copy, Revision 0, January 2010. 2. Order 1 does not require the defendants to discover: (a) any document that was previously provided to the plaintiff by the defendants pursuant to discovery or as an annexure or exhibit to an affidavit or witness statement that was served; and (b) any document that only came into the possession of a defendant because it was tendered in evidence before the Queensland Floods Commission of Inquiry (the "COI") or was downloaded from the COI's website. 3. Order 1 does not require any defendant to search the COI website to comply with its discovery obligations. 4. In addition to the matters specified in UCPR 21.3(2), each defendant's list of documents must identify which of the categories referred to in order 1 a particular document falls within. 5 Direct the parties to confer as whether the Court should specify some other period under UCPR 21.3(b) and UCPR 21.5(2). 6. Otherwise dismiss the plaintiff's notice of motion filed 18 August 2016 and amended notice of motion filed in Court on 13 September 2016. 7. Reserve costs of the plaintiff's notice of motion filed 18 August 2016 and amended notice of motion filed in Court on 13 September 2016. Catchwords: REPRESENTATIVE PROCEEDINGS – plaintiff's application for discovery – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater [2014] NSWSC 1565 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 6) [2016] NSWSC 1279 Category: Procedural and other rulings Parties: Rodriguez & Sons Pty Ltd (Plaintiff) Queensland Bulk Water Supply Authority (t/as Seqwater) – First Defendant Sun Water Limited – Second Defendant State of Queensland – Third Defendant Representation: Counsel: N Hutley SC, R.A. Yezerski – Plaintiff B. O'Donnell QC, D. Klineberg – First Defendant J Neal, N. Simpson – Second Defendant J.M. Horton QC, E. Morzone – Third Defendant