Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 9) [2017] NSWSC 1116

Supreme Court New South Wales

Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 9) [2017] NSWSC 1116 Hearing dates: 28 July 2017 Date of orders: 11 August 2017 Decision date: 23 August 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. The plaintiff be granted leave to file a Fifth Amended Statement of Claim containing the amendments set out in Annexure A and Annexure B.

2. Refuse the plaintiff leave to make the amendments set out in Annexure C.

3. Otherwise dismiss prayer 1 of the plaintiff's notice of motion filed 21 July 2017.

4. The requirement that the defendants file a defence to the Fifth Amended Statement of Claim be dispensed with.

5. The plaintiff be granted leave to rely on the evidence in Volume 1 and Volume 2 of the Dr Christensen's report dated 1 July 2017.

6. The plaintiff pay the defendant's costs thrown way by reason of the plaintiff being granted the leave referred in order 1 and order 5 including the defendants' costs of the notice of motion filed 21 July 2017.

7. Reserve liberty to apply to the defendants to seen an order that the costs the subject of order 6 be payable on an indemnity basis.

8. The plaintiff's notice of motion filed 21 July 2017 be otherwise dismissed. Catchwords: PRACTICE and PROCEDURE – representative proceedings – application to amend statement of claim – application for leave to rely on further expert's report – expert's report addressed operation of dams during flood- further report contains additional simulations of counterfactual operation of dams – form of amendments – attempt by plaintiff to reserve unfettered right to rely on simulations that might arise out of Court's judgment – amendment to that effect disallowed – plaintiff seeks to rely on additional simulation as primary case – defendants entitled to respond – defendants' response likely to take months – granting leave will lead to delay in hearing – importance of amendments to plaintiff's case – amendments allowed – plaintiff allowed to rely on further report and simulations. Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Dare v Pulham (1982) 148 CLR 658 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater [2014] NSWSC 1565 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 6) [2016] NSWSC 1279 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 8) [2017] NSWSC 554 Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955 Symond v Gadens Lawyers Sydney Pty Ltd (No 2) [2013] NSWSC 1578 Category: Procedural and other rulings Parties: Rodriguez & Sons Pty Limited (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Limited (Second Defendant) State of Queensland (Third Defendant) Representation: Counsel: J Sexton SC; N Owens SC; R Yezerski; J Taylor (Plaintiff) A Pomerenke QC; D Klineberg (First Defendant) D Williams SC; HJA Neal; N Simpson (Second Defendant) GA Thompson QC; JM Horton QC; E Morzone (Third Defendant)