Form 7A (version 5) UCPR 14.3 DEFENCE OF THE FIRST DEFENDANT (To Further Amended Statement of Claim) COURT DETAILS Court Supreme Court of New South Wales Division Common Law Registry Sydney Case number 2014 / 200854 TITLE OF PROCEEDINGS Plaintiff Rodriguez & Sons Pty Limited (ACN 108 770 681) First Defendant Queensland Bulk Water Supply Authority, trading as Seqwater Number of defendants 3 FILING DETAILS Filed for Queensland Bulk Water Supply Authority, trading as Seqwater, First Defendant Legal representative Justin McDonnell, King & Wood Mallesons Legal representative reference JAM/NC 0455057758 Contact name and telephone Justin McDonnell; (07) 3244 8099 Contact email [email protected] 20982018_10 2 Index The First Defendant adopts the headings set out in the Further Amended Statement of Claim. A The Plaintiff 6 B The Defendants 6 C January 2011 Queensland Flood 6 D Group Members and Common Questions 7 E Somerset Dam 9 F Wivenhoe Dam 16 G Flood Mitigation 26 Policy and regulatory framework 26 Safety and Reliability 40 The Interim Program 41 H Seqwater’s Ownership and Control of Somerset Dam and Wivenhoe Dam 47 I SunWater’s Control of Somerset Dam and Wivenhoe Dam 50 J The Flood Mitigation Manual 52 Status, Purpose and Objectives of the Flood Mitigation Manual 52 Flood Operations Personnel and Responsibilities 54 Definition of “Flood Event” 57 Wivenhoe Dam Flood Operations Strategies 58 Somerset Dam Flood Operations Strategies 66 K The Real Time Flood Model 72 L Duties of Care 79 Risk of Harm 79 Seqwater’s Duty of Care as Owner and Occupier 80 Seqwater’s Direct Duty of Care as Sole Licensee under the Water Act 80 SunWater’s Direct Duty of Care 81 Flood Engineers’ Duty of Care 81 M Events of 1 December to 16 December 2010 81 Rainfall and Inflows 81 Water Level 83 3 Flood Operations 85 16 December Breaches 95 N Events of 17 December to 24 December 2010 97 Weather Forecasts 97 Rainfall and Inflows 102 Water Level 102 Flood Operations 109 17-24 December Breaches 117 O Events of 25 December 2010 to 1 January 2011 119 Weather Forecasts 119 Rainfall and Inflows 124 Water Level 124 Flood Operations 132 25 December – 1 January Breaches 141 P Events of 2 January 2011 143 Weather Forecasts 143 Rainfall and Inflows 144 Water Level 146 Flood Operations 148 2 January 2011 Breaches 149 Q Events of 3 January to 5 January 2011 152 Weather Forecasts 152 Rainfall and Inflows 153 Water Level 154 Flood Operations 156 3 – 5 January 2011 Breaches 157 R Events of 6 January 2011 159 Weather Forecasts 159 Rainfall and Inflows 160 Water Level 163 Flood Operations 164 4 6 January 2011 Breaches 166 S Events of 7 January 2011 169 Weather Forecasts 169 Rainfall and Inflows 169 Water Level 173 Flood Operations 176 7 January 2011 Breaches 178 T Events of 8 January 2011 180 Weather Forecasts 180 Rainfall and Inflows 181 Water Level 184 Flood Operations 186 8 January 2011 Breaches 188 U Events of 9 January 2011 190 Weather Forecasts 190 Rainfall and Inflows 191 Water Level 195 Flood Operations 198 9 January 2011 Breaches 200 V Events of 10 January to 11 January 2011 202 Weather Forecasts 202 Rainfall and Inflows 204 Water Level 210 Flood Operations 215 10 – 11 January 2011 Breaches 218 W Causation and Loss 220 X Direct Liability of Seqwater and SunWater in negligence 221 Direct Liability of Seqwater in Negligence 221 Liability of SunWater in Negligence 221 Y Private Nuisance and Trespass 222 Z Vicarious Liability 224 5 Vicarious Liability of Seqwater 224 Vicarious Liability of SunWater 225 Vicarious Liability of the State of Queensland 225 AA Section 374 of the Water Supply Act 225 BB Relief 226 6 PLEADINGS AND PARTICULARS A The Plaintiff 1 In relation to paragraph 1 of the Further Amended Statement of Claim (“FASOC”), the First Defendant, Queensland Bulk Water Supply Authority, trading as Seqwater (“Seqwater”): (a) admits paragraph 1(a); (b) admits that the plaintiff held a registered lease over a shopfront in a shopping centre located at 180 Fairfield Road, Fairfield, shop 9 on lot 5 on plan RP 212124, Parish of Yeerongpilly, County of Stanley in the State of Queensland during December 2010 and January 2011; and (c) subject to (b) above, does not know and therefore cannot admit the allegations pleaded in paragraphs 1(b) and (c). B The Defendants 2 Seqwater admits the allegations pleaded in paragraph 2 of the FASOC. 3 Seqwater admits the allegations pleaded in paragraph 3 of the FASOC. 4 Seqwater admits the allegations pleaded in paragraph 4 of the FASOC. C January 2011 Queensland Flood 5 In relation to paragraph 5 of the FASOC, Seqwater pleads that: (a) over the 28 days prior to 6 January 2011, rainfall in South East Queensland had been well above the average rainfall for that period; (b) the Brisbane River Basin has an area of approximately 14,000km2 (approximately half of which is located downstream of Wivenhoe Dam) and comprises the five main catchments of the: (i) Stanley River to Somerset Dam, which is approximately 1,320km2 (“Somerset Dam Catchment”); (ii) Upper Brisbane River to Wivenhoe Dam (excluding the Somerset Dam Catchment), which is approximately 5,650km2 (“Wivenhoe Dam Catchment”); (iii) Lockyer Creek to O’Reilly’s Weir, which is approximately 2,960km2 (“Lockyer Creek Catchment”); 7 (iv) Bremer River to Ipswich which includes the sub-catchments of Warrill Creek to Amberley and Purga Creek to Loamside, which is approximately 1,745km2 (“Bremer River Catchment”); and (v) Lower Brisbane River to the river mouth (residual area), which is approximately 1,855km2 (“Lower Brisbane River Catchment”); (c) the combined Somerset Dam Catchment and Wivenhoe Dam Catchment is approximately 6,990km2 (“Combined Dam Catchments”); (d) the Lockyer Creek Catchment, Bremer River Catchment and Lower Brisbane River Catchment, including smaller contributing tributaries, are all located downstream of Wivenhoe Dam (collectively, the “Downstream Catchments”), and have a combined catchment area of approximately 7,000km2; Particulars of (b)-(d) Seqwater, Brisbane River Flood Hydrology Models – Main Report, December 2013, Executive Summary, page 13 [SEQ.009.003.0359] (e) the rainfall which fell in the 28 day period prior to 6 January 2011 resulted in the Combined Dam Catchments and the Downstream Catchments becoming wet though not saturated because there had been periods of zero or low rainfall which meant that the catchments had some opportunity to dry out meaning that some initial Loss (as defined in paragraph 165 below) had been recovered; (f) in the period from 6 to 12 January 2011, further substantial rainfall fell across South East Queensland including over the Downstream Catchments and the Combined Dam Catchments; (g) the rainfall which fell in the period 6 to 12 January 2011, resulted in flooding of areas along the Bremer River and Lockyer Creek and along the Brisbane River downstream of Wivenhoe Dam; and (h) subject to the matters pleaded in (a) to (g) above, Seqwater otherwise admits the allegations pleaded in paragraph 5. D Group Members and Common Questions 6 In relation to paragraph 6 of the FASOC, Seqwater: (a) pleads that the pleading in paragraph 6 of the composition of the group of persons on whose behalf the proceedings have been commenced by the Plaintiff (“Group Members”) does not comply with section 157 of the Civil Procedure Act 2005 (NSW) (“CPA”) because not all of the Group Members have claims against any one or more of the Defendants, contrary to section 157(1)(a) of the CPA, since: 8 (i) the claims against the Defendants are pleaded to arise from loss or damage caused by the “Greater Flooding” defined in paragraph 346(b) of the FASOC; (ii) paragraph 6 identifies the Group Members by reference to, relevantly, the inundation of land by flood waters from the Brisbane River or the Bremer River (and their tributaries); (iii) the scope of the inundation pleaded in paragraph 6 is broader than, and in addition, or in the alternative, does not correlate to, the Greater Flooding pleaded in paragraph 346(b); and (iv) therefore, not all Group Members may have claims against any one or more of the Defendants because a Group Member may have been inundated as pleaded in paragraph 6 but not have suffered loss or damage caused by the Greater Flooding pleaded in paragraph 346(b); (b) does not admit that the Plaintiff is an appropriate representative of the Group Members for the purposes of section 157 of the CPA because Seqwater cannot admit, as it does not know, that the Plaintiff suffered loss or damage either from inundation of land by flood waters from the Brisbane River or the Bremer River (and their tributaries) as pleaded in paragraph 6 or from the Greater Flooding pleaded in paragraph 346(a); and (c) otherwise does not admit, as it does not know, the allegations pleaded in paragraph 6. 7 Seqwater does not plead to paragraph 7 of the FASOC as it contains no allegations against Seqwater. 8 Seqwater does not plead to paragraph 8 of the FASOC as it contains no allegations against Seqwater. 9 In relation to paragraph 9 of the FASOC, Seqwater repeats paragraph 6(a) above and, therefore, does not admit the allegations pleaded in paragraph 9. 10 In relation to paragraph 10 of the FASOC, Seqwater: (a) does not admit that the matters pleaded in paragraphs 10(a) to (ff) of the FASOC are questions of law or fact which are common to the claims of Group Members, by reason of the matters pleaded in paragraph 6 above; (b) denies that the matters pleaded in paragraphs 10(u), (v), (w), (x), (z), (aa), (bb), (cc) and (dd) of the FASOC are questions of law or fact which are common to the claims of Group Members because these matters are not pleaded by reference to the 9 Greater Flooding defined in paragraph 346(b) of the FASOC by which the loss and damage claimed against the Defendants is alleged to have been caused; (c) denies that the matters pleaded in paragraphs 10(aa), (bb), (cc) and (ee) of the FASOC are questions of law or fact which are common to the claims of Group Members because allegations concerning an interference with, private nuisance concerning or trespass on the land of different individuals does not give rise to common questions of law or fact; and (d) otherwise does not plead to paragraph 10 as it contains no allegations against Seqwater.