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Filed: 30 November 2017 4:04 PM Filed: 30 November 2017 4:04 PM D0000XNL34 Amended Defence COURT DETAILS Court Supreme Court of NSW Division Common Law List Common Law General Registry Supreme Court Sydney Case number 2014/00200854 TITLE OF PROCEEDINGS First Plaintiff Rodriguez & Sons Pty Ltd ACN 108770681 First Defendant Queensland Bulk Water Supply Authority trading as Seqwater Second Defendant SunWater Limited ( ACN 131 034 985) Number of Defendants 3 FILING DETAILS Filed for Queensland Bulk Water Supply Authority trading as Seqwater, Defendant 1 Legal representative Justin McDonnell Legal representative reference Telephone 07 3244 8586 Your reference 04-5505-7758 ATTACHMENT DETAILS In accordance with Part 3 of the UCPR, this coversheet confirms that both the Lodge Document, along with any other documents listed below, were filed by the Court. Amended Defence (Amended Defence - First Defendant - 30 November 2017.pdf) [attach.] jmcdonn001 Page 1 of 1 Filed: 30/11/2017 16:04 PM Form 7A (version 5) UCPR 14.3 DEFENCE OF THE FIRST DEFENDANT (To Fifth 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] 2 Index The First Defendant adopts the headings set out in the Fifth Third Amended Statement of Claim. A The Plaintiff 96 B The Defendants 96 C January 2011 Queensland Flood 96 D Group Members and Common Questions 107 E Somerset Dam 128 F Wivenhoe Dam 1916 G Flood Mitigation 2925 Policy and regulatory framework 2926 Safety and Reliability 4341 The Interim Program 4443 H Seqwater’s Ownership and Control of Somerset Dam and Wivenhoe Dam 5049 I SunWater’s Control of Somerset Dam and Wivenhoe Dam 5252 J The Flood Mitigation Manual 5555 Status, Purpose and Objectives of the Flood Mitigation Manual 5555 Flood Operations Personnel and Responsibilities 5757 Definition of “Flood Event” 6060 Wivenhoe Dam Flood Operations Strategies 60 Somerset Dam Flood Operations Strategies 6969 K The Real Time Flood Model 7475 L Duties of Care 8182 Risk of Harm 8182 Seqwater’s Duty of Care as Owner and Occupier 8384 Seqwater’s Direct Duty of Care as Sole Licensee under the Water Act 8386 SunWater’s Direct Duty of Care 8386 Flood Engineers’ Duty of Care 8387 M Events of 1 December to 16 December 2010 8487 Rainfall and Inflows 8487 Water Level 8689 3 Flood Operations 8991 16 December Breaches 98 N Events of 17 December to 24 December 2010 100103 Weather Forecasts 100103 Rainfall and Inflows 105108 Water Level 105108 Flood Operations 112115 17-24 December Breaches 120 O Events of 25 December 2010 to 1 January 2011 122125 Weather Forecasts 122125 Rainfall and Inflows 127129 Water Level 128130 Flood Operations 136138 25 December – 1 January Breaches 144 P Events of 2 January 2011 146149 Weather Forecasts 146149 Rainfall and Inflows 147150 Water Level 149152 Flood Operations 151153 2 January 2011 Breaches 152155 Q Events of 3 January to 5 January 2011 155158 Weather Forecasts 155158 Rainfall and Inflows 156160 Water Level 157160 Flood Operations 160163 3 – 5 January 2011 Breaches 160163 R Events of 6 January 2011 162166 Weather Forecasts 162166 Rainfall and Inflows 163167 Water Level 165169 Flood Operations 167171 4 6 January 2011 Breaches 169173 S Events of 7 January 2011 172176 Weather Forecasts 172176 Rainfall and Inflows 173177 Water Level 176180 Flood Operations 179184 7 January 2011 Breaches 181186 T Events of 8 January 2011 184188 Weather Forecasts 184188 Rainfall and Inflows 185189 Water Level 187192 Flood Operations 189194 8 January 2011 Breaches 191196 U Events of 9 January 2011 194199 Weather Forecasts 194199 Rainfall and Inflows 194200 Water Level 198203 Flood Operations 201206 9 January 2011 Breaches 203208 V Events of 10 January to 11 January 2011 205211 Weather Forecasts 205211 Rainfall and Inflows 207213 Water Level 213219 Flood Operations 218224 10 – 11 January 2011 Breaches 221227 W Causation and Loss 223230 X Direct Liability of Seqwater and SunWater in negligence 224231 Direct Liability of Seqwater in Negligence 224231 Liability of SunWater in Negligence 224231 Y Private Nuisance and Trespass 225232 Z Vicarious Liability 227234 5 Vicarious Liability of Seqwater 227234 Vicarious Liability of SunWater 228235 Vicarious Liability of the State of Queensland 228236 AA Section 374 of the Water Supply Act 228236 BB Relief 229236 6 PLEADINGS AND PARTICULARS A The Plaintiff 1 In relation to paragraph 1 of the FifthThird Amended Statement of Claim (“FASOCTASOC”), 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 FASOCTASOC. 3 Seqwater admits the allegations pleaded in paragraph 3 of the FASOCTASOC. 4 Seqwater admits the allegations pleaded in paragraph 4 of the FASOCTASOC. C January 2011 Queensland Flood 5 In relation to paragraph 5 of the FASOCTASOC, 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 FASOCTASOC, Seqwater: (a) Not used. (b) does not admit that the Plaintiff is an appropriate representative of the Group Members for the purposes of section 157 of the Civil Procedure Act 2005 (NSW) (“CPA”) because Seqwater cannot admit, as it does not know, that the Plaintiff 8 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(ba); 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 FASOCTASOC as it contains no allegations against Seqwater. 8 Seqwater does not plead to paragraph 8 of the FASOCTASOC as it contains no allegations against Seqwater. 9 In relation to paragraph 9 of the FASOCTASOC, Seqwater does not admit the allegations pleaded in paragraph 9. 10 In relation to paragraph 10 of the FASOCTASOC, Seqwater: (a) does not admit that the matters pleaded in paragraphs 10(a) to (ff) of the FASOCTASOC 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),
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