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This case saw approval of the partial settlement in the Queensland floods class action. The settlement, with the State of Queensland and SunWater, covers half of the liability for the class members’ losses. It follows trial judge Justice Beech-Jones’ finding in November 2019 that the defendants were vicariously liable for losses caused by the negligence of flood engineers. The first defendant (Seqwater) has persisted with its appeal of the judgment against it.

In deciding to approve the settlement, Adamson J first considered the complexity and likely duration of the proceeding. The appeal listing was for 12 days and was set to involve the difficult assessment of counterfactuals and a manual used in flood management. Assessment of damages by a court would be lengthy and expensive (at [20]). 

Her Honour determined that, despite the calibre of the trial judge and the quality of his Honour’s reasons, the proposed settlement represented a reasonable compromise in light of the risks of litigation (at [22]). Tort cases were said to be particularly open to differing judicial views. Noting that the floods were over a decade ago, her Honour considered it to be in the interests of class members that they recover losses sooner rather than later, and without the stress and uncertainty of continuing litigation (at [23] and [29]).

Despite not being a party to the settlement, Seqwater opposed the plaintiff’s application for non-publication orders concerning evidence adduced in support of the settlement approval. The plaintiff submitted that the orders were necessary to prevent Seqwater from gaining a forensic advantage in the appeal proceedings and in the remaining issues before the trial judge. Seqwater argued that it had an interest in knowing the costs and damages to be paid.

Determining that the present case was “plainly one” where a non-publication order was necessary, her Honour noted that the details of settlements have the potential to prejudice the interests of settling parties (at [13]). Though the protection of open justice is a primary objective of the Courts Suppression and Non-Publication Orders Act 2010 (NSW), there was significant public interest in encouraging settlement.

Her Honour found that Seqwater had no legitimate interest in obtaining the material. With regards to information concerning costs, Seqwater’s interests were not affected by the agreement of the other parties, given it was ordered to pay costs on a party/party basis. Concerning the amount that class members would receive, her Honour noted that the assessment of claims of individual class members was still some way off. 

Her Honour concluded (at [29]) by congratulating the parties (explicitly with the exception of Seqwater) “on reaching a fair and reasonable settlement which will undoubtedly lead to a significant saving of costs, reduce the delay in group members receiving recompense for their losses and provide a degree of certainty to all those involved.

Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 28) [2021] NSWSC 467

Supreme Court of New South Wales, Adamson J,
4 May 2021

Plaintiff’s Solicitors: Maurice Blackburn Pty Ltd;
First Defendant’s Solicitors: King & Wood Mallesons;
Second Defendant’s Solicitors: Norton Rose Fulbright;
Third Defendant’s Solicitors: Crown Solicitor for the State of Queensland;
Plaintiff’s Funder: Omni Bridgeway Ltd

Austlii Link: Available here

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