Judgement reached on competing notices of motion in Queensland Floods class action

The Court made a series of directions, including: Restricting requirements on existing referees and class members; withholding the specification of a reporting date and extension of the reference to the balance of the S4 claims; and undertaking to appoint further referees where appropriate.

This judgment in the Queensland Floods class action concerned the parties’ competing notices of motion concerning the referral of various class member claims for assessment by a referee.

There are approximately 6,870 class members in the class action and the plaintiff has foreshadowed pursuing an application under s 177(1)(f) of the Civil Procedure Act 2005 (NSW) seeking an award of damages in an aggregate amount without specifying amounts awarded in respect of individual class members.

By this application the plaintiff sought orders for the referral under Part 20, rule 14 of the Uniform Civil Procedure Rules 2005 (NSW) for enquiry and report as to the total value of the loss suffered by reason of the negligence of the defendants for 264 class members selected by the plaintiff, with an intention to use the damages assessments for the purpose of extrapolating aggregate damages for the entire group of class member claims. The plaintiff contended that the 264 claims were randomly selected on expert advice in stratified categories as follows:

Stratum

Self-assessed loss

Number of claimants

Suggested sample size

S1

<$100k

3,370

34

S2

$100k - $300k

2,050

41

S3

$300k - $1m

825

54

S4

$1m - $10m

244

161

S5

>$10m

11

11

It was proposed that three ex‑judicial officers be initially appointed as referees.

Justice Beech-Jones noted that a “fragile détente” was reached to the effect that it was not necessary to determine at this point whether an order under s 177(1)(f) should be made and also that it was not necessary to determine whether the 264 claims represented a suitable or random sample and that those questions could be agitated later.

The respective defendants held different positions but they collectively sought that the rules of evidence be applied to any referral and that all S4 claims be referred.

His Honour rejected the contention that the existence of large claims necessitated a strict adherence to the rules of evidence given that the reference was to be conducted by ex‑judicial officers who would be bound to afford the parties procedural fairness, stating as follows (at [22]):

The multitude of claims and their potential differences means that the achievement of the objectives stated in s 56 of the CPA point overwhelmingly to retaining flexibility in the process adopted by the referee to determine the best means of determining a particular claim. To impose a requirement to apply the rules of evidence on the referee applicable to all claims, or even all claims in a particular category, would undermine the very flexibility that is one of the principal advantages of the reference process. As was observed by McDougall J in Baulderstone v QIC [2012] NSWSC 235, “to require a referee to be bound by the rules of evidence is to undo one of the major benefits of the process” (at [27]).

Ultimately, his Honour determined that:

  • the 264 claims nominated by the plaintiff should be referred;
  • there should not be a direction requiring the referees to apply the rules of evidence;
  • there should not be a direction requiring the referees to allow cross‑examination;
  • there should not be a direction requiring the class members to plead or specify their claims in a particular form;
  • no reporting date should be specified at this stage but the reference should not be delayed on account of the current appeal on foot from the primary judgment;
  • at this point the reference will not extend to include the balance of the S4 claims; and
  • the Court will appoint multiple referees and nominate a senior referee but otherwise allow the referees to determine whether more are required.

 

Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 25) [2020] NSWSC 1544
Supreme Court of New South Wales, Beech-Jones J, 3 November 2020;
Plaintiff’s Solicitors: Maurice Blackburn;
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

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