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Seqwater decision to be reviewed for potential High Court appeal
The legal teams behind a class action brought against Queensland-owned dam Seqwater over the state’s 2011 floods will determine whether a new Supreme Court decision to overturn its original judgement warrants an appeal in the High Court.
Naomi Neilson
In 2019, the NSW Supreme Court found the Queensland government and state-owned dams Seqwater and Sunwater had acted negligently and had contributed to the 2011 flood disaster. While the government and Sunwater agreed to pay their share of the almost $900 million in compensation, Seqwater launched an appeal.
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Originally, the court ruled that engineers had failed to follow their own flood mitigation manual which led to the decision to release large volumes of water at the height of the flood, causing more damage to properties. A judge ordered the compensation be paid to the more than 6,500 victims and businesses affected.
NSW Court of Appeal judges on Thursday, 9 September ruled the engineers instead “acted by way of consensus” and “ultimately” followed the strategy that was determined by the senior flood operations engineer. As such, it found Seqwater – which was liable for 50 per cent– did not breach the Civil Liability Act.
“Failure by Seqwater’s flood engineers to depart from that strategy was not proven to be in breach,” the judgement read, adding: “Even if their conduct departed from the manual, that did not of itself entail a breach of that standard.”
The claim against the government and the two dams was brought in 2014 as a class action by a representative claimant, supported by Omni Bridgeway and Maurice Blackburn. The trial commenced in December 2017 and took a year to complete.
In a statement, Omni Bridgeway said its previous estimate of potential income from the Seqwater component of the investment was stated to be subject to assumptions, including that Seqwater’s appeal was dismissed in full. It will review the judgement and its financial implications, which will be clarified in its investment portfolio.
Managing director, CEO and chief strategy officer – US, Andrew Saker, said: “This is a disappointing development in a highly complex case that has been in litigation for the better part of a decade and we will carefully consider the avenues for appeal.
“Unfortunately for all involved, the case against Seqwater may be far from resolved. Importantly, this decision has no impact on the settlement that has been agreed with the state and Sunwater and the distribution process to group members will continue to proceed in parallel with any High Court appeal considerations.”
Maurice Blackburn said it would be reviewing the “disappointing” judgement to determine whether it is appropriate to launch a High Court appeal.
“Today’s decision upheld Seqwater’s appeal and found that Seqwater was not liable in negligence for its operations of Wivenhoe and Somerset dams during Queensland’s devastating floods,” the firm said in a statement.
“The settlement reached with the other two defendants in the class action – the State of Queensland and Sunwater – remains in place.”
