Maurice Blackburn partner Rod Hodgson told Lawyers Weekly the level of interest has been “massive” from householders and business owners affected by the 2011 floods downstream of the Wivenhoe Dam.
On 16 March, the Commission released a report which said that flood engineers employed by state government body Seqwater failed to operate the dam in accordance with the manual governing the Dam’s operation.
“In essence, the findings confirm that too much water was allowed to accumulate in Wivenhoe Dam and the strategy for water releases was botched,” said Hodgson.
“They didn’t release enough water early enough, and that meant they were forced to let a lot of water go later in the piece, and that caused or contributed to the flood.”
Hodgson said that while the Commission’s findings will not form the entire basis on which a class action would be founded, they go a long way to demonstrating that the engineers’ actions made a difference to flood levels.
“However, it is inconclusive and we need to do further investigative work, principally in the form of hydro-dynamic modeling, to demonstrate that [their actions] did make a difference to flood levels downstream of Wivenhoe,” explained Hodgson.
Hydro-dynamic modeling, said Hodgson, is essentially the process of showing that if the Dam was operated as it should have been, flood levels downstream of Wivenhoe would have been less.
“It’s a very, very complicated process, because there are many variables that are applicable,” he said. “It’s not just the water coming out of Wivenhoe. It’s the water coming out of other tributaries to the Brisbane River, rainfall in various areas, and – because Brisbane has a very tidal river – the impact of tidal flows on the water coming out of Wivenhoe.
“It’s a really complex exercise and I don’t pretend to understand all of it, but we’ll be engaging experts to look very closely at that issue.”
Maurice Blackburn has held several meetings within communities affected by the Wivenhoe floods, but Hodgson said the most recent one, held in Goodna shortly after the release of the Commission’s report, attracted the most people.
“It is no coincidence that the last meeting was the biggest community meeting, because a lot of people were waiting for the results of the inquiry, and that was the first community meeting we had held post the release of the report,” he said.
“The next step is to continue to analyse the report, which runs to about 600-odd pages. We are liaising with some of our key stakeholders, and litigation funder IMF has partnered with us to conduct further investigations.”
Hodgson said that if any class action is launched, it will likely be three or four years before it is resolved. However, he added that the imminent Queensland elections may speed up the process.
“It’s conceivable that the government – and it’s looking like we will go from a Labor one to a conservative one – will come along and say they want to engage with us early to resolve the matter,” he said.
“Ana Bligh has said that if litigation is commenced, the state will act as a model litigant. That is pleasing, and I hope that holds true for any defendant in the action.”
During the course of the Floods Commission, Allens Arthur Robinson partner Michael Ilott wrote a letter to Maurice Blackburn which accused Bob Munt, a private investigator hired by Maurice Blackburn, of falsely representing himself to be acting for the Commission when speaking to a witness.
Allens withdrew the allegation when it was proved to be false. Allens acted for Seqwater at the Commission.
Not so fast
While Maurice Blackburn seems confident the Commission’s report provides a solid basis for a class action, Slater & Gordon’s general manager of commercial and project litigation, James Higgins, said “there is no need to jump into talk of extensive legal action until the report has been reviewed in its entirety”.
“Given the length and complexity of the report, and the substantial work conducted by the Commission in preparing it, it is only appropriate to consider the report fully before forming any conclusions about potential legal action,” he said.
“A further complication, as an outcome of [the] report, is the referral of the Dam’s engineers to the [Queensland Crime and Misconduct Commission]. This referral has the potential to prevent any civil proceedings progressing until the conclusion of a potential criminal trial.”
The report recommended that senior Seqwater engineer Robert Ayre, as well as John Tibaldi and Terry Malone, be referred to the CMC for investigation in regard to their flood report, statements given to the Commission and evidence given to the state government.