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

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 28) [2021] NSWSC 467
Hearing dates: 3 May 2021
Date of orders: 3 May 2021
Decision date: 04 May 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice:
a.       the information contained in:
i.        the list of group member objections filed by the plaintiff with the Court by email on a confidential basis on 20 April 2021;
ii.        the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential – Limited”, including its annexure;
iii.       the plaintiff’s written submissions marked “Confidential – Limited”; and
iv.       the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked “Confidential – Limited”, including its annexure
b.       be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except:
i.        the Court;
ii.        the plaintiff and its legal representatives;
iii.       the State and its legal representatives;
iv.       SunWater and its legal representatives;
v.       the funder and its legal representatives;
vi.       any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities;
vii.      Maurice Blackburn;
viii.     in relation to the Settlement Deed, other persons or entities in accordance with the terms of the Settlement Deed; and
ix.       with the exception of the Settlement Deed, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme
such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order.
(2) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice:
a.       the information comprising:
i.        the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential”, including Exhibit RG-1;
ii.        the affidavit of Irina Lubomirska affirmed on 23 April 2021 and marked “Confidential”, including its annexure;
iii.       the confidential opinion of the plaintiff’s counsel;
iv.       the plaintiff’s written submissions marked “Confidential”;
v.       the affidavit of the independent costs expert, including Exhibit KAR-1; and
vi.       the affidavits of Vavaa Mawuli affirmed on 30 April 2021 and 3 May 2021 and marked “Confidential”
b.       be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except:
i.        the Court;
ii.        the plaintiff and its legal representatives;
iii.       the funder and its legal representatives;
iv.       any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities;
v.       Maurice Blackburn; and
vi.       in relation to the Settlement Scheme, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme
such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order.
(3) Pursuant to section 173 of the Civil Procedure Act 2005 (NSW) (the Act), the settlement be approved upon the terms set out in the:
a.       Settlement Deed, being Annexure A to the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked “Confidential”; and
b.       Settlement Scheme, being Tab 11 of Exhibit RG-1 referred to in the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential”.
(4) Pursuant to section 183 of the Act, the plaintiff be authorised, nunc pro tunc, to enter into and give effect to the Settlement Deed for and on behalf of all group members (being those persons who fall within the definition in paragraph 6 of the Fifth Amended Statement of Claim filed on 29 September 2017 and who did not opt out of the proceeding).
(5)      Pursuant to section 179(a) of the Act, the persons affected and bound by the settlement are:
a.       the plaintiff;
b.       the State of Queensland (the State);
c.       SunWater Limited (SunWater);
d.       group members;
e.       Maurice Blackburn Pty Ltd (Maurice Blackburn); and
f.        Omni Bridgeway Limited (the funder).
(6) Pursuant to section 183 of the Act, Maurice Blackburn be appointed as the administrator of the Settlement Scheme.
(7) Pursuant to sections 173(2) and 183 of the Act, the following be approved and paid in accordance with the Settlement Scheme:
a.       the following reimbursement payments:
i.        Rodriguez & Sons Pty Ltd – $60,000;
ii.        Betty Keller and John Keller – $12,000 (in total);
iii.       Lynette Harrison – $8,000;
iv.       Lynette Lynch – $8,000; and
v.       Sharon Visser – $8,000;
b.       the plaintiff’s legal costs in the amount to be advised to the Court (being the amount not included in the funder’s costs);
c.       the funder’s costs in the amount to be advised to the Court (being the funder’s project costs less the legal costs);
d.       the funder’s project management fee in the amount to be advised to the Court;
e.       future administration costs in the amount to be advised to the Court; and
f.        the funder’s commission.
(8)      Maurice Blackburn has liberty to apply for further orders or directions in connection with the Settlement Scheme.

Catchwords:
CIVIL PROCEDURE — Representative proceedings — Application for approval of settlement between all group members and the second and third defendants — Court approval
CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether necessary to prevent publication of evidence in support of the application for approval of settlement — Future appeal proceedings and proceedings before the trial judge — Order “until further order”

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 98, 175, 176
Courts Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 12

Cases Cited:
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657
Vairy v Wyong Shire Council [2002] NSWSC 881; (2002) 129 LGERA 10
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wyong Shire Council v Vairy [2004] NSWCA 247

Category: Consequential orders
Parties: Rodriguez & Sons Pty Ltd (Plaintiff)
Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant)
SunWater Ltd (Second Defendant)
State of Queensland (Third Defendant)
Representation:
Counsel:
J Sexton SC / J Taylor (Plaintiff)
D Klineberg (First Defendant)
J Neal (Second Defendant)
S Thompson QC SG / J Horton QC (Third Defendant)
R Higgins SC (Omni Bridgeway Ltd)
Solicitors:
Maurice Blackburn Pty Ltd (Plaintiff)
King & Wood Mallesons (First Defendant)
Norton Rose Fulbright (Second Defendant)
Crown Solicitor for the State of Queensland (Third Defendant)
Arnold Bloch Leibler (Omni Bridgeway Ltd)

File Number(s): 2014/200854

Judgment

Introduction

In January 2011, there was a major flood in Brisbane, which affected the Brisbane and Lower Bremer Rivers and Lockyer Creek, as well as the Wivenhoe and Somerset Dams. The flood waters resulted in significant damage to properties. These proceedings were commenced and continued as a representative action in this Court by Rodriguez & Sons Pty Ltd (the plaintiff), on behalf of group members, which claimed damages against the first defendant, Queensland Bulk Water Supply Authority trading as Seqwater (Seqwater); the second defendant, SunWater Limited (SunWater); and the third defendant, the State of Queensland (the State).
The plaintiffs alleged that their loss had been caused by the negligence of four flood engineers (for whom the defendants were vicariously liable) in failing to control the level in the Wivenhoe and Somerset Dams in a timely way, which resulted in substantial quantities of water having to be released quickly, thereby flooding the properties of group members.
The proceedings were heard at first instance by Beech-Jones J (the trial judge) who delivered the principal judgment on 29 November 2019: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657. His Honour found that the flood engineers’ negligence caused the loss suffered by the plaintiff and the group members and that the defendants were vicariously liable. His Honour apportioned the defendants’ responsibility for the loss by finding that Seqwater was 50% liable, SunWater was 30% liable and the State was 20% liable. Although his Honour has decided some issues relating to damages, the quantum of group members’ claims presently remains largely undetermined.
The first and second defendants have appealed against this decision. The appeal is listed for hearing for 12 days commencing on 17 May 2021 and concluding on 1 June 2021.
By amended notice of motion filed on 30 April 2021, the plaintiff seeks orders for approval of the settlement between all group members, on the one hand, and SunWater and the State on the other (the settlement). The plaintiff also seeks consequential orders under the Civil Procedure Act 2005 (NSW) relating to the implementation of the settlement and orders for non-publication pursuant to the Courts Suppression and Non-Publication Orders Act 2010 (NSW) (the NPO Act). The settlement comprises only a partial settlement of the proceedings since there has been no resolution of the appeal against the plaintiff’s judgment against Seqwater. Nor have the appeals against the apportionment been resolved, except as between SunWater and the State. However, if the settlement is approved, a substantial number of the issues which would otherwise need to be determined on appeal will fall away. The imminence of the hearing of the appeal requires expedition to be given to the decision whether to approve the settlement.
On 9 March 2021 I made orders pursuant to ss 175 and 176 of the Civil Procedure Act, including as to the form and content of the settlement notice to be sent to the group members who fall within the definition in paragraph 6 of the fifth amended statement of claim. The plaintiff has established that these orders were complied with.

Evidence in support of the application for approval

Mr Sexton SC, who appeared with Ms Taylor on behalf of the plaintiff at the hearing of the amended notice of motion, relied on the following evidence in support of the application for approval as follows:

two affidavits affirmed by Rebecca Gilsenan on 23 April 2021, the solicitor with carriage of the matter on behalf of the plaintiff as to the proposed settlement, notices of objection which had been received and as to costs;

an opinion dated 24 April 2021 from the plaintiff’s counsel, Mr Sexton SC and Ms Taylor, explaining the benefits of the settlement and why they recommended the settlement to the group members and why it ought be approved;

an affidavit affirmed by Irina Lubomirska on 23 April 2021 in which she opined as to the class-wide loss estimates on different bases identified (with a view to determining the potential value of the judgment and, accordingly, the fairness of the settlement);

an affidavit sworn by Kerri-Ann Rosati on 29 April 2021, a costs consultant, to which an expert report was annexed which set out her opinion of the reasonableness of the costs figures on a solicitor and own client basis; and

two affidavits of Vavaa Mawuli affirmed 30 April 2021 and 3 May 2021 respectively, which set out the amounts referred to in paragraph 5 of the amended notice of motion, including the various payments to be made in respect of the costs of the plaintiff and the funder, as well as various fees and administration costs.

As referred to above, the application for approval was supported by SunWater, for whom Mr Neal appeared, and the State, for whom Mr Thompson QC appeared with Mr Horton QC.
Mr Klineberg, who appeared for Seqwater, accepted that his client could not oppose the approval of the settlement. However, he made submissions opposing the plaintiff’s application for non-publication orders which will be referred to below.

The application for a non-publication order pursuant to s 7 of the NPO Act

I heard the plaintiff’s application for non-publication orders at the outset of the hearing. In substance, Mr Sexton argued that it was necessary to prevent publication of the evidence adduced in support of the application for approval of the settlement since otherwise the parties to the settlement could be prejudiced. He contended that if Seqwater became aware of the details of the settlement or the reasons why counsel advised that the settlement was in the interests of the group members, it could gain a forensic advantage in the appeal proceedings, as well as in the balance of the proceedings before the trial judge. It was common ground that neither the trial judge, nor the Court of Appeal, ought have access to the material since there remain issues to be determined between the parties.
Mr Klineberg argued that Seqwater had an interest in knowing what costs were to be paid and what the group members would receive by way of damages. He contended that, if these matters were kept from Seqwater, there was a risk of double-recovery in terms of damages. Further, he argued that there is an outstanding application for a lump sum costs order pursuant to s 98(4) of the Civil Procedure Act and that Seqwater was entitled to know what the solicitor/client costs were so that it would be in a better position to assess the reasonableness of what was put forward for the assessment of costs on a lump sum basis.
Further, Mr Klineberg argued that the proposed orders had been sought “until further order” and that it was desirable that a time be specified within which the order would no longer cease to be operative.
The Court has power, under s 8(1)(a) of the NPO Act, to make a non-publication order in circumstances where it is necessary to do so “to prevent prejudice to the proper administration of justice”. As s 6 of the NPO Act provides, a primary objective of the administration of justice is to safeguard the public interest in open justice. However, there is a significant public interest in encouraging settlement of disputes before and during litigation and in protecting the confidentiality of such settlements, either because of their terms or because to reveal the detail of the basis of the settlement might prejudice the interests of the settling parties in the balance of the litigation. The present situation is plainly one where such an order is necessary. Settlement of disputes means that the finite resources of the court can be used for matters which need to be litigated because they cannot otherwise be resolved. The court’s policy of encouraging the settlement of disputes is evident in other contexts: for example, the law protects the process of without prejudice negotiations by conferring a privilege on such negotiations and making evidence of such negotiations inadmissible, subject to well-defined exceptions.
I am not persuaded that Seqwater has any legitimate interest in obtaining access to the material in respect of which the application for an order under the NPO Act is made. In so far as the material relates to the costs expended by the plaintiff’s solicitors and its funders in prosecuting the plaintiff’s claim, it relates to the question of solicitor/client costs. The costs which Seqwater has been ordered to pay are to be paid on a party/party basis. The other defendants accept that Seqwater is liable only for 50% of the total costs (or such other amount as is determined by the Court of Appeal). On this basis, Seqwater is not liable for 100% of the total costs, with a right to be indemnified for a total of 50% from the other defendants. In these circumstances, Seqwater’s interests are not affected by the sums agreed between the other parties to the proceedings.
Further, I am not persuaded that Seqwater has any present interest in knowing how much group members will receive from the settlement with the other two defendants. The process of assessing the claims of individual group members (apart from those selected as sample claimants) is still some way off and will not be determined in any event prior to the determination of the appeal.
The Court’s power to make an order under the NPO Act is constrained by s 12, which requires the Court to “ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.” Usually, compliance with s 12 requires the specification of an end-date, or at least a description of the event which will mark the end of the need for the confidentiality (such as the return of a verdict in a criminal trial). The formulation of words, “until further order” is, in many cases, to be avoided where the court’s involvement in a matter has finished. However, in the present case, the appeal is listed for hearing in the Court of Appeal later this month and the matter will subsequently be listed before the trial judge. In these circumstances, I am confident that the need for the order will be monitored by the parties and the Court. Further, to put a date or event in the order may require judicial intervention at an inopportune time. It is preferable, in these circumstances, to make an order “until further order”.

The application for approval of the settlement

What the reasons will disclose

I have been privy to confidential advices and information about the amount and structure of the settlement. I raised with Mr Sexton whether it would be better to outline the settlement in these reasons and then redact the judgment for those who were not parties to the settlement, or to address the settlement in broad terms such that these reasons could be published without restriction or redaction. I understood the parties to accept that the latter course is preferable. Accordingly, I will follow that course.

The relevant factors

In determining whether to approve the proposed settlement, I have had regard to the evidence set out above. The factors which are relevant to an assessment of the reasonableness of the proposed settlement (and, thus, whether it ought be approved by the Court) include the following: the complexity and likely duration of the proceedings; the stage of the proceedings at which the settlement was proposed; the ability of the defendants to withstand a greater judgment than the proposed settlement sum; the reasonableness of the settlement in light of the risks of litigation and having regard to the best and worst outcomes; the reaction of the group members to the settlement; the fairness as between group members; and matters relating to cost and funding.

The complexity and likely duration of the proceedings

The trial was conducted over the course of years, with the vast majority of the hearing days in 2018 and the early part of 2019. As referred to above, the appeal to the Court of Appeal is listed for 12 days. I am told that the assessment of damages, if individual claims are to be assessed separately, will take a period of years. The proceedings are complex and involve not only the interpretation of the manual used by the defendants in flood management (which was the basis of the finding of negligence) but difficult assessments of counterfactuals to determine the causal effect of the defendants’ negligence. The assessment of damages, if determined by traditional courtroom methods, will be both lengthy and expensive.

The stage at which settlement is proposed

The determination of liability and apportionment at first instance is complete. The appeal has not been heard and the assessment of damages has not yet taken place, except in a limited way. The proceedings have progressed sufficiently for informed risk analysis to take place.

The ability of the defendants to withstand a greater judgment than the settlement sum

The settlement sum inevitably involves compromise. I do not apprehend that the defendants’ ability to pay was a factor which affected the settlement sum since all defendants would appear to be creditworthy.

The reasonableness of the settlement in light of the risks of litigation

I regard the proposed settlement as being in the interests of the group members on whose behalf the representative action was brought. The settlement involves the payment of a sum which represents a reasonable compromise in relation to the claims for damages and costs, and which also addresses the process of quantifying the claims of individual group members. I have taken into account the anguish that can be caused to those who have suffered loss as a result of the negligence of others (as the trial judge found in the present case) when their entitlement to damages is either deferred for a lengthy period or at risk of being overturned on appeal. In those circumstances, injured parties may be disheartened by the processes of the administration of justice and may yearn for an early resolution.
The flood which caused the group members losses occurred more than a decade ago. It is in the interests of justice that they obtain some recompense (albeit partial, given that Seqwater is not party to the settlement) now rather than later and that they not be subjected to the risk that the entitlement found by the trial judge will be removed on appeal. The vicissitudes of litigation are stressful and expensive for litigants and may lead to uncertain outcomes. Cases involving the law of torts may be particularly susceptible to different judicial minds taking different views on the same facts.
The calibre of the trial judge and his Honour’s careful and detailed reasons for decision provide no guarantee against his judgment being overturned on appeal. Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 serves as a salutary example. Vairy claimed damages in negligence for loss sustained when he was injured as a result of hitting his head on the seabed on 24 January 1993. The trial judge (Bell J) found the Council to be negligent and reduced the plaintiff’s damages by 25%. Judgment was entered after a 12-day hearing, on 20 December 2002, for an amount in the order of $5m: Vairy v Wyong Shire Council [2002] NSWSC 881; (2002) 129 LGERA 10. The Court of Appeal (Tobias JA and Mason P, Beazley JA dissenting) allowed the Council’s appeal on the basis that the Council was not in breach of any duty of care owed to Vairy; set aside the judgment in favour of Vairy; and substituted a judgment in favour of the Council. Although it was not necessary to make a finding about contributory negligence, the majority found that, had the Council been liable to Vairy, the deduction for contributory negligence ought to have been assessed at 55%: Wyong Shire Council v Vairy [2004] NSWCA 247. The High Court by majority (Gummow, Hayne, Callinan and Heydon JJ, Gleeson CJ, McHugh and Kirby JJ contra) dismissed the appeal on 21 October 2005.

The reaction of the group members to the settlement

Evidence was adduced as to group members who had lodged objections to the settlement. By the time of the hearing on 3 May 2021, two of the objections had been withdrawn. Although the remaining four maintained their objections, each elected not to appear at the hearing. I apprehend that, having regard to the form of the objections made, the objectors did not appreciate, at the time of making the objection, the evident benefits to them of the settlement and that once these benefits were explained to them by the plaintiff’s solicitor, the force of their objections diminished.

Fairness as between group members

The fairness to group members has been established by the evidence adduced as to the method by which the settlement sum is to be allocated.

Matters relating to costs and funding

In cases such as the present, it would be unusual if individual group members had the funds to bring an action for damages, particularly against parties as well-resourced as the defendants. These cases are funded by firms of solicitors by litigation funders or by both. In such circumstances, the returns to funders need to take account of the risk of an adverse costs order. But for the willingness of solicitors and litigation funders to bear both the financial cost of bringing such proceedings and the risk of defeat, the rights of the group members to obtain compensation for losses caused by the negligence of others would be, in many cases, worthless. I consider the costs and fees to be paid from the settlement sum to be reasonable and commensurate with the work done and the risk undertaken.

Conclusion

On the basis of the evidence adduced and the factors addressed above, I am satisfied that it is appropriate to approve the settlement.
The parties (with the exception of Seqwater, which is not a party to the settlement) and their legal representatives are to be congratulated 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. The group members will obtain, through the settlement, a fair proportion of the losses they suffered in the 2011 Queensland flood, in a much more timely way than if the losses needed to be determined by a judge or by a court-appointed referee.

Orders

For the reasons given above, I made the following orders in Court on 3 May 2021:

(1) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice:
a.   the information contained in:
i.   the list of group member objections filed by the plaintiff with the Court by email on a confidential basis on 20 April 2021;
ii.   the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential – Limited”, including its annexure;
iii.   the plaintiff’s written submissions marked “Confidential – Limited”; and
iv.   the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked “Confidential – Limited”, including its annexure
b.   be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except:
i.   the Court;
ii.   the plaintiff and its legal representatives;
iii.   the State and its legal representatives;
iv.   SunWater and its legal representatives;
v.   the funder and its legal representatives;
vi.   any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities;
vii.   Maurice Blackburn;
viii.   in relation to the Settlement Deed, other persons or entities in accordance with the terms of the Settlement Deed; and
ix.   with the exception of the Settlement Deed, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme
such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order.
(2) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice:
a.   the information comprising:
i.   the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential”, including Exhibit RG-1;
ii.   the affidavit of Irina Lubomirska affirmed on 23 April 2021 and marked “Confidential”, including its annexure;
iii.   the confidential opinion of the plaintiff’s counsel;
iv.   the plaintiff’s written submissions marked “Confidential”;
v.   the affidavit of the independent costs expert, including Exhibit KAR-1; and
vi.   the affidavits of Vavaa Mawuli affirmed on 30 April 2021 and 3 May 2021 and marked “Confidential”
b.   be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except:
i.   the Court;
ii.   the plaintiff and its legal representatives;
iii.   the funder and its legal representatives;
iv.   any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities;
v.   Maurice Blackburn; and
vi.   in relation to the Settlement Scheme, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme
such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order.
(3) Pursuant to section 173 of the Civil Procedure Act 2005 (NSW) (the Act), the settlement be approved upon the terms set out in the:
a.   Settlement Deed, being Annexure A to the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked “Confidential”; and
b.   Settlement Scheme, being Tab 11 of Exhibit RG-1 referred to in the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential”.
(4) Pursuant to section 183 of the Act, the plaintiff be authorised, nunc pro tunc, to enter into and give effect to the Settlement Deed for and on behalf of all group members (being those persons who fall within the definition in paragraph 6 of the Fifth Amended Statement of Claim filed on 29 September 2017 and who did not opt out of the proceeding).
(5)   Pursuant to section 179(a) of the Act, the persons affected and bound by the settlement are:
a.   the plaintiff;
b.   the State of Queensland (the State);
c.   SunWater Limited (SunWater);
d.   group members;
e.   Maurice Blackburn Pty Ltd (Maurice Blackburn); and
f.   Omni Bridgeway Limited (the funder).
(6) Pursuant to section 183 of the Act, Maurice Blackburn be appointed as the administrator of the Settlement Scheme.
(7) Pursuant to sections 173(2) and 183 of the Act, the following be approved and paid in accordance with the Settlement Scheme:
a.   the following reimbursement payments:
i.   Rodriguez & Sons Pty Ltd – $60,000;
ii.   Betty Keller and John Keller – $12,000 (in total);
iii.   Lynette Harrison – $8,000;
iv.   Lynette Lynch – $8,000; and
v.   Sharon Visser – $8,000;
b.   the plaintiff’s legal costs in the amount to be advised to the Court (being the amount not included in the funder’s costs);
c.   the funder’s costs in the amount to be advised to the Court (being the funder’s project costs less the legal costs);
d.   the funder’s project management fee in the amount to be advised to the Court;
e.   future administration costs in the amount to be advised to the Court; and
f.   the funder’s commission.
(8)   Maurice Blackburn has liberty to apply for further orders or directions in connection with the Settlement Scheme.

**********

Amendments

04 May 2021 - Paragraph has been updated - [24]

04 May 2021 - "All three" replaced by "The first and second" - [4]

Paragraph has been updated - [25]

Decision last updated: 04 May 2021

Medium Neutral Citation:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 28) [2021] NSWSC 467
Hearing dates:	3 May 2021
Date of orders:	3 May 2021
Decision date:	04 May 2021
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice: a. the information contained in: i. the list of group member objections filed by the plaintiff with the Court by email on a confidential basis on 20 April 2021; ii. the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential – Limited”, including its annexure; iii. the plaintiff’s written submissions marked “Confidential – Limited”; and iv. the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked “Confidential – Limited”, including its annexure b. be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except: i. the Court; ii. the plaintiff and its legal representatives; iii. the State and its legal representatives; iv. SunWater and its legal representatives; v. the funder and its legal representatives; vi. any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities; vii. Maurice Blackburn; viii. in relation to the Settlement Deed, other persons or entities in accordance with the terms of the Settlement Deed; and ix. with the exception of the Settlement Deed, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order. (2) Pursuant to sections 7(b) and 8(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), until further order and on the ground that the order is necessary to prevent prejudice to the proper administration of justice: a. the information comprising: i. the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential”, including Exhibit RG-1; ii. the affidavit of Irina Lubomirska affirmed on 23 April 2021 and marked “Confidential”, including its annexure; iii. the confidential opinion of the plaintiff’s counsel; iv. the plaintiff’s written submissions marked “Confidential”; v. the affidavit of the independent costs expert, including Exhibit KAR-1; and vi. the affidavits of Vavaa Mawuli affirmed on 30 April 2021 and 3 May 2021 and marked “Confidential” b. be treated as confidential and not be published, made available (whether electronically or otherwise) or disclosed to any person or entity except: i. the Court; ii. the plaintiff and its legal representatives; iii. the funder and its legal representatives; iv. any persons or entities who have provided funding for the purpose of the proceeding to the funder, and the legal representatives of those persons or entities; v. Maurice Blackburn; and vi. in relation to the Settlement Scheme, other persons or entities who have provided Maurice Blackburn with an undertaking to keep such information confidential and to not use it in a manner inconsistent with these orders, and to whom Maurice Blackburn, in its discretion, considers it necessary or desirable to provide such information, including but not limited to group members or third parties engaged to provide services in relation to the administration of the Settlement Scheme such permitted disclosures to be on terms that none of those persons or entities disclose such information or any part of it to any person or entity other than those listed in this order. (3) Pursuant to section 173 of the Civil Procedure Act 2005 (NSW) (the Act), the settlement be approved upon the terms set out in the: a. Settlement Deed, being Annexure A to the affidavit of Rebecca Gilsenan affirmed on 30 April 2021 and marked “Confidential”; and b. Settlement Scheme, being Tab 11 of Exhibit RG-1 referred to in the affidavit of Rebecca Gilsenan affirmed on 23 April 2021 and marked “Confidential”. (4) Pursuant to section 183 of the Act, the plaintiff be authorised, nunc pro tunc, to enter into and give effect to the Settlement Deed for and on behalf of all group members (being those persons who fall within the definition in paragraph 6 of the Fifth Amended Statement of Claim filed on 29 September 2017 and who did not opt out of the proceeding). (5) Pursuant to section 179(a) of the Act, the persons affected and bound by the settlement are: a. the plaintiff; b. the State of Queensland (the State); c. SunWater Limited (SunWater); d. group members; e. Maurice Blackburn Pty Ltd (Maurice Blackburn); and f. Omni Bridgeway Limited (the funder). (6) Pursuant to section 183 of the Act, Maurice Blackburn be appointed as the administrator of the Settlement Scheme. (7) Pursuant to sections 173(2) and 183 of the Act, the following be approved and paid in accordance with the Settlement Scheme: a. the following reimbursement payments: i. Rodriguez & Sons Pty Ltd – $60,000; ii. Betty Keller and John Keller – $12,000 (in total); iii. Lynette Harrison – $8,000; iv. Lynette Lynch – $8,000; and v. Sharon Visser – $8,000; b. the plaintiff’s legal costs in the amount to be advised to the Court (being the amount not included in the funder’s costs); c. the funder’s costs in the amount to be advised to the Court (being the funder’s project costs less the legal costs); d. the funder’s project management fee in the amount to be advised to the Court; e. future administration costs in the amount to be advised to the Court; and f. the funder’s commission. (8) Maurice Blackburn has liberty to apply for further orders or directions in connection with the Settlement Scheme.
Catchwords:	CIVIL PROCEDURE — Representative proceedings — Application for approval of settlement between all group members and the second and third defendants — Court approval CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether necessary to prevent publication of evidence in support of the application for approval of settlement — Future appeal proceedings and proceedings before the trial judge — Order “until further order”
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98, 175, 176 Courts Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 12
Cases Cited:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657 Vairy v Wyong Shire Council [2002] NSWSC 881; (2002) 129 LGERA 10 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wyong Shire Council v Vairy [2004] NSWCA 247
Category:	Consequential orders
Parties:	Rodriguez & Sons Pty Ltd (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Ltd (Second Defendant) State of Queensland (Third Defendant)
Representation:	Counsel: J Sexton SC / J Taylor (Plaintiff) D Klineberg (First Defendant) J Neal (Second Defendant) S Thompson QC SG / J Horton QC (Third Defendant) R Higgins SC (Omni Bridgeway Ltd) Solicitors: Maurice Blackburn Pty Ltd (Plaintiff) King & Wood Mallesons (First Defendant) Norton Rose Fulbright (Second Defendant) Crown Solicitor for the State of Queensland (Third Defendant) Arnold Bloch Leibler (Omni Bridgeway Ltd)
File Number(s):	2014/200854