Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 7)

[2016] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 7) [2016] NSWSC 1335
Hearing dates:	13 September 2016; Further Submissions received on 14 September 2016
Date of orders:	16 September 2016
Decision date:	21 September 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	1 Subject to orders 2, 3 and 4, pursuant to rule 21.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) the defendants are to provide discovery to the plaintiff and each other of all documents in the following categories: (a)   Any reports, studies, submissions, policies or briefs created or received by any of the defendants in the period 1 January 2005 to 31 March 2011 referring to: i)   any actual or potential raising or lowering of the full supply levels for Somerset or Wivenhoe Dam, ii)   the volume of water required for water supply in either of Wivenhoe Dam or Somerset Dam; or iii)   any actual or potential decision to lower the volume of water stored in Somerset or Wivenhoe Dam below full supply level, (a1)    Any correspondence in the period 1 January 2005 to 31 March 2011 to or from or copied to any of the lay deponents to any affidavit, or signatories to any witness statement, served by the defendants or any flood engineer on duty at Somerset or Wivenhoe Dam in the period 1 December 2010 to 19 January 2011, referring to: (i)   any actual or potential raising or lowering of the full supply levels for Somerset or Wivenhoe Dam, ii)    the volume of water required for water supply in either of Wivenhoe Dam or Somerset Dam; or iii)    any actual or potential decision to lower the volume of water stored in Somerset or Wivenhoe Dam below full supply level; (bi)    Reports or studies discussing or describing (but not merely referring to) the actual or intended capacity or ability of Somerset Dam to mitigate the effect of floods of specified magnitudes, created prior to 19 January 2011; (bii)    Documents discussing or describing (but not merely referring to) the structural and operational constraints upon the safe operation of Somerset Dam during a flood event, created in the period 1 January 2005 to 1 January 2011; (c)   Reports prepared pursuant to sections 7.2, 7.3 and 7.4 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam for the years 2009 to 2011; (d)    Documents referring to the reliability, accuracy or use of rainfall forecasts in connection with the operation of Wivenhoe Dam or Somerset Dam created or received between 1 January 2009 and 19 January 2011; (e)    Documents recording discussion of, proposals for, or reasons for, the changes introduced in Revision 7 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam; (g)    Documents constituting, evidencing or recording: i)   the terms of reference, instructions to, or matters to be considered by, the 2009 Review (as defined in paragraph 106(c) of the Amended Defence of the Second Defendant); ii)    the documents or information considered or reviewed by the Review Panel (as defined in paragraph 106(f) of the Amended Defence of the Second Defendant) or by one or more members of the Review Panel as part of the 2009 Review; iii)    the deliberations of the Review Panel; iv)    any analysis prepared or considered by the Review Panel that discusses, assesses or describes the way in which Somerset Dam and/or Wivenhoe Dam should be used for flood mitigation; and v)    any reports, decisions or recommendations of the Review Pane; (h)    Documents recording discussion of, proposals for or reasons for, the creation of the Flood Procedure Manual titled Wivenhoe Dam, Somerset Dam, North Pine Dam, Leslie Harrison Dam, Uncontrolled Spillway Dams, Uncontrolled Copy, Revision 0, January 2010. 2.    Order 1 does not require the defendants to discover: (a)    any document that was previously provided to the plaintiff by the defendants pursuant to discovery or as an annexure or exhibit to an affidavit or witness statement that was served; and (b)   any document that only came into the possession of a defendant because it was tendered in evidence before the Queensland Floods Commission of Inquiry (the “COI”) or was downloaded from the COI’s website. 3.    Order 1 does not require any defendant to search the COI website to comply with its discovery obligations. 4. In addition to the matters specified in UCPR 21.3(2), each defendant’s list of documents must identify which of the categories referred to in order 1 a particular document falls within. 5 Direct the parties to confer as whether the Court should specify some other period under UCPR 21.3(b) and UCPR 21.5(2). 6.   Otherwise dismiss the plaintiff’s notice of motion filed 18 August 2016 and amended notice of motion filed in Court on 13 September 2016. 7.   Reserve costs of the plaintiff’s notice of motion filed 18 August 2016 and amended notice of motion filed in Court on 13 September 2016.
Catchwords:	REPRESENTATIVE PROCEEDINGS – plaintiff’s application for discovery – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater [2014] NSWSC 1565 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 6) [2016] NSWSC 1279
Category:	Procedural and other rulings
Parties:	Rodriguez & Sons Pty Ltd (Plaintiff) Queensland Bulk Water Supply Authority (t/as Seqwater) – First Defendant Sun Water Limited – Second Defendant State of Queensland – Third Defendant
Representation:	Counsel: N Hutley SC, R.A. Yezerski – Plaintiff B. O’Donnell QC, D. Klineberg – First Defendant J Neal, N. Simpson – Second Defendant J.M. Horton QC, E. Morzone – Third Defendant   Solicitors: Maurice Blackburn Pty Ltd – Plaintiff King & Wood Mallesons – First Defendant Norton Rose Fulbright – Second Defendant Crown Solicitor – Third Defendant
File Number(s):	2014/200854
Publication restriction:	Nil

Judgment

1. On 18 August 2016, the plaintiff, Rodriguez & Sons Pty Ltd, filed a notice of motion seeking an order for discovery under rule 21.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) in respect of nine categories of documents from the defendants. The notice of motion was listed for directions before me on 23 August 2016. On that day I fixed the motion for hearing on 13 September 2016 and made directions for the exchange of written submissions.

2. On 13 September 2016, the plaintiff was granted leave to file in Court an amended notice of motion which revised the proposed categories of documents to be discovered. The argument over discovery proceeded by reference to those categories and a competing set produced by 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, generally adopted Seqwater’s position. The only exception was the plaintiff’s proposed categories (f) and (g) in respect of which Sunwater agreed with the plaintiff’s formulation (see [50] to [55]).

3. At the conclusion of argument on 13 September 2016, I reserved my decision and made orders for the service of some brief supplementary submissions on some discrete issues. I stated that I would pronounce orders on 16 September 2016 and provide reasons for those orders at a later time.

4. On 16 September 2016 I pronounced orders. This judgment constitutes my reasons for making those orders.

Background

5. These proceedings were commenced in July 2014. They are representative proceedings brought pursuant to Part 10 of the Civil Procedure Act 2005 (NSW). The plaintiff brings the proceedings on its own behalf and on behalf of others who, inter alia, are alleged to have suffered damage to real or personal property and interruption to their businesses when the Brisbane River and Bremer River (and their tributaries) flooded areas of south-east Queensland located downstream of the Wivenhoe Dam in January 2011.

6. In short, the plaintiff alleges that the flooding of its premises was caused, or perhaps exacerbated, by the negligent conduct of flood mitigation procedures at the Wivenhoe Dam and the Somerset Dam (which is upstream of the Wivenhoe Dam), during the period 1 December 2010 to early January 2011. The plaintiff alleges that Seqwater owned and controlled the operations of the two dams, that Sunwater was responsible for the conduct of flood operations for the two dams, and was also responsible for establishing and maintaining a dedicated operations centre from which the flood operations could be conducted and that the State of Queensland is liable as the employer of one of the individual engineers engaged in the conduct of the flood operations centre.

7. In Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater [2014] NSWSC 1565, Garling J made a number of orders for the conduct of the proceedings including an order for discovery:

“of all documents relating to the control, operation and management of Somerset Dam and Wivenhoe Dam (including, without limitation, all documents sent to or received by the Flood Engineers in connection therewith) in the period 1 December 2010 to 19 January 2011, excluding:

(c)    any document created after 19 January 2011, unless bearing a date within the period;

(d)    any document previously provided to the plaintiff by any of the defendants; and

(e)   any document received in evidence at the Queensland Floods Commission of Inquiry and currently publicly available on the Commission’s website.”

8. The making of this order needs to be placed in context. At the time the order was made his Honour struck out the plaintiff’s statement of claim and made orders for the service of an amended statement of claim. Thus, defences had not been ordered much less filed when the discovery order was made. The form of that order reflected what was apparent even at that stage, namely, that the events involving the management and operation of the two dams during the period 1 December 2010 to 19 January 2011 are critical. Further, at the time the discovery order was made, Garling J expressly recognised that an application for further discovery could be made, albeit one that was “specific” and not general.

9. Since Garling J made the discovery order the litigation has progressed in three significant respects.

10. First, the plaintiff has served reports from two experts, which, leaving aside the quantification of damages, comprises the bulk of its case against the three defendants. One of those experts is Dr Ronald Christensen. His report dated 19 February 2015 addressed the conduct of flood mitigation operations at the two dams in the period 1 December 2010 to early January 2011. The other expert was Dr Mustafa Altinakar from the University of Mississippi. His reports were served in September and October 2015. Apparently, Dr Altinakar has constructed a hydraulic model that incorporates topological mapping of the greater Brisbane area, as well as information concerning water flow into that area during the period December 2010 to January 2011. His model is said to be capable of taking as an input hypothetical outflows from the Wivenhoe Dam system and reconstructing what the level of flooding would have been for every 10 square metres in the Brisbane area during that period. It is not necessary to refer to Dr Altinakar’s model further as this application does not concern his report or the defendants’ response (see Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 6) [2016] NSWSC 1279).

11. Second, in September 2015 the defendants filed and served their defences. Amended defences were filed in August 2016. The defences contain a number of positive assertions. The plaintiff contends that a number of proposed categories are designed to capture documents which will allow those assertions to be scrutinized.

12. Third, in late May and early June 2016, the defendants filed their evidentiary response to the plaintiff’s evidence, including the report of Dr Christensen (but not the response to Dr Altinakar’s reports). This material is said to comprise 15 experts report, 11 lay witness statements and a number of witness statements submitted to the Queensland Floods Commission of Inquiry (“COI”). In her affidavit sworn 18 August 2016, the plaintiff’s solicitor, Ms Gilsenan, stated that this material “runs to thousands of pages, excluding annexures and references” and included 370 additional documents that had not previously been produced or discovered to the plaintiff.

13. After the plaintiff had the opportunity to review this material an exchange of correspondence followed in which the plaintiff sought further discovery. Ultimately, on 18 August 2016 it filed its notice of motion. As will become clear the categories of documents that are sought on this application all concern material that the plaintiff says will enable it to scrutinise the assertions in the defences and the defendants’ evidence, especially those which seek to attack or undermine Dr Christensen’s report. The material is not sought, or does not appear to be sought, as some form of afterthought to supplement some perceived omission in the discovery order made by Garling J.

Carve Outs and Limitations

14. The parties agreed that there should be a “carve out” from any discovery order for any document that was previously provided to the plaintiff by the defendants pursuant to the discovery order made by Garling J or as an annexure or exhibit to an affidavit or witness statement that was served. This is reflected in order 2(a) made on 16 September 2016.

15. The defendants also contended that the order should be limited in the same manner as the discovery order made by Garling J on 7 November 2016, specifically, that all categories be limited to documents that “relate to the control, operation and management of Somerset Dam and Wivenhoe Dam” and that any document created after 19 January 2011, or which is available on the COI website, be excluded from discovery.

16. Some aspect of the defendants’ submissions in support of these proposed limitations appeared to rely on the order made by Garling J as establishing some form of definitive boundary on the scope of the discovery that should be ordered. It follows from the above explanation of the different context in which this application is being made, that his Honour’s order is not to be treated as having that effect.

17. I see no justification for circumscribing the scope of the discovery that is now sought from the defendant by requiring that each document “relate to the control, operation and management of the two dams in the period 1 December 2010 to 19 January 2011”. On one view, all of the categories arguably relate to that topic. However to include a general limitation of that kind on all the discovered categories will only introduce another level of subjectivity into the assessment that each defendant will have to make as to whether a particular document is discoverable or not. The final resolution of whether a particular matter ultimately affected the control, operation and management of the two dams in the period 1 December 2010 to 19 January 2011 will be made by the Court. The introduction of that as an overriding criterion to be applied by those searching through documents on behalf of the defendants is best avoided.

18. Similarly, I see no warrant for limiting the time category for all documents to documents created or received prior to 19 January 2011. Documents created on or after that day may provide evidence of the operation of the two dams during the period December 2010 to January 2011. Time limitations are best considered in relation to each category.

19. There remains the suggested carve out for documents that were tendered to the COI and which are currently available to the public on its website. Ms Gilsenan swore an affidavit on 8 September 2016 stating that the COI website contains 42 web pages of exhibits numbered from “1 to 1150t” and 68 days of transcript. Ms Gilsenan stated that there is no search functionality or any apparent means of downloading all exhibits at once. In his affidavit sworn 9 September 2016, the solicitor for the first defendant, Mr McDonnell, recites advice that he has received that “there are a range of [software] tools available on the information technology market that would allow the content of the Commission’s website to be downloaded” and that the COI website search mechanism is generally effective.

20. It is not necessary to resolve this dispute. The different context in which this application for discovery arises compared to that which prevailed when Garling J made a discovery order warrants there not being any carve out from the discovery obligation for documents currently available on the COI website.

21. The plaintiff’s notice of motion seeks an order for discovery under UCPR 21.2, which contemplates orders for the discovery of a specified class or classes of documents (ie discovery by category). Unless otherwise ordered, discovery is provided by the service of a verified list of documents within 28 days or such other period as may be specified (UCPR 21.3(3)) and inspection within 21 days thereafter or such other period as may be specified (UCPR 21.5(2)). Given that this application for discovery arises out of particular contentions raised in the defences and the defendants’ evidence, it follows that for the discovery to have any real utility the form of list should identify the documents that are said to meet each category. If that is done, then the plaintiff will be aware of the universe of documentary discourse in relation to the relevant assertion made in the defences and the defendants’ evidence.

22. If there was a carve out for the documents produced to the COI as urged by the defendants, that would mean that each defendant would have to first identify the documents that meet each category, then ascertain whether it was on the COI’s website and, if so, remove it from their verified list and not provide it for inspection. Upon receipt of that list the plaintiff would then have to consider the list and then review all the documents on the COI website to ascertain whether it contains any that possibly fall within the particular category or categories. I see no utility in that exercise, only wasted cost. It would leave the plaintiff in a position of uncertainty as to whether they had all the documents in a particular category and put them in a disadvantageous position in scrutinising the various assertions made by the defendants, while at the same time imposing extra costs on all parties. Such a process has the potential to lead to further disputes about whether complete discovery has been provided in relation to the relevant categories.

Category (a): Correspondence and Reports Regarding Full Supply Levels

23. Discovery category (a) sought by the plaintiff was as follows:

“Any correspondence between or involving any of the defendants, or any reports, studies, submissions, policies or briefs, created or received by any of the defendants in the period 1 January 2005 and 31 March 2011 referring to:

i.    any actual or potential raising or lowering of the full supply levels for Somerset or Wivenhoe Dam;

ii.    the volume of water required for water supply in either of Wivenhoe Dam and Somerset Dam; or

iii.    any actual or potential decision to lower the volume of water stored in Somerset or Wivenhoe Dam below full supply level.”

24. Seqwater contended that this category should be limited to documents that record or evidence the giving of express permission to the flood engineers to operate the two dams below their Full Supply Levels (“FSL”) for the purpose of flood mitigation. That issue is raised by the plaintiff’s assertion in [170] of the Third Amended Statement of Claim (the “TASOC”) that Seqwater received an express authorisation to draw down Somerset Lake and Lake Wivenhoe to 95% of their combined FSL.

24. In broad terms, at least one part of Dr Christensen’s analysis contends that during December 2010, the flood engineers responsible for the two dams should have reduced their capacity below FSL in anticipation of large rain falls in the coming days and weeks as was supposedly forecast. One of the responses of the defendants to that contention is that, under the prevailing regulatory regime, Seqwater was not permitted to release water below FSL for flood mitigation purposes. In [112] of Seqwater’s Amended Defence filed 10 August 2016 it is pleaded that, on its proper construction, the “Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam” (Flood Mitigation Manual) did not permit releases below FSL for such purposes.

25. A debate about the effect of the regulatory regime and the proper construction of the Flood Mitigation Manual is not one that would appear to require discovery, at least of that kind sought by category (a). However, the issue between the parties is not confined to whether the flood engineers were legally permitted to reduce water levels below FSL. If they were able to reduce water levels below FSL without obtaining some express regulatory approval, then a number of consequential issues arise as to whether the flood engineers subjectively believed they were prohibited from doing so, whether if they held that belief it was reasonably based and otherwise whether the competing considerations warranted them taking that course. Each of these issues (and others) are expressly raised by [251(c)] to [251(f)] of Seqwater’s amended defence, which pleads various facts and circumstances that suggest the flood engineers did not act negligently even if they were able to reduce waters levels below FSL, including that “it was reasonable for the Flood Engineers to read the [Flood Mitigation Manual] as ... not authorising releases that would reduce the lake levels below FSL” (as well as enabling them to exercise professional judgement concerning the reliance that should be placed on forecasts). Similar contentions are raised in the defences of Sunwater and the State of Queensland.

26. The documents sought in category (a) directly relate to these issues. Sub-paragraph (iii) seeks to capture documents that concern possible decisions made to reduce the water levels below FSL in the past, which may throw light upon whether there was an understanding that such reductions were permissible and, if so, what considerations bore upon any decision to do so. Sub-paragraphs (i) and (ii) are designed to capture documents that bear upon a consideration of whether any reduction in the FSL that was designated as at December 2010, would have, or was understood as having, potentially adverse effects on the water needs of users and stakeholders. In sub-paragraph (ii) the reference to “required” is to be understood as meaning the volume of water required for water supply in either of the Wivenhoe Dam or Somerset Dam to meet the water needs of users and stakeholders.

27. In his affidavit, Mr McDonnell refers to the extensive numbers of documents and files that would need to be reviewed to answer category (a). I do not underestimate the size of the task involved, however I nevertheless consider it appropriate in light of the assertions made in Seqwater’s defence. Further, the bulk of the searching concerns so much of the category as seeks correspondence in relation to the topics covered by proposed category (a). I accept that there appears to be limited utility in searching for every reference to the topics in (i) to (iii) in every email and letter sent to, by or within organisations the size of each defendant in a period of approximately six years. Instead, I will confine the correspondence search to documents sent to or from, or copied to, the deponents of affidavits, the signatories to any witness statement and any flood engineer on duty in the period 1 December 2010 to 19 January 2011, as their understanding on this topic is likely to be what is truly relevant. To minimise ambiguity in the discovery criteria I will substitute the words “correspondence to or from or copied to” for “correspondence involving” in the proposed category.

28. Finally, for this category I agreed with the plaintiff that the time period should extend to 31 March 2011 even though the relevant flood event ceased on 19 January 2011. This was so because on 17 February 2011 a reduction in the FSL was approved which took effect on 31 March 2011. The documents relating to that process may throw light on what was understood about the significance of FSL to meeting the water needs of users and stakeholders during December and January 2011.

29. These findings were reflected in orders 1(a) and 1(a1) made on 16 September 2016.

Category (b): Dam Capacity

31. Discovery category (b) sought by the plaintiff was as follows:

“i.    Reports or studies discussing or describing the actual or intended capacity or ability of Somerset Dam and Wivenhoe Dam to mitigate the effect of floods of specified magnitudes, created prior to 19 January 2011; or

ii.    Documents discussing or describing the requirements for the safe operation of Somerset Dam and Wivenhoe Dam during a flood event, created in the period 1 January 2005 to 1 January 2011.”

32. According to the plaintiff, the necessity for discovery of documents in this category arises from the defendants’ contention that Somerset Dam and Wivenhoe Dams could not operate in the manner suggested in Dr Christensen’s analysis because of various engineering and structural safety concerns. The plaintiff seeks these documents to scrutinise that assertion.

33. On the hearing of this application, each of the defendants disclaimed any suggestion that any structural, operational or design constraint affecting Wivenhoe Dam precluded the adoption of the flood mitigation approach suggested by Dr Christensen. Accordingly, I did not allow so much of this category that sought documents concerning Wivenhoe Dam.

34. In relation to Somerset Dam, the relevance of the documents sought is best considered by analysing paragraph 26 of Seqwater’s defence. Paragraph 26 of the TASOC pleads that “Somerset Dam is designed to withstand limited overtopping over the top of the radial gates (but not over the top deck of the dam)”. Sub-paragraph 26(a)(i) of Seqwater’s Amended Defence pleads that, as at December 2010 and January 2011, the precise water level of Lake Somerset that would cause Somerset Dam, to become unstable was uncertain. Sub-paragraphs 26(a), (ii), (iii) and (iv) respectively plead that the estimated failure level of Somerset Dam was 109.7m AHD (ie Australian Height Datum or Mean Sea Level) if its “crest gates” were fully open, that the estimate was less than that if those gates were not fully open and that the crest gates had not been operated under any load since 1974.

35. Sub-paragraph 26(a)(v) pleads that, if those crest gates were closed under load risks of various sizes, failure would result. Sub-paragraph 26(a)(vi) pleads that the “information available” to the flood engineers as at December 2010 and January 2011 suggested that the estimated failure level of Somerset Dam with the crest gates closed was “as low as 105.7m AHD”. The particulars to that paragraph identify ten reports that are said to support that assertion, with the earliest report dated July 1988. Sub-paragraph 26(b) pleads that, if the level of water in Lake Somerset exceeds 107.46m AHD, which is the top of the crest gates, then water can flow over the top of the crest gates and down a “breezeway” located on either side of the crest gates.

36. In her affidavit, Ms Gilsenan identified and extracted various parts of the defendant’s evidence which addressed the structural constraints on the operation of the Somerset Dam, specifically the crest gates. In his affidavit, Mr McDonnell stated that this evidence was directed at responding to that part of Mr Christensen’s report in which the author referred to the obligation of a “reasonably competent flood operations engineer [to] consider the best available information regarding the state of the dam itself”. He stated that all of the documents particularised in paragraph 26(a)(v) of Seqwater’s amended defence had been provided.

37. This part of Mr McDonnell’s affidavit does not assist Seqwater’s resistance to discovery on this topic for two reasons. First, the plaintiff is entitled to scrutinise Seqwater’s assertion as to what was the “best available information” for the flood engineers as at December 2010. Second, the issues raised by paragraph 26 of Seqwater’s amended defence are not limited to the information available, or even the best information available, to the engineers as at December 2010, but instead invite an objective determination of the design and structural constraints on the operation of the Somerset Dam.

38. One matter of concern in relation to proposed category (bi) is that on its face it covers a 73 year time period since the dam was constructed. In his affidavit, Mr McDonnell states that a review has estimated that there is at “least 200 archive boxes relating to either Somerset Dam or Wivenhoe Dam” and that the proposed criteria picks up documents that “discuss or describe” the matters stated. Although I am only concerned with Somerset Dam I nevertheless expect that this aspect of discovery will still require significant expenditure and resources. However, given that this aspect of discovery arises at least in part out of paragraph 26 of Seqwater’s defence, which itself particularises a study that is now 28 years old, I did not propose to limit the time period for this category. That said, I inserted the words “(but not merely referring to)” into paragraph 1(b) of the orders after the words “discussing or describing” to make it clear that passing references to operational and safety constraints on the dam will not be caught.

39. During the course of argument I queried with Senior Counsel for the plaintiff, Mr Hutley SC, the width of proposed category (bii), which appeared to embrace matters such as occupational health and safety as well as the structural safety of the Somerset Dam. To address this he proposed the inclusion of words that made it clear that the category was directed towards capturing documents discussing the structural and operation constraints upon the safe operation of the dam. This was reflected in order 1(bii).

Category (c): Reports Required by the Flood Mitigation Manual

40. Discovery category (c) sought by the Plaintiff was as follows:

“Reports prepared pursuant to sections 7.2, 7.3 and 7.4 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam for the years 2005 to 2011.”

41. Paragraphs 7.2 and 7.3 of the Flood Mitigation Manual require the submission of reports on personnel training and monitoring and forecasting systems on 30 September each year respectively. Paragraph 7.4 requires the submission of an operational review report within six weeks of a flood event

42. I have already referred to the Flood Mitigation Manual. As stated, one of the criticisms made by Dr Christensen of the conduct of flood mitigation operations during the period 1 December 2010 to 19 January 2011 was that, in making decisions about whether or not to release water, regard was only had to information about actual rainfall and not to information about forecast rainfall. The defendants contend that was not required and, in any event, the flood engineers reasonably believed that forecasts were too unreliable to be used for that purpose.

43. The plaintiff sought the reports described by category (c) to test the defendant’s assertions. They anticipate that these reports will, or may, refer to the use, or possible use, of forecasts in conducting flood mitigation activities. Seqwater did not resist the production of these reports but contended that they should only relate to the period from the gazettal of amendments to the Flood Mitigation Manual in January 2010, known as “revision 7”, which included a new section 8.4 dealing with flood operation strategies that the plaintiff contends allowed for consideration of rain forecasts.

44. I accept Seqwater’s contention that revision 7 is of significance but I extended the time period for this category back to the beginning of 2009 because that was likely to include the period when consideration was being given to amending section 8.4. It would also include a flood event that occurred in May 2009. Apparently there was no flood event, or at least no report on a flood event, between 2005 and early 2009. The potential relevance of the reports from the period prior to any contemplated change of the Flood Mitigation Manual was not established.

Category (d): Material Regarding the Availability and Reliability of Forecasts

45. Discovery category (d) sought by the plaintiff was as follows:

“Documents referring to the reliability, accuracy or use of rainfall forecasts in connection with the operation of Wivenhoe Dam or Somerset Dam created between 1 January 2005 and 19 January 2011.”

46. The relevance of material relating to the reliability and use rainfall forecasts has already been explained. Seqwater did not dispute its relevance but contended that the time period should be limited so that it commenced from the date of the gazettal of revision 7 of the Flood Mitigation Manual, ie 22 January 2010. For the reasons stated the period should commence from 1 January 2009.

47. Junior Counsel for the plaintiff, Mr Yezerski, contended that the time period should extend back to January 2005. He pointed to part of an affidavit of one Seqwater’s witnesses, Mr Terrence Malone, in which he referred to receiving advice from the Bureau of Meteorology in or around 2006 about the use of rain forecasts. [1] However, I accept Seqwater’s contention that the next part of the affidavit makes it clear that the significance of that communication was that it was re-sent during December 2010.

    1. Affidavit of Terrence Alwyn Malone sworn 2 June 2016 at [196]; Exhibit RG-29 to the Affidavit of Rebecca Gilsenan affirmed 18 August 2016

48. Seqwater also contended that the category should be limited to such documents as were “available to the Flood Engineers”. The plaintiff seeks documents that refer to the use of forecasts “in connection with the operation of Wivenhoe Dam or Somerset Dam”. Seqwater’s contention rests upon the correct premise that these documents will only be of significance if they were known or reasonably available to the Flood Engineers, given that it is their breaches of duty upon which the plaintiff relies. However, the difficulty with introducing a criteria for discovery that documents were “available” to the engineers is that it is too subjective and may inhibit the making of reasonable arguments by the plaintiff about what was reasonably available to the engineers. This is best dealt with by adopting the plaintiff’s formulation so that arguments about what documents were reasonably available to the flood engineers are dealt with at the hearing rather than via decisions made during discovery.

Category (e): Forecasts During Period 1 December 2010 to 19 January 2011

49. Category (e) sought by the plaintiff was not pressed. It was agreed between the parties that the documents sought were covered by the discovery order made by Garling J and that the obligations imposed on that order are ongoing. The orders made on 16 September 2016 did not include this proposed category.

Category (f) and (g): Documents Concerning Revision 7 of the Flood Mitigation Manual

50. Discovery categories (f) and (g) sought by the plaintiff were as follows:

“(f)   Documents recording discussion of, proposals for, or reasons for, the changes introduced in Revision 7 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam”

(g)   Documents constituting, evidencing or recording:

“i.    the terms of reference, instructions to, or matters to be considered by, the 2009 Review (as defined in paragraph 106(c) of the Amended Defence of the Second Defendant);

ii.    the documents or information considered or reviewed by the Review Panel (as defined in paragraph 106(f) of the Amended Defence of the Second Defendant) or by one or more members of the Review Panel as part of the 2009 Review;

iii.    the deliberations of the Review Panel;

iv.    any analysis prepared or considered by the Review Panel that discusses, assesses or describes the way in which Somerset Dam and/or Wivenhoe Dam should be used for flood mitigation; and

v.    any reports, decisions or recommendations of the Review Panel.”

51. I have referred to aspects of the changes introduced by revision 7 of the Flood Mitigation Manual above. Seqwater contended that the category should be limited to documents that record or evidence reasons for the changes introduced into section 8.4 of the Flood Mitigation Manual by revision 7 that relate to an alleged requirement to make use of the best forecast of rainfall and the use of the “Wivenhoe Flood Strategy Flow Chart”. Both of those matters are specifically pleaded in the TASOC.

52. The plaintiff contended that the limitation should not be introduced as the changes to the Flood Mitigation Manual introduced by revision 7 should be read together as a whole and the same volume of documents would be reviewed by the defendants in any event.

53. The position taken by Sunwater on this issue was significant. Sunwater adopted the plaintiff’s formulation and agreed to provide discovery on that issue and sought discovery to that effect from Seqwater. Senior Counsel for Seqwater, Mr O’Donnell QC, resisted any order requiring his client to provide discovery to Sunwater on the basis that he was not on notice of any such application by Sunwater. Seqwater was afforded the opportunity to file written submissions on that issue after the hearing but none were received.

54. Proposed category (g) refers to paragraph 106(f) of Sunwater’s amended defence. Paragraph 106(c), (e) and (f) of that defence pleaded that the Flood Mitigation Manual was revised in 2009 following a review co-ordinated by Mr Tibaldi on behalf of Seqwater with the assistance of a technical review panel which included Seqwater personnel, this being the Review Panel referred to in proposed category (g)(ii). Paragraph 109(g)(i) pleads that the flood engineers and other members of the review panel had the intention and understanding that the review would only document past practice and not alter the manner in which the dams had been operated in the past, including the reliance that would be placed on rain forecasts. Paragraph 109(i)(iii) pleads that the content of Sunwater’s obligation to Seqwater required Sunwater to operate both of the dams consistently with that intention and that understanding.

55. This aspect of Sunwater’s amended defence not only affects the plaintiff’s claim against Sunwater but is part of Sunwater’s defence to Seqwater’s cross-claim against it. A pleading that alleges a common understanding about the conduct of the review that lead to revision 7 justifies discovery of documents concerning all the aspects of the review and not just those that relate to reliance on rain forecasts and the “Wivenhoe Flood Strategy Flow Chart”. For this reason I accepted the plaintiff’s formulation of categories (f) and (g). They are reflected in 1(e) and 1(g) of the orders made on 16 September 2016.

Category (h): Manual of Operational Procedures

56. Discovery category (h) sought documents in relation to the training of “operations personnel” in the use of the Flood Mitigation Manual. In her affidavit, Ms Gilsenan explained that the reference to “operations personnel” was from another report that referred to “operations personnel” undertaking training of that kind. [2] However, at the hearing of this application, it was accepted that it was incorrectly assumed that the reference to “operations personnel” was a reference to “flood engineers” when in fact it was a reference to dam operators. On that basis, the plaintiff did not press this category.

    2. Affidavit of Rebecca Gilsenan affirmed 18 August 2016 at [61] to [64]

Category (i): Discussion or Proposals for Creation of the Flood Procedures Manual

57. Proposed category (i) sought the discovery of documents relating to the creation of the Flood Procedures Manual entitled “Wivenhoe Dam, Somerset Dam, North Pine Dam, Leslie Harrison Dam, Uncontrolled Spillway Dams, Uncontrolled Copy, Revision 0, January 2010” (the “Flood Procedures Manual”).

58. Seqwater sought to limit this category to documents which record or evidence the reasons for the production of section 3.2 of the Flood Procedures Manual. This was so because paragraph 106A of the TASOC particularised section 3.2 of the Flood Procedures Manual as supportive of an assertion that, when making predictions as to expected storage levels, flood engineers were required to use forecasts of rainfall and not just “water on the ground”. Apparently Dr Christensen relied on it for the same purpose.

59. Mr Yezerski resisted the confinement of the category to section 3.2. He submitted that there was an apparent conflict between the affidavits and statements of various flood engineers, specifically Mr Ayre on the one hand and Messrs Ruffin, Malone and Tibaldi on the other, as to the status of the Flood Procedures Manual. Mr Ayre stated that the flood operations engineers operated under the Flood Procedures Manual which he says was “consistent with and supplement[ed]” the Flood Mitigation Manual, whereas Messrs Ruffin, Malone and Tibaldi suggested that it was in effect only a draft. [3]

    3. Affidavit of Robert Ayre affirmed 6 June 2016 at [216]; Exhibit GR-44 to Affidavit of Rebecca Gilsenan affirmed 18 August 2016; Statement of John Ruffin dated 11 May 2016 at [155]; Affidavit of Terrence Alwyn Malone sworn 2 June 2016 at [44]; Affidavit of John Victor Tibaldi sworn 31 May 2016 at [298] to [300]

60. It is at least arguable that the Flood Procedures Manual provides support for the plaintiff’s case on the use of rainfall forecasts. Obtaining the documents sought by the plaintiff concerning the creation of the entire document and not just section 3.2 may assist in resolving an apparent disagreement as to its status. Accordingly, I accepted the plaintiff’s formulation of this category. This was reflected in order 1(h).

Timing for Compliance

61. Upon the making of a discovery order the rules engage to specify the time for the service of a discovery list, namely 28 days (UCPR 21.3(a)), and then for making the documents available for inspection, 21 days (UCPR 21.5(2) unless some other time is specified (UCPR 21.3(b) and 21.5(2)). Order 5 directed the parties to confer as to whether other periods should be provided for.

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Endnotes

Decision last updated: 21 September 2016