Kosciusko Thredbo Pty Limited v State of New South Wales and Ors; Aymost Pty Limited and Ors v National Parks and Wildlife Service and Ors; Brindabella Ski Club Incorporated v National Parks and Wildlife Service and Ors; Mittara Pty Limited v National Parks and Wildlife Service and Ors; Alpine Leisure Club Limited v National Parks and Wildlife Service and Ors; Pindari Ski Club Co-operative Liimted v National Parks and Wildlife Service and Ors; Rarida Pty Limited v National Parks and Wildlife Service and Anor; Kosciusko Alpine Club Limited v National Parks and Wildlife Service and Anor; Leatherbarrel Lodge Co-operative Limited v National Parks and Wildlife Service and Anor; Teh v National Parks and Wildlife Service and Anor; Gunyang Ski Club Co-operative Limited v National Parks and Wildlife Service and Anor; Monck v National Parks and Wildlife Service and Anor; Hukins v State of New South Wales and Ors [2002] NSWSC 96 (27 February 2002)

Last Updated: 19 March 2002

NEW SOUTH WALES SUPREME COURT

CITATION: Kosciusko Thredbo Pty Limited v State of New South Wales & Ors; Aymost Pty Limited & Ors v National Parks & Wildlife Service & Ors; Brindabella Ski Club Incorporated v National Parks & Wildlife Service & Ors; Mittara Pty Limited v National Parks & Wildlife Service & Ors; Alpine Leisure Club Limited v National Parks & Wildlife Service & Ors; Pindari Ski Club Co-operative Liimted v National Parks & Wildlife Service & Ors; Rarida Pty Limited v National Parks & Wildlife Service & Anor; Kosciusko Alpine Club Limited v National Parks & Wildlife Service & Anor; Leatherbarrel Lodge Co-operative Limited v National Parks & Wildlife Service & Anor; Teh v National Parks & Wildlife Service & Anor; Gunyang Ski Club Co-operative Limited v National Parks & Wildlife Service & Anor; Monck v National Parks & Wildlife Service & Anor; Hukins v State of New South Wales & Ors [2002] NSWSC 96



CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 20349/00
20590/99
20354/00
10588/01
20362/01
20335/01
20650/00
20704/00
20126/01
20007/01
20355/00
322/01
20/00

HEARING DATE{S): Friday 22 February 2002

JUDGMENT DATE: 27/02/2002

PARTIES:
Kosciusko Thredbo Pty Ltd v State of New South Wales, the Minister Administering the National Parks & Wildlife Act 1974, Roads & Traffic Authority of NSW, Oxbara Pty Ltd t/as Rye Plant Hire, Snowy Mountains Engineering Corporation Limited; Aymost Pty Ltd t/as House of Ullr & 19 others v National Parks & Wildlife Service, Roads & Traffic Authority of NSW and Lend Lease Corporation Limited; Brindabella Ski Club Incorporated v National Parks & Wildlife Service, Roads & Traffic Authority of NSW and AMP General Insurance; Mittara Pty Limited v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Alpine Leisure Club Ltd v National Parks & Wildlife Service & Roads and Traffic Authority of NSW; Pindari Ski Club Co-operative Ltd v National Parks & Wildlife Service, Minister Administering the National Parks & Wildlife Act 1974, Roads & Traffic Authority of NSW; Rarida Pty Limited t/as Winterhaus Lodge v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Kosciusko Alpine Club Limited v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Leatherbarrel Lodge Co-operative Ltd v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Margaret Jean Teh v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Gunyang Ski Club Co-operative Ltd v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; John Thomas Monck v National Parks & Wildlife Service and Roads & Traffic Authority of NSW; Wendy Hukins v The State of New South Wales, Roads & Traffic Authority of NSW, Snowy River Shire Council, Snowy Mountains Hydro-Electric Authority, Lend Lease Corporation Limited, Amalgamated Holdings and Kosciusko Thredbo Pty Limited

JUDGMENT OF: Michael Grove J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Various as noted

SOLICITORS:
Various as noted


CATCHWORDS:
APPLICATION FOR SEPARATE TRIAL OF ISSUES

ACTS CITED:


DECISION:
See pars 20-22


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


MICHAEL GROVE J

Wednesday 27 February 2002


20349/00 KOSCIUSKO THREDBO PTY LIMITED (ACN 000139 015) v STATE OF NEW SOUTH WALES, THE MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974, ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257), OXBARA PTY LIMITED t/as RYE PLANT HIRE (ACN 001 987 837), SNOWY MOUNTAINS ENGINEERING CORPORATION LIMITED (ACN 008 654 224);

20590/99 AYMOST PTY LIMITED t/as HOUSE OF ULLR & 19 others v NATIONAL PARKS AND WILDLIFE SERVICE, ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257) and LEND LEASE CORPORATION LIMITED (ACN 000 226 228)

20354/00 BRINDABELLA SKI CLUB INCORPORATED v NATIONAL PARKS AND WILDLIFE SERVICE, ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257) and AMP GENERAL INSURANCE

10588/01 MITTARA PTY LIMITED v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20362/01 ALPINE LEISURE CLUB LIMITED v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20335/01 PINDARI SKI CLUB CO-OPERATIVE LIMITED v NATIONAL PARKS AND WILDLIFE SERVICE, MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974, ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20650/00 RARIDA PTY LIMITED t/as WINTERHAUS LODGE v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20704/00 KOSCIUSKO ALPINE CLUB LIMITED v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20126/01 LEATHERBARREL LODGE CO-OPERATIVE LIMITED v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20007/01 MARGARET JEAN TEH v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20355/00 GUNYANG SKI CLUB CO-OPERATIVE LIMITED v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

322/01 JOHN THOMAS MONCK v NATIONAL PARKS AND WILDLIFE SERVICE and ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257)

20/00 WENDY HUKINS v THE STATE OF NEW SOUTH WALES, ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES (ACN 065 159 257), SNOWY RIVER SHIRE COUNCIL, SNOWY MOUNTAINS HYDRO-ELECTRIC AUTHORITY, LEND LEASE CORPORATION LIMITED, AMALGAMATED HOLDINGS and KOSCIUSKO THREDBO PTY LIMITED


JUDGMENT

1 HIS HONOUR: There are before the Court some thirty four actions (separately counting those plaintiffs who have joined in a single action) commenced against a variety of defendants arising out of the landslide at Thredbo Village on the night of 30 July 1997. For the most part these claims seek damages for damage to property, consequential loss upon such and economic loss otherwise sustained. There are claims of different nature but for convenience this group of actions has been referred to as the “Thredbo commercial claims” and that is a useful generalization.

2 In all actions the defendants are not identical but in every one there is a defendant or there are defendants which are instruments of (or in one case, is) the State of New South Wales. These have been referred to as the State interest defendants and I will adopt that description. The history of lease and sublease in the Thredbo area is also germane to some claims and, noting that there are some vicarious liability issues, parties are joined in sometimes different capacities or roles. I also note that it has been stated that the State interests foreshadowed cross claims against individuals who are not joined in the litigation at all at this stage .

3 The present motion is a notice filed in Court on 22 February 2002 by the State interests for a determination of separate questions pursuant to Part 31 rule 2. All parties had advance notice of intended hearing of that motion on that day and counsel were invited to state the position of their respective clients and make submissions. Without pausing to identify them now, many plaintiffs have common representation.

4 The purpose of the present exercise is to progress these actions in a manageable and reasonably efficient fashion. Thus, in distinction from determination of any legal issues, the task is essentially procedural.

5 I record that I have already rejected the notion of hearing all the actions together and I reiterate my reason that it would involve large numbers of lawyers constantly being present while, for extended periods, only a small number would be engaged in the actual conduct of proceedings.

6 Hearing the cases in sequence gives rise to the possibility of a “Spedley situation” (Australian National Industries Limited v Spedley Securities Limited (In Liq) & Ors 1992 26 NSWLR 411) which need not be elaborated.

7 Nor is it necessary for this procedural determination to analyse at length the various problems which might arise which were canvassed at the hearing on 22 February. It suffices to note that I reject the proposition that I should hear action 20349/2000 (Kosciusko Thredbo Limited plaintiff), either alone or in conjunction with 20650/2000 (Winterhaus Lodge plaintiff) and/or 20354/2000 (Brindabella Ski Club Inc plaintiff). Neither these nor any other cases selected as “lead cases” can in a practical and effective way irrevocably bind other litigants to findings or outcomes on issues.

8 Mr Barry QC (for one of the defendants other than State interests in 20349/2000) remarked to the effect that it would become plain that the disaster was caused by the presence of water within the land which collapsed and the ultimate question would be, where did the water come from? No one seemed seriously to dispute the substance of this proposition.

9 This leads to examination of what can be achieved by the proposal put forward by the State interests. Mr Garling QC for these interests pointed out that every pleading contended that either the landslide was caused by water coming from one or more leaking joints in a pipeline or from additional flows caused by the construction of an identified retaining wall or both.

10 Questions 1 to 7 in the schedule to the Motion were designed to explore how the infiltration of water had occurred.

11 As a potentially evidential matter concern was expressed about the absence of questions upon a hypothesis that the relevant landfill was in any event only marginally stable and vulnerable to small changes in the ground water regime in the context of an allegation of requisite knowledge about that fragility. Mr Garling indicated that he would raise no objection to inclusion of suitable questions on this issue.

12 Questions 8 and 9 were designed to achieve determination of engineering issues congruent with any findings about the source of water which precipitated the landslide.

13 A question numbered “B” was in these terms:

“which party or parties, if any, were responsible for the operative cause or causes of the landslide set out in paragraphs 1, 2 and 3 above, and to what extent?”

14 It was contended that it was not possible simply to separate “liability” and “damages” because claims in regard to the latter included claims in which the existence and extent of duty (and consequently breach) would require individual attention especially those claims for “pure economic loss’. Hence, although there cannot be a determination of duty and breach common to all actions at this juncture it is possible to embark upon a factual determination of “who did what”. Apportionment of responsibility in accordance with that enquiry has potential towards progressing, and hopefully even resolving, some or all of the claims.

15 Mr White for Kosciusko Thredbo Limited (20349/2000) referred to the absence of service of proposed technical reports and that no plaintiff other than his had filed a report of expert evidence. He contended that his client’s action should be treated as a “lead action” and be heard first. He agreed with a proposal that his action be heard concurrently with those brought on behalf of Winterhaus and Brindabella. Brindabella involved the total loss of a building and Winterhaus was said to be an available example of a claim by a sub-lessee. Mr Alexis for six plaintiffs (including Winterhaus) opposed the motion and proposed also that these lead cases be listed. For reasons already touched upon, I am unpersuaded that this would as practically progress the overall position as effectively as the proposal by the State interests.

16 Mr Lockhart for Lend Lease (a defendant to a number of actions and joined in others in various capacities) also opposed the lastmentioned. He observed that, inter alia, his client was sought to be made liable as a holding company of Kosciusko Thredbo Limited (apparently a predecessor of the plaintiff in 20349/2000 which entities have for discrimination been referred to as KT1 and KT2) and there were issues as to its liability for actions by subsidiaries. I acknowledge that none of this will be determined by answers to the proposed questions but, as I have said, I am seeking the balance of efficient convenience and I recognize that not every issue can be determined in a preliminary common hearing.

17 Ms Cassimaty joined in the opposition to the motion by the State interests and stated that her client (Pindari Ski Club 20335/2001) was relying on evidence to be produced by Kosciusko Thredbo Limited on liability issues. Mr Blackett SC for eighteen plaintiffs joined in one action supported the motion.

18 Mr Barry QC and Mr Hunt for defendants in Kosciusko Thredbo Limited’s action other than the State interests contended that what might be determined would be the pithily expressed question formulated by Mr Barry which I have already mentioned. Mr Odgers for two plaintiffs (including Brindabella) opposed the motion.

19 My conclusion is that there should be determination of questions along the lines proposed by the State interests. Time was not taken on 22 February to engage in debate about drafting refinements including additional questions related to allegation of marginal stability of fill in existence prior to the disaster.

20 I foreshadowed that I would promptly indicate my intention in relation to the motion and I will refrain from making some orders in order to allow submissions concerning drafting, but on the already scheduled directions on Tuesday 19 March next I propose to make orders broadly along the lines proposed in the Motion.

21 In the interim it is desirable that the pleadings advance towards closure. I am conscious of Mr Lockhart’s observation that he is not instructed to act for some individual cross defendants who may be joined by the State interests and their position, if that occurs, will need attention. Although I will extend time as requested in par 5 of the Motion (subject to fixing a date) I will not at this stage set times for pleadings in response in the absence of detail of what exactly is done in that regard.

22 Formal orders are as follows:

On the Notice of Motion filed on 22 February 2002 and returned on that day:

(1) I order that time for filing defences by the applicants to that motion and any cross claims advanced by them be extended to 4 pm on Friday 8 March 2002.

(2) The motion is stood over for the making of orders along the lines I have indicated to 10 am on Tuesday 19 March 2002.

(3) The costs of the motion are reserved.



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LAST UPDATED: 28/02/2002