Farmers consider ramping up legal fight with class action
THE legal battle over Paradise Dam could escalate with a class action by impacted farmers seeking compensation.
Marland Law, the firm acting on behalf of concerned farmers, principal Tom Marland said the Judicial Review was the first step in their legal action regarding the dam.
Mr Marland said they were now considering initiating a class action, which would be a separate legal proceeding, supported by the Judicial Review process.
Essential Works are currently underway at Paradise Dam which has seen the capacity dropped as the spillway is lowered 5.8m.
While the dam is currently deemed safe, there were community safety concerns in the event of an extreme flood like 2013, which prompted the works.
At the weekend there was a meeting with the farmer's legal team and about 40 water allocation holders from the region, Mr Marland said.
The legal team is comprised of Mr Marland, Justin Byrne (Barrister) and Matthew Donovan (Barrister) who outlined the legal action currently underway against SunWater and the Queensland Department of Natural Resources, Energy and Mines at the meeting.
Their QC, Douglas Campbell, wasn't able to make it but another community meeting will be held with the full legal team next month.
"We were very pleased with the meeting," Mr Marland said.
"It gave us an opportunity to update local businesses about the progress of our legal action against SunWater and the Queensland Department of Natural Resources, Energy and Mines regarding the decision to lower the wall of Paradise Dam.
"Many of the attendees were very interested to learn that it appears the Bundaberg community has been misled by SunWater and the Department as to the circumstances surrounding the wall of Paradise Dam and the manner in which the decision was made to lower the wall."
Mr Marland said while the plan for the Judicial Review process offers the Bundaberg community the opportunity to hold the Government and SunWater to account for their decisions, a class action offers affected businesses the opportunity to access compensation for the financial losses suffered as a result of lowering the wall of Paradise Dam.
"The farming and business community have spent months and months trying to work with the state Government and SunWater to prevent the lowering of the wall," he said.
"The independent expert advice commissioned by Bundaberg Fruit and Vegetable Growers from world-renowned dam engineer, Dr Paul Rizzo, clearly stated that an alarmist atmosphere had been created around the management of Paradise Dam and that he was confident the dam could be remediated at a reasonable cost, without lowering the dam wall.
"However, despite tremendous effort from the Bundaberg region to save Paradise Dam, SunWater and the Government have commenced works to lower the wall.
"This decision by SunWater and the Government has left affected businesses with no other recourse than legal action."
He said they believe the State Government and SunWater had breached their duty of care to water allocation holders and have engaged in "deceptive and misleading conduct" in their management of Paradise Dam.
The cost of the class action will depend on the size of the claim involved.
"We will seek funding support from a litigation funder for the class action," Mr Marland said.
He said it was important to remember that water storages are designed to provide a 'buffer' against dry years.
"Without decent inflows into Paradise Dam, the reliability of water allocations is lower, hence the announced allocation for the 2020/21 water year is only 70 per cent," Mr Marland said.
"Farmers pay fixed and variable charges for irrigation water, so an announced allocation of 70 per cent actually means that irrigation water is 21 per cent more expensive (per megalitre) than when the announced allocation is 100 per cent.
"The lower the announced allocation goes, the more expensive the water becomes per megalitre."
A Sunwater spokesperson said the company's decisions in relation to Paradise Dam have been about protecting both lives and livelihoods.
"The decision to lower the dam wall has been made to improve the safety of communities living downstream of the dam, while longer term remediation of the dam is designed and implemented," the spokesperson said.
"If required, Sunwater will vigorously defend its position on Paradise Dam in court."