Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 23)

1. [1]

   On 29 November 2019, I delivered the principal judgment in these proceedings (Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657; “Rodriguez (No 22)”). Save for the matters addressed in this judgment, Rodriguez (No 22) determined all issues of fact and law that arose for determination in relation to the representative plaintiff’s own claim. It also resolved all issues, save for certain aspects of causation and quantum, that arose in relation to a number of selected group members’ claims (the “sample group members”), [1] as well as various issues that were common to all or most of the claims of the plaintiff and group members or that arose between the defendants. [2] Upon the publication of Rodriguez (No 22), the proceedings were adjourned to 21 February 2020 for directions.

2. [2]

   At the directions hearing on 21 February 2020, the first defendant, Queensland Bulk Water Supply Authority trading as Seqwater (“Seqwater”) advised the Court that it would be appealing Rodriguez (No 22). The second defendant, SunWater Limited (“SunWater”) intimated that it would probably do so. It confirmed its intention to appeal shortly afterwards. The third defendant, the State of Queensland (the “State”), advised the Court that it would not appeal. As there are still some issues and many claims to be resolved at first instance, it means that the proceedings at first instance continue while there are proceedings on appeal. That is not an unusual feature of large representative actions.

3. [3]

   At the directions hearing on 21 February 2020, orders were made to facilitate the resolution of three particular issues, namely, the calculation of the plaintiff’s damages, the determination of the respective proportions of the plaintiff’s judgment (and group members’ claims) that each defendant must bear and the determination of the balance of the sample group members’ claims. A hearing to determine the first two of those issues took place on 29 and 30 April 2020. Those issues are addressed by this judgment. The effect of the directions regarding the service of evidence concerning the claims of the sample group members (and the effect of the pandemic) means that the balance of their claims cannot be determined until later this year.

4. [4]

   In relation to the substantive issues the subject of this judgment and for the reasons that follow, I conclude that the plaintiff is not entitled to receive interest on so much of its award of damages that reflects flood damage to its fixtures and fittings and which is calculated by reference to the commercial cost of the volunteer labour of others that repaired that damage. Further, I conclude that the judgment entered in favour of the plaintiff should be apportioned against Seqwater, SunWater and the State in the proportions 50%, 30% and 20% respectively. These proportions will also apply to group members’ claims. The determination of these two issues resolves all currently outstanding common or separate questions. The (final) form of those answers, and the entry of an order giving effect to them, is also addressed below.

5. [5]

   The balance of these reasons are structured as follows:

(1) Interest on Property Damage

1. [6]

   The events surrounding the flooding of the plaintiff’s sporting goods and clothing store on 11 and 12 January 2011, the clean‑up and restoration of the store, including its stock and fixtures and the eventual resumption of trading, are described in Rodriguez (No 22). [3] It was found, inter alia, that in respect of all loss and damage proven to have been suffered by the plaintiff, causation had been established against each of the defendants. [4] The plaintiff claimed damages for loss and damage to its fixtures and fittings, damaged or lost stock and loss sales or profits. In Rodriguez (No 22), I noted that the parties had identified five issues that needed to be determined to calculate the plaintiff’s loss and damage. [5] All of those issues were determined in Rodriguez (No 22). [6]

2. [7]

   After considering Rodriguez (No 22), the parties agreed on the quantification of the plaintiff’s damages, prior to any allowance for interest, being $200,968 comprised of $101,517 for trading and inventory loss, $10,377 for loss of fixtures and $89,074 for what the parties variously described as “[g]ratuitous [s]ervices”. [7] The parties also produced agreed interest calculations for the first two components. However, SunWater contended that interest should not be awarded on the third component, that is, the so called “gratuitous services”.

3. [8]

   It is first necessary to describe the head of damage that the disputed claim for interest relates to. The use by all parties of the description “gratuitous services” in this context is apt to mislead. This head of damages relates to the cost of cleaning and repairing the plaintiff’s shop, fixtures and stock after the flooding. The cleaning and repairing was undertaken for no charge by a director of the plaintiff, Mr Rodriguez, members of his family and community minded volunteers (known as the “mud army”). The value of that labour was quantified by the plaintiff on a commercial arm’s length basis.

4. [9]

   In Rodriguez (No 22), I upheld an entitlement to recover damages for cleaning and repairs quantified by reference to the commercial cost of that labour for the following reasons: [8]

5. [10]

   This analysis is inconsistent with any characterisation of this aspect of the damages claim as damages “for gratuitous services”. Instead, recovery is allowed for an amount representing damage to property, the quantification of which is derived from an assessment of the commercial cost of the labour necessary to repair it. In the above passage, I found that the fact that the labour was provided “free of charge” only operates to reduce the damages if the providers of the labour provided it with the intention that it would reduce the plaintiff’s entitlements, which they did not.

6. [11]

   This aspect of the plaintiff’s claim is conceptually different to a claim by an injured person for the recovery of the commercial cost of care that has been or will be voluntarily provided to them by friends or family and which is in that sense “gratuitous”, ie a Griffiths v Kirkmeyer [14] claim. Insofar as a Griffiths v Kirkmeyer claim is allowed for cost of services that may not be supplied or paid for, then it does not involve the recovery of any form of direct or pecuniary loss. The recovery of Griffiths v Kirkmeyer claims that do not involve any direct or pecuniary loss was described by Gleeson CJ, Gummow and Heydon JJ in CSR v Eddy as “not only exceptional, but anomalous”. [15] The judgment relied on in the above passage from Rodriguez (No 22), namely Powercor, specifically disclaimed reliance on Griffiths v Kirkmeyer as the basis for awarding damages in that case [16] and the basis for awarding damages in that case was not relevantly different to this aspect of the plaintiff’s case. Unlike a Griffiths v Kirkmeyer claim, this aspect of the plaintiff’s case is a claim for direct loss.

7. [12]

   The present issue concerns whether interest should be awarded on this aspect of the plaintiff’s damages. SunWater contended that, even if the fact that the shop and chattels were repaired for “free” is ignored in determining the amount of damages to be recovered, it must be taken into account in awarding interest on those damages.

8. [13]

   Before addressing that contention, it is necessary to address a point raised by the plaintiff concerning the quality of the clean‑up that occurred. The passage from Rodriguez (No 22) set out above refers to this head of damage being quantified by reference to the “commercial cost of the services that were voluntarily rendered to repair it”. At the hearing, the plaintiff read an affidavit from Ms Leane Rudd who, since 1996, has been the part‑owner and the operations manager of High Powered Floor Restoration Pty Ltd (“High Powered”). High Powered is a commercial restoration and cleaning company. Following the January 2011 Flood Event, High Powered was engaged by residential property owners and commercial firms (including retail shops) to undertake cleaning and restoration of approximately 200 flood affected properties. In 2015, Ms Rudd provided a quotation to the plaintiff’s solicitors of what it would have cost to clean that shop in the immediate aftermath of the flood in January 2011. This assessment was based on information she was provided as to the floor space and configuration of the plaintiff’s store, the level of flooding and the damage sustained.

9. [14]

   In its written submissions responding to SunWater’s contention that interest should not be awarded on this component of its damages, the plaintiff contended, inter alia, as follows: [17]

10. [15]

    As I understand this submission, it appears to be contending that, as SunWater contends that no interest should be awarded on this component of the plaintiff’s damages, it bears an onus of proving that the cleaning services that were in fact provided for free were to the value or standard of what the plaintiff was entitled as reflected in Ms Rudd’s quotation and it has not discharged that onus.

11. [16]

    I do not agree. After the flood, the plaintiff’s store reopened for trading on 26 May 2011. [18] The premise of the plaintiff’s case for lost profits is that, by that time, the cleaning efforts undertaken were sufficient to allow the reopening to occur. That premise is supported by the fact there was a strong rebound in sales revenue for the financial year commencing 30 June 2011. [19] In these circumstances, the inference is available that the clean‑up that in fact occurred was at least to the approximate standard that was the basis for Ms Rudd’s quote and, to the extent necessary, I so find. The clean‑up may not have been undertaken as quickly as what Ms Rudd’s business could have undertaken it, but any such differential is reflected in the plaintiff’s claim for lost sales.

12. [17]

    The starting point in addressing SunWater’s contention is the statutory provisions governing the grant of interest. Section 58(3) of the Civil Proceedings Act 2011 (Qld) (“CPA (Qld)”) provides that “the court may order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment”. Section 100(1) of the Civil Procedure Act 2005 (NSW) is in similar terms in that it relevantly provides that the Court “may include interest in the amount for which judgment is given ... at such rate as the court thinks fit”.

13. [18]

    In New South Wales, r 6.12(8) of the Uniform Civil Procedure Rules 2005 provides to the effect that, if in the case of a liquidated claim, a claim for interest is made, then it is taken to be for interest at a rate 4% above the cash rate last published by the Reserve Bank of Australia. Clause 5 of Supreme Court Practice Note SC Gen 16 advises litigants to expect that pre‑judgment interest will be awarded at that rate. The practice notes published in Queensland provide for the same rate so far as a “money order debt” and default judgments are concerned. [20] It was this rate that was applied in determining the agreed interest component on the first two heads of damage noted in [7] above.

14. [19]

    SunWater contended that the relevant interest provision to be applied is s 58(3) of the CPA (Qld) on the basis that, as an award of interest is compensatory, it is “akin to an award of damages”, [21] a provision empowering a Court to award interest is a “law ... that bear[s] upon the existence, extent or enforceability of remedies, rights and obligations” and is therefore “substantive” such that it is governed by the law of the place where the tort occurred. [22] The plaintiff did not accept that but contended that it was not necessary to determine which provision applies given the similarity in the statutory provisions and the rates applicable in both jurisdictions. I agree.

15. [20]

    SunWater is correct to characterise an award of interest as compensatory in that “an award of interested on damages for personal injury should do no more than assist in the restoration of a plaintiff to the position in which he or she would have been but for the defendant’s negligence”. [23] The rationale for the award of interest is that the plaintiff is compensated “for having been kept out of money which theoretically was due to him at the date of his accident”. [24] In Metal Box Co Ltd v Currys Ltd [1988] 1 WLR 175 (“Metal Box”), a plaintiff whose goods were destroyed recovered their value and interest on that amount even though there was no claim for consequential loss. [25] In this case, the plaintiff contends that, as at the date of the accident, it had an entitlement to recover for the damage to its shop and chattels and it is entitled to interest for being “kept out of [that] money”. [26]

16. [21]

    SunWater submitted that to award interest on this component of the plaintiff’s damages would amount to a windfall. [27] It emphasised the broad terms of the statutory discretion to award interest and contended that it should be exercised having regard to its compensatory nature. SunWater emphasised that interest for economic loss should be allowed “only on that part of the damages awarded under that head which represents the compensation for those detriments the practical impact of which, in terms of economic loss actually incurred, has already, at the date of judgment been experienced by the plaintiff”. [28] SunWater contended that, in circumstances where the plaintiff’s shop and chattels were repaired by “free” labour, then there were no “detriments”, the “practical impact” of which was experienced by the plaintiff at the date of judgment.

17. [22]

    The limits imposed on awarding interest by the compensatory character of the award are demonstrated by Batchelor v Burke and Haines v Bendall, both of which concern the interest allowed on common law damages in circumstances where the injured plaintiff received workers compensation benefits prior to judgment which had to be repaid from the damages award but not with interest. In Batchelor v Burke it was held that, where a plaintiff received workers compensation for lost earnings prior to trial, then the receipt of that payment reduced the interest awarded on common law damages for past loss of income. [29] Similarly, in Haines v Bendall, where an injured worker received workers compensation that had a same or similar purpose to an award of damages for non‑economic loss, then the receipt of workers compensation from their employer was required to be considered in determining the interest payable on damages from a third party for non-economic loss. [30]

18. [23]

    SunWater placed particular reliance on the Court of Appeal’s decision in Screenco Pty Ltd v R L Drew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319 (“Screenco”). [31] The primary judge in Screenco allowed the plaintiff company to recover the value of its profit earning chattel that was destroyed but declined to award interest. The plaintiff appealed. As at the date of the accident, the plaintiff had acquired ownership of the asset from its parent company but had not made any payment for it and did not do so until the date of judgment. There was no evidence before the primary judge to the effect that it would ever have to pay any interest on the cost of acquiring the asset. [32] The plaintiff company received an award of lost profits for its inability to use the asset for the period prior to the provision of a replacement by the parent. It later purchased a replacement. [33]

19. [24]

    On appeal, Handley JA reviewed the authorities, including those noted above, and concluded that the discretionary nature of an award of interest and the necessity to avoid over compensation justified the primary judge’s refusal to award interest. [34] His Honour concluded that to have awarded the plaintiff interest would have improved its position rather than restore it. [35] Tobias JA reached the same conclusion. [36] All the members of the Court held that an award of interest for being “kept out of money” could only be awarded if it was shown that the relevant plaintiff had suffered a “real and practical” loss or detriment. [37]

20. [25]

    Three further matters should be noted about Screenco.

21. [26]

    First, of particular relevance to the present issue is the observation by Handley JA that “matters which are irrelevant in the assessment of damages may be relevant to the award of interest”. [38] His Honour cited Batchelor v Burke, Haines v Bendall and Harbutt’s “Plasticine” Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447 (“Harbutt’s case”) as authority for that proposition. In Batchelor v Burke and Haines v Bendall the workers compensation benefits were irrelevant to the assessment of damages as they were required to be repaid. However, they were found to be relevant to the award of interest. Harbutt’s case reached the same conclusion in relation to the proceeds of an insurance policy covering the loss the subject of a claim in the proceedings, [39] although the position would have been different if the insurer could have subrogated to the claim for interest. [40] In this case, SunWater contends that, while the voluntary provision of labour to fix the plaintiff’s store and stock might have been irrelevant for the purpose of assessing damages, [41] it was not irrelevant to the award of interest.

22. [27]

    Second, in Screenco, the crucial factor identified by the members of the Court of Appeal as justifying a denial of interest to the plaintiff, in that case, was the fact that the plaintiff has not paid its parent company for the acquisition of the lost chattel either at the time of the accident or even by the time of judgment and there was an absence of any evidence that it was obliged to pay interest. [42] Unlike Batchelor v Burke and Haines v Bendall, which concern the receipt of money after the accident that, but for the accident, would not have been received, the denial of interest in Screenco was thus said to be justified by the circumstances in which the asset was acquired before the event that gave rise to a liability. With respect, this is curious reasoning because all the members of the Court also accepted that, if the chattel was the subject of a gift, then interest would have been awarded, [43] although not for a period that coincided with any claim for lost profits from the use of the chattel. [44] It is not apparent what difference there is between acquiring a chattel as a gift and acquiring a chattel with no obligation to pay interest such as would justify awarding interest in the former case but not in the latter. In both cases, if the lost chattel had been sold on the day of the event that gave rise to liability instead of destroyed, then the owner would have received its value and been able to derive earnings on that sum and, in that sense, would have been “kept out of its money”.

23. [28]

    It is not necessary to consider this further as this case is akin to Batchelor v Burke and Haines v Bendall in that, after the event that gave rise to liability, the plaintiff received something that corresponded to its loss, being an in-specie service rather than a payment. In that respect, this case is closely analogous to Giles v Thompson [1994] 1 AC 142 (“Giles v Thompson”). In Giles v Thompson, the House of Lords overturned an award of statutory pre‑judgment interest made in respect of the cost of motor vehicles provided as replacement cars while the motorist’s vehicle was being repaired following an accident in respect of which the defendant was at fault. The replacement vehicles had been provided to the motorist on the understanding that the hire charges would be paid from any judgment obtained by the plaintiff but there was no agreement for the payment of interest by the motorist on those charges. [45] Lord Mustill concluded that “[i]n reality [the motorist] was not ‘kept out of’ any money of [their] own whilst the claim was being assessed and litigated”. [46]

24. [29]

    Third, in this case, Senior Counsel for the plaintiff, Mr Sexton SC, submitted that if the plaintiff had hypothetically recovered its damages on the day immediately after the flooding it would have received an amount for the cost of repairs to its fixtures and fittings. He submitted that thereafter it would have been entitled to do with its money what it wished and it would not have had to spend the funds on actually repairing its fixtures and stock. He submitted that, in those circumstances, the delay has served to deny its entitlement and interest should be awarded because in that sense it had been “kept out of its money” by not receiving the damages it was entitled to. [47]

25. [30]

    This argument echoes the arguments that were put in both Screenco and Giles v Thompson. In both cases the response was the same, namely, that an award of interest is discretionary, that the discretion must be exercised having regard to all of the circumstances including those that occur after the event giving rise to liability and having regard to the compensatory purpose noted above. [48] When those matters are considered, then the authorities require that the subsequent provision of free labour to address the harm done must be considered in determining whether to award interest, even if it cannot be considered in the assessment of damages.

26. [31]

    In oral submissions, [49] Mr Sexton also relied on Anthanasopoulos & Ors v Moseley (2001) 52 NSWLR 262; [2001] NSWCA 266 (“Anthanasopoulos”) in which all three members of the Court of Appeal held that a motorist whose car was damaged was able to recover for the cost of car hire even though it was provided without charge by their insurer. Beazley JA so found without direct or analogous reliance on Griffiths v Kirkmeyer. [50] Ipp JA relied on Griffiths v Kirkmeyer to reason by analogy that “damages for injury to a non-income producing chattel is also based on need”. [51] Handley JA agreed with both Beazley and Ipp JJA. In light of CSR v Eddy, so much of the reasoning in Anasthopoulos that relies upon Griffiths v Kirkmeyer is doubtful. Leaving that aside, Anthanasopoulos does not address the awarding of interest on such amounts. As Screenco makes clear, matters that are irrelevant to the assessment of damages may be relevant to an award of interest.

27. [32]

    The plaintiff also placed reliance on Grincelis v House (2000) 201 CLR 321; [2000] HCA 42 (“Grincelis”). [52] Grincelis involved a claim for interest on an amount awarded for the value of gratuitous services provided by the injured plaintiff’s parents prior to judgment. The relevant statutory provision obliged the Court, in any proceedings for the recovery of money, to award interest “unless good cause is shown the contrary”. [53] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ found that good cause to the contrary had not been shown [54] and that the injured plaintiff had been “kept out of money amounts which were calculated by reference to the purchasing power of money in the past”. [55] Their Honour’s noted that judicial dissatisfaction with Griffiths v Kirkmeyer was not a basis for not awarding interest. [56] As noted, that dissatisfaction reached its apex in CSR v Eddy when such awards were described as “not only exceptional, but anomalous”. However, that is of no relevance to the present issue. Grincelis simply confirms that, if an injured plaintiff is entitled to an amount for past gratuitous services, then they are also entitled to interest on that amount for being “kept out of money”. As already explained, in this case, the plaintiff’s damages are conceptually different to Griffiths v Kirkmeyer and its entitlement to interest is affected by the provision of free labour that addressed the damage that was occasioned.

28. [33]

    In its written submissions, the plaintiff noted that in Grincelis the majority observed that the awarding of pre‑judgment interest can also serve to encourage the early resolution of litigation. [57] If ever there was litigation in which there should be some encouragement to settlement it is this case. However, to award interest on that basis or because the defendants have derived a benefit from their retention of the plaintiff’s damages would not be consistent with the compensatory basis on which interest is awarded.

29. [34]

    It follows that there will be no allowance for interest on so much of the plaintiff’s award for damage to its fixtures and fittings and which is calculated by reference to the commercial cost of volunteer labour that repaired them. This conclusion also applies to group members who received the benefit of volunteer labour. Whether a different conclusion is warranted in the case of a group member whose own labour repaired damaged property is an issue that will have to await an appropriate factual context before it can be resolved. A different outcome may result because a claim relating to a group member’s own labour might be re‑formulated as a claim for consequential economic loss. Such a claim was not maintainable by the plaintiff as it is a corporate entity and it was not suggested it had incurred any liability to Mr Rodriguez in respect of his time in providing labour. For that reason, the answers to the questions relevant to this topic will be confined to the circumstance where the clean‑up and repair was provided by the volunteer labour of persons other than the relevant group member.

(2) Apportionment

1. [35]

   In Rodriguez (No 22), it was found that the plaintiff’s claim in negligence is an “apportionable claim” within the meaning of both s 28(1) of the Civil Liability Act 2003 (Qld) (“CLA (Qld)”) and s 34(1) of the Civil Liability Act 2002 (NSW) “depending on which is applicable”. [58] The qualification “depending on which is applicable” concerned which apportionment statute applies to a cause of action that is wholly founded in Queensland but litigated in New South Wales (although there does not appear to be any substantive difference between the two provisions). [59] It follows from the statement in John Pfeiffer v Rogerson that all laws that “bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws”, [60] that the apportionment provisions of the CLA (Qld) are applicable.

2. [36]

   Section 31(1) of the CLA (Qld) provides:

3. [37]

   All the parties [61] invoked the approach to apportionment between a defendant and a plaintiff found to be contributory negligent as stated in the following passage from Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 (“Podrebersek”): [62]

4. [38]

   This approach has been described as involving consideration being given to such matters as which of the wrongdoers was more actively engaged in the activity causing loss [63] and which of the wrongdoers was more able effectively to prevent the loss happening in order to reach a conclusion as to which wrongdoer “is, in a real and pragmatic sense, more to blame than the other”. [64]

5. [39]

   The above passage from Podrebeserk draws attention to three particular factors, namely, the “degree of departure from the standard of care”, the “relative importance of the acts of the parties in causing the damage” and “the whole conduct of each negligent party in relation to the circumstances of the accident”. In relation to the first and third matters, there is a possible tension between considering the degree of departure from the standard of care in relation to a defendants’ breach of duty and otherwise considering the “whole [of their] conduct”. At various points, the defendants’ submissions addressed the precise findings of breach made against the flood engineer that that defendant employed and sought to contrast those breaches with the conduct of other flood engineers on matters that went beyond breach findings. [65] The correct approach is to assess the degree of the departure from the relevant standard of care by each flood engineer in the context of the whole of the conduct of all the defendants “in relation to the circumstances in which the loss was sustained”. [66]

6. [40]

   In relation to the second matter, namely, “a comparison … of the relative importance of the acts of the parties in causing the damage”, the above passage from Podrebersek contemplates that in some cases that factor will be “of little, if any, importance”. As I will explain, the plaintiff submitted that this was such a case and to a large extent both Seqwater and SunWater agreed, although they alternatively contended for an ostensibly impressionistic and qualitative assessment of the “causal potency” [67] of each flood engineer’s failings and their degree of the departure from the relevant standard of care. The State sought to address “causal potency” quantitatively. [68]

7. [41]

   The analysis of apportionment in this judgment should be read with the findings in Rodriguez (No 22). For those who, for some inexplicable reason, are not inclined to read all 1609 pages of Rodriguez (No 22) and its appendices, it suffices to note the following. In Rodriguez (No 22), it was found that each of the four flood engineers who were on duty at various times during the January 2011 Flood Event [69] breached a duty of care that they each owed to the plaintiff and other group members whose real and personal property was vulnerable to flooding from the Brisbane River breaking its banks or flooding in the lower part of Lockyer Creek and the Bremer River. [70] Each of Seqwater, as the employer of two of the flood engineers (Messrs Malone and Tibaldi), SunWater as the employer of one flood engineer (Mr Ayre) and the State as the employer of the other flood engineer (Mr Ruffini), was found to be vicariously liable for their conduct. [71]

8. [42]

   The content of the duty of care owed by each flood engineer was found to be heavily informed by the requirements of the Flood Mitigation Manual (the “Manual”). [72] It was held that the Manual adopted a risk management approach that prioritised the protection of urban areas from flooding over the dislocation occasioned by the inundation of certain rural bridges. [73] It was also held that the Manual made rainfall forecasts a central component of a flood engineer’s decision‑making processes. [74] It was found that the flood engineers conducted flood operations throughout the January 2011 Flood Event in a manner that was contrary to the Manual by, inter alia, failing in the period prior to 6 January 2011 to declare a flood event, failing to use forecasts to determine the applicable strategy in the Manual and make release decisions and failing to prioritise the protection of urban areas from flooding over the avoidance of inundating rural bridges. [75]

9. [43]

   In Rodriguez (No 22), the Court accepted most but not all of a methodology put forward by an expert called by the plaintiff, Dr Ronald Christensen, as embodying what was required by a reasonably competent flood engineer properly applying the Manual to the circumstances of the January 2011 Flood Event. [76] It was found that a reasonably competent flood engineer who inherited the circumstances prevailing as at midnight on 2 January 2011 would have, at a minimum, made flood releases substantially in accordance with a counter factual simulation proposed by Dr Christensen, namely Simulation C (“SIM C”), up to and including 9 January 2011 and made flood releases substantially in accordance with that simulation thereafter. [77] Findings of breach were made against each flood engineer in relation to the periods they were on “duty” [78] up to and including the afternoon of 10 January 2011. [79]

10. [44]

    So far as causation is concerned it was found that, if flood operations had been undertaken substantially in accordance with SIM C, the plaintiff’s store and the shopping centre it formed part of would not have been inundated. [80] It was also found that each of the flood engineer’s breaches of duty, including those of Mr Ruffini, were necessary to complete a set of conditions that were jointly sufficient to account for the occurrence of the particular harm at the plaintiff’s store and such other forms of particular harm at, or to, group members’ property that is proven to be the result of the difference in outflows between the events that happened and SIM C. [81]

11. [45]

    The difficulty so far as apportionment is concerned arises from the fact that the flood engineers were employed by different entities and worked successive shifts as Duty Flood Operations Engineer (“DFOE”) immediately prior to and during the course of the January 2011 Flood Event as follows: [82]

12. [46]

    The period until around 9.00am on 2 January 2011 involved the closing of the gates at Wivenhoe Dam as the flood engineers ceased flood operations at the conclusion of the Late December Flood Event. [83] The last gate was closed at around 9.00am on 2 January 2011. [84] Mr Malone was the DFOE “on call” [85] from that time until the flood operations centre was mobilised on the morning of 6 January 2011. [86] Throughout December 2010 and January 2011, Mr Ayre was the Senior Flood Operations Engineer (“SFOE”).

13. [47]

    Both the plaintiff and Seqwater contended that a just and equitable apportionment is one in which each of the three defendants bear a one third responsibility for the plaintiff’s (and group members’) loss. [87] SunWater’s primary contention was that the most just and equitable outcome is an apportionment of liability equally amongst the flood engineers, such that Seqwater should be held liable for 50% as it employed two of the four flood engineers and that both SunWater and the State should each be held liable for 25% as they each employed one flood engineer. [88] In contrast, the State sought to tether the proportion attributed to it to a volumetric assessment of Mr Ruffini’s contribution to the loss or damage and by a consideration of other factors said to diminish his responsibility. [89]

14. [48]

    The submissions of the plaintiff and the (primary) submissions of SunWater and Seqwater emphasised the joint undertaking that the flood engineers were engaged and the common (negligent) approach they adopted. [90] Hence, in their submissions, one or more of these parties noted: the finding in Rodriguez (No 22) that all the flood engineers should have understood that the operative version of the Manual was a radical departure from its predecessors especially in relation to the use of rainfall forecasts and their central importance, [91] that all of the flood engineers adopted the same flawed approach especially in relation to the use of rainfall forecasts [92] and that each agreed with the approach of the other to the dam operations. [93] In relation to the latter point, that conclusion is supported by the fact that each flood engineer ostensibly adopted the same approach on successive shifts (save possibly in relation to Messrs Tibaldi and Ruffini and the timing of the declaration of a flood event by Mr Malone). [94]

15. [49]

    The plaintiff contended that, as the flood engineers were engaged in a joint undertaking and adopted the same flawed approach, any attempt to assess the “causal potency” [95] of the conduct of individual flood engineers would have to extend beyond their immediate actions on the shift they conducted. [96] The plaintiff instanced the effect of the modelling undertaken by Mr Ruffini during his shift on the evening of 7 January 2011 which was used in subsequent shifts and found to be inadequate as an example of why an attempt to allocate responsibility to each flood engineer by reference to individual shifts should not be undertaken. [97] Further, it submitted that it was difficult, if not impossible, to determine “the precise ‘immediate’ contribution of each flood engineer to the overall damage” [98] and that “it would be entirely artificial in this case, as well as contrary to the approach stated by the High Court, to treat ‘causative potency’ as entirely determinative of apportionment in this case”. [99] Instead, the plaintiff contended that the “identity of the particular person on duty at any one time is of little or no relevance to the apportionment exercise”. [100] SunWater submitted that it would be “arbitrary to assign responsibility solely based on the happenstance of which engineer happened to be on shift at a particular time, and the amount of water that happened to fall during that shift”. [101]

16. [50]

    The difference in outcome suggested by the plaintiff and Seqwater on the one hand, ie one third each, and SunWater on the other, ie 25% for each flood engineer, reflects a difference in the characterisation of the relevant “liability” for the purposes of s 31(1) of the CLA (Qld). The plaintiff and Seqwater’s primary submission fixes upon each defendant’s liability but ignores how that liability arises, ie, they do not address the nature of the “responsibility” that each defendant bears for the loss or damage suffered. In this case each defendant’s liability is a “true vicarious liability”, that is, each defendant is vicariously liable or responsible for breaches by each flood engineer of a duty of care owed by that flood engineer. [102] Even though the plaintiff contended that Seqwater and SunWater owed the plaintiff and group members a non‑delegable duty of care, the breaches of that duty were only said to be the acts and omissions of the flood engineers [103] (and a non-delegable duty was not imposed). [104] At no stage in the proceedings did the plaintiff’s case extend beyond a complaint about each flood engineer’s conduct. [105] In these circumstances to attribute equal liability to each defendant regardless of the number of flood engineers they are vicariously liable for would not be “just and equitable”. To take an extreme example, if there had been eleven flood engineers on duty for an equal number of shifts throughout the flood event and one defendant employed nine flood engineer while the other two employed one each, and assuming all other salient features were equal, it would not be just and equitable to apportion liability equally amongst the three defendants. It follows that, in this respect, I accept SunWater’s submission as to the application of s 31(1) of the CLA (Qld) to this case.

17. [51]

    In a related submission, the State sought to distinguish its position from that of the flood engineer it employed, Mr Ruffini. It pointed to the memorandum of understanding (“MOU”) between it and SunWater’s predecessor pursuant to which Mr Ruffini was made available to act as a flood engineer. The MOU was addressed in Chapter 11 of Rodriguez (No 22). [106] The State asserted that the “MOU described Mr Ruffini as the agent of SunWater” in that it provided that “Flood Operations Engineers are to direct flood operations at Somerset Dam, Wivenhoe Dam and North Pine Dam in accordance with the following documents, on behalf of SunWater”. [107] The State contended that for “all practical purposes, Mr Ruffini was subject to controls imposed by Seqwater and SunWater”. [108] However, that submission is directly contrary to the finding in Rodriguez (No 22) that, in performing his functions as DFOE, Mr Ruffini was not the subject of direction or control by either of Mr Ayre or SunWater. [109] It was also found that such capacity for control that Seqwater had flowed from its ownership of the dams [110] but it ceded control via the Manual. [111] As already noted, no part of the plaintiff’s case involved any allegation that extended beyond a complaint about each flood engineer’s conduct. The State also contended that it was relevant to apportionment that it had no “practical ability to direct Mr Ruffini” and he “act[ed] as an engineer exercising his professional judgments concerning specific operational issues”. [112] However, given that this is only a case of true vicarious liability for all defendants, that submission does not advance any attempt by the State to reduce the proportion it should bear relative to the other defendants.

18. [52]

    Otherwise leaving aside any dispute about the nature of the “liability” incurred by each defendant, the submissions of the plaintiff, Seqwater and SunWater concerning the joint undertaking of the flood engineers have considerable force. They warrant an acceptance of the plaintiff’s contention that “it would be entirely artificial … to treat ‘causative potency’ as entirely determinative of apportionment in this case”. [113] Further, I address the attempts to mathematically determine the causal potency of each flood engineers’ breaches and conduct next. At this point, it suffices to state that those attempts are either conceptually flawed, in the case of the State, or provide, at best, only limited guidance in making an assessment of each flood engineers relative contribution to the damage caused.

19. [53]

    However, just because causal potency is neither entirely determinative or capable of being mathematically ascertained does not necessarily warrant a rejection of any differentiation between the flood engineers on the basis of the likely overall contribution that their failures made to the damage caused (or by reference to other factors). Even if the comparative causal contributions of several tortfeasors cannot be quantified that does not mean the Court is obliged to apportion their respective contributions equally. [114] There may still be conclusions that can be drawn about the “relative importance of the acts of the parties in causing the damage”. [115] Thus, consistent with the example cited in [50], I do not accept that it would be just and equitable to fix a flood engineer who, say, only performed one shift very late in the flood event with the same proportion of liability as that attributed to, say, a flood engineer who performed the vast majority of shifts, all other matters being equal. Equally, I accept that it is necessary to have regard to the fact that it was a joint undertaking and the flood engineers adopted a common approach when considering the extent of the departure from the relevant standard and the likely causal contribution of their failings as part of an assessment of the proportion of liability attributed to that flood engineer.

20. [54]

    On this application the State sought to deploy the analysis in Chapter 13 of Rodriguez (No 22) to demonstrate that the “causative potency” of Mr Ruffini’s contribution was relatively slight [116] and in support of its overall submission that the State should bear less than 5% responsibility for the plaintiff’s loss and damage. [117] It relied on certain calculations undertaken by Mr Giles [118] that were purportedly based on the analysis in Chapter 13 concerning causation (and material that was otherwise in evidence). [119] Before describing Mr Giles figures, it is necessary to describe the analysis in Chapter 13 concerning Mr Ruffini’s contribution.

21. [55]

    Chapter 13 addressed various issues in relation to causation. One of the issues addressed was a contention made by the State that, to establish causation against it, the plaintiff had to show that “any breach by Mr Ruffini, taken on its own, ... caused the alleged greater flooding and the extent to which it did”. [120] The State was the only defendant that made a submission to that effect.

22. [56]

    In broad terms, Chapter 13 addressed the State’s submission in three steps. First, it contains an analysis of “a rough assessment … of the minimum contribution that [all of] Mr Ruffin’s breaches of duty [taken on their own] made to” [121] the differential between actual dam levels in Wivenhoe Dam during 11 and 12 January 2011 and those that would have prevailed under “SIM C”. [122] The differential was causally significant because it was found in Rodriguez (No 22) that “the difference in dam levels or retained volumes in Wivenhoe Dam during 11 and 12 January 2011 between SIM C and the events that happened was causative of the inundation of [the plaintiff’s] store and all the loss and damage that was occasioned as a result of that inundation”. [123]

23. [57]

    This “minimum contribution that [all of] Mr Ruffini’s breaches of duty [taken on their own] made to” the differential in water volumes between SIM C and the events that happened for Mr Ruffini’s shift on the evening of 7 January 2011, was derived from applying the gate openings modelled in two other simulations that were not relevantly different to each other, namely SIM F and SIM H, [124] from midnight on 8 January 2011 to the 12‑hour shift period commencing 7.00pm on 7 January 2011 and calculating the difference between the water released in those circumstances and what was actually released. [125] The same approach was applied to Mr Ruffini’s shift commencing at 7.00pm on 9 January 2011 in relation to releases from Wivenhoe Dam [126] and with releases from Somerset Dam into Wivenhoe Dam on that shift, although the latter used the gate openings from Somerset Dam modelled in SIM G. [127]

24. [58]

    A comparison was then undertaken between a figure derived from the sum of those three amounts, being 70,000ML on the one hand, and the difference between the actual volume retained in Wivenhoe Dam at various times from 7.00am on 10 January 2011 onwards and the amount that would have been retained in Wivenhoe Dam under SIM C on the other. For example, it was observed that, as at 7.00am on 10 January 2011, being the end of Mr Ruffini’s last shift in which he breached his duty of care, the difference between the actual volume in Wivenhoe Dam and the amount that would have been retained in Wivenhoe Dam under SIM C was 532,562ML. Seventy thousand ML [128] represented around 13% of that volume. [129]

25. [59]

    Second, accepting that contribution as “clearly material”, [130] it was then concluded that all of the breaches of all the flood engineers, including Mr Ruffini’s, were “jointly sufficient to account for the occurrence of the harm” (citing Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 at [20]). It followed that causation was established against the State. [131]

26. [60]

    Third, it was found that the imposition of liability on the State was consistent with s 11(1)(b) of the CLA (QLD). [132]

27. [61]

    The report of Mr Giles relied on by the State in relation to apportionment records that he was instructed to assume that “a volume of water totalling 70,000ML was retained in Wivenhoe as a result of operations conducted during each of Mr Ruffini’s shifts on 7 and 9 January”. [133] As I will explain, that is not an accurate description of the findings in Chapter 13 of Rodriguez (No 22). Mr Giles was then asked to “calculate the result that additional retained water [ie 70,000ML] had upon: (i) the combined storage capacity of Wivenhoe and Somerset Dams operated together; (ii). the peak discharge or releases made from Wivenhoe Dam; (iii) the peak level of flows at Moggill; [and] (iv) the peak level of flooding at the location of the [p]laintiff’s shop”. [134]

28. [62]

    In addressing that question, Mr Giles stated that he “considered the effect of the retention of the nominated volume of flow on [SIM C]”. [135] In addressing the “result” of retaining the additional water in SIM C, Mr Giles concluded that, if there had been an additional 25,000ML of water stored in Somerset Dam, as opposed to being released into Wivenhoe Dam, that would have had a “neutral impact on peak conditions as [SIM C] created additional storage volume in Somerset Dam compared to actual conditions” and then used that storage during the operation of the two dams during peak conditions. [136] Based on that conclusion, Mr Giles excluded the 25,000ML referable to Somerset Dam operations on the evening of 9 January 2011. He calculated that the remaining volume of 45,000ML represented 7.7% of the total combined volume of the difference in storage volume in the two dams between SIM C and the events which happened as at 7.00am on 10 January 2011. [137]

29. [63]

    Without adjusting any of the gate openings in SIM C and using Dr Mustafa Altinakar’s modelling, Mr Giles calculated that if, under SIM C, both dams had retained an additional 45,000ML in total then the peak height of SIM C would have been 74.09m instead of a simulated peak height of 73.86m, the outflow rate from Wivenhoe Dam that coincided with the peak outflow in the actual event would have been 1081m3/s instead of a simulated outflow rate of 1070m3/s, the outflow rate from Wivenhoe Dam that coincided with the peak flow rate at Moggill would have been 1121m3/s instead of a simulated outflow rate of 1111m3/s under SIM C and the peak flow rate at Moggill would have been 6871m3/s instead of a simulated peak flow rate of 6861m3/s under SIM C. [138] Using Dr Altinakar’s modelling, Mr Giles calculated that these modifications to SIM C would have caused the flooding at the plaintiff’s shop to be 13mm higher.

30. [64]

    Save as to the figure of 13mm which is said to represent the difference in the level of flooding at the plaintiff’s shop, [139] there is no reason to doubt Mr Giles arithmetic. However, they are of no assistance in determining the “causal potency” of Mr Ruffini’s breaches of duty because both the questions and assumptions provided to Mr Giles were misconceived.

31. [65]

    The difficulty with the question posed to Mr Giles is that it assumes that all the other flood engineers acted without negligence and implemented SIM C and then asks what would have been the additional flooding had only Mr Ruffini acted negligently? Mr Giles’ figures seek to answer that question by effectively concluding “not much”. However, the analysis in Chapter 13 compared the position where all flood engineers were negligent, represented by the difference between the actual flooding and SIM C, with the situation where all the flood engineers were negligent except for Mr Ruffini. [140] This was undertaken not for the purpose of determining the extent of Mr Ruffini’s causal contribution to the damage suffered but only to determine whether the contribution of his breaches was material to the suffering of that damage for the purposes of determining causation. In that respect Chapter 13 emphasised that what was being determined was a “rough assessment” of the minimum contribution that Mr Ruffini’s breaches of duty made to the difference between the water levels in SIM C and the events that happened. [141] The value judgments involved in determining the extent of a defendant’s responsibility “differ from, and are more extensive than, those which inform the question of causation”. [142]

32. [66]

    The difference between the analysis in Chapter 13 and the questions posed to Mr Giles is illustrated by considering two matters concerning the derivation of the figure of 70,000ML.

33. [67]

    First, in relation to the Wivenhoe Dam releases for the shifts commencing at 7.00pm on 7 January 2011 and 7.00pm on 9 January 2011, the counter factual releases were taken from SIM F and not SIM C. [143] This was done because, in the events that happened, by the time those shifts commenced, it was no longer possible to make releases in accordance with SIM C because the actual water levels greatly exceeded those simulated in SIM C at those times. SIM F releases were selected because that simulation commenced at midnight on 8 January 2011 and the methodology applied in SIM F and SIM H corresponded with the methodology in SIM C and the reasoning that underlies the breach analysis in Chapter 12 of Rodriguez (No 22); [144] ie, using SIM F outflows involved considering the position of a reasonably competent flood engineer in Mr Ruffini’s position on the evening of 7 January 2011 applying the methodology of SIM C [145] to the actual circumstances he confronted. The same approach was adopted in relation to Wivenhoe Dam releases on the evening of 9 January 2011. Similarly in relation to Somerset Dam releases during the shift on the evening of 9 January 2011, the counterfactual releases from Somerset Dam were derived from SIM G, which commenced at midnight on 10 January 2011, and not SIM C. [146]

34. [68]

    Thus, the questions posed of Mr Giles provide him with a figure derived from a comparison of the releases made by Mr Ruffini with SIM F and SIM G, but ask him to compare them with the releases made in SIM C. As submitted by the plaintiff, the “figures derived on one basis cannot be used for a fundamentally different calculation”. [147] Such an analysis will tend to underestimate Mr Ruffini’s contribution to the difference between SIM C and the actual events compared to the other flood engineers. In fact, SunWater undertook a comparison of the releases compared to SIM C and those actually made. It estimated Mr Ruffini’s contribution to that difference on those two shifts was between 96,081ML and 116,250ML depending on the approach taken to the joint shift performed by Messrs Ruffini and Ayre on the evening of 9 January 2011. [148]

35. [69]

    Second, the figure of 70,000ML was a deliberate understatement of the extra volume of water retained in Wivenhoe Dam as a result of Mr Ruffini’s breaches (considered without reference to the breaches of the other flood engineers) because what was only sought to be derived was a rough approximation of the minimum figure. [149] Hence, in relation to the shift commencing at 7.00pm on 7 January 2011, the analysis showed a difference of 38,120ML yet a figure of 35,000ML was selected. [150] In relation to the shift commencing at 7.00pm on 9 January 2011 and gate operations at Wivenhoe Dam, the analysis yielded a difference of 14,000ML yet a figure of 10,000ML was selected. [151] In relation to gate operations at Somerset Dam on 9 and 10 January 2011 the analysis yielded a difference of 39,439ML yet a figure of 25,000ML was selected. [152] At the risk of repetition, these figures were selected because the analysis in Chapter 13 only sought to derive a minimum figure for the purpose of determining whether Mr Ruffini’s breaches were “material”.

36. [70]

    Seqwater noted that the approach adopted in Chapter 13 could not be undertaken for the other flood engineers because of the different times and water levels on their shifts. It referred to Mr Tibaldi’s shift from 7.00pm on 8 January 2011 and noted that there were “no findings or expert evidence to explain how Mr Tibaldi was supposed to ‘catch up’ to [SIM C] (or F or H)”. [153] The analysis in Chapter 13 was not undertaken for the other flood engineers because it was only the State who argued that the causal contribution of the flood engineer it employed was de minimis. If the point had been taken in relation to the other flood engineers then, as with Mr Ruffini, the simulations that commence shortly before or shortly after the relevant shift would have been considered for the purpose of determining the minimum level of releases that should have been undertaken in order to determine whether their contribution was “material”.

37. [71]

    The two points noted in [67] and [69] also illustrate why the assumption provided to Mr Giles for his calculation was incorrect, specifically that “a volume of water totalling 70,000ML was retained in Wivenhoe Dam as a result of operations conducted during each of Mr Ruffini’s shifts on 7 and 9 January”. [154] All that Chapter 13 determined was that a minimum volume of water totalling 70,000ML was retained in Wivenhoe Dam as a result of Mr Ruffini’s breaches of duty considered alone.

38. [72]

    The plaintiff’s, Seqwater’s and SunWater’s submissions attack the utility of the figures derived by Mr Giles on a number of other bases. [155] As most of those criticisms derive from, or at least are related to, the misconceived question and assumption given to Mr Giles, it is only necessary to briefly address the points raised.

39. [73]

    The plaintiff contended that, insofar as Mr Giles was asked to consider the combined storage capacity of the two dams and concluded that the transfer of water between Somerset Dam and Wivenhoe Dam was “neutral”, then his conclusion was beyond his expertise and inconsistent with Rodriguez (No 22). In his report, Mr Giles purported to address the circumstance where 25,000ML was added to Somerset Dam in SIM C. [156] For the reasons just explained that it is a futile exercise when, as at 7.00pm on 9 January 2011, none of the other circumstances prevailing in SIM C in fact confronted Mr Ruffini and the figure of 25,000ML was not derived on the assumption that they did. Further, the effect of Mr Giles’ analysis was to determine whether, in SIM C, it was possible that the release of an extra 25,000ML during a shift beginning at 7.00pm on 9 January 2011 could have been neutralised by 11 January 2011. That inquiry is irrelevant to ascertaining the effect of releasing an extra 25,000ML at the much higher water levels that in fact prevailed at that time.

40. [74]

    Leaving that aside, Mr Giles’ report is not capable of establishing that the transfer of water between Somerset Dam and Wivenhoe Dam was “neutral” to flood operations or “neutral” to an assessment of the outcome of the flood. It was accepted that Mr Giles did not have the expertise to opine on appropriate dam operations [157] and for that reason his report was not admitted into evidence but only treated as a submission. [158] Further, the analysis in Chapter 13 was itself predicated on an acceptance of at least the bulk of Dr Christensen’s methodology, an aspect of which favoured the building up of storage space in Wivenhoe Dam at the expense of Somerset Dam in anticipation of peak operations because of the greater control a flood engineer could exercise over Wivenhoe Dam outflows compared to Somerset Dam outflows when the crest gates at Somerset Dam were not being used. [159] Dr Christensen’s simulated dam operations and the findings in Rodriguez (No 22) are inconsistent with any suggestion that it was immaterial whether water was stored in Wivenhoe Dam or Somerset Dam when the crest gates of the latter were not used.

41. [75]

    Both the plaintiff and Seqwater also contended that, if the extra 70,000ML was added to SIM C as Mr Giles purported to, then it would result in higher water levels requiring adjustments to gate operations [160] and higher release rates to accommodate the release limits imposed by various strategies. [161] The plaintiff also submitted that the use of differences in flow rates at Moggill for the purposes of apportioning damages in relation to causation, appears to assume that changes in the amount of damage caused are linearly proportional to changes in those rates, when in fact damage increases exponentially with increases in those rates. [162] Both of these criticisms have substance, although the adjustments that would be made by Mr Giles to reflect them would not be likely to have that much significance. In any event, the real difficulty with those aspects of Mr Giles calculations is that they involve adjustments to SIM C in circumstances where for the reasons already explained that is misconceived.

42. [76]

    As noted , both Seqwater and SunWater submitted that it was not appropriate to use volumetric estimates of the amount of water retained on each shift compared to SIM C (or otherwise) for the purposes of apportioning responsibility. [163] However, against the possibility that the Court might consider a volumetric calculation to be relevant, each of them provided a table calculating the difference between the volume of water retained in Wivenhoe Dam in the events that happened compared to SIM C for each flood engineer’s shift. [164]

43. [77]

    According to Seqwater’s table, of the difference of 568,507ML between the volume of water retained in Wivenhoe Dam as at 5.00pm on 10 January 2011 during the flood compared to the simulated volume in SIM C, 37% was referable to periods that Mr Ayre was either the DFOE or otherwise responsible for flood operations, and 42%, 14% and 8% were referable to periods that Mr Malone, Mr Ruffini and Mr Tibaldi respectively were the DFOE. [165] SunWater’s figures for the difference in Wivenhoe Dam levels as at 7.00am on 10 January 2011 were 27%, 50%, 18% and 5% for Messrs Ayre, Malone, Ruffini and Tibaldi respectively. [166]

44. [78]

    The difference between Seqwater’s calculations and SunWater’s calculations arises from a combination of three matters. First, Seqwater’s denominator is the volumetric difference as at 5.00pm on 10 January 2011 (568,507ML) whereas SunWater’s denominator is the difference as at 7.00am on 10 January 2011 (532,562ML).

45. [79]

    Second, Seqwater attributes a certain volume of water retained in the period from midnight to 7.00am on 2 January 2011 to Mr Ayre, a matter that SunWater disputes given the absence of any finding of breach against Mr Ayre referable to that period. [167]

46. [80]

    Third, Seqwater attributes half of the additional volume retained during the period from 7.00am on 7 January 2011 to midnight given the finding made against Mr Aye in relation to a period when he was not on duty on that day (see below).

47. [81]

    Seqwater and SunWater provided other figures on the same basis, namely that if, contrary to their submissions, the Court considered a volumetric calculation to be relevant. Thus Seqwater provided an analysis of the difference between the volume of water retained in Wivenhoe Dam and Somerset Dam in the events that happened compared to SIM C for each flood engineer’s shift and using the same method just described. [168] Those figures were 39%, 44%, 12% and 5% for Messrs Ayre, Malone, Ruffini and Tibaldi respectively. [169]

48. [82]

    SunWater provided a set of figures in relation to SIM C which compared hourly release rates between the actual events and SIM C, rather than retained water volumes at the end of the shift. [170] It yielded percentages of 25%, 56%, 15% and 4% for Messrs Ayre, Malone, Ruffini and Tibaldi respectively. [171] SunWater also included an analysis that extended Appendix J to 7.00pm on 10 January 2011, with and without consideration of 25,000ML being retained in Somerset Dam, and then combined those figures with a comparison to the SIM C release rates for the period up to 7.00pm on 7 January. [172] It is not necessary to consider those figures further given the above analysis.

49. [83]

    SunWater provided calculations which purported to determine the comparative failures of the flood engineers to draw water levels below full supply level (“FSL”) compared to SIM C. It contended that corresponded with a 25%, 48%, 14% and 13% distribution of responsibility between Messrs Ayre, Malone, Ruffini and Tibaldi respectively. [173] These calculations are of little assistance given that failing to make releases below FSL was only part of the flood engineers’ failings and that, by reason of the failure to make releases early in the January 2011 Flood Event, it was not possible for flood engineers on duty in the middle and latter part of the flood event to make releases below FSL even if they were inclined to. Lastly, SunWater provided figures determined by reference to a simple apportionment of the time on duty spent by each flood engineer from 7.00am on 2 January 2011 to the evening of 10 January 2011 yielding a breakdown of 15%, 68%, 9% and 9% [174] for each of Messrs Ayre, Malone, Ruffini and Tibaldi respectively. [175] This approach does not differentiate in any respect between the possible contribution made to the flooding by different shifts or the differing circumstances facing each flood engineer.

50. [84]

    The plaintiff contended that the difficulties with Mr Giles’ figures demonstrates that using a detailed mathematical analysis of causative potency in this case is misconceived. It submitted that there are multiple ways to attempt to address the issue of causal potency which have the potential to lead to vastly different outcomes. Similarly, Seqwater submitted that to apportion responsibility based on mathematical assessment of volumetric calculations was not appropriate because, inter alia, it “incorrectly attempts to give a degree of precision to what is ultimately an impressionistic exercise” and the analysis incorrectly assumes that each extra mega litre of water retained in Wivenhoe Dam over the course of the January 2011 Flood Event contributed to the damage caused to the same extent. [176]

51. [85]

    I have already accepted that any attempt to apportion responsibility between flood engineers by reference to their actions on particular shifts does not address the joint nature of the undertaking they were engaged in and the common negligent approach they adopted. In addition, the above illustrates how an analysis of the kind undertaken in Chapter 13 which seeks to determine and then compare the immediate and direct consequence of each flood engineer’s individual breaches considered alone will inevitably tend to underestimate the combined effect of all their contributions. On the other hand, an analysis which compares the failing of each flood engineer on a shift with the deviation between the actual flooding and SIM C does not adequately address the differences between the circumstances faced by each flood engineer and SIM C, which worsened as the flood developed.

52. [86]

    This latter point is best illustrated by considering the following graph, produced by Seqwater. It compares the differences in the volume of water retained in Somerset and Wivenhoe Dams in the events that happened with that which would have been retained under SIM C across the period of the January 2011 Flood Event: [177]

53. [87]

    By reference to this graph, Seqwater submitted that greater causal responsibility ought to be attributed to the actions of those flood engineers on duty during the period between 7.00am on 6 January 2011 and 7.00am on 8 January 2011, especially Mr Ayre as SFOE. [178] Seqwater referred to the steep gradient in the above diagram between 7.00am on 6 January 2011 and 7.00am on 8 January 2011. It contended that this was a “critical period” and that the flood engineers’ breaches during that period were of particular causal significance. It pointed out that Mr Ayre was on duty on the evening of 6 January 2011 and the findings of breach were made against him concerning his shift on the morning of 7 January 2011 and his supervision for the balance of the day. [179]

54. [88]

    The difficulty with this aspect of Seqwater’s contention is that it assumes that the “critical period” ceased on 8 January 2011 when, or perhaps because, there was a reduction in the difference in outflows or retained volumes between SIM C and actual flood operations. However, as explained in Rodriguez (No 22), the modelled releases in SIM C were constrained on 8 and 9 January 2011 because of the limits imposed by the Manual on release rates in particular strategies which in SIM C were selected by reference to the no release rise using the one‑day Quantitative Precipitation Forecasts. [180] These restrictions would not be applicable to a reasonably competent flood engineer who utilised the four‑day PME forecast [181] and an engineer on duty during the actual flood faced much higher water levels than those modelled in SIM C. Otherwise, any such comparison must also accommodate the finding in Rodriguez (No 22) that “a reasonably competent flood engineer conducting flood operations in SIM C but using four‑day PMEs to determine strategy and releases (at least qualitatively) and acting in accordance with the Manual could justifiably have decided on the morning of 6 January 2011 to close the bridges based on the prevailing circumstances”. [182]

55. [89]

    Overall, I found the various quantitative analyses of causal potency to be of little assistance other than to confirm what is suggested by the analysis undertaken below (at [109]), namely, that the relative causal contribution of each flood engineer’s actions on the shifts they performed were, in order of descending value, Mr Malone, Mr Ayre, Mr Ruffini and Mr Tibaldi.

56. [90]

    Seqwater’s written submissions contended that, if the Court did not accept that it was appropriate to apportion equally between each defendant, but instead by reference to each flood engineer, then an appropriate apportionment was 45% to Mr Ayre, 30% to Mr Malone, 20% to Mr Ruffini and 5% to Mr Tibaldi. [183] Seqwater justified this apportionment by reference to four matters. One was its assertion that the critical time period in respect of causal contributions was between 7.00am on 6 January 2011 and 7.00am on 8 January 2011, [184] a matter that has already been addressed. Another was a contention that “[o]n any view, Mr Tibaldi is only responsible for a small proportion of the plaintiff’s loss”. [185] As explained below, I accept that Mr Tibaldi’s contribution was the smallest of the flood engineers (although not necessarily “small”). Although there were references in the submissions to Mr Tibaldi’s role in drafting Version 7 of the Manual as a matter reflecting on his responsibility, [186] the failures of the flood engineers were not the drafting of the Manual but its application.

57. [91]

    In oral submissions Senior Counsel for Seqwater, Mr Stoljar SC, sought to attribute responsibility for the ending of flood operations on 2 January 2011 to all of the flood engineers who agreed upon that course [187] even though the only allegation and finding of breach referable to that time concerned Mr Malone. [188] The fact that all the flood engineers agreed on a particular course is accommodated by the approach stated at [53]. To consider it beyond that would not be consistent with Reinhold.

58. [92]

    The remaining point raised by Seqwater concerns Mr Ayre’s role as SFOE. [189] It contended that, as SFOE, Mr Ayre’s departure from the standard of care was greater than that of Messrs Malone, Ruffini and Tibaldi. [190] Seqwater pointed to Mr Ayre’s “responsibility for setting the overall strategy for the flood event” [191] and the finding that, while it was the responsibility of each DFOE to determine and apply the applicable flood strategy, Mr Ayre had some capacity to exercise control over the conduct of the flood engineers. [192] Seqwater also submitted that various breach findings made against Messrs Malone and Tibaldi “would have required them to implement a fundamentally different strategy and release plan to that endorsed by Mr Ayre as SFOE”. [193] Similarly, the State sought to rely on Mr Ayre’s status as SFOE and his evidence that during the shift on the evening of 9 January 2011 he “direct[ly] supervis[ed]” Mr Ruffini. [194] It also relied on a finding of breach made against Mr Ayre for part of 7 January 2011 when Mr Ayre was not the DFOE, which included a period when Mr Ruffini was on duty. [195]

59. [93]

    The plaintiff contended that, in light of the findings in Rodriguez (No 22) to the effect that the DFOE was responsible for applying the Manual, setting the relevant strategy and making releases, Mr Ayre’s departure from the relevant standard was no more serious than that of any other flood engineer. [196] SunWater’s submissions were to the same effect. It contended that Seqwater’s submission was foreclosed by the findings in Rodriguez (No 22) about Mr Ayre’s role. [197]

60. [94]

    Save for one finding of breach made against Mr Ayre in relation to his capacity as SFOE to intervene and direct the flood engineers on 7 January 2011, I accept the plaintiff and SunWater’s submission that extra responsibility for loss and damage should not be attributed to Mr Ayre on account of his position as SFOE. The findings in Rodriguez (No 22) emphasised that that the responsibility for the selection of strategies and setting releases was vested in the DFOE throughout the January 2011 Flood Event, [198] that neither of Messrs Malone, Tibaldi (or Ruffini) could deflect responsibility for their failures onto Mr Ayre, [199] that Mr Ayre did not set any general strategy for the closure of Wivenhoe Dam gates on 2 January 2011 [200] and that Mr Ayre did not have authority to direct Mr Malone to declare a flood event during the period 2 to 6 January 2011. [201] Mr Ayre’s acceptance that he supervised Mr Ruffini on the evening of 9 January 2011 [202] might be relevant to apportionment in a different context. However here that “supervision” took place in a context where Mr Ruffini was vested with his own responsibilities as DFOE. There is no evidence Mr Ruffini was reliant on or seeking guidance from Mr Ayre in performing his duties much less that Mr Ruffini was overruled in any relevant respect by Mr Ayre. To the contrary, the evidence suggests that they agreed upon a common approach.

61. [95]

    Other than the breach finding considered next, none of the allegations of breach against Mr Ayre concerning his status as SFOE were upheld [203] and the other defendants did not pursue any such allegations via a cross claim. Otherwise, nothing in either the Manual or the factual background warrants a conclusion that Mr Ayre’s failure to utilise forecasts in the conduct of flood operations can be characterised as a greater departure from the relevant standard because of his status as SFOE compared to the other flood engineers.

62. [96]

    The relevant finding of breach concerning Mr Ayre as SFOE and the reasoning in support of it was as follows: [204]

63. [97]

    SunWater made two criticisms of this finding of breach to the extent that it bears upon apportionment.

64. [98]

    First, in its written submissions, SunWater contended that, read in the context of Mr Ayre’s evidence concerning his movements on 7 January 2011, this breach finding should be understood as restricted to the “evening” of 7 January 2011. [210] SunWater noted that the summary to Chapter 12 refers to this breach occurring “on the evening of 7 January 2011” [211] and submitted that there was a “tension” between that summary and the above passage. [212] It also referred to the evidence of Mr Ayre to the effect that after he finished his shift on the morning of 7 January 2011 he slept. [213]

65. [99]

    In his first affidavit, Mr Ayre stated that he was “off shift from 7:00am Friday 7 January 2011 until 7:00 am Saturday 8 January 2011”. He added that “I cannot recall having conversations with anyone at the FOC during that period but I did monitor the situation reports and the dam directives that I received on my BlackBerry”. [214] In the paragraphs that follow he described the contents of a continuous stream of communications that he received electronically while he was “off shift”. For the communications in the period from just after his shift concluded until 3.00pm on 7 January 2011 Mr Ayre did not state whether or not he read or reviewed these communications at or around the time they were sent. [215] However, he stated that “at about 3:09 pm I was copied into an email sent by Terry Malone using the Duty Engineer email account to the BoM Flood Warning Centre and BCC staff”. [216] In relation to that email Mr Ayre states that “I remember reviewing this email at the time it was sent”. [217]

66. [100]

    In cross‑examination, Mr Ayre was taken to an email sent at 10.48am on 7 January 2011 [218] and asked as follows: [219]

67. [101]

    When taken with the recollection in his affidavit of reviewing an email sent at 3.09pm on 7 January 2011 at or around the time it was sent, Mr Ayre’s oral evidence suggests that he slept in the period after he completed his shift at 7.00am but that by 3.09pm he had woken and was “monitor[ing] … situation reports and … dam directives”.

68. [102]

    The reference in the breach finding in Chapter 12 of Rodriguez (No 22) at [140] to “the remainder of 7 January 2011 when he was monitoring flood operations” is a reference to so much of the period of 7 January 2011 when Mr Ayre was not on duty but was “monitoring flood operations”. In light of the evidence that should be taken to be a period commencing no later than 3.09pm on 7 January 2011. This is consistent with the references to [267(a), (c) and (f)] of the Fifth Further Amended Statement of Claim (“5ASOC”) and the omission of any reference to [267(b)] in the finding in Chapter 12 at [140], which is referable to the period when Mr Ayre was not on duty as DFOE. Subparagraph [267(b)] of the 5ASOC alleges a failure to “have commenced releases at Somerset Dam and Wivenhoe Dam as soon as possible, and in any event, earlier than 3.00pm”. As releases commenced at around 3.00pm on 7 January 2011 [220] that allegation had no relevance to the period after that time. (The reference to “increas[ing] releases before the arrival of the peak flow from Lockyer Creek” in Chapter 12 at [137] is mistaken and should be taken to be a reference to “releases after” the arrival of the peak. The peak flow from Lockyer Creek was expected to arrive at around “mid-afternoon” with the releases scheduled to occur after they impacted Burtons Bridge. [221] Hence, releases could not have been “increase[ed]” before the peak as they did not commence until after the peak.)

69. [103]

    Second, in oral submissions, Senior Counsel for SunWater, Mr Williams SC, went further and submitted that the Court should reconsider the finding of breach made against Mr Ayre in respect of so much of 7 January 2011 when he was not rostered on duty as DFOE as being outside the pleaded case. [222]

70. [104]

    Subparagraph 267(a) to (c) of the 5ASOC plead as follows:

71. [105]

    These allegations need to be read with subparagraph 268(a) of the 5ASOC which pleads that:

72. [106]

    The finding of breach that was made against Mr Ayre in respect of that part of 7 January 2011 when he was not the DFOE was not that he failed per se to “supervise” the other flood engineers. [223] Instead, the finding was that he failed “to direct the implementation of Strategy W3 and the making of higher releases at a rate that exceeded the rate of inflow”. [224] Those matters reflect the particular steps identified in [267(a), (c) and (f)] of the 5ASOC. Further, paragraph 267 refers to a “reasonably prudent flood engineer responsible for Flood Operations at Somerset Dam and Wivenhoe Dam on 7 January 2011”. This does not purport to confine the flood engineer “responsible” for flood operations to only the DFOE. On the findings that were made about his responsibilities as SFOE, Mr Ayre was “responsible” for Flood Operations at Somerset Dam and Wivenhoe Dam after a flood event was declared for periods when he was not the DFOE. Otherwise, I note that the 5ASOC pleads the functions of a SFOE and a Flood Operations Engineer as being engaged when “on duty”. [225] However, the concept of being “on duty” for a SFOE is not the same as with a DFOE, in that one of the functions of the former is pleaded as being “in charge of Flood Operations at all times during” a flood event. [226] Findings reflecting these pleaded duties and functions were made in Rodriguez (No 22) [227] as were findings that Mr Ayre had that authority as SFOE to direct the commencement of releases and the implementation of Strategy W3. [228]

73. [107]

    In these circumstances, I do not accept that the allegations in [267(a), (c) and (f)] of the 5ASOC are confined to those periods on 7 January 2011 when Mr Ayre was rostered on duty as DFOE. It also follows that I accept that any consideration of Mr Ayre’s responsibility for the loss and damage must take into account the finding of breach in relation to “the remainder of 7 January 2011 when he was monitoring flood operations”. [229]

74. [108]

    While I have not accepted that causal potency is either “entirely determinative” or capable of being mathematically ascertained in this case, I also consider that, even if only broad or impressionistic conclusions concerning the “relative importance of the acts of the parties in causing the damage” [230] can be drawn, then they should be considered. In this case, the above analysis and the finding in Rodriguez (No 22) enables such broad conclusions to be drawn about the relative causal contributions made by the various failures of the flood engineers during each of the relevant time periods the subject of breach findings during the January 2011 Flood Event.

75. [109]

    The failings of Mr Malone during each of the 12‑hour periods from 2 January 2011 to the morning of 6 January 2011 were of less causal significance than the failings during the 12‑hour periods from that time to the morning of 10 January, although overall it is a significant period for which Mr Malone bears responsibility. I do not see any basis for distinguishing the causal significance of the omissions made during each of the shifts from the balance of 6 January 2011 to the morning of 10 January 2011. Throughout that period large increases in releases were called for. The principal issues affecting the determination of the release rates should have been the timing of the inundation of Mt Crosby Weir and Fernvale Bridge and the monitoring of downstream flows to avoid breaching the Manual’s thresholds for urban damage. Leaving aside his role as SFOE, Mr Ayre worked three shifts during that period one of which he shared with Mr Ruffini. Mr Malone worked three single shifts, Mr Ruffini worked two shifts, one of which he shared with Mr Ayre and Mr Tibaldi worked one. Mr Malone and Mr Ruffini performed a joint shift during the daytime on 10 January 2011 which was the subject of breach findings. [231] The causal significance of the failures during that shift was less than those of the shifts undertaken during the preceding period.

76. [110]

    In relation to the degree of departure from the relevant standard concerning these shifts, and leaving aside Mr Ayre’s role as SFOE, the forecasts from around 6.00am on 5 January 2011 to 8 January 2011 pointed to an ever increasing likelihood of extremely heavy falls and indicated that there was a reducing window of opportunity to make significant releases before 9 and 10 January 2011 that was not taken up. [232] The failure to make such releases became more culpable from the morning of 8 January 2011 when, on any possible view of the Manual, the threshold for the invocation of Strategy W3 was reached yet W1 was still engaged. [233] It worsened to the point of becoming unforgiveable when the rain fell during 9 January 2011, including during Mr Ayre and Mr Ruffini’s shift, but there were still no substantial gate openings. [234]

77. [111]

    Overall, the culpability for the failure to make releases to the level that would not exceed downstream thresholds for urban damage increased as time progressed throughout the period from 5 January 2011 to midnight on 10 January 2011. This conclusion tends toward a greater attribution of responsibility to Mr Ruffini and Mr Tibaldi than that which would follow from just a consideration of the causal contribution of their failings as their shifts were in the latter part of this period. Further, as already explained, any differentiation between the responsibility of the flood engineers must be tempered by the circumstance that the January 2011 Flood Event was a joint undertaking and the flood engineers adopted a common negligent approach.

78. [112]

    In these circumstances, I attribute a 30% proportion of the plaintiff’s loss and damage to Mr Ayre given the shifts he worked, the breach finding referable his position as SFOE, his failure to implement even Strategy W3 from the morning of 8 January 2011 and his adherence to a save the bridges strategy even as late as the evening of 9 January 2011. [235] I attribute 37.5% responsibility to Mr Malone given the period as DFOE in which he failed to declare a flood event and the number of shifts he performed thereafter including on 9 January 2011. Mr Ruffini commenced his first shift on the evening of 7 January 2011 and his next shift was on the evening on 9 January 2011. The circumstances he confronted on the evening of 7 January 2011 demanded much greater releases and presented him with the opportunity to make them. By the evening of 9 January 2011, the position was dire yet he also adhered to a save the bridges strategy. [236] I attribute 20% responsibility to Mr Ruffini. Allowing for the fact that his first shift was on the evening of Saturday 8 January 2011 and the discussion of his breaches in Rodriguez (No 22), I attribute 12.5% responsibility to Mr Tibaldi.

(3) Common and Separate Questions

1. [113]

   Chapter 15 of Rodriguez (No 22) sets out the various questions that arose in the proceedings and the Court’s answers to those questions (save for Questions 29 to 30). As the questions were posed as separate questions, it was not necessary to determine whether they were “common” to the plaintiff and all group members or only relevant to the plaintiff and some of the group members, although there were certainly many questions in the former category. [237] The answers to those questions were pronounced in open Court. For an abundance of caution a formal order will be made embodying those answers.

2. [114]

   Four further matters should be noted.

3. [115]

   First, the questions that were posed reflected the competing versions of the questions posed by the parties. As is often the case in proceedings of this kind, the parties could not agree on the formulation of the relevant common questions. Underlying this disagreement can be, and in this case were, profound disagreements as to the effect of the pleaded case and the substantive law. In some cases, and this was one, if the Court determined to resolve those differences at the time of formulating the common or separate questions it would be finally determining an underlying issue between the parties prematurely. This common facet of representative actions needs to be borne in mind and balanced against the observation of the Court of Appeal in Scenic Tours, [238] which refers to the dangers of leaving the finalisation of common questions of law and fact to the end of the hearing. The approach adopted in this case was to formulate questions by reference to all the competing versions suggested by the parties. This ensured the parties were on notice of all the issues for determination including what the other parties contended were the issues for determination. It follows from that approach that ultimately a number of questions, mostly posed by the defendants, were answered “does not arise” because they were premised on an interpretation of the 5ASOC or the substantive law that I rejected.

4. [116]

   Second, when Rodriguez (No 22) was delivered, Question 28 (concerning whether the plaintiff’s claim was an “apportionable claim”), Question 29 (concerning the appropriate apportionment percentages) and Question 30 (concerning the rights of the defendants inter se), were either not answered or at least not answered fully. Question 28 has been addressed above. The answer given in Rodriguez (No 22) will be modified to reflect the conclusion that the CLA (QLD) is the applicable statute. Question 29 was not addressed. It will now be answered in accordance with the above. Question 30 concerned the rights and liabilities as between the defendants. As noted in Rodriguez (No 22), [239] as the plaintiff’s claims are apportionable claims there cannot be any contribution between the defendants. Seqwater’s claim for contractual indemnity from SunWater was rejected in Rodriguez (No 22). [240] Hence it is appropriate to order the dismissal of all cross‑claims and answer Question 30 to the effect that there are no rights of contribution or liabilities between the defendants, save for the possibility that the defendants might seek contribution from each other in respect of their liability to pay the plaintiff’s costs. [241]

5. [117]

   Third, given the dispute that arose concerning the awarding of interest on the amount recoverable by the plaintiff represented by the commercial cost of the labour of the mud army, I raised with the parties whether it was appropriate to pose and determine a further question on that topic. Each of the plaintiff and SunWater formulated questions which are Questions 37 and 38 in the schedule to this judgment respectively. One difficulty with both formulations is that the questions are posed in terms of an “entitlement” to interest. Also, one of the plaintiff’s questions refers to “interest on damages” generally, whereas the issue raised above refers to a specific component of the damages. SunWater’s questions described the damages as being “damages for gratuitous services” which, as explained above, is an inaccurate description of the relevant head of damages.

6. [118]

   Fourth, none of the parties addressed Question 36. The answer in the Schedule is unchanged from that set out in Chapter 15 of Rodriguez (No 22).

(4) Further Disposition

1. [119]

   On 30 April 2020, after argument on the two substantive issues addressed by this judgment were concluded, the Court heard submissions concerning the timing and approach to the balance of the matters necessary to determine the proceedings at first instance. At that time the plaintiff had only just served a document outlining its proposed methodology for the determination of the claims of group members by an award of damages “in an aggregate amount without specifying amounts awarded in respect of individual group members”. [242] It is not necessary to describe that methodology at this stage. Instead, it suffices to state that the Court ordered the parties to conduct a further mediation of the proceedings by the end of 30 September 2020. The Court also set aside three weeks of hearing time commencing 12 October 2020 for the determination of any motion brought by the parties, including the plaintiff, concerning the means of determining group members’ claims, as well as costs at first instance and the determination of the balance of the claims of the sample group members. The allocation of those three weeks is subject to the possibility that Seqwater and SunWater’s appeals might be heard in November 2020, in which case deference will be accorded to the Court of Appeal’s timetable.

2. [120]

   It should be noted that the Court expects the parties to constructively and collaboratively address proposals for the efficient determination of group members’ claims. If all that occurs is that, at the time one party seeks the adoption of a method of determination, another party outlines for the first time a series of objections, then the Court will simply adjourn to allow them to be addressed. This aspect of the proceedings will not be allowed to proceed in the same manner as the evidence of Dr Altinakar’s modelling did at the substantive hearing. [243]

3. [121]

   Otherwise, I note that the parties will need to provide orders disposing of the Lynch proceedings. [244]

(5) Orders

1. [122]

   In light of the findings in relation to interest, the agreed calculation as to the quantum of the plaintiff’s damages as at 29 May 2020 is $253,167.00. [245]

2. [123]

   As has been previously foreshadowed, it will be necessary for the parties to provide an electronic memory device containing the affidavits, exhibits, pleadings, transcript and submissions so that the Court file contains a proper record of the proceedings to this point.

3. [124]

   Accordingly, the Court orders that: