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

HIS HONOUR: The express purpose of the assembly today was to finalise the separate questions, which I indicated on an earlier occasion would be the subject of a trial commencing on 15 April next. In substance, I have three drafts tendered by counsel. It is convenient to nominate the counsel rather than their respective clients.

I have a series of questions proposed by counsel for the State of New South Wales and questions by Mr Alexis for a number of plaintiffs and questions from Mr White who appears for Kosciusko Thredbo and some additional questions by Mr Titterton, who appears for a number of plaintiffs, wishes to have added.

Mr White candidly acknowledged that his formulation in the drafting was done in order to accommodate the anticipated geotechnical evidence from an expert, Doctor Redmond. He has pointed out on several occasions that at this stage it is his report which appears to be the only one which appears to have been served in respect to previous directions.

The additional questions that were suggested by Mr Titterton for his clients seem to me to reduce the proposed exercise to a matter of particularity beyond which is desirable in the circumstances. I have the same view about Mr White's questions.

That leads me then to the two drafts tendered on behalf of the State interests and by Mr Alexis. I should add that there is support for the formulations that I just mentioned from various other parties being represented. I have already indicated that question 6 in Mr Alexis' document attracts me as one which ought to be included.

When I look at the balance of the questions as formulated in both the documents there is, obviously, a considerable amount of overlap. It seems to me, as I have said on several occasions, that it is desirable that we commence on this exercise and we commence promptly and punctually on 15 April next.

Accordingly, I have determined to order that the questions will be those in paragraphs 1 to 11 of the State interests draft and 1 to 6 in Mr Alexis' draft.

As I have said, it is obvious that there is a considerable amount of overlap in a number of those questions.

The order I make is that there be, in respect of all actions, a separate trial of questions as follows: 1. Was the landslide caused solely, or materially contributed to, by water which came from one or more leaking joints in the pipeline? 2. Was the landslide caused solely, or materially contributed to, by water which came from additional flows, if any, resulting from the construction of the Winterhaus Corner retaining wall? 3. Was the landslide caused, or materially contributed to, by both of the causes set out in paragraphs 1 & 2 above? 4. Was the landslide caused, or materially contributed to, by part of the slope above and to the south west of Carinya being poorly compacted, overly steep, marginally stable or vulnerable to a small elevation in either the groundwater table or groundwater pressure? If so, which part of the slope and which of those causes? 5. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline, was that leak solely the result of creep in the fill? 6. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline, was that leak solely the result of the direct or indirect impact of construction activity associated with the construction of the retaining wall? 7. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline, was that leak solely the result of the direct or indirect impact of construction activity associated with the resurfacing of the Alpine Way? 8. If the landslide was caused, or materially contributed to, by one or more leaking joints in the pipeline were the leak or leaks caused by more than one of the causes set out in paragraphs 5, 6 & 7 above? If so, which of those causes? 9. If the landslide was caused, or materially contributed to, by water which came from one or more leaking joints in the pipeline, was the pipeline inappropriately located, designed, constructed, approved, operated and/or maintained? 10. If the landslide was caused, or materially contributed to, by water which came from additional flows resulting from the construction of the Winterhaus Corner retaining wall, was the Winterhaus Corner retaining wall inappropriately designed, approved and/or constructed? 11. Which acts or omissions, if any, were responsible for the operative cause or causes of the landslide set out in paragraphs 1, 2 3 & 4 above, and to what extent? 12. Was the Thredbo landslide caused by: (a) the marginal stability of the slope above Carinya; (b) the existence and state of the Alpine Way; (c) the omission to improve the stability of the slope above Carinya (including the Alpine Way) in accordance with acceptable standards and accepted practice, before the landslide; (d) infiltration from the Winterhaus retaining wall drainage trench; (e) leakage from the water main; or (f) a combination of (a) (b )(c) (d) and/or (e) and if so, the extent of each cause. 13. If the Thredbo landslide was caused by leakage from the water main or such leakage contributed to the landslide, was the cause of such leakage: (a) construction activity associated with the construction of the Winterhaus retaining wall; (b) construction activity associated with the resurfacing of the Alpine Way following construction of the Winterhaus retaining wall; (c) soil creep; or (d) a combination of (a) (b) and/or (c), and, if so, the extent of each cause. 14. Was the slope above Carinya, and in particular the Alpine Way, designed, constructed, maintained and monitored in accordance with acceptable standards and accepted practice. 15. If the water main leaked, in a way that caused the landslide, did it do so by reason of the fact that it was located, designed, approved, constructed and/or maintained following construction, other than in accordance with accepted standards and accepted practice. 16. If there was infiltration from the Winterhaus retaining wall drainage trench, in a way that caused the landslide, did it do so by reason of the fact that the Winterhaus retaining wall was designed, approved, constructed and/or monitored following construction, other than, in accordance with acceptable standards and accepted practice. 17. Was the geotechnical advice from the RTA to the NPWS from August 1991 until the landslide, advice that a reasonably competent geotechnical engineer would have provided during that period in relation to the stability of the slope above Carinya? If not, what advice would a reasonably competent geotechincal engineer have provided to NPWS, in relation to the stability of the slope above Carinya, during that period?

Those are the questions then that will be tried commencing upon 15 April next.