11 August 2017: QLD Floods Class Action (the second one) reaches a bitter end
On 9 Jan 2017 a second class action was brought against Queensland Water Authorities for the January 2011 Brisbane floods. The second claim (the Hassid Case) was brought by Philip Hassid and Koula Hassid, as a class action, apparently because the first class action (the Rodriguez Case) abandoned pure economic loss claims in February 2016. The Rodriguez Case had been on foot since 2014 and was due to go to trial in 2017. Obviously a main differences between the Case was that the Hassid Claim was trying to recover pure economic loss and the Rodriguez Case was not. But otherwise there was likely large overlap as to evidence and submissions and Court efficiency meant the cases ought be heard together.
The Court stated: “There was, and is, no realistic prospect of this Court conducting two separate hearings into the same flood given the resources required of the Court and the parties and the risk of inconsistent judgments. ”
However, the Hassid claim was not diligently pursued after 9 January 2017, and litigation funding could not be obtained. An order for security for costs was not paid, and other court directions as to filing evidence were left unsatisfied. The Court said that the “person that just happened to bring the proceedings proved unable to prosecute them properly”. For these reasons, and upon the Queensland Water Authorities’ requests, the Court ordered that the Hassid Case not continue as a class action. That left open the future of the claim of the Hassid’s individually, and ultimately their case was dismissed by consent and on terms that their case cannot be pursued anymore. Luckily, the Queensland Water Authorities let the Hassids off the hook for the Authority’s legal costs.
The delays in the Hassid Case which resulted in this poor outcome took place in the seven months from January to August 2017. The failed case may effectively mean that claims for pure economic loss from the Brisbane floods can’t be brought anymore because the 6 year time limitation may have expired. But if the Hassid Case had been allowed to continue as a class action, it could have delayed progress of the Rodriguez Class Action, effecting all of the group members in that case.
The Judgment sends a strong message that Courts will refuse to allow such delay, to the point of forever shutting out claims which were pursued too slowly. The quote above also indicates that Courts continue to be inclined to hold joint hearings of issues in competing class actions.
But the real message is for claimants facing a choice between class actions over the same event. This case shows that they have to seriously consider the consequences of choosing an unsatisfactory plaintiff or legal team. Here, the victims who chose the Hassid Case may have done so because it claimed more money for them – but it lost, so even if it claimed more money, it recovered 0%, which of course means $0. Sometimes, a more humble but realistic legal strategy can deliver better results.
And if the judgment means that those flood victims who opted out of the Rodriguez Case, to instead participate in the Hasid Case, are forever shut out of all of their claims and have lost the chance to participate in the Rodriguez Case then they have badly lost by this outcome. If that’s what has happened, then in a strange turn of events the Queensland Water Authorities have achieved a great benefit from the Hassid Claim effectively taking away and then losing a portion of what last year was covered by the Rodriguez Case. Stay tuned for what happens next in the Rodriguez Case, set for trial later this year.
See https://jade.io/article/544309 and https://www.legislation.gov.au/Details/F2017L00904