Fishing industry’s class action update: Gladstone Ports Corp sues Abigroup

The class action case against Gladstone Ports Corporation by commercial fishermen and associated businesses has taken a $60 million twist.

Aerial view of dredging in the Gladstone Harbour. Photo Brenda Strong / The Observer

The class action case against Gladstone Ports Corporation by commercial fishermen and associated businesses has taken a $60 million twist.

It comes as the lawsuit, involving the government-owned GPC, reaches its sixth-year anniversary.

GPC is being sued by more than 150 people in Queensland and New South Wales – from Bowen to Sydney including Keppel Bay, Stanage Bay and Gladstone region operators – who are seeking up to $150m in damages.

Gladstone Fish Market owner Ted Whittingham, Urangan Fisheries owner Nick Schulz with Law Essentials principle Chris Thompson and Clyde and Co partner Maurice Thompson with plaintiffs in the class action against Gladstone Ports Corporation. File photo from 2019.

The claim is that dredging and associated works in 2011 during the Gladstone Port expansion project polluted waters and seas, degraded the quality and quantity of fish, and impacted commercial fishermen and associated businesses.

Lawyers for the seafood industry members were granted approval to amend their statement of claim in a decision handed down by Rockhampton-based Supreme Court Justice Graeme Crow in March 2023.

Douglas Savage KC, for GPC, told the Supreme Court on July 17, that GPC was now seeking to start a claim against one of its subcontractors involved in the design and construction of the bund wall, at the heart of the seafood industry’s class action allegations, due to an indemnity (security against or exemption from legal liability for one’s actions) “something in the order of $60 million”.

The court heard that matter, against Abigroup, which was awarded a $116 million contract to design and construct the seawall bund and haul road for the Port of Gladstone Western Basin expansion, was before the Court of Appeal in Brisbane on July 19.

Dredging in Gladstone Harbour.

Mr Savage said what was being asked of Justice Crow on July 17 was to determine if the Abigroup matter (listed under the name Acciona Infrastructure Projects Australia Pty Ltd in the courts), if allowed to proceed, would join the class action case as a third party, or be separate which could result in two 14-week trials with neither able to be run in 2023 as the rest of the year’s court calendar was booked out.

Mr Savage said if Abigroup was to join the class action case, there would need to be an extension of time for the parties to get ready for trial.

Lachlan Armstrong KC, for the plaintiffs (seafood industry members), argued GPC could have made this request for a third party back in 2018 once the class action case had been outlined.

He said there was nothing new in the 2023 amended statement of claim, other than delegable duty of care and public nuisance.

The delegable duty of care meant GPC had a duty of care to ensure others, aka subcontractors, take reasonable care.

The amended statement of claim is being appealed by GPC with a hearing listed in September before the Court of Appeal and judgement is expected several months afterwards.

GPC last week also sought to hit the pause button on the class action case until after the judgement in the appeal over the amended statement was delivered.

It also sought, as part of getting the third party joined in the class action case, to have the class action case transferred out of Justice Graeme Crow’s hands and into the Supreme Court’s Class Actions List.

The seafood industry’s lawyers opposed all of GPC’s applications and, instead, sought orders that GPC provide its lay and expert evidence soon.

Mr Armstrong, in explaining the opposition to GPC’s applications, said GPC in its own defence pleadings referred to Abigroup as having a role in the project.

Lachlan Armstrong KC, for the plaintiffs (seafood industry members), argued GPC could have made this request for a third party back in 2018 once the class action case had been outlined.

He said a solicitor from the GPC defence team wrote in correspondence in 2018 that there were eight subcontractors involved in various stages of the project and reminded the plaintiffs (seafood group) of the possibility of bringing concurrent wrongdoers claims against this case.

Mr Armstrong said this meant GPC has had five years to bring on Abigroup as a third party.

In his judgment, Justice Crow granted GPC’s application for the Abigroup matter to be joined as a third party in the class action case.

However, he declined to transfer the matter to the Class Actions List, and the matter will remain under his management.

Justice Crow also granted the plaintiffs’ application for provision of GPC’s evidence, which is now due by November 30, 2023.

The fisheries lawyers told The Morning Bulletin they were delighted the class action case would remain managed by Justice Crow and his order for GPC to move forward with providing its evidence in the matter rather than further delays.

“With Acciona now a party in the matter, it will likely cause delay, perhaps significant, to the hearing of the trial and lead to a substantial increase in the costs of all parties involved in the proceedings,” Law Essentials owner Chris Thompson, who specialises fisheries law and was instrumental in launching this class action, said.

“It is disappointing that GPC could have taken this action back in mid 2018 when it first raised this as a possibility.

Litigation Capital Management is funding the fisheries claim.

“Much like the strategy of GPC early on in the proceeding to assert that the funding of the claim was itself unlawful (which GPC unsuccessfully took to the High Court), GPC has now sought to delay the class action further by an appeal of a decision allowing the fishermen to amend their claim rather than to simply respond to that claim on its merits,” Head of Investments (APAC), LCM, Susanna Taylor said.

“GPC has unsuccessfully sought to stay the class action while this appeal is pending but will be permitted to join a third party to the claim more than five years after the proceeding began.

“These actions by GPC have significantly delayed the proceeding and increased their cost which ultimately is to the detriment of the fishermen who are yet to have their claim against GPC determined.”