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Acciona joins Gladstone Ports Corporation, commercial fishers lawsuit

A massive class action involving over 150 businesses in Queensland and NSW and a government entity has evolved with a third party lassoed into the lawsuit.

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

A massive class action case involving over 150 businesses in Queensland and New South Wales suing a Queensland Government entity has evolved with a third party being lassoed into the lawsuit as a defendant, having 76,573 documents dumped in their laps in three weeks only eight months before the trial starts.

More than 150 commercial fishers and associated business people – from Bowen to Sydney, including Keppel Bay, Stanage Bay and Gladstone region operators – are suing Gladstone Ports Corporation for between $100m and $150m, with the initial claim lodged in July 2017 amended multiple times.

Gladstone Fish Market owner Ted Whittingham (in the cream jacket and pants), Urangan Fisheries owner Nick Schulz with other plaintiffs and legal team members in the class action against Gladstone Ports Corporation.
Gladstone Fish Market owner Ted Whittingham (in the cream jacket and pants), Urangan Fisheries owner Nick Schulz with other plaintiffs and legal team members in the class action against Gladstone Ports Corporation.

They claim works carried out by the ­corporation in the ­Gladstone Harbour negatively ­impacted the water quality, fish health and fish numbers, impacting industry members’ businesses.

The work, including dredging and building of a bund wall, was carried out in about 2010.

In November, GPC officially notified Australian construction company Abigroup now known as Acciona Infrastructure Projects Australia Pty Ltd, who constructed the bund wall, that it was a third party in the case to defend the claim.

The bund wall was filled with dredge spoil and was an area of reclaimed land. Pic: David Sparkes / The Observer
The bund wall was filled with dredge spoil and was an area of reclaimed land. Pic: David Sparkes / The Observer

The trial start date, along with pre-trial scheduling orders were sought by the three parties, during a mention of the case in the Supreme Court in Rockhampton on December 11.

The fishers and GPC sought the same start date – September 22, 2025 – while Acciona argued that wouldn’t provide them sufficient time to get their defence ready.

Acciona’s barrister Mark Steele KC argued that it would not be ready by September and there would be limited involvement of the third party in the trial.

“It took the defendant (GPC) six years to join us and now they’re saying ‘well we’ve given you a 150-page document … and oh, you should be ready for trial in the next eight months’,” Mr Steele said.

He claimed when the third party proceedings did commence in the middle of 2023, GPC just told Acciona there were a “bunch of allegations against us”.

Mr Steele said GPC pointed to a paragraph referring to the bund wall works duty breach or found to be in breach by the defendant that GPC claims was Acciona’s breach “and that’s 15 different ways it could have been breached”.

He said Acciona responded in August saying “this is crazy. There’s no way that we can properly respond to this. And you cannot expect us to respond to this unless you give us proper particulars”.

Mr Steele said GPC agreed and responded, informing Acciona they didn’t have to put on their defence until 28 after the particulars are provided.

The particulars were supplied on September 10, 2024 and a sealed amended third party statement of claim was served on November 22.

The court heard that one of the partners in the Acciona defence case Dale Brackin, who, according to Clayton Utz law firm’s website has 30 years experience in building disputes, stated in an affidavit that Clayton Utz received 76,573 documents between November 20 and December 9.

Aerial view of Gladstone Harbour, Queensland, in the World Heritage listed area during where the nation's biggest dredging operation as part of the $30 billion Curtis Island LNG project.
Aerial view of Gladstone Harbour, Queensland, in the World Heritage listed area during where the nation's biggest dredging operation as part of the $30 billion Curtis Island LNG project.

Mr Steele said until this point, Acciona did not know what the case was against it and therefore didn’t know what defence was needed and what experts to engage.

“The plaintiff (fishers) says that there are defects in the construction of the bund and they attempt to enumerate dozens of more breaches of particular types of contract,” he said.

“We’ve got to investigate what they are.

“We’ve got to find out if it’s true.”

Mr Steele said there were thousands of documents to read through and they need to find out who was responsible for geotextile covering and other parts of the construction of the bund wall as part of their defence.

He said it was estimated that Acciona’s legal team needed until the end of March at the very least to go over that material.

The court heard Acciona had yet to engage experts for their defence.

GPC representative Douglas Savage KC pressed for a trial, particularly to test the admissibility of one expert report by David Beckett (which was filed with the court, according to the court website, in October 2020).

He said part of GPC objects to that report, which he says are “very important” and “critical to the case”, was “‘sample evidence, survey evidence’ or ‘evidence that relies upon a model’”.

“A lot of these extra reports depend on the admissibility of that modelling evidence,” Mr Savage said.

“So if the ruling is that the model is not admissible, or the samples not admissible, or the survey is not admissible, then all of that stuff, or all of that evidence goes.”

The managing director of Gladstone Fishmarkets, Ted Whittingham photographed for a story regarding the state government's handling of the possible ban on Gladstone Harbour fishing. Photo: Murray Ware
The managing director of Gladstone Fishmarkets, Ted Whittingham photographed for a story regarding the state government's handling of the possible ban on Gladstone Harbour fishing. Photo: Murray Ware

The court heard there is to be a pre-trial hearing on the admissibility of this report, along with conclaves which are pre-trial meetings of where they discuss and reach agreement on the issues in dispute with the purpose to limit to the most important issue.

Justice Graeme Crow ruled that there was ample time for Acciona to get ready for a trial to start on September 22.

He asked if the previous proposed agreement of half of the trial be heard in Rockhampton and the other half in Brisbane was still proposed.

Representative for the fishers Justin Tomlinson SC that subject had not yet been discussed and the fishers legal team proposed the opening of the trial be heard in Rockhampton at the very least.

He suggested the discussion about what will be heard where should take place at the next trial review.

Mr Savage said GPC’s position was the case was local, involving local people who were entitled to come to court and hear it’s proceedings.

He pointed out that some of the expert witnesses were located overseas and there would need to be planning to accommodate experts from all over.

Justice Crow delivered a judgement of orders on December 13 which included a trial review date of March 21 in Rockhampton.

Originally published as Acciona joins Gladstone Ports Corporation, commercial fishers lawsuit

Original URL: https://www.dailytelegraph.com.au/news/queensland/acciona-joins-gladstone-ports-corporation-commercial-fishers-lawsuit/news-story/560307fee1edea74ca5020afea6eadf1