Court date set: Irrigators challenge water management decisions

The legal battle was launched in 2019 by Barooga farmer Chris Brooks as the lead litigant.

The class action covers irrigators across the NSW Central Murray or the Goulburn-Murray irrigation regions. There are 28,000 group members.

While Mr Brooks is no longer the lead plaintiff, he remains invested in the class action and its outcomes.

The class action is seeking at least $750 million in damages for impacts of what claimants allege was mismanagement of the Murray-Darling system, which they describe as “gross negligence”.

Mr Brooks said, in layman’s terms, irrigators are arguing the MDBA has “wasted our water”.

Bantam Group, which is leading the class action, said plaintiffs claim that the defendants “breached their alleged duty of care owed to the plaintiffs (and group members)”.

“The plaintiffs further claim that MDBA and its delegates mismanaged the operation and maintenance of the Murray-Darling Basin by causing or permitting ‘overbank transfers’ through the Barmah-Millewa Forest in the periods between October 3, 2017 and January 20, 2018, and August 31, 2018 and January 7, 2019,” Bantam Group said.

“The plaintiffs also claim that the defendants’ conduct resulted in NSW Murray Regulated River general security water entitlement holders, Victorian Murray high reliability water shareholders within the Murray declared water system and related parties receiving less water than they would otherwise have received, and suffering damage, including a reduction in the market value of their water, increased costs of water on the temporary market and business losses.”

Mr Brooks said this use of water was directly related to ‘‘our farmers’’ not being able to produce crops.

And he said this year’s opening allocations suggests “nothing has changed”.

The irrigation season opened on one per cent of general security allocations on July 1, and was not increased in a second announcement on July 15.

“The Murray-Darling Basin Authority is still denying our claims, but now we have a chance to let the judge decide.

“People think things have been fine for the last few years because we’ve been lucky enough to get a bit of rain since 2019, but the first slightly dry year (this year) and we’re back on one per cent.

“You can’t do much planting with one per cent of an allocation, especially with the cost of water and delivery charges right now.”

The Pastoral Times sought comment from the Murray-Darling Basin Authority on the pending Supreme Court hearings.

It declined to comment, saying only “Respecting that this matter is before the court, the Murray-Darling Basin Authority won’t be commenting on it further at this point”.

The class action was first tested in 2021, when current lead claimant John Doyle won a legal victory against the MDBA.

In April of that year, the NSW Supreme Court handed down a judgment in ‘Doyle’s Farm Produce Pty Ltd as trustee for Claredale Family Trust v Murray-Darling Basin Authority’ that the MDBA could be found liable for negligence.

Until then, claimants suggested the MDBA had previously attempted to rely on the defence that it is immune from civil prosecution, and therefore couldn’t be held responsible for negligence.

Under the NSW Civil Liability Act, a public authority is not generally liable for its refusal to act in a certain way or exercise a function.

However, Supreme Court Justice Christine Adamson stated in her 2021 judgment that the MDBA could still be found liable.

She struck the MDBA’s immunity defence out of consideration for future legal battles with the irrigating group, which means the MDBA will have to establish that it is not negligent in the same way an ordinary defendant would.

The irrigators in the class action secured a litigation funder in late 2019, on a ‘no win, no fee’ agreement.

In the event of a successful decision, the litigation funder gets a predetermined percentage of the claim.