The trial started last Monday in the Supreme Court of NSW, with opening statements taking up all the allocated time.
Banton Group is representing around 28,000 members from NSW and Victoria, who were all severely impacted by MDBA led decisions to flood the Barmah Forest, “wasting” thousands of megalitres of water between 2018 and 2020.
These decisions resulted in zero allocation to NSW Murray general security (NSWMGS) and reduced allocations in Victoria.
This dramatically reduced production for multiple seasons, with impacts reverberating into following years.
Some farmers were forced to watch their crops wither and die because there was simply no water.
The class action was filed in May 2019 by nine local plaintiffs, and has now been transformed into a class action, with Doyles Farm Produce the lead litigant.
Group members are seeking damages from the MDBA and Commonwealth for their negligence.
The plaintiffs - irrigators from both sides of the Murray River - described the case as one of significant public importance.
They say the operation of the water resource and control of it by the MDBA has “significant real-world consequences for the lives and economic lives of irrigators across the basin”.
It highlighted to the court that the basin accounts for 85 per cent of Australian irrigated use, 41 per cent of Australia’s gross production and employs over 45 per cent of cultural workers.
Meanwhile, the MDBA argued to the court that it has no duty of care in the management of the Murray River, although in opening statements did agree that MDBA overbank transfers have the highest loss rate - somewhere between 36 per cent and 41 per cent.
“We say, and the evidence shows this, that the use of the overbank transfer system is exceedingly rare in the history of the operation of the Murray River system and is a blunt and inefficient instrument , if you like, to be avoided at all costs,” said Tony Bannan SC, who is counsel for the plaintiffs.
In a summary of opening statements provided by the plaintiffs and their legal team, the MDBA calculations are that 55 gigalitres of operational water went overbank in 2018-19 and 420GL in 2019-20.
The summary suggests the MDBA accepts 23GL of the 55GL and 135GL of the 420 was “lost”.
The plaintiffs contend the volumes were higher and that this ‘lost’ water would otherwise have been available for allocation to farmers and irrigators.
Mr Bannan said due to its absence they were forced to pay increased temporary water costs to save some crops, while watching the majority of their labour wither and die – resulting in extreme losses of along with reduced productivity for the region.
“We say that they were decisions that were not reasonable, not reasonably required, and contrary to their own operating parameters, guidelines and assessments at the time,” he said.
“And we say that involved mismanagement and flawed planning.
“We submit there is no evidence to suggest it even consulted its own plans in doing what it did. And we also submit that it relied on flawed modelling tools.”
NSW Murray general security received 51 per cent allocation in 2017-18, zero in 2018-19, and then a paltry three per cent in May 2020 at the end of the year, and after it could be used on crops.
The legal team for the plaintiffs say Doyle Farm had to purchase significant amounts of temporary water and alter contracts with McCains, while the Dunn family could not grow cereal and rice crops.
They highlighted that Section 10 of the Water Act makes it clear one of the objects is to ensure the economic wellbeing of the community, which would include irrigators.
On the 2018-19 “breach”, Mr Bannan said “one of the criticisms we make of the Authority is they failed to follow their own plan, which was to deliver a certain volume of water to Lake Victoria much earlier in the year.
“One of the answers that our learned friends brought up is, you can’t criticise us for that because we were delivering maximum flow at 9,500, or thereabouts, at certain points in the year from Yarrawonga Weir,” he continued.
“And they positively assert to this court ... there was no further capacity to send water further down.
“What they appear to have overlooked is that during a period when they thought they were sending a certain amount of water downstream, they had forest regulators open for the purpose of deliberate, what they call, in channel environmental watering.
“To put it mildly, it demonstrates extreme incompetence.”
The MDBA argued they acted conservatively to manage the risk of shortfalls, and that overbank flows are one of the “recognised levers” to supply water downstream.
Counsel for the MDBA, Sophie Callan SC, said bulk transfer around the choke were rare due to transmission losses but that “does not render it unreasonable”.
• More updates to come as the trial continues.
