Baiada Pty Ltd v Blenner’s Transport Qld Pty Ltd

Catchwords: CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – Where proposed settlement is reasonable between the parties to the proceedings – Where the settlement is fair and reasonable amongst all group members – Known and unknown group members considered – Court satisfied – Settlement approved

Legislation Cited: Civil Procedure Act 2005 (NSW) Pt 10 ss 100, 173, 179

Cases Cited: Fakhouri v The Secretary for the Ministry of Health (No.2) [2024] NSWSC 1171

Texts Cited: Not Applicable

Category: Principal judgment

Parties: Baiada Pty Ltd (P)
Blenner’s Transport Qld Pty Ltd (D1)
Trustee for The Blennerhassett Family Trust (D2)

Representation: Counsel:
M Swanson (P)
M Newton (D1, D2)
Solicitors:
Mills Oakley (P)
Barry Nilsson Lawyers (D1, D2)

File Number(s): 2024/300823

Publication restriction: Not Applicable

EX-TEMPORE JUDGMENT

1. On 31 December 2023, a collision occurred between Pacific National Train 7SP5 and a road train, or truck, which was being driven by an employee of the first defendant at a level crossing on the Barrier Highway near Bindarrah, South Australia. As a result of this collision, there was extensive property damage caused to the train, the railway infrastructure and the goods being carried on that train.

2. Proceedings were commenced in 2024, pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW), by the plaintiff, Baiada Pty Ltd, for itself and on behalf of group members who, to put it generally, were owners, or persons or entities entitled to possession, of the goods or other property being carried on the train.

3. The representative proceedings also claimed on behalf of the infrastructure owners and operators, with respect to the costs of repair of that infrastructure.

4. The proceedings, in accordance with the Court's ordinary processes, have been advertised. A number of entities have opted out of the proceedings. Those entities include Pacific National, the owner of the train.

5. To the extent that the infrastructure, train lines, level crossing, road and the like were damaged, the relevant owners, being government bodies, are not group members in these proceedings unless they give their consent in writing: s 159(2) of the Civil Procedure Act. No such consent has been given.

6. Originally, there was some lack of clarity about who were the appropriate defendants to be named. The Statement of Claim was amended on 6 February 2025 to name the appropriate defendants and to remove those that had been previously named, including the individual who was the driver of the road, train or truck involved in the collision.

7. The proceedings were fixed for hearing, with respect to common questions dealing, generally, with all liability issues in February 2026. Prior to that time, and earlier this year in September, the parties engaged in the exchange of settlement offers, which resulted in an agreement being reached between them, with respect to the resolution of the proceedings - subject, of course, to the approval of this Court.

8. By a Notice of Motion filed on 31 October 2025, the plaintiff seeks orders providing for the approval of the settlement and, ultimately, the discontinuance of the proceedings.

9. Considerable material including material received as confidential, has been put before the Court on the settlement, which the Court has read and carefully considered.

10. In approving any settlement, the Court is engaged in the assessment of two questions: first, whether the proposed settlement is reasonable between the parties to the proceedings, that is to say, between the plaintiff and group members on the one hand, as one interest, and the defendants on the other hand, as the other interest.

11. When the Court comes to consider this, taking a role which has been described as "supervisory and protective", the Court takes into account a range of factors, including such things as the prospects of success of the plaintiff and group members in the proceedings; any risks and costs to which the plaintiff and group members are exposed if the matter proceeds to trial; the likelihood of any appellate consideration of any first instance judgment; and the future pathway for the litigation, including the likely time period over which the litigation would extend before a final resolution is reached of all of the group members' claims: see Fakhouri v The Secretary for the Ministry of Health (No.2) [2024] NSWSC 1171.

12. It is within the experience of this Court that the time occupied by a representative proceeding, from start to finish, may be as long as five years. That, of course, depends on the complexity of claims, the number of individual complainants, the extent to which the claims for damages are contested and, of course, the appellate process.

13. The second matter that the Court is required to consider is whether, as between and amongst the plaintiff and group members, the proposed settlement is fair and reasonable. In particular, the Court is astute to keep in mind not just the plaintiff and group members whose claims are known, but also the interests of the group members as a whole - including the group members who or which are unknown.

14. Questions may arise as to whether, as between the group members, there is any conflict and unfairness with respect to how recovery sums are calculated, and whether, if it arises, the approval of the settlement requires the resolution of tension in competing interests of two sub-groups that may or may not benefit differentially in any settlement. Ultimately, when balancing any such matters, the question is whether the proposed settlement is within the bounds of fairness and reasonableness.

15. I have received submissions from both parties with respect to the issues, and I have received, on a confidential basis, an advice of counsel for the plaintiff and group members as to the various considerations which have informed the decision to settle the proceedings.

16. The first matter I should address is whether I am satisfied that the settlement as between the parties to the litigation is fair and reasonable. The transcript of the proceedings today will show that the parties each have been probed as to why the particular settlement amount is fair and reasonable, and as to why the Court can be satisfied of those matters.

17. Both parties accept that the settlement is less than the full entitlement of the plaintiff and identified group members, that is: the entirety of their property damage losses, the entirety of pre-judgment interest, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), and the entirety of their legal costs and disbursements.

18. The plaintiff draws attention to the fact that, on the known facts, the plaintiff can be reasonably expected, without much risk at all, to obtain a finding in its favour as to who was at fault for the collision and, therefore, who was at fault for the loss of or damage to the goods. Nevertheless, an early resolution of the proceedings, which can occur before any parties were put to any cost and expense in preparing and filing evidence on any of the issues arising in the proceedings is a distinct advantage. The fact is that some uncertainty always surrounds the ability of plaintiffs and identified group members to adequately prove the value of the lost or damaged goods and that, in addition to avoiding additional legal costs, there is also, by reason of an early settlement, the removal of the need for the particular companies or their subrogated insurers to spend executive time and energy, which reflects an internal cost, providing ongoing instructions for the proceedings if they continued to be contested. Whilst those avoided costs have not been valued, as a matter of commonsense, the Court should have regard to those matters. Finally, there is the reason of certainty of outcome, which is always an attractive proposition.

19. In those circumstances, I am well satisfied that the settlement as between the parties to the litigation falls within the bounds of fairness and reasonableness.

20. The second issue to which regard must be had is whether, as between the plaintiffs and group members, the settlement is fair and reasonable.

21. Given the nature of the goods which was being carried on the train when the collision occurred, there will be identified group members who had goods of a significant value being carried on the train. Those group members have been identified, and their subrogated insurers have participated in providing instructions to the solicitors for the plaintiff. All of those group members have been able to substantiate their claims, and the proposed settlement addresses all of their claims. They can conveniently be referred to as the "active group members". Each of the active group members, as well as the plaintiff, consent to the terms of the settlement. They are all sophisticated organisations experienced in litigation, as are their subrogated insurers. They are all content with the settlement. The settlement distribution which will occur is proportional to the value of their claims. That is the appropriate and fair way for their interests to be taken into account. No further consideration of the interests of the active group members is necessary.

22. A feature of most representative proceedings is that there will always be a number of unknown group members. Here, those group members are being called the "inactive group members". As I understand the various processes that have taken place, and based on the evidence with which I have been provided, no person or organisation falling within the description of inactive group members has sought to provide to the plaintiff's solicitors, notwithstanding an extensive regime of publicity and notification, clear and adequate details of their claim, sufficient for it to be included in this settlement.

23. This approval is being considered at a time about 3½ months or so after the agreement to resolve the proceedings was entered into, and with more than adequate time after notification of the proposed settlement has been published and distributed.

24. Given the time which has passed since the collision for any claimant to have worked out what the value of their lost goods are, and whether that value can be proved or demonstrated adequately through various documents, none of the inactive group members have advanced any such claim, and none have sought to appear before the Court today to object to the settlement being approved by the Court.

25. I am satisfied with the extensive investigations which have been undertaken, together with the publicity attached to these proceedings and the manner of distribution of notices of the proceedings, that, had anyone else falling within the description “inactive group members” had a viable claim, it would have been made by now.

26. As there is no such other viable claim, it follows that I am satisfied that this settlement is also fair and reasonable as between the plaintiff and the group members amongst themselves. I am satisfied that the Court should approve this settlement and make orders giving effect to it.

Orders

27. I make the following orders:

28. Order pursuant to s 173 of the Civil Procedure Act 2005 (NSW) that the settlement of this proceeding on the terms set out in Exhibit A and Exhibit B be approved.

29. Pursuant to s 179 of the Civil Procedure Act 2005 (NSW), I order that the settlement binds the plaintiff, the two defendants and all group members (as the group is defined in paragraph 2 of the Amended Statement of Claim filed 6 February 2025) and as specifically included in the Settlement Agreement, Exhibit A.

30. Upon the finalisation of all steps required by the Settlement Agreement, Exhibit A, I grant leave to the plaintiff to discontinue the proceedings by the filing of a Notice of Discontinuance in proper form.

31. Order that each party pay its own costs of the proceedings.

32. Vacate the hearing of these proceedings presently fixed for 23 February 2026

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