Dianne Downey. Photo / RNZ, Nick Monro
By Alexa Cook of RNZ
A class action lawsuit has been lodged against Hawke’s Bay Regional Council, alleging incompetence led to 400 properties and businesses flooding in Wairoa last year.
The case is being brought on behalf of The Limery business, which lost more than $1 million in the flood.
But if it is successful the cost to the council could be much higher.
Wairoa’s limery business is back in action, but getting here has taken months of blood, sweat and tears for owner Dianne Downey.
“It has taken its toll internally on me. I am exhausted, I’m really tired. I just hope that lessons can be learned,” she said.
The Limery originally sued Hawke’s Bay Regional Council (HBRC) in July last year, but Downey’s lawyer Grant Shand had this week applied to the court to change it to a class action.
Downey told RNZ the crux of the case was about the regional council not creating an opening in the river mouth before the flood, so the river could get out to sea more easily.
“The failure was really that the bar was closed. There was rain forecast and that rain needed somewhere to go. It was like a cancer ... it just spread right through our place,” she said.
She said it had left her about $1 million out of pocket.
“When everything goes all in one hit you don’t have enough insurance to cover that.
“So there’s this big void of that difference between what insurance did cover and what we actually lost, and are now having to try to replace ourselves,” Downey said.
Shand alleged HBRC could have done more to open the river bar, as a local contractor had been urging the council to let him begin work days before the flood.
“It was just negligent, incompetent and inappropriate ... because you had remote monitoring from the Hawke’s Bay Regional Council that didn’t really take into account the local knowledge.
“The damage is still ongoing because you still have people out of properties, people suffering mental effects, and economic effects post that flooding,” he said.
Under a class action, anyone affected by the flooding would be covered in the case. In Wairoa, that was more than 400 property owners, with any residents not wanting to take part needing to opt out.
“Once the class action is approved, then everybody who’s affected will be in. So that’s 400 to 500 people who will be in without having to do anything.”
Later this month, the court would decide whether the class action could proceed, with any hearings slated for next year.
If the legal action was successful, Shand believed the council could end up being on the hook for the full $40 million in damage to residents’ property.
“This is a really good case brought by people who should get justice. We’re just trying to get the most effective method of getting justice for all of these people.
“The regional councils are insured for these sorts of events so there will be an insurer standing behind the regional council to pay anything that they’re liable to pay,” Shand said.
Wairoa’s mayor, Craig Little, was also keen to see the regional council held to account.
“So many people, their only hope that they’re clinging on to is that class action will win and they’ll be able to get some money back. Not to be better than they were, but just to get back to where they were ... that’s how much people are struggling,” he said.
Hawke’s Bay Regional Council declined RNZ’s request for an interview, saying it would “respond through the court process”.
A spokesperson referred to last year’s review by Mike Bush.
“An independent review pointed to multiple factors contributing to the flooding, including high sea state, high tide, a river mouth in a less-than-optimal position and increased river flow,” the council said.
Since the 2024 flood, HBRC said it had been working to better maintain the Wairoa River Bar.
“HBRC has lowered the beach crest and continues to work with the Crown manager to look at options for the south side of Wairoa.
“We now have a concept design for a permanent structure - a groyne, that will make for a more permanent river opening. Detailed design and how it might be funded is yet to be determined,” said the council.
A lawyer who specialises in class actions told RNZ that over the past decade or so, this type of legal case had become more common.
“Class actions are an important feature of any legal system committed to providing access to justice, because they provide an option for those who cannot afford to litigate individually.
“Class actions empower New Zealanders to vindicate their legal rights and achieve meaningful redress for corporate or institutional misconduct,” said Fionnghuala Cuncannon, one of the founding partners of Cuncannon.
She added that they were not a silver bullet, but were an important part of the work that needed to be done to address access to justice in civil cases as they facilitated private enforcement of legal rights, complementing and supplementing the work of regulators.
Cuncannon said class actions were now steadily featuring as part of New Zealand’s legal system, and she had represented claimants in three class actions.
“Each of these class actions resulted in significant financial settlements being paid to claimants. Because of the time, cost, and energy required to bring an individual claim, claimants would not have achieved these outcomes but for the option to participate in the class action,” she said.
Cuncannon said in her experience, there were three things you needed to successfully bring a class action.
“A strong case with robust arguments and evidence, quality legal advice and representation, and a way to fund the legal process.”
– RNZ