After nearly 10 "tortuous" years the people whose lives were changed by the 2009 Walla tip fire have achieved victory, but not closure.
The unanimous finding of three NSW Court of Appeal judges that Greater Hume Council was liable for damages caused by the fire has been welcomed by the lead plaintiff Sharon Weber.
She has headed a class action since 2015 representing about 70 property owners.
They include Neil Phillips, John Seidel and Bruce Dwerryhouse.
Between them, they lost hundreds of livestock and thousands of acres.
Mr Dwerryhouse said council's "arrogant" response to the class action has added to their pain.
"We have all suffered 10 tortuous years of wondering whether we're going to get any compensation or not, and we have been forced to go down the track of going to the Supreme Court, conducted by a judge whose judgement we didn't agree with it, and us personally having to fund an appeal case," he said.
"Fortunately, justice has now been done and we're pleased about that.
"But there's been absolutely no apology from the shire for what occurred."
When a fire began at the tip on December 17, 2009, it jumped a fire-break on the south side of the site and raced in a south-easterly direction, reaching Gerogery within an hour.
It destroyed Sharon Weber's home and that of four others, and burned more than 5000 hectares before being stopped during a wind change.
Mr Phillips said the fire had come close to claiming lives.
"On the day there were two children saved by a person who got his eyes burned quite badly - he doesn't like talking much about it - and those two children could have been lost if not for his quick thinking," he said.
Anyone who suffered personal injury or damage to property was included in the original proceedings lodged in the Supreme Court in 2015 by Ms Weber and Maddens Lawyers.
A trial in 2018 found that council had failed to properly maintain the tip, neglecting to do things such as create a fire plan or an effective firebreak, but the judge dismissed a claim to damages, as the fire's cause was not proven and in his opinion it was not demonstrated that reasonable precautions would have prevented the escape of the fire.
Ms Weber and the legal team lodged an appeal.
The finding delivered on April 17 was in their favour and considered the most likely causes of the blaze were all within council's control.
Justice Ronald Sackville said that council "breached its duty to take reasonable care to prevent the spread of fire beyond the boundaries of the tip" and said council's breaches of duty of care were "longstanding".
"For example, the council's former director of environment and planning, accepted that the firebreak at the tip should have been graded along its existing alignment in about August of each year. Had that been done, the work required to grade the firebreak in August 2009 would have been straightforward and modest in scope," he said.
"The council had a waste management reserve of $51,000 as at 30 June 2009 ... the cost of the measures that the council should have taken to minimise the risk of fire escaping from the tip would have been modest."
Mr Phillips said more money should have been spent on the site.
"They had $50,000 in the fund (of which $18,000 was spent by September, 2009), and the appeal judges pointed that out," he said.
"One of the biggest problems they had with that rubbish tip was getting enough earth and dirt for the contractor to actually cover it ... it wasn't done properly.
"Spontaneous combustion was never proven as the cause of the fire, but it is a common thing in rubbish tips if they're not covered.
"I don't know exactly what happened out there, but I would have thought they'd have 10,000 or 50,000 litres of water on-site.
"It's all about coming under budget."
The Court of Appeal awarded Ms Weber the full amount of her damages, more than $100,000, and ordered Greater Hume to pay her legal costs too.
Greater Hume Council released a statement on the day the decision was handed down.
"The Court of Appeal made findings the management of the landfill led to the fire," the statement read.
"Since the formation of Greater Hume Council in May 2004, the number of landfills in the shire has been reduced from seven to two.
"At the time of the fire, Council contributed more than $350,000 and co-ordinated volunteers to enable emergency work to be carried out on repairing and replacing boundary fences."
The total cost of damages to those affected in Gerogery is yet to be determined.
"We are now awaiting advice from our legal team as to what the next course of action is and we understand assessors will come out and have a look at everyone's case on an individual basis," Mr Dwerryhouse said.
"Had it been settled early on in the piece, it would have cost council $10 million or $12 million.
"But now with the passage of time and the fact interest is calculated back to the date of the incident, it's going to cost them probably $25 to $30 million.
"The issue we have is whether the defence decides to challenge the decision and go to the High Court."
The Walla tip has stayed closed, but the concern of some residents is that not much else has changed in the town since the fire.
Mr Phillips believed the water supply available to Gerogery residents was not adequate in 2009 and still needed to be improved.
"The pipe-line between Gerogery West and Gerogery was not big enough, so with fire trucks taking water out, it dropped the pressure here in the town," he said.
"The problem was it was going to cost too much to re-build it - it's a long way from here to Gerogery West - but there's no reason why we can't have an earthen dam or tanks put in the town for a maximum of a day's supply of water, to get us through a fire.
"If they really wanted to sit down and talk to some people out here who understand what happened here on the day, not to bag them or pull them apart, but to sit down and make a fire plan, we could all look past what happened."
Mr Dwerryhouse's grievances with council have also been exacerbated over recent years by what he considers to be neglect of rural areas in spending.
His request to reduce water charges for certain rural properties during the drought was rejected at the last council meeting, where it was outlined that council had implemented a range of drought support measures.
"We are trying to keep livestock alive and in reading the minutes of the last council meeting it became very obvious to me they are more concerned with the revenue that they would lose to the shire than they are about the ratepayers who they are supposed to represent," Mr Dwerryhouse said.
Mr Seidel said current hardship and the ongoing legal saga had taken its toll on the mental health of many, with the group waiting to see if council takes the matter to the High Court before the appeal period expires on May 15.
"It was been a David-Goliath-type battle, with the small farmers against a big insurance company," he said.
"We're still in limbo.
"We want closure and we want to move on with our lives, but it doesn't preclude the council from doing the right thing and planning for the future so this does not happen again.
"We can't see any evidence they're doing that at this point in time."
More on the case:
- Court hearing case against Greater Hume Shire Council over Gerogery fire told of poorly maintained fire break at Walla tip
- Class action following major fire dismissed by NSW Supreme Court
- Fire fight over major tip fire continues as appeal is lodged
- Walla and Gerogery fire fight returning to court
- Sharon Weber awarded $100,000 in damages for the fire that destroyed her home in 2009
Maddens Lawyers principal Kathryn Emeny said the matter would be referred back to the Supreme Court for directions to clear up how the individual or group claims to damages would progress for those in the class action.
"The NSW Court of Appeal has delivered a strong judgement in terms of the responsibilities councils owe to those living in their shires and that due care does need to be taken when managing potentially hazardous sites such as tips," she said.
"We're so pleased for the group members about the result that's been obtained and the strength of the judgement, and for Sharon Weber who has taken on that representative role on behalf of everyone impacted.
"In preparation for trial and mediation, we've undertaken assessments of participating group members' loss and damages.
"It gives us the indication (that total compensation could be more than $20 million).
"There may be people who haven't identified themselves to us, so it's important they do so now."
- To contact Maddens Lawyers call 1800 815 228.
- Greater Hume Council was approached for comment.