Crossley v English
[2025] WASCA 141
•24 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CROSSLEY -v- ENGLISH [2025] WASCA 141
CORAM: THOMSON P
MITCHELL JA
ARCHER JA
HEARD: 11 JUNE 2025
DELIVERED : 24 SEPTEMBER 2025
FILE NO/S: CACV 47 of 2024
BETWEEN: PATRICIA MARGARET CROSSLEY
First Appellant
WILLIAM EDMUND CROSSLEY
Second Appellant
AND
PAUL CHRISTOPHER ENGLISH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
Citation: CROSSLEY -v- ENGLISH [No 2] [2024] WASC 268
File Number : CIV 1457 of 2019
Catchwords:
Energy and resources - Water resources - Nature of rights conferred by Rights in Water and Irrigation Act 1914 (WA), s 20 - Private statutory duty - Limitation of actions - Construction of a dam more than 6 years prior to commencing proceedings - Continuing nuisance - Continuing damage or breach of duty
Legislation:
Limitation Act 2005 (WA), s 13(2)
Rights in Water and Irrigation Act 1914 (WA), s 20 and pt III
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
| First Appellant | : | E M Heenan SC & T Pontre |
| Second Appellant | : | E M Heenan SC & T Pontre |
| Respondent | : | C P K Russell SC & B J Tomasi |
Solicitors:
| First Appellant | : | Thomson Geer - Perth |
| Second Appellant | : | Thomson Geer - Perth |
| Respondent | : | Williams & Hughes |
Case(s) referred to in decision(s):
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321
Embrey v Owen (1851) 6 Exch 353; 155 ER 579
Hanson v The Grassy Gully Gold Mining Co (1900) 21 NSWR 271
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140
Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16; [2024] AC 595
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Masters v Brent London Borough Council [1978] 1 QB 847
Miner v Gilmour (1858) 12 Moo PC 131; 14 ER 861
Naoum v Dannawi [2009] NSWCA 253; (2009) 75 NSWLR 216
Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
Rapoff v Velios [1975] WAR 27
Rugby Joint Water Board v Walters [1967] Ch 397
Seiffert v Prisoners Review Board [2023] WASCA 15
Sportsbet Pty Ltd v Victoria [2011] FCA 961; (2011) 282 ALR 423
Thompson v Gibson (1841) 7 M&W 456; 151 ER 845
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317
Williams v Morland (1824) 2 B&C 910; 107 ER 620
THOMSON P:
Does a downstream landowner have a private cause of action against an upstream landowner for breach of a statutory duty under s 20 of the Rights in Water and Irrigation Act 1914 (WA) (RIWIA), where a dam constructed more than six years ago on the upstream land stops, impedes or diverts the flow of water in a watercourse in relation to downstream land? This is the issue which is the subject of the present appeal.
The trial judge held that the downstream landowner does have a cause of action for breach of statutory duty, but this becomes statute barred by reason of a limitation issue if proceedings are commenced more than six years after the dam is constructed.[1] The appellants challenge the trial judge's decision on the limitation issue. They say that there is a continuing cause of action every day, as the water which is stopped, impeded or diverted is different each day. On the other hand, apart from seeking to uphold the limitation point, the respondent says that the trial judge was correct to dismiss the claim of the downstream landowner for an additional reason. The respondent contends that a downstream landowner does not have any cause of action against the upstream landowner for breach of a statutory duty under s 20.
[1] Crossley v English [No 2] [2024] WASC 268 (primary reasons). In these reasons, unless otherwise stated, all pinpoint references are to the primary reasons.
In my view, for reasons which I set out below, the trial judge was correct in her conclusions that the downstream landowner does have a cause of action for breach of the statutory duty contained in s 20 of the RIWIA, but the limitation period for pursuing that cause of action had expired by the time when the appellants commenced their proceedings. Accordingly, I would dismiss the appeal. I would also dismiss the notice of contention.
Factual background
The appellants own a property located at 36 Settlers Boundary Road, Tingledale, near Walpole. They purchased it on 6 August 1992. It is approximately two hectares. Between about 1998 and 2013, the appellants ran a bed and breakfast business on the property.
The respondent owns a contiguous property, immediately to the west of the appellants' property. It is somewhat larger than the appellants' property, covering approximately 26 hectares. Its address is 518 Hazelvale Road, Hazelvale. The respondent purchased his property in 2004. Since about 2007, he has held a licence to farm marron at the property.
When the respondent purchased his property, there was an existing dam on the western side of the property, which covered an area of 5,000 m2. Over the period since he purchased the property, the respondent has expanded the footprint of the original dam, and constructed two additional dams. In about 2006, the respondent constructed a dam in about the centre of his property, which covered an area of approximately 18,000 m2. In 2009, the respondent increased the footprint of the original dam to approximately 10,000 m2. In about 2011, the respondent constructed what became known as the 'Third Dam'. This was the largest of the dams, covering an area of approximately 22,000 m2. It was constructed to the eastern side of the respondent's property, and was built very close to the boundary line dividing the respondent's property from the appellants' land.
The Shire of Denmark (the Shire) imposed a number of conditions upon the approval which it granted for construction of the Third Dam. In December 2011, the second appellant wrote to the Shire complaining that the Third Dam had not been constructed in accordance with its planning approval. On 14 April 2014, the Shire informed the respondent that the Third Dam did not comply with its planning approval, and that the respondent must either modify the Third Dam or apply for retrospective approval. On 21 May 2014, the respondent took the second course and applied for retrospective approval. This was granted on 30 June 2014.
The appellants continued to have concerns about the Third Dam. This ultimately led to them commencing the present proceedings on 15 March 2019.
All three dams on the respondent's property have been constructed on a watercourse which initially flowed from west to east across the respondent's property and then onto the appellants' property. The watercourse enters the respondent's property through a culvert under a road into the western boundary of the respondent's property. When only the original dam existed, the watercourse ran through the respondent's property, through another culvert under Settlers Boundary Road (which divides the properties of the appellants and the respondent) and onto the appellants' land. The trial judge found that there was water flowing in the watercourse for most of the year, although it ceased flowing for a few days in summer.[2]
[2] [219], [315(a)].
The trial judge found that no evidence was adduced at trial of any diminishment of the flow of water in the watercourse from the construction of the dams other than the Third Dam.[3] However, the trial judge found that after the Third Dam was built, at least for an initial period while the Third Dam filled, the water in the watercourse on the appellants' property immediately stopped flowing.[4]
[3] [288].
[4] [289], [315(b)].
It is important to understand the outlet system of the Third Dam. Initially, it comprised of two 300 mm vertical outlet or spillway pipes. These were at the surface water level of the Third Dam. When the water level exceeded the pipes at the surface, water flowed down these pipes to two outlet pipes at the bottom of the dam wall at a point about 4 m from the boundary. The outlet pipes directed the water into the watercourse as it flowed into the appellants' property. The respondent explained at trial that he placed the entrance of the outflow pipes on the surface of the dam for two reasons. First, so that the marron did not go down the watercourse (which they would have if the outflow system was within the dam). Secondly, the surface water was likely to be the best quality water.[5]
[5] [244]; Transcript, Crossley v English [No 2] [2024] WASCA 268, Supreme Court of Western Australia, 23 January 2023, 500 (Trial ts).
In about November 2019, the respondent installed a siphon system at the Third Dam. This comprises of a hose which runs from the top of the bank of the Third Dam to a point near its base. The hose is connected to a tap. A few weeks after its installation, the hose was buried in the dam wall. Initially, a 19 mm siphon was installed which was changed to a 45 mm siphon in April 2020. The siphon was managed by the respondent's partner with the intent of equalising the outflow of water into the appellants' property with the inflow of water into the respondent's property from upstream. The respondent's partner explained at trial that she assessed the rate of flow onto the respondent's property visually and, from these observations, attempted to match it by using the siphon system to adjust the downstream flow out of the respondent's property.[6] The respondent's partner explained that the siphon system was used when there was no water coming out of the overflow pipes.[7]
[6] [248]; Trial ts 634 - 635.
[7] [248]; Trial ts 627.
Against the background of the outlet pipes and the siphon system, the trial judge also made the following additional factual findings concerning the effect of construction of the Third Dam upon the flow of water in the watercourse:[8]
(a)after the Third Dam was filled and prior to April 2019, water only flowed in the watercourse when water was discharged from the Third Dam's outlet pipes, which flowed into the watercourse and then through the appellants' property;
(b)from April 2019, during those months when there was no flow of water from the outlet pipes of the Third Dam, water was discharged from the siphon, which flowed into the watercourse and then through the appellants' property; and
(c)in at least the winter of 2020, the amount and rate of water discharged from the outlet pipes of the Third Dam was significantly greater than the amount and rate of water in the watercourse at a point just outside the respondent's property, where the watercourse entered the property.
[8] [315(c) ‑ (e)].
Section 20(1)(c) of the RIWIA is the critical provision in the present case. Factually, the operation of this provision turns upon whether the flow of water in a watercourse has been 'sensibly diminished'. The trial judge found for three primary reasons that, by the construction of the Third Dam, the respondent had indeed 'sensibly diminished' the flow of water in the watercourse.[9]
[9] [332].
The first reason for this conclusion was that, prior to the construction of the Third Dam, there was a constant flow of water in the watercourse all year round, apart from a few days in summer.[10] The trial judge found that, since the construction of the Third Dam, this was no longer the case. Without the use of the siphon, the trial judge found that water did not flow into the watercourse on the appellants' property for periods of almost five to six months. The trial judge considered that this was an appreciable or considerable reduction in the flow of water in the watercourse, and accepted that this was a result of the construction of the Third Dam.
[10] [333].
The second reason for the trial judge's conclusion was that the Third Dam was constructed upon the watercourse, and the watercourse became part of the dam. Her Honour concluded that by constructing the watercourse so that it became part of the dam, the respondent removed all flow of water in the watercourse, and that there was no flow of water in the watercourse downstream of the Third Dam at all.[11] The trial judge held:[12]
The water that enters the watercourse and the [appellants' property] downstream of the Third Dam is water that either overflows from the Third Dam or is supplied from water in the Third Dam via the siphon. While I accept that the operation of the siphon ensures there is water flowing to the [appellants' property] all year, it is not water that is flowing through the watercourse (even if at least some of it originated from the watercourse). By removing all water flow from the watercourse and replacing it with an outflow from the Third Dam, [the respondent] has ceased all flow of water in the watercourse in breach of the Act.
[11] [334].
[12] [334].
The third reason for the trial judge's conclusion was that water from the outflow system from the Third Dam did not flow into the watercourse. The trial judge found that the respondent accepted this to be the case. The respondent had explained that there was 'no way [he] could build an overflow system that was going to follow the contour of the original watercourse'.[13]
[13] [335].
The trial judge also found that, since the construction of the Third Dam, the flow of water in the watercourse during winter had significantly increased and was turbulent.[14] However, the trial judge did not consider this finding to be of any relevance, because the factual condition for the operation of s 20(1)(c) of the RIWIA was that the flow of water in the watercourse had been 'sensibly diminished'. Consequently, the trial judge said that the claim by the appellants for damage caused by turbulent flows of additional water was not a claim for breach of the RIWIA.[15]
[14] [358], [371].
[15] [360], [371].
The trial judge found that the reduction of the flow of water to the appellants' property had caused a detrimental impact upon a dam near their house. As a result of water not flowing during the summer, the dam on the appellants' property dried up, and it became a 'putrid bowl'. Consequently, the appellants were unable to water their hothouse, and two of the toilets had to be flushed with fresh drinking water.[16] The trial judge found that construction of the Third Dam materially contributed to, and thus legally caused, the dam on the appellants' property to dry up and remain dry for lengthy periods when there was no water over the summer months.[17] There was also evidence that the second appellant had become depressed, and failed to maintain the appellants' property in an appropriate fashion over an 11 year period.[18]
[16] [362], [370].
[17] [370].
[18] [364] ‑ [365], [367].
As mentioned, the appellants conducted a bed and breakfast business on their property until 2013. The trial judge considered that it was unnecessary to make any specific finding as to why they closed this business and did not reopen it. Her Honour considered that there were different possible explanations, including market conditions.[19] However, she did find, to the extent that it was necessary to do so, that the closure of the bed and breakfast business was not caused by any loss of water in the watercourse.[20]
[19] [265] ‑ [267].
[20] [267].
Present legislative scheme
Part III of the RIWIA - general
The following is a summary of the legislative background contained in the RIWIA, as it has existed at all material times since the events in this case occurred.
Part III of the RIWIA concerns the control of water resources in the State of Western Australia. Division 1 provides for the objects and application of pt III. The waters excluded from the application of pt III are essentially limited to underground or spring waters which have risen to the surface on land that has been granted or demised by the Crown, but which has not passed beyond the boundaries of that land; and water in any wetland on land that has been granted or demised by the Crown and is wholly within the boundaries of the land belonging to the owner or occupier of the land on which it is situated.[21]
[21] RIWIA s 5(1).
Division 1A of pt III contains certain general provisions relating to the ownership and control of waters within Western Australia. Division 1B contains provisions which apply to surface waters (ie water in every watercourse or wetland) within certain proclaimed districts. Division 2 applies to the other surface waters outside proclaimed districts. Division 3 concerns underground waters.
The properties of the appellants and the respondent are not within proclaimed districts, and are therefore subject to the operation of div 2 rather than div 1B.
There are further divisions in pt III, which concern limitations on rights conferred by and under divs 1B, 2 and 3 (div 3A), rights of review (div 3B), local water resources management committees (div 3C), management plans (div 3D), a register of instruments (div 3E) and other miscellaneous matters (div 4). None of these are presently relevant.
The objects of pt III include to provide for the management of water resources, and in particular for their sustainable use and development to meet the needs of current and future users; and to provide for the management of water resources for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them.[22] A further object is to promote the orderly, equitable and efficient use of water resources.[23]
Part III Division 1A of the RIWIA
[22] RIWIA s 4(1)(a).
[23] RIWIA s 4(1)(b).
As indicated, div 1A contains certain general provisions relating to the ownership and control of waters in Western Australia. Although somewhat complicated, these provisions define particular situations in which one person has a cause of action against another person for breach of statutory duty related to taking water from a watercourse or wetland.
Section 5A provides that the right to the use and flow, and to the control, of the water at any time in any watercourse, wetland, or underground water source vests in the Crown except as allocated under the RIWIA or another written law.
Section 5C applies to a watercourse or wetland to which div 1B applies; and to a watercourse or wetland to which div 2 applies, if it is prescribed by the regulations to be subject to the operation of s 5C.[24] Neither of these conditions applies in this case. However, it is relevant that if s 5C applies, it makes it an offence to take water from any watercourse, wetland or underground water source to which the section applies, or to cause or permit any of those things to be done. There is an exception where the taking is under and in accordance with certain rights, including a right conferred by s 20 of the RIWIA, or under and in accordance with a licence issued by the Minister. The penalty prescribed is $10,000 and a daily penalty of $1,000.
[24] RIWIA s 5C(2).
Section 5E applies if a person contravenes s 5C and the contravention affects a person exercising a right referred to in s 5C(1) or taking water under a ministerial licence under s 5C.[25] The affected person may bring an action for breach of statutory duty.[26] As well, s 5E applies if a person taking or using water from a water resource does not take all reasonable steps to minimise the 'degradation' of the water resource.[27] A 'degradation', in respect of water, includes the sensible diminishing of the quality or quantity of that water.[28] A person 'directly affected' by the degradation of the water resource may also bring an action for breach of statutory duty.[29] Section 5E(2) has effect subject to the defences and other incidents applying to actions for breach of statutory duty.[30]
[25] RIWIA s 5E(1)(a).
[26] RIWIA s 5E(2)(a).
[27] RIWIA s 5E(1)(b).
[28] RIWIA s 2(1).
[29] RIWIA s 5E(2)(b).
[30] RIWIA s 5E(3).
From this analysis, it may be observed that, leaving aside underground water sources, s 5C and s 5E expressly provide for an action for breach of statutory duty against a person taking water from a watercourse or wetland in the following circumstances:
(a)where there is a watercourse or wetland which is subject to the operation of div 1B of pt III (ie it is within a proclaimed district); and a person who has a statutory right to take water under the RIWIA, or a right under a ministerial licence, is 'affected'[31] by another person taking water from the watercourse or wetland without authority under the RIWIA or a ministerial licence;
(b)where there is a watercourse or wetland which is subject to the operation of div 2, but is prescribed by regulations to be subject to s 5C;[32] and a person who has a statutory right to take water under the RIWIA, or a right under a ministerial licence, is 'affected' by another person taking water from the watercourse or wetland without authority under the RIWIA or a Ministerial licence; or
(c)where a 'water resource' (which includes a watercourse or wetland), wherever it is located, is subject to a person taking or using water from it; and that person does not take all reasonable steps to minimise degradation of the water resource (ie the person does not take all reasonable steps to minimise sensibly diminishing the quality or quantity of the water in the water resource); and another person is 'directly affected' by the degradation of the water resource.
Part III Division 1B of the RIWIA
[31] RIWIA s 5E(1)(a) uses the verb 'affects'.
[32] Ie, situated on or within an area prescribed by the regulations to be subject to the operation of s 5C: s 5C(2)(b).
As mentioned, div 1B applies to waters within proclaimed districts. It is evident from s 17 that a dam upon a watercourse to which this division applies cannot be constructed or altered except as authorised by a permit or under any other Act.
Section 17(1) provides that where, whether before or after the coming into operation of the RIWIA, land was or is granted, transferred in fee simple, or demised by the Crown, a person shall not, except as authorised by a permit or by any other Act, obstruct, destroy or interfere with any watercourse, race, or drain flowing through or over the land, or any dam or reservoir, or the bed of any disused watercourse, race, or drain, that is on the land. Section 17(3) provides that a person shall not, except as authorised by a permit or by any other Act, obstruct, destroy or interfere with the waters, bed or banks of any watercourse flowing through or over, or wetland situate wholly or partly on, land that has not been granted or demised by the Crown. Section 17(4) makes it an offence to act contrary to s 17(1) or s 17(3).
By way of assisting with the interpretation of these provisions, s 17(3a) provides that without limiting s 17(1) or s 17(3) the construction or alteration of a dam is to be taken to be prohibited by those subsections, and the reference in those subsections to a permit is a reference to the grant of a permit by the Minister under regulations referred to in s 17B.
Consequently, a person cannot construct a dam, on land which is subject to the operation of div 1B, which obstructs, destroys or interferes with a watercourse, without ministerial authority.
Part III Division 2 of the RIWIA
Division 2 of pt III applies to and has effect in relation to every watercourse or wetland to and in relation to which div 1B does not apply, unless the relevant waters are excluded from the operation of pt III altogether by s 5 (ie the waters are from underground springs or wetlands wholly contained within the boundaries of a private property).
Section 20 of the RIWIA is the critical provision for the present case. Materially, it is in the following terms:
20. Riparian owners etc., rights of
(1)The owner or occupier of any land (riparian land) alienated from the Crown through or contiguous to which runs any watercourse, or contiguous to which, or partly within which, is situate any wetland, has the right, as such owner or occupier, to take water in that watercourse or wetland free of charge ‑
(a)for the domestic and ordinary use of himself and of his family and servants; and
(b)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and
(c)to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose,
but the right described in paragraph (c) may be made inapplicable to, or be restricted in relation to, any riparian land by the provisions of local by‑laws that apply to the land, and that paragraph is to be read subject to any such provisions.
…
(4)The operation of this section does not prevent the owner or occupier of land from making any dam or tank on the land as long as the owner or occupier is taking water in accordance with this section.
It may be observed that this provision is effectively a statutory statement of the common law relating to riparian rights. In Miner v Gilmour,[33] Lord Kingsdown on behalf of the Privy Council said:
By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But, he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury.
[33] Miner v Gilmour (1858) 12 Moo PC 131; 14 ER 861, 870.
There is a parallel provision to s 20 in div 1B, contained in s 9. However, there is no equivalent to s 20(1)(c) in s 9(1). As well, for reasons which I have mentioned in [34] above, s 9(1) does not authorise the construction of a dam which has the effect of taking water. That would be contrary to the express operation of s 17.
Section 21 of the RIWIA confers a right for a person to take water for particular purposes from any watercourse or wetland that is vested in the Crown and to which there is access by a public road or by a reserve for public access at the point where the water is taken. It is not directly relevant to the circumstances of this case. However, it is part of the legislative scheme which must be considered for the purposes of construing the RIWIA.
Section 22(1) of the RIWIA permits the relevant Minister administering the RIWIA to give a direction about the manner of exercise of rights under s 20 or s 21, or in certain cases, where a person is taking water without any right to do so.
It applies where the relevant Minister is of the opinion that a person has diverted, taken or used water from a watercourse or wetland, but exceeds a right under s 20 or s 21 to do so, or is exercising a right under s 20 or s 21 without taking all reasonable steps to minimise the degradation of the watercourse or wetland, or does not have any right under s 20 or s 21 to divert, take or use water. In those circumstances, if the unauthorised diversion, taking or use of the water from the watercourse or wetland has resulted in or contributed to interference with the rights of another person, or damaged or injured the land of another person, or is contrary to the public interest, the Minister may give a notice in writing providing directions to the person who has diverted, taken or used the water. That direction may be about the manner and extent to which the person may continue to divert, take or use such water otherwise than in the exercise of rights under s 20 or s 21.
A direction given under s 22(1) shall not permit the diversion, taking or use of water otherwise than in the exercise of a right under s 20 or s 21 unless the Minister is satisfied that such diversion, taking, or use will not result in or contribute to any interference, damage or injury of the kind just mentioned.[34]
[34] RIWIA s 22(3).
A person who diverts, takes or uses water contrary to a direction given to that person commits an offence and is liable to a fine not exceeding $4,000 and a daily penalty of $400.[35]
[35] RIWIA s 22(4).
Section 24 of the RIWIA prevents any authorised taking of water from land the subject of div 2 of pt III from creating any civil liability, but otherwise provides that div 2 does not affect any remedy in civil proceedings. It is in the following terms:
Nothing contained in, or done under, this Division affects any remedy to which a person would otherwise be entitled in civil proceedings except that a person shall not be liable to be proceeded against in respect of any diversion, taking, or use of water that is permitted by a direction under section 22 or authorised by a licence under section 5C or by a local by‑law.
Trial judge's decision on existence of statutory cause of action
The trial judge concluded as follows:[36]
[I]t is my view that on the proper construction of the Act, s 24 preserves the right of a party to bring proceedings seeking civil remedies for a breach of any of the provisions in div 2. On this basis, I consider that where a person takes water in excess of the rights set out in s 20 or s 21 of the Act, a party who is directly affected by this conduct can commence and maintain a civil claim against that person. This right is in addition to the right of the Minister, pursuant to s 22 of the Act, to give a notice in writing to the party in breach of the Act.
[36] [199].
The trial judge reached these conclusions for four reasons.
The first reason was that s 20 of the RIWIA sets out the scope and extent of the rights of a riparian owner and authorises the taking of water in the circumstances and to the extent set out in that section. The trial judge considered that it was important that it was not an offence to take water in excess of the rights conferred by s 20. Rather the offence created in s 22(4) of the RIWIA is the failure to comply with a direction issued by the Minister.[37]
[37] [200].
The second consideration relied upon by the trial judge was that the Minister is not required, pursuant to s 22 of the RIWIA, to issue a notice giving directions, but has a discretion whether to do so. The trial judge considered that there was nothing in the text, context or purpose of div 2 which supported a construction that the only remedy for a downstream riparian owner, affected by a breach of the RIWIA by an upstream riparian owner, is to request and hope that the Minister issues a notice to the upstream riparian owner.[38]
[38] [201].
The third reason for the trial judge's conclusions was her view that it is necessary for meaning to be given to s 24. The trial judge said that if this section did not preserve the right of a downstream riparian owner to bring civil proceedings for non‑compliance with s 20 or s 21, including taking water contrary to or in excess of these entitlements, it had no work to do. Her Honour considered that this was not the intention of the legislature. The respondent's counsel did not offer any explanation for the purpose of the section.[39]
[39] [202].
The fourth reason identified by the trial judge was that the RIWIA imposes an obligation on a riparian owner to take water only to the extent that the flow of water is not sensibly diminished. This obligation is imposed for the protection or benefit of a particular class of persons, namely the downstream riparian owners. The trial judge considered that the legislature intended that s 24 would preserve a cause of action for breach of the obligations in div 2 by upstream riparian owners, where this breach causes injury or damage to their downstream neighbours, who are an identified and particular class of persons.[40]
[40] [203].
The trial judge considered that this construction was supported by the second reading speeches which introduced the 1984 amendments to the RIWIA.[41] The trial judge had made mention[42] of a part of the second reading speeches in which the amendments were said to preserve 'the right of … landholders to use the normal civil court processes, to obtain remedy for damages sustained, as an alternative',[43] and the subsequent debate in which reference was made to the amendments as codifying riparian rights.[44] The trial judge also referred to[45] the clause notes to s 5E and s 24, received by the Legislative Assembly in relation to the 2000 amendments, which were initially contained in the Rights in Water and Irrigation Amendment Bill 1999 (WA). The trial judge considered that these clause notes contemplated that a person could take civil action to protect their rights separately from an action based upon what became s 5E.
[41] [204].
[42] [187].
[43] Western Australia, Parliamentary Debates, Legislative Assembly, 9 October 1984, 2068 (Mr A R Tonkin, Minister for Water Resources); Western Australia, Parliamentary Debates, Legislative Council, 4 December 1984, 4908 (Mr D K Dans).
[44] Western Australia, Parliamentary Debates, Legislative Assembly, 30 October 1984, 3151 (Mr A Mensaros).
[45] [204] ‑ [205].
Trial judge's decision on liability for statutory cause of action
As explained,[46] the trial judge found that the respondent had sensibly diminished the flow of water in the watercourse by the construction of the Third Dam.[47] Consequently, the trial judge held that the respondent had breached s 20 of the RIWIA and that, as parties affected by this breach of s 20, the appellants were entitled to commence civil proceedings against the respondent. The trial judge said that this right had been preserved by s 24 of the RIWIA.[48]
[46] [14] ‑ [18] above.
[47] [332].
[48] [336].
Subject to the limitation issue, which the trial judge decided against the appellants, the trial judge found that the appellants' claim for damages was inflated. The trial judge considered that if the claim was not statute barred, the only damages which could be assessed would be for the consequences of the respondent taking water contrary to s 20 for the six year period prior to the commencement of the proceedings (ie from 15 March 2013),[49] and excluding any damages based upon turbulent overflows.[50] On this basis, the trial judge assessed damages on the information available to be $6,200.[51] Her Honour did not make any award for aggravated or exemplary damages, because she did not consider these to be authorised under the RIWIA.[52]
[49] [417].
[50] [419].
[51] [422], [425].
[52] [440] ‑ [441].
The trial judge would have refused an injunction requiring the respondent to remove the Third Dam, even if the claim was not statute barred. As a matter of discretion, the trial judge considered that the significant delay by the appellants in commencing these proceedings would have meant that injunctive relief of this nature was not appropriate. Further, the trial judge would not have granted any other form of injunction, upon the basis that she was not satisfied that the appellants had a fresh cause of action accruing daily.[53]
[53] [403] ‑ [404].
Trial judge's decision on the limitation issue
The trial judge had to consider the operation of s 13(1) of the Limitation Act 2005 (WA). This provides that an action on any cause of action cannot be commenced if six years have elapsed since the cause of action accrued.
The respondent contended that the appellants' cause of action arose upon the construction of the Third Dam in March 2011. Hence, the respondent contended that the appellants' cause of action was time‑barred, because it had to be commenced no later than March 2017, but the writ was issued on 15 March 2019.
On the other hand, the appellants argued that, as riparian owners, they had rights that accrued on a daily basis for each day's water which was sensibly diminished. They said that the cause of action arises upon a daily basis, and that there was no limitation issue in respect of their claim. The appellants put the argument colourfully in the appeal. They submitted that Heraclitus of Ephesus might well have said that no man or woman may take the same water from a watercourse twice. Each taking of water from a watercourse is a taking of water different from what has been taken before.
The trial judge considered that the nature of the claim brought by the appellants did not have, as one of its elements, a requirement that they prove actual damage. Her Honour said that the claim was one for the diversion of water, which at common law was maintainable without proof of any actual personal damage. That is because there was an interference with a legal right, and the law presumed damage. Her Honour considered that the same analysis would apply to a statutory claim, as there was nothing in the RIWIA which introduced a requirement for proof of actual damage before a cause of action accrued.[54]
[54] [393].
The trial judge then held that because proof of damage was not an element of the cause of action, the cause of action accrued on the date the tort was committed, and the limitation period began to run from that date. Her Honour considered that a new cause of action would only arise if there was a further change or breach which went beyond the cause of action which had become statute barred.[55]
[55] [394].
The trial judge said that, although the respondent continued to take water on a daily basis in excess of his entitlements under s 20 of the RIWIA, this conduct arose from the construction of the Third Dam in its original form, and not from any subsequent acts or conduct.[56] The trial judge considered that the act of constructing the dam was the breach of the RIWIA upon which the appellant relied.[57] Further, at the time that the Third Dam was constructed, and the amount of water in the watercourse on the appellants' land was sensibly diminished, all of the facts that the appellants needed to prove to sustain the cause of action had occurred.[58] The continued sensible diminishment of the water in the watercourse was a consequence of the respondent's failure to remedy his past breach, but was not the commission of further breaches of s 20.[59]
[56] [396].
[57] [398].
[58] [399].
[59] [400].
For these reasons, the trial judge concluded that the claim by the appellants arose from the construction of the Third Dam, and that the cause of action based upon this breach of s 20 was statute barred by s 13(1) of the Limitation Act 2005 (WA).[60]
[60] [401].
Grounds of appeal
The appellants appeal upon two grounds.
The first ground claims the following errors by the trial judge:
(a)the trial judge erred in law in finding[61] that the water flowing from the outflow system of the Third Dam built across the watercourse on the respondent's property was not water flowing in the watercourse downstream of the Third Dam and across the appellants' land;
(b)the trial judge erred in law in finding[62] that the respondent's taking of water on a daily basis in excess of his entitlements under s 20 of the RIWIA is not a repetition of a wrongful act and that a fresh cause of action does not arise each day, and consequently erred in law in finding[63] that the appellants' claim for breach by the respondent of s 20 was statute barred; and
(c)the trial judge should have held that a claim for breach of s 20 accrued to the appellants each and every time the respondent took water from the watercourse by capturing and storing it in the Third Dam or by impeding its flow out of the Third Dam, and that the appellants' claim for breach of s 20 accordingly was not statute barred.
[61] [334] ‑ [335].
[62] [396] ‑ [400].
[63] [401].
The second ground of appeal is that:
(a)the trial judge erred in law and in fact in finding[64] that, even if the appellants' claim for breach of s 20 of the RIWIA was not statute barred, injunctive relief restraining the respondent from taking water from the watercourse except as permitted by s 20 should be refused as a matter of discretion due to the delay in the commencement of proceedings. This ground claims that the trial judge acted on a wrong principle in finding[65] that the respondent's taking of water on a daily basis in breach of s 20 was not a repetition of a wrongful act and did not give rise to a fresh cause of action on each day water was taken in breach of s 20. Further, the trial judge mistook the facts in finding that there had been a delay between the accrual of the appellants' causes of action and the commencement of proceedings; and
(b)having found[66] that since the construction of the Third Dam there was no longer a constant flow of water in the watercourse all year round apart from a few days in summer and that, without the use of the siphon, water does not flow into the watercourse on the appellants' property for periods of almost five to six months a year, and that this was an appreciable or considerable reduction in the flow of water in the watercourse constituting a sensible diminishment in the flow of water in the watercourse downstream of the Third Dam, and having found[67] that the respondent continues to take water on a daily basis in excess of his entitlements under s 20, the trial judge should have found that there was no relevant delay in the commencement of proceedings for the purposes of exercising the discretion to grant injunctive relief.
[64] [403] ‑ [404].
[65] [397].
[66] [332] ‑ [333].
[67] [396].
Notice of contention
The respondent has two grounds in his notice of contention.
The first ground is that the trial judge was correct to dismiss the appellants' case because s 20 of the RIWIA does not give rise to a private cause of action for breach of statutory duty.
The second ground is that the trial judge was correct in refusing, in the exercise of her discretion, injunctive relief because:[68]
(a)there was delay in seeking the injunction;
(b)there is no evidence of any ongoing sensible diminishment;
(c)the proposed injunction is expressed in unclear and imprecise terms;
(d)compliance with any injunction will likely involve performance of ongoing, complex and uncertain obligations;
(e)there is no evidence of any substantial future damage to the appellants absent the injunction;
(f)damages would be an adequate remedy; and/or
(g)the cost of performing the remedial work required to satisfy any injunction is unknown but obviously disproportionate.
[68] White AB 46 (Respondent's notice of contentions [2]).
The respondent, with the consent of the appellants, filed supplementary submissions just prior to the hearing of the appeal. These effectively contained a third point of contention. That is that the appellants adduced no evidence and ran no case which sought to prove any taking beyond the mere existence of the Third Dam, and did not prove a causal link between the taking which occurred and sensible diminishment of the amount of water which they would have received had there been no taking.
Notice of contention ground 1
Logically, a consideration of the appeal should commence with the first ground in the notice of contention. Unless there is a private cause of action available to the appellants for breach of statutory duty, questions of limitation do not arise.
A particular area of debate
Both parties agreed at the appeal hearing that the common law riparian rights of downstream landowners have been abrogated by the RIWIA in respect of waters covered by div 2 of pt III of the RIWIA. Their fundamental difference appeared to be whether this abrogation occurred by reason of amendments enacted in 1984, which introduced s 20 of the RIWIA, or by reason of s 5A, which was introduced into the RIWIA by amendments enacted in 2000. The appellants said that the 1984 amendments abrogated common law riparian rights, and wholly replaced them with 'codified' statutory rights under s 20. The respondent argued that the 1984 amendments created a new statutory regime which co‑existed with common law riparian rights in respect of waters covered by div 2 of pt III, but the 2000 amendments later abrogated the common law riparian rights.
The significance of this difference was said to be that, if the 1984 amendments created a new regime which was intended to co‑exist with common law riparian rights, there was no intention for the 1984 amendments (including s 20) to create a statutory cause of action as between upstream and downstream landowners. However, if the 1984 amendments abolished common law riparian rights, there would be greater reason to interpret s 20 as intending to replace the common law riparian rights with a substitute statutory regime.
Having regard to the comments of French CJ, Gummow and Crennan JJ in ICM Agriculture Pty Ltd v The Commonwealth,[69] a statutory provision which vests the right to the use and flow, and to the control, of water in a watercourse in the Crown is an exercise of sovereignty which is inconsistent with the continued existence of common law riparian rights in respect of that water. That form of statutory vesting appears to have occurred in Western Australia at different times in respect of different areas.
[69] ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [54].
Section 4(1) of the RIWIA, as it was passed in 1914, contained a vesting provision, but this was limited to certain irrigation districts.[70] The nature of this limitation changed over the years.[71] The 1984 amendments replaced s 4(1) with a vesting provision contained in s 8(1). This only applied to irrigation districts then proclaimed under the RIWIA. However, the 2000 amendments contained s 5A, vesting the right to the use and flow, and to the control, of all waters in any watercourse, wetland or from an underground source, in the Crown. The expansion of the operation of s 5A beyond proclaimed irrigation districts to all waters meant that common law riparian rights in respect of waters outside irrigation districts were extinguished, at the latest, when s 5A was enacted.
[70] RIWIA s 27 (as originally passed).
[71] For example, see s 27 after amendments made in 1939.
However, for reasons which I will elaborate, I do not consider that the area of debate between the appellants and the respondent which I have described above is determinative in this case. Whether s 20 of the RIWIA creates a statutory duty enforceable by a civil action for damages is to be answered by reference to the terms of the legislation, and does not depend upon whether common law riparian rights continued to exist between 1984 and 2000.
General observations about the existence of a private statutory duty
Whether the prescription of a statutory duty creates a private cause of action enforceable by a person affected by the breach of duty is a matter of statutory construction. In Byrne v Australian Airlines Ltd,[72] Brennan CJ, Dawson and Toohey JJ said:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection (See Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 404, 405). The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P BrayLtd ((1937) 56 CLR 464, 477 ‑ 478), an examination of the statute 'will rarely yield a necessary implication positively giving a civil remedy'. One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right (O'Connor v S P Bray Ltd (1937) 56 CLR 464, 478).
[72] Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 424.
These principles are uncontroversial and have been approved many times.[73] However, a particular point made in this passage is that a statutory duty of care incorporating a higher or more specific standard of conduct may co‑exist with a common law duty of care. That is significant in the context of the arguments made in the present case. The respondent says that a statutory intention that common law riparian rights should continue to exist after the 1984 amendments (which introduced s 20) is inconsistent with a statutory intention that s 20 created a statutory duty which could be enforced by a downstream landowner by private cause of action. However, that submission is at odds with the observation made in Byrne, where Brennan CJ, Dawson and Toohey JJ contemplated the continuing existence of a common law duty of care at the same time as a higher or more specific statutory duty of care enforceable by private action.
[73] For a detailed citation of cases in this State, see Seiffert v Prisoners Review Board [2023] WASCA 15 [270] ‑ [273].
For that reason, whether s 20 created a private cause of action to enforce a breach of statutory duty is not determined by whether common law riparian rights continued to exist after the enactment of that provision. Even if they continued to exist after the introduction of s 20 in 1984, that does not mean that s 20 may not have created a private cause of action. The focus of any analysis about the existence of a statutory duty enforceable by a civil action should be upon the terms of the statute.
Analysis related to s 20
Section 20(1) of the RIWIA was in the following terms when first enacted in 1984:
Riparian right defined
20. (1) The owner or occupier of any land alienated from the Crown through or contiguous to which runs any water‑course, or contiguous to which, or partly within which, is situate any lake, lagoon, swamp or marsh, has the right, as such owner or occupier, to take water in that water-course, lake, lagoon, swamp or marsh, free of charge ‑
(a)for the domestic and ordinary use of himself and of his family and servants;
(b)for watering cattle or other stock; and
(c)to the extent that the flow of water in the water‑course or the amount of water in the lake, lagoon, swamp or marsh, as the case may be, is not thereby sensibly diminished, for any other purpose,
and every owner of land alienated from the Crown before the commencement of this Act has a further right to take such water for the irrigation of a garden not exceeding 2 hectares in extent, being part of that land and used in connection with a dwelling.
Section 10 of the Rights in Water and Irrigation Amendment Act 2000 (WA) (RIWIAA 2000) amended s 20 to refer to 'wetland' instead of 'any lake, lagoon, swamp or marsh'. As well, s 28 of the RIWIAA 2000 amended s 20(1) by limiting s 20(1)(b) to non-intensive stock watering, and by permitting the right in s 20(1)(c) to be removed or restricted by local by‑laws. Section 28 also removed the right to use water for a garden of less than 2 hectares on land alienated from the Crown. The text of s 20(1) after the 2000 amendments is set out in [37] above.
In my view, the changes to the express terms of s 20 which were brought about by the 2000 amendments, did not materially alter whether s 20 should be characterised as conferring a statutory right upon riparian landowners enforceable by a private damages action.
There are a number of features about s 20, as it was enacted and as it now stands, which should be observed.
First, it confers a 'right' to take water in a watercourse or any lake, lagoon, swamp or marsh, free of charge. The later words were subsequently altered to 'wetland' by the RIWIAA 2000. The language of 'rights' suggests that there is an absolute entitlement to take water. The question is against whom is that right or entitlement to be enforced.
At the time when s 20(1) was enacted, s 8(1) provided that the right to the use and flow, and to the control, of water in any watercourse, lake, lagoon, swamp, marsh or spring should, subject to the RIWIA and until appropriated under the RIWIA or any other Act, vest in the Crown. Section 5A has replaced s 8(1), but is to the same effect.
The right or entitlement to take water contained in s 20 is therefore enforceable against the Crown, in whom the right to use water vested. However, where a watercourse flows through or past a number of properties, each downstream user has rights under s 20(1), which might be directly affected by use of water by upstream users. It may be readily inferred that a statutory purpose of s 20(1) is to ensure an equitable distribution of water as between upstream and downstream users. That is now an express object of the RIWIA, which was introduced within the 2000 amendments by s 4(1)(b).
The right to take water conferred by s 20(1)(c), for purposes other than domestic use or stock watering, is limited by not sensibly diminishing the flow of water. It is true that the purposes of domestic use and stock watering are not so limited, but overall these purposes are inherently limited by their nature. Only so much water may be taken for domestic purposes or stock watering.[74] Further, after the 2000 amendments, s 20(1)(b) made it plain that it only permitted water to be taken for non‑intensive stock watering.
[74] The RIWIAA 2000 s 28 made plain that the water which could be taken for stock watering was for the purpose of ordinary or 'non‑intensive' stock watering.
It is a short step to infer that a statutory purpose of s 20 was always to provide a statutory entitlement to protect an upstream landowner from complaints by a downstream landowner about authorised taking of water, and another statutory purpose was to provide a downstream user with a remedy when an upstream user engages in unauthorised taking. These purposes are consistent with an intention to provide for the equitable distribution of a water resource.
These statutory purposes are confirmed by reference to s 20(1)(c). The right to take water for any purpose other than for the particular purposes specified in s 20(1)(a) and s 20(1)(b) is limited to taking water to the extent that the flow of water in the watercourse or the amount of water in the wetland is not thereby 'sensibly diminished'. The class of people who will be affected by the flow of water being 'sensibly diminished' are downstream users. In these circumstances, there is an evident statutory intention to provide statutory protection for an upstream landowner who takes water from a watercourse or wetland in accordance with the 'right' conferred by s 20, and to provide downstream users with statutory protection from unauthorised taking of water which sensibly diminishes the water resource.
The next question is whether these statutory purposes imply that a person adversely affected by unauthorised taking of water from a watercourse or wetland (most obviously a downstream user) has a positive statutory right to claim a damages remedy against an upstream user who takes water other than in accordance with the entitlement conferred by s 20. That is a question of statutory construction, but as mentioned above at [76] in the passage quoted from Byrne, an examination of the statute will rarely yield a necessary implication to give a civil remedy. Further, in considering this question, it must be recalled that when s 20 was first enacted, the 1984 amendments did not contain s 5C or s 5E, which expressly confer a cause of action for unauthorised taking of water. These further sections were introduced by the 2000 amendments.
A number of points suggest that there was a statutory intention to provide a damages remedy against a person who breached the statutory duty in s 20(1).
First, there is a statutory 'right' conferred. No remedy is expressly prescribed for damage to this right. The most obvious remedy would be civil compensation. As the trial judge observed, the making of a direction by the Minister under s 22[75] is not a remedy in any true sense, as making a direction is discretionary. Hence, making a direction cannot be truly regarded as a response to the infringement of a right conferred by s 20.
[75] The direction was to be made by the Water Authority when s 22 was first enacted in 1984.
Secondly, as explained, the 'right' is intended to achieve the equitable distribution of water resources for private land uses. That is evident from s 20(1)(a) and s 20(1)(b), which refer to taking water for domestic and ordinary use, and for watering cattle or other stock. It is therefore protective of private interests. That is another reason why infringement of the 'right' should be protected by a damages remedy.
Thirdly, it imposes a specific standard which is a statutory equivalent to a common law riparian right. In that sense, recognising a remedy of damages in this instance is equivalent to recognising a damages remedy for a general category of case such as that referred in Byrne at [76] above. This being where a statutory obligation overlays a common law duty of care towards persons whom the statute is intended to benefit or protect.
Fourthly, it is significant that the terms of s 20 are very closely aligned to the common law doctrine of riparian rights, as the passage previously quoted from Miner v Gilmourdemonstrates.[76] There is an almost precise correspondence between the terms of that passage, and the language of s 20. In context, that suggests a statutory statement of a common law right to provide a cause of action between upstream and downstream users. It is not difficult to infer that Parliament intended to provide a specific statutory statement of the same right. Indeed, as the trial judge noted,[77] in the debate that followed the second reading speeches, references are made to the 1984 amendments as codifying riparian rights.[78] The terms of the statutory provision defining the right may not impose a higher standard of care, but they certainly impose a specific one.
[76] See [38] above.
[77] [187].
[78] Western Australia, Parliamentary Debates, Legislative Assembly, 30 October 1984, 3151 (Mr A Mensaros).
The trial judge also mentioned s 24 and the savings effect it had upon remedies to which a person would be otherwise entitled in civil proceedings apart from what was contained in div 2. While this may well have saved common law riparian claims, it is not clear that it would operate to save a claim for breach of statutory duty based upon the terms of s 20. This is something contained in div 2, and therefore lies outside the scope of the saving provision.
Notwithstanding this last point about s 24, the other matters to which I have referred lead me to the view that, at least when it was enacted in 1984, s 20 of the RIWIA created a private cause of action for breach of statutory duty.
Having reached this view, there is a question whether this conclusion is affected by the amendments made in 2000, which introduced s 5C and s 5E and created an express cause of action for breach of statutory duty. As explained previously,[79] for the area relevant to the land of the appellants and the respondent, s 5E(2) creates a cause of action for breach of statutory duty where a person does not take all reasonable steps to minimise degradation of the water resource (ie the person does not take all reasonable steps to minimise sensibly diminishing the quality or quantity of the water resource) and another person is 'directly affected' by the degradation of the water resource.
[79] See [31(c)] above.
If I am correct about s 20 also creating a cause of action for breach of statutory duty, it would apply where s 20(1)(c) is invoked if a person has taken water, but that taking has 'sensibly diminished' the flow of water in the watercourse or the amount of water in the wetland. In my view that is entirely consistent with s 5E(2) creating a cause of action for breach of statutory duty where a person has taken water, but has not taken all reasonable steps to minimise sensibly diminishing the quality or quantity of a water resource. The action under s 5E(2) is of wider effect, as a 'water resource' includes surface waters other than watercourses and wetlands, and also aquifers and underground water.[80] As well, s 5E(2) focuses upon the steps taken to minimise the effect of taking water, whereas s 20(1)(c) focuses upon the effect of taking water.
[80] See the definition of 'water resources' in s 2(1) of the RIWIA.
While there might well be overlap in many cases, there are distinct elements in the different causes of action based upon s 5E and s 20(1)(c). It is not unusual to have a variety of similar but separate statutory claims available, which may apply to the one set of circumstances. For example, s 29(1)(a) of the Australian Consumer Law provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, make a false and misleading representation that the goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use. However, the more general provision contained in s 18 of the Australian Consumer Law might also apply in the same circumstances. That section provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Therefore, the recognition of a statutory cause of action created by s 20 of the RIWIA is not precluded by the existence of an overlapping but distinct cause of action in s 5E.
There is a further issue, about whether the intention to provide a statutory cause of action in the circumstances described in s 5C and s 5E impliedly excludes an intention that there should continue to be a civil action available for breach of statutory duty based upon s 20.
There is a 'basic rule of statutory construction that when an Act is amended by a later Act … the two are to be regarded as one connected and combined statement of the will of the Parliament unless displaced by very clear evidence to the contrary'.[81] This has been described as the principle of co‑interpretation.[82]
[81] Sportsbet Pty Ltd v Victoria [2011] FCA 961; (2011) 282 ALR 423 [51].
[82] Pearce DC, Statutory Interpretation in Australia (10th ed, 2024) [7.29].
The 2000 amendments to add div 1A of pt III are entirely separate from s 20(1), and do not materially alter the express meaning of that provision.
It might be considered odd if an entirely distinct amendment elsewhere in the statute to add div 1A of pt III was intended to affect, and affected, the operation of s 20. However, for the purposes of the principle of co‑interpretation, the effect of an amendment to one provision may be to alter the meaning of other provisions, because they must all be construed together.[83]
[83] Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463; Herzfeld P and Prince T, Interpretation (3rd ed, 2024) [11.60].
Ultimately, however, the critical question is whether, by adding div 1A of pt III of the RIWIA, the amending legislation in 2000 manifests an implied intention to exclude the private right of action which I have concluded was conferred by s 20. While the RIWIA must be construed as a whole in its amended form, nothing in the principle of co-interpretation requires the history of the preceding enactments to be ignored.[84] Hence, nothing in the principle of co-interpretation requires the existence of a private action based upon s 20 to be ignored.
[84] R v Lavender [2005] HCA 37; (2005) 222 CLR 67 [31]; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 [25]; Herzfeld P and Prince T, Interpretation (3rd ed, 2024) [11.50].
In my view, it would need clear words to demonstrate an intention to remove a private cause of action to enforce a statutory duty. Perhaps this is saying nothing more than that an implied intention should be clearly demonstrated where it is relied upon to remove a statutory right enforceable by a private individual.
In this case, I do not consider that it may be concluded that there was any implied intention by adding div 1A of pt III of the RIWIA to exclude a private right of action based upon s 20. As I have explained, reading the RIWIA as a whole after the 2000 amendments (as the principle of co-interpretation requires), the scope of the operation of s 5E and s 20 may overlap in many cases, but not in all cases. Moreover, as I have indicated, the focus of s 5E and s 20 is different.[85]
[85] See [97] ‑ [98] above.
Another way of expressing this is to say that Parliament chose to state an express cause of action in s 5C and s 5E. However, there is no reason why Parliament would wish to remove an existing cause of action based on s 20. Parliament may have been doubtful whether the statutory duty contained in s 20 was enforceable by a private damages action, and may therefore have introduced s 5C and s 5E. It is not possible to say that this was the reason for introducing those provisions, as the second reading speech and other extrinsic materials for the RIWIAA 2000 do not provide any insight into this, and there was no decided authority on the point. However, even if the 2000 amendments created a second statutory cause of action in addition to one based upon s 20, there is no necessary inconsistency between the different causes of action. There is no reason to suppose that Parliament intended to exclude an existing cause of action by conferring another similar cause of action.
For these reasons, I consider that the first ground of contention should be dismissed.
Appeal ground 1
The first ground of appeal raises the limitation point based upon s 13(1) of the Limitation Act 2005 (WA). This provision is in the following terms:
An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.
The critical issue is when does a cause of action for breach of s 20 of the RIWIA accrue, where the relevant 'taking' occurs through the construction of a dam by an upstream riparian owner which stops, impedes or diverts the flow of water in a watercourse?
The answer to this question is complicated by the fact that, once constructed, the dam has an ongoing effect in stopping, impeding or diverting the flow of water without any further positive action by the upstream riparian owner. On the one hand, the appellants contend that different water is stopped, impeded or diverted each day, and therefore there is a fresh 'taking' of different water each day, for so long as the upstream riparian owner permits or allows the state of affairs created by the dam. On the other hand, the respondent says that the construction of the dam, and its effect in stopping, impeding or diverting the flow of a watercourse was a single event, and that damage was sustained when the dam first had that effect.
Different positions adopted by parties
There are two significant differences between the approaches of the parties, which emerged during oral argument. On the appellants' view, the construction of the dam, and the respondent's passive maintenance of it thereafter, constitutes an ongoing breach of the statutory duty by a continuous 'taking', and these matters cause ongoing damage to the appellant.[86] On the respondent's view, if there was an unlawful taking, this occurred as a single event by the construction of the dam.[87] After this happened, the dam became part of the watercourse, and there was no further taking from the newly created watercourse. Consequently, there was no ongoing damage to the respondent, because there was no further breach after the construction of the dam.
[86] Ts 89.
[87] Ts 55.
Potentially, there is a middle position between the battle lines drawn by the parties in the manner I have just described. It is that the respondent initially breached the statutory duty in s 20 by constructing the dam, and this was a singular breach of duty, but it has caused ongoing damage to the appellants ever since. On this view, the cause of action accrued at the time when the dam was constructed and water was wrongly stopped, impeded or diverted, even if damage now continues beyond the six year period. The appellants would be time barred on this analysis, because the cause of action would have accrued more than six years prior to the commencement of proceedings.
The inherent nature of water and riparian rights
Whether there is a continuing breach of duty by the ongoing effect of the respondent's construction of the Third Dam, or whether there is a singular breach, is ultimately a matter of statutory construction. However, some time in both written and oral argument was spent discussing the inherent nature of water and the common law of riparian rights.
I make the following observations on those topics.
First, it cannot be suggested that stopping, impeding or diverting each daily flow of water in the watercourse deprives a downstream riparian owner of anything in which that person has a proprietary right. That is, there is no daily loss of property by the riparian owner because new water which would have belonged to the riparian owner should have flowed through or past a riparian owner's land, but has not done so. The common law position is that flowing water is publici juris, and common property.[88]
[88] ICM Agriculture [55] citing Embrey v Owen (1851) 6 Ex 353; 155 ER 579 at 370; 586. See also Williams v Morland (1824) 2 B&C 910; 107 ER 620 at 913 ‑ 914, 621 ‑ 622; Rugby Joint Water Board v Walters [1967] Ch 397 at 422 ‑ 423.
Secondly, there cannot be any doubt that new and different water flows daily. However, as a riparian right gives the riparian owner a right to take water from a watercourse, and not property in the water flowing through the watercourse, there is nothing inherent in the constantly changing water which means that a change in the waterflow damages the riparian owner multiple times. There may be one infringement of a right. Consequently, while graphic and no doubt erudite, it does not advance the argument of the appellants to point out what Heraclitus might have said.
Statutory construction
The concept of to 'take' in relation to water is defined in s 2 of the RIWIA. It means:
to remove water from, or reduce the flow of water in, a watercourse, wetland or underground water source, including by ‑
(a)pumping or siphoning water; or
(b)stopping, impeding or diverting the flow of water; or
(c)releasing water from a wetland; or
(d)permitting water to flow under natural pressure from a well; or
(e)permitting stock to drink from a watercourse or wetland,
and includes storing water during, or ancillary to, any of those processes or activities;
The appellants' position that there was a daily taking of water is based upon the contention that, as a matter of the statutory construction of paragraph (b) of the definition of 'take':[89]
[the] moving flow of water is stopped or impeded at the Third Dam (depending on the extent to which the siphon or outflow system permits water to flow downstream) every time the flow of water is blocked by the Third Dam. The respondent therefore takes water from the watercourse every day the flow of water through the watercourse is blocked by the Third Dam. (original emphasis)
[89] White AB 26 (Appellants' submissions [60]). See also ts 88 ‑ 89.
The appellants also rely upon an analogy with common law public nuisance and riparian rights cases to bolster this submission.[90]
[90] White AB 27 - 30 (Appellants' submissions [65] ‑ [75]). See also ts 89.
There is a difference between paragraph (b) of the definition of 'take' in the RIWIA and other paragraphs of that definition. Three of the other paragraphs directly relate an action to 'water': 'pumping or siphoning water' (paragraph (a)); 'releasing water from a wetland' (paragraph (c)); and 'permitting water to flow under natural pressure from a well' (paragraph (d)). By contrast, paragraph (b) is concerned with the 'flow of water'. It provides that there is a taking of water when there is action 'stopping, impeding or diverting the flow of water'. It does not say, as it might have done, that there is a taking of water where there is action 'stopping, impeding or diverting water', or 'stopping, impeding or diverting water flowing in a watercourse'.
The significance of the distinction appears to be that paragraph (b) of the definition of 'take' is concerned with a singular event which affects the flow of water, rather than an event which continually affects the water which is flowing. Otherwise, there is no reason for the different language.
It might be said that this is a slender basis for a construction of the RIWIA. However, there is a further matter, at least where water is stopped, impeded or diverted by the construction of a dam. By reason of the definition of 'watercourse' in s 3, the dam becomes part of the watercourse, once constructed.
Section 3 provides:
(1)In this Act, unless the contrary intention appears ‑
watercourse means ‑
(a)any river, creek, stream or brook in which water flows;
(b)any collection of water (including a reservoir) into, through or out of which any thing coming within paragraph (a) flows;
(c)any place where water flows that is prescribed by local by‑laws to be a watercourse,
and includes the bed and banks of any thing referred to in paragraph (a), (b) or (c).
(2)For the purposes of the definition in subsection (1) ‑
(a)a flow or collection of water comes within that definition even though it is only intermittent or occasional; and
(b)a river, creek, stream or brook includes a conduit that wholly or partially diverts it from its natural course and forms part of the river, creek, stream or brook; and
(c)it is immaterial that a river, creek, stream or brook or a natural collection of water may have been artificially improved or altered.
In those circumstances, it is difficult to see that a dam constructed over a watercourse, and which becomes part of the watercourse, can be regarded as continually taking water from the watercourse. That is because the conception of the watercourse itself has become expanded to include the dam.
This consideration lends support to the view that the act of constructing a dam, which stops, impedes or diverts water, represents a singular taking of the water, rather than a continuous taking of the water, for the purposes of the RIWIA.
'Continuing' nuisance cases
The appellants contend that the common law position of public nuisance demonstrates that construction of a dam should be regarded as continuously taking water.
It is not immediately evident why that submission is relevant, given that the appellants have not claimed a public nuisance. The appellants' claim depends upon questions of statutory construction, rather than the common law of public nuisance.
Further, it is not clear that the case law supports this submission. The appellants did not refer the court to any case which specifically demonstrated that a downstream landowner could sue an upstream landowner for damages after the expiry of a limitation period from the date of construction of a dam across a river or other water source which blocked the flow of water. Indeed, no such case was mentioned by the United Kingdom Supreme Court, as it surely would have been had it existed, when recently considering limitation issues in respect of a claim of continuing private nuisance.[91]
[91] Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16; [2024] AC 595.
As will be seen in the discussion which follows, while there were cases which referred to construction of a dam blocking a river as creating a 'continuing nuisance', these comments were not made in the course of addressing a limitation defence. The cases do not distinguish between whether the description of 'continuing nuisance' is used to describe a repeated breach of legal duty or whether it only refers to damage which has continuing effect.
The appellants refer to Thompson v Gibson[92] and Masters v Brent London Borough Council[93] in support of their submission based upon public nuisance.[94]
[92] Thompson v Gibson (1841) 7 M&W 456; 151 ER 845.
[93] Masters v Brent London Borough Council [1978] 1 QB 841.
[94] White AB 28 (Appellants' submissions [69]).
In Thompson, there was an issue about whether an action for public nuisance could be maintained where the defendants constructed a building upon land of a corporation (of which they were members) and this blocked part of the space where a market was lawfully held. At the time when the building was constructed by the defendants, in October 1838, the market space was owned by a predecessor in title to the plaintiff. It was subsequently demised to the plaintiff in February 1839, who sued the defendants for public nuisance. The defendants objected that they could not be held responsible for the nuisance, because although they may have created the nuisance by constructing the building, they were not in possession of or interested in the land on which the building was erected. Their corporation separately owned the building creating the nuisance. It was held, in 1841, that the damage from erecting the building continued, and that the plaintiff could sue the defendants for ongoing damage as the defendants were responsible for the construction of the building which was causing the damage ‑ even though the defendants did not themselves own the building.
Parke B delivered the judgment of the court and said:[95]
Is he, who originally erects a wall by which ancient lights are obstructed, to pay damage for the loss of the light for the first day only? or does he not continue liable so long as the consequences of his own wrongful act continue, and bound to pay damages for the whole time? and if the then owner of the market might have maintained an action against the defendants for the injury to his franchise, for the whole period during which the defendant's act continued to be injurious to him, his lessee must be in the same condition as to subsequent injuries; for it is clearly established that he has a right of action for every continuing nuisance
[95] Thompson (846 – 847).
Parke B then went on to say:[96]
'If one is seised of land near a river, and another stops it with loads of earth, and the tenant of the land adjoining leases to another for years, and then the stoppage continues, by which the land of the lessee is surrounded, the lessee shall have an action on the case against him; for though the stoppage was in the time of his lessor, the continuance was a wrongful damage to the lessee, for his land was surrounded.' …In the case of Rosewell v Prior (1701) (Salk 459; 12 Mod. 639), which was an action against the defendant, who erected an obstruction to the ancient lights of the plaintiff, and then aliened, Lord Holt lays it down, that 'it is a fundamental principle in law and reason, that he that does the first wrong shall answer for all consequential damages; and here', he says, 'the original erection does influence the continuance, and it remains a continuance from the very erection, and by the erection, till it be abated.' And he adds, 'that it shall not be in his power to discharge himself by granting it over.' It is true that Lord Holt afterwards says, 'that if the alienee of the land brought an action against the erector, and the erection had been before any estate in the alienee, the question would be greater, because the erector never did any wrong to the alienee'. Lord Holt, however, does not intimate that the action would not lie; and the authority above cited, as well as the principle, that the assignee or lessee ought to enjoy the estate as fully as the assignor or lessor, and has a similar claim to compensation for the injury during his own time, shews that the action will lie. (emphasis added)
[96] Thompson (847).
The right of owners and occupiers of riparian land to take water from watercourses in div 1B areas is defined by s 9 of the Act. The right of owners and occupiers of riparian land to take water from watercourses in div 2 areas is defined by s 20 of the Act. In each case, the owner or occupier generally has the right to take water free of charge for domestic uses and watering stock. Owners and occupiers of riparian land in div 2 areas also generally have the right, under s 20(1)(c), to take water for any other purpose 'to the extent that the flow of water in the watercourse … is not thereby sensibly diminished'.
Section 5C(1) prohibits a person from taking water from a watercourse to which s 5C applies except under and in accordance with rights conferred by the Act, including the rights conferred by s 9 and s 20 of the Act, or a licence. Contravention of s 5C(1) is an offence. However, s 5C only applies to div 1B areas and watercourses prescribed under s 5C(2)(b) of the Act. There is no equivalent prohibition in relation to taking water from div 2 areas which are not prescribed under s 5C(2)(b) of the Act (unprescribed div 2 areas).
Section 5E of the Act expressly provides for a private right of action for breach of statutory duty in two situations:
1.A contravention of s 5C which affects a person's exercise of specified rights (which include rights under s 9 or s 20), or the taking of water by a person under a licence, is actionable at the suit of the person affected. This cause of action is provided for by s 5E(1)(a) and s 5E(2)(a) of the Act. The limited scope of s 5C means that this right of action is not available against a person who takes water from a watercourse in an unprescribed div 2 area.
2.The taking of water from a water resource by a person who does not take all reasonable steps to minimise the degradation of the water resource is actionable by a person directly affected by that degradation. A 'water resource' is defined in s 2(1) to include a watercourse. 'Degradation' is defined in s 2 to include the 'sensible diminishing of the quality or quantity of' water in a watercourse. This cause of action is provided for by s 5E(1)(b) and s 5E(2)(b) of the Act.
Neither of the private rights of action expressly provided for in s 5E of the Act was engaged in the present case, as the watercourse is in an unprescribed div 2 area and the appellants did not plead a case that the respondent failed to take all reasonable steps to minimise the degradation of the watercourse.
The only express prohibition against a riparian owner of land in unprescribed div 2 areas taking water in excess of the right conferred by s 20 is contained in s 22 of the Act. However, that prohibition only arises where the Minister gives a direction under s 22 of the Act. Relevantly, the Minister may only give a direction when of the opinion that a person having a right under s 20 to take water in a watercourse has taken water for a purpose or to an extent not authorised by pt III div 2 of the Act. A second, cumulative, condition of the Minister's power to direct is that the Minister is relevantly of the opinion that the unauthorised taking:[130]
(i)resulted in or contributed to the interference with the enjoyment by any other person of a right conferred by this Division, or any damage or injury to the land of any other person; or
(ii)should not, in the public interest, be permitted to continue[.]
[130] Section 22(1)(b) of the Act.
Where the Minister forms the requisite opinion, s 22(1) relevantly empowers the Minister to, by written notice, give directions defining the purposes for which, or the extent to which, water may be taken by the person. Relevantly, the direction shall not permit the taking of water otherwise than in the exercise of a right under s 20 unless the Minister is satisfied that the taking will not result in or contribute to any interference, damage, or injury of the kind referred to in s 22(1)(b)(i) of the Act.[131] A person to whom the notice is given who, after the expiry of 30 days from the giving of the notice (or such shorter time as is specified in the notice), takes water contrary to the direction commits an offence against s 22(4) of the Act.
[131] Section 22(3) of the Act.
Abrogation of common law riparian rights
As noted above, the trial judge held that the Act abrogates the common law rights of riparian landowners. We agree with that conclusion. Although the conclusion is not challenged in the appeal, it is instructive to identify those rights and how they were abrogated.
Common law rights
The nature of the common law rights of riparian landowners was settled in England in 1851 by the decision in Embrey v Owen.[132] That case involved an action brought by the downstream owner of a mill against an upstream landowner, who diverted water for the purposes of irrigation before returning it to the river. A portion of the water was lost by absorption and evaporation in the process of irrigation, but the operation of the mill was not impeded. The evidence was that 'there was no sensible diminution of the stream by reason of the diversion, that is to say none cognizable by the senses, and that the amount of loss was ascertainable only by inference from scientific experiments on the absorption and evaporation of water poured out on the soil'. The jury was asked whether there 'was any sensible diminution of the natural flow of water by means of the diversion'. The jury answered this question in the negative.[133]
[132] Embrey v Owen (1851) 6 Exch 353; 155 ER 579.
[133] Embrey at ER 581.
In finding that judgment was properly entered for the defendant, Parke B, delivering the judgment of the court, recognised that the 'right to have the stream to flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes'. While there was no property in water flowing through the stream, 'each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it'. This right was not absolute but is 'a right only to the flow of the water, and the enjoyment of it, subject to the similar rights of all of the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence'. An action would only lie 'for an unreasonable and unauthorised use of this common benefit'.[134]
[134] Embrey at ER 585 - 586.
The court in Embrey quoted with approval the following passage from an American text:[135]
Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run … without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. … Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it. … The owner must so use and apply the water as to work no material injury or annoyance to his neighbour below him, who has an equal right to the subsequent use of the same water; nor can he, by dams or any obstruction, cause the water injuriously to overflow the grounds and springs of his neighbour above him. Streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned; and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current. But de minimis non curat lex, and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish or affect the application of the water by the proprietors above or below on the stream.
[135] Embrey at ER 586.
In 1858, the riparian landowner's rights were described in the following terms by the Privy Council in Miner v Gilmour:[136]
By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But, he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury.
[136] Miner v Gilmour (870).
The common law rights of a riparian landowner described above have three aspects. First, there is a right to the flow of water along a watercourse running through or abutting their land. Secondly, there is a right to make reasonable use of the water flowing through a watercourse. Thirdly, there is a right to prevent other riparian landowners from using water in a watercourse in a way that unreasonably interferes with the flow of the water in a watercourse.
As the High Court of Australia recognised in ICM Agriculture Pty Ltd v The Commonwealth,[137] in Australia the common law rights of riparian landowners have been abrogated by statutory provisions such as s 5A of the Act, which relevantly provides:
The right to the use and flow, and to the control, of the water at any time in any -
(a)watercourse; …
vests in the Crown except as allocated under this Act or another written law.
[137] ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [53] - [54] (French CJ, Gummow and Crennan JJ).
The effect of provisions such as s 5A is to vest in the Crown the common law rights of riparian landowners to the use and flow of water, so that a riparian landowner cannot bring an action at common law for infringement of the landowner's right to the use and flow of water.[138] Earlier curial statements, to the effect that common law rights may have survived the enactment of provisions of this kind,[139] have been overtaken by the High Court's decision in ICM Agriculture.
Legislative history
[138] Hanson v The Grassy Gully Gold Mining Co (1900) 21 NSWR 271; ICM Agriculture [54] (French CJ, Gummow and Crennan JJ), [116], [146] (Hayne, Kiefel and Bell JJ).
[139] See Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317, 331 (Fullagar J); Rapoff v Velios [1975] WAR 27, 31.
From the enactment of the Act in 1914 to its amendment in 1984, the Act maintained the following general structure. Rights in natural waters were regulated by the following provisions of the old pt III of the Act. Section 4 vested the right to the use and flow of water in any watercourse in the Crown. Section 6 prohibited a person from diverting or appropriating any water from any watercourse, 'save in the exercise of the general right of all persons to take water for domestic and ordinary use, and for watering cattle or other stock from any water-course … vested in the Crown and to which there is access by a public road or reserve'. Section 13 entitled the Minister to take civil proceedings against any person for illegally diverting or taking the water of any watercourse. Section 14 provided that the owners and occupiers of alienated land with a watercourse running through or contiguous to it:
shall in respect to such ownership or occupation have rights free of charge to the water in such water-course … for the domestic and ordinary use of themselves and of their respective families and servants, and for watering cattle or other stock …
However, s 27 of the Act provided that the old pt III of the Act generally only applied to irrigation districts constituted under s 28 of the Act and, after 1916, proclaimed areas. Therefore, at the time of the 1984 amendments, subject to specified exceptions, the common law rights of a riparian landowner to the use and flow of water in watercourses outside irrigation districts and proclaimed areas were not abrogated.
The Rights in Water and Irrigation Amendment Act 1984 (WA) (1984 Amendment Act) repealed and re-enacted pt III of the Act. Division 1 of the substituted pt III applied, pursuant to s 6, to irrigation districts and proclaimed areas. Section 8, in div 1, vested the right to the use and flow of water in watercourses in the Crown. Rights of riparian landowners in those areas were defined by s 9 of the Act. Under s 19, div 2 of the new pt III applied to areas to which div 1 did not apply. Section 20 - s 25 were then introduced in div 2 with essentially their current structure.
The current structure of the Act was introduced by amendments made by the Rights in Water and Irrigation Amendment Act 2000 (WA) (2000 Amendment Act). The 2000 Amendment Act introduced s 5A ‑ s 5E in the current div 1A of pt III, and redesignated div 1 (as substituted in 1984) as the current div 1B. The provisions of div 2 were subject to relatively minor amendments.
Therefore, the vesting of the right to the use and flow of water in unprescribed div 2 areas in the Crown only occurred on 10 January 2001, when the 2000 Amendment Act came into effect. Prior to 10 January 2001, riparian landowners continued to have common law rights to the use and flow of water in watercourses in div 2 areas.
The construction of s 24 of the Act is informed by this context. Section 24, in pt III div 2, currently provides:
Nothing contained in, or done under, this Division affects any remedy to which a person would otherwise be entitled in civil proceedings except that a person shall not be liable to be proceeded against in respect of any diversion, taking, or use of water that is permitted by a direction under section 22 or authorised by a licence under s 5C or by a local by-law.
The italicised words were introduced by s 32 of the 2000 Amendment Act.
When s 19 - s 24 in pt III div 2 were introduced by the 1984 Amendment Act, a riparian landowner could take action against an upstream landowner who they alleged infringed their common law rights to the use and flow of waters in a watercourse located in a div 2 area. Section 24 preserved that remedy except in relation to things permitted by a direction under s 22 of the Act.
The only amendment to s 24 made by the 2000 Amendment Act was to introduce the italicised words noted at [189] above. The main operation of s 24 as introduced - to preserve common law actions by riparian landowners - ceased as those common law rights were abrogated by s 5A in div 1A of the Act. However, this did not deprive s 24 of any continuing operation. For example, s 24 could operate to preserve a right of action based on contractual provisions, a restrictive covenant or an easement.
Proper construction of s 20 of the Act
As explained above, the appellants' common law rights as riparian landowners have been vested in the Crown by s 5A of the Act. Therefore, any cause of action which the appellants have against the respondent must be provided by statute. The appellants do not have standing to pursue a claim that the respondent has infringed the rights to the use and flow of water in the watercourse that is vested in the Crown by s 5A of the Act. The statutory cause of action expressly provided for by s 5E(1)(a) and s 5E(2)(a) is not available to the appellants because it is based on a contravention of s 5C of the Act, which does not apply to the unprescribed div 2 area in which the watercourse is located. The appellants did not plead a statutory cause of action of the kind expressly provided for by s 5E(1)(b) and s 5E(2)(b) of the Act. Nor did they plead a cause of action for breach of a contractual term, restrictive covenant or easement.
In these circumstances, the appellants' right of action against the respondent depends on establishing that:
(a)section 20 of the Act impliedly imposes a statutory duty on the respondent not to take more water than is authorised by that section; and
(b)the Act imposes that implied duty for the protection or benefit of owners of land that the watercourse runs through or abuts and impliedly intends to provide a ground of civil liability when breach of the duty causes damage of the kind the statute was intended to protect against.[140]
[140] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 424 (Brennan CJ, Dawson and Toohey JJ); see also 458 - 461 (McHugh and Gummow JJ).
In our view, neither implication can be drawn in the face of the provisions of the Act which expressly impose duties in relation to the taking of water from watercourses and expressly confer a private right of action for breach of those duties. Parliament has considered the circumstances in which a duty should be imposed and when a private cause of action should arise and has excluded the present case from the operation of those express provisions. The fact that Parliament has imposed duties and conferred private rights of action when certain requirements and conditions are satisfied counts strongly against the conclusion that it has also implicitly done so in cases where those requirements and conditions are not met.[141]
[141] See, by analogy, Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J); R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, 550 (Dixon J); Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 678 (Mason J).
Section 20 is not expressed in terms of imposing a duty or obligation. Rather, it confers a right on the owner or occupier of riparian land. Section 20(1) relevantly provides:
The owner or occupier of any land (riparian land) alienated from the Crown through or contiguous to which runs any watercourse …, has the right, as such owner or occupier, to take water in that watercourse … free of charge -
(a)for the domestic and ordinary use of himself and of his family and servants; and
(b)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and
(c)to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose,
but the right described in paragraph (c) may be made inapplicable to, or be restricted in relation to, any riparian land by the provisions of local by-laws that apply to the land, and that paragraph is to be read subject to any such provisions. (original emphasis)
The purposes for which water may be taken in the exercise of the right conferred by s 20(1) are clearly designed to reflect the common law rights of landowners identified in the passage from Miner v Gilmour quoted at [180] above. However, the subject of s 20 is the right of an owner or occupier of riparian land to take water rather than any right of a riparian landowner to the flow of water in a watercourse, which remains vested in the Crown. The purpose of s 20 is to allow an owner or occupier of riparian land to take water without infringing the rights to the use and flow of water vested in the Crown by s 5A of the Act and, in watercourses to which s 5C applies, without contravening s 5C(1) of the Act. It is not to give riparian landowners the right to the flow of water in a watercourse subject only to the right of owners or occupiers of upstream riparian land to take water for the purposes identified in s 20 of the Act.
The structure of s 20 and the context in which it appears is also inconsistent with s 20(1) impliedly prohibiting an owner or occupier of riparian land taking water in a manner not authorised by that provision. Section 20(1) does not limit the water which may be taken but rather identifies only the water that may be taken free of charge. Other provisions of the Act authorise the owner or occupier of riparian land to take water in a way that is not authorised by s 20(1). Section 5C(1) relevantly prohibits a person from taking water from a relevant watercourse except under a right conferred by s 20 or a licence granted under sch 1 to the Act. Section 22(3) of the Act contemplates that a direction under that section may permit the taking of water otherwise than in the exercise of a right conferred by s 20(1). If s 20(1) contained its own implicit prohibition against the owner or occupier of riparian land taking more water than provided for in that section it would be inconsistent with the authority that may be conferred by a licence or direction.
The structure of the Act is rather that the relevant prohibitions are created by s 5C(1) and s 22(4), and the effect of s 20(1) is that the taking of water authorised by that section does not contravene those prohibitions. Further, the taking of water authorised by s 20(1) does not infringe the right to the use and flow of water in a watercourse which s 5A of the Act vests in the Crown. Section 20(1) itself does not create a statutory duty on the owner or occupier of riparian land not to take water other than in the exercise of the right conferred by that section.
The trial judge identified four reasons why, in her Honour's view, s 20(1) confers a right on an affected landowner to bring civil proceedings where the owner or occupier of riparian land takes water in excess of the rights conferred by that section.
The first and second matters referred to by the trial judge are that s 20 does not create an offence of taking water in excess of the rights it confers, and the relevant offence is created by s 22(4) which depends on the Minister exercising a discretion to issue a direction.[142] In our view, these aspects of the statutory scheme underscore the proposition that s 20(1) does not create a statutory duty at all.
[142] Primary decision [200] - [201].
The third matter referred to by the trial judge is that it is necessary to give some meaning to s 24 of the Act, and to give that section some work to do.[143] As discussed above, the area of operation of s 24 is significantly truncated since the abrogation of the common law rights of riparian landowners in div 2 areas by the 2000 Amendment Act. However, s 24 still has some work to perform, for example enabling action to be taken to enforce contractual rights or a restrictive covenant or easement. In any event, s 24 cannot 'preserve' a cause of action for breach of a statutory duty imposed by s 20(1) of the Act. Section 24 in its terms provides that nothing contained in pt III div 2 'affects any remedy to which a person would otherwise be entitled in civil proceedings'. As such, s 24 preserves remedies which a person may have apart from that division. It cannot apply to a statutory cause of action for breach of a duty created by s 20 in pt III div 2 of the Act.
[143] Primary decision [202].
The fourth matter was identified by the trial judge in the following terms:[144]
Fourth, the Act imposes an obligation on a riparian owner to only take water to the extent that the flow of water is not sensibly diminished. This obligation is imposed for the protection or benefit of a particular class of persons; namely, the downstream riparian owners [Byrne 424]. In my view, on the proper construction of the Act, the legislature intended that s 24 of the Act would preserve a cause of action for breach of the obligations in div 2 of the Act by upstream riparian owners, where their breach causes injury or damage to their downstream neighbours, who are an identified and particular class of persons.
[144] Primary decision [203].
In our view, this passage assumes the correctness of the construction which it seeks to support.
Further, the conferral of the right to take water for any purpose to the extent that the flow is not sensibly diminished is only one aspect of the right conferred by s 20(1) of the Act. Taking of water for domestic purposes and watering stock may sensibly diminish, even destroy, the downstream flow of water in a watercourse, as may the taking of water pursuant to a licence. As such, s 20 does not require the equitable distribution of water in a watercourse among owners of riparian land. Section 20 does not impose 'an obligation on a riparian owner to only take water to the extent that the flow of water is not sensibly diminished'.
In addition, the limitations on the right conferred by s 20(1) of the Act do not, in our view, exist only for the purpose of protecting the interests of owners of downstream riparian land. The right which those owners would otherwise have to the flow of water in a watercourse is taken away by s 5A of the Act and vested in the Crown. The general purpose of pt III of the Act is the management of scarce water resources for the benefit of the public generally rather than to particularly protect the interests of owners of riparian land. The objects of pt III are identified by s 4(1) of the Act in the following terms:
The objects of this Part are -
(a)to provide for the management of water resources, and in particular -
(i)for their sustainable use and development to meet the needs of current and future users; and
(ii)for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them;
and
(b)to promote the orderly, equitable and efficient use of water resources; and
(c)to foster consultation with members of local communities in the local administration of this Part, and to enable them to participate in that administration; and
(d)to assist the integration of the management of water resources with the management of other natural resources.
The trial judge also referred to the Ministers' second reading speeches to the Bills for the 1984 Amendment Act and the 2000 Amendment Act, as well as clause notes for the Bill to the 2000 Amendment Act.[145] We consider these to be neutral as to the proper construction of s 20 and s 24 of the Act for present purposes. The speech to the 1984 Amendment Act indicates the amendment was directed to providing for the procedure in s 22 of the Act as an alternative to the preserved 'right of landholders to use the normal civil court processes'.[146] The speech to the 2000 Amendment Act is ambiguous and does not directly address the scope of s 20 of the Act.[147] The clause notes to the 2000 Amendment Act do not indicate whether s 20 is intended to impose an implicit statutory duty or confer a private right of action for breach of any duty it creates. While the clause notes refer to s 5E operating 'in addition to [the] current section 24',[148] that is consistent with the construction we have adopted.
[145] Primary decision [204] - [205].
[146] Western Australia, Parliamentary Debates, Legislative Assembly, 9 October 1984, 2068 (Mr A R Tonkin, Minister for Water Resources).
[147] Western Australia, Parliamentary Debates, Legislative Assembly, 1 July 1999, 9937 (Dr K D Hames, Minister for Water Resources).
[148] Rights in Water and Irrigation Amendment Bill 1999 Clause Notes (June 1999) 18.
Therefore, none of the matters referred to by the trial judge lead us to construe s 20(1) as conferring a right on an affected landowner to bring civil proceedings where the owner or occupier of riparian land takes water in excess of the rights conferred by that section. The text, context and structure of the Act, understood in light of the legislative history, lead us to the opposite conclusion.
Disposition of appeal
For the above reasons, ground 1 of the respondent's notice of contention is established. Section 20(1) of the Act does not give rise to a private cause of action for breach of statutory duty, and the trial judge erred in holding to the contrary. The appeal should be dismissed for this reason.
As, in our view, the appellants had no cause of action, questions of whether their claims are barred by s 13(1) of the Limitation Act, or whether injunctive relief ought to be refused on discretionary grounds, do not arise. We note that, if we had found the cause of action identified by the trial judge existed, then we would have held that the cause of action was statute barred for the reasons explained by Thomson P and dismissed the appeal for that reason. We also agree with Thomson P's observation at [154] above that the injunction sought by the appellants if the appeal is allowed is not expressed in terms which it would be appropriate for the court to grant in any event.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Associate to the Hon President Thomson
24 SEPTEMBER 2025
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