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Crossley v English

Crossley v English

Case [2025] WASCA 141 24 September 2025

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crossley v English

Details

AGLC: Crossley v English [2025] WASCA 141
Case: [2025] WASCA 141
Decision Date: 24 SEPTEMBER 2025

CaseChat Overview and Summary

In the case of Crossley v English, the plaintiff sought to enforce a private statutory duty under the Rights in Water and Irrigation Act 1914 (WA) against the defendant. The dispute arose from the construction of a dam by the defendant, which the plaintiff claimed had caused ongoing damage to their property by altering the natural flow of water. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court included the nature of the rights conferred by the Act, the existence of a private statutory duty, and whether the plaintiff's action was barred by the limitation period. Specifically, the court had to determine if the construction of the dam constituted a continuing nuisance or breach of duty, and whether the six-year limitation period applied to actions for such claims.

The court found that the Rights in Water and Irrigation Act 1914 (WA) did not create a private statutory duty enforceable by action at the suit of an individual. Instead, it established public rights and duties, which were to be enforced through the Minister for Water. The court held that the plaintiff's action was barred by the limitation period, as the damage and breach of duty were not continuing but had occurred at the time of the dam's construction. The court concluded that the six-year limitation period applied, and the plaintiff's claim was statute-barred.

The court dismissed the plaintiff's action, finding that the defendant was not liable for the alleged damages. The court also held that the plaintiff's action for continuing nuisance or breach of duty was not valid, as the limitation period had expired. The plaintiff was ordered to pay the defendant's costs of the proceedings.

Orders