Crossley v English
[2021] WASC 383
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CROSSLEY -v- ENGLISH [2021] WASC 383
CORAM: REGISTRAR WHITBREAD
HEARD: 5 AUGUST 2021
DELIVERED : 4 NOVEMBER 2021
PUBLISHED : 4 NOVEMBER 2021
FILE NO/S: CIV 1457 of 2019
BETWEEN: WILLIAM EDMUND CROSSLEY
First Plaintiff
PATRICIA MARGARET CROSSLEY
Second Plaintiff
AND
PAUL CHRISTOPHER ENGLISH
Defendant
Catchwords:
Practice and procedure - Application for leave to administer interrogatories - Interrogatories go solely to issue of exemplary damages - Whether exemplary damages can be awarded in a claim under s 5E of the Rights in Water and Irrigation Act 1914 (WA)
Legislation:
Rights in Water and Irrigation Act 1914 (WA)
Rules of the Supreme Court 1971 (WA), O 27 r 1
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | P A Kyle |
| Second Plaintiff | : | P A Kyle |
| Defendant | : | T J Carmady |
Solicitors:
| First Plaintiff | : | Kyle & Company |
| Second Plaintiff | : | Kyle & Company |
| Defendant | : | Williams & Hughes |
Case(s) referred to in decision(s):
Cassell & Co Ltd v Broome & Anor [1972] AC 1027; [1972] 1 All ER 801; [1972] 2 WLR 645
Girgis v Poliwka [2015] WASC 446
Hennessy v Wright (1888) 24 QBD 445, 447
Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122; [2001] 3 All ER 193; [2001] 2 WLR 1789
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
Lewis v ACT (2020) 381 ALR 375
Marriott v Chamberlain (1886) 17 QBD 154
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1912) 13 CLR 101
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537
Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367; [1964] 2 WLR 269
Ugle v The State of Western Australia [2002] WASCA 117
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
REGISTRAR WHITBREAD:
The interlocutory application
The plaintiffs filed an application on 14 May 2021 seeking leave to administer interrogatories to the defendant pursuant to O 27 r 1 of the Rules of the Supreme Court 1971 (WA) (the Rules). A minute of proposed interrogatories was annexed to the application.
Background
The plaintiffs and the defendant both own rural properties in the Shire of Denmark and are neighbours. The plaintiffs reside in a property of approximately 2 ha in size and share a common boundary on the western side of their property with the defendant's property. The defendant is a marron farmer. His property is approximately 26 ha in size.
The defendant purchased his property in 2004 with the intention of farming marron on the property. Prior to the defendant purchasing the property in 2004, the previous owner had constructed a dam of approximately 5,000 m2 over a watercourse (the original dam) that ran from upstream, into the western boundary of the land through a culvert under a road, from where it ran through the land, to the eastern boundary of the property and downstream into and across the plaintiffs' property.
Since purchasing his property, the defendant has extended the original dam and constructed two further dams. In about 2006, the defendant built a dam over the watercourse to the eastern side of the original dam of approximately 18,000 m2 in size. In 2009, the defendant increased the size of the original dam to approximately 10,000 m2. In 2011, the defendant constructed a further dam on the watercourse of approximately 22,000 m2 in size on the eastern side of his property. The eastern wall of the third dam runs almost perpendicular to, and close to, the boundary of the plaintiffs' land.
In these reasons, the original dam as extended in 2009 is referred to as the 'first dam'. The dam constructed by the defendant in or about 2006 is referred to as the 'second dam' and the dam constructed by the defendant in 2011 is referred to as the 'third dam'.
Each of the defendant's three dams are used by him to farm marron.
On 30 June 2014, the defendant obtained retrospective planning consent to construct the third dam.[1]
The pleadings
The plaintiffs' claims
[1] Affidavit of Paul Christopher English, sworn 17 December 2019, annexure PCE1, pages 9 - 13.
On 4 November 2020, the plaintiffs amended the statement of claim and withdrew their claim in negligence. A re‑amended statement of claim was filed on 2 July 2021, but that does not change the claims against the defendant.
The plaintiffs now raise only one claim against the defendant, namely, a breach of the plaintiffs' rights pursuant to the Rights in Water and Irrigation Act 1914 (WA) (the Act), by blocking and destroying the watercourse and thereby depriving the plaintiffs of the benefit of water flowing through the watercourse into the plaintiffs' land or, alternatively, by sensibly diminishing the flow of water in the watercourse.
Relevant to the breach of statutory duty, in respect of the claim that the defendant has 'sensibly diminished the flow of water in the watercourse',[2] the plaintiffs also plead that:[3]
At all material times the Defendant:
(a)Was well aware of the existence and path of the watercourse and that his action in constructing the dams would result in the dams blocking the watercourse and depriving the Plaintiffs of their right to enjoy and use the water flowing through the watercourse pursuant to the Act;
(b)Constructed the dams in wilful disregard of the Plaintiffs' rights and the limitation of his rights to take water from the watercourse pursuant to the Act;
(c)Deliberately ignored the conditions imposed by the Shire of Denmark on its approval of the construction of the Third dam.
The defence
[2] Re-Amended Statement of claim [11].
[3] Re-Amended Statement of claim [13].
The defendant in his amended defence admits that each of the three dams are constructed on the watercourse,[4] but pleads that:[5]
(a)the watercourse is seasonal and does not commence flowing on the property until sufficient winter rains have fallen, and typically ceases flowing on the property by November or December each year, depending upon the weather; and
(b)the downstream flow of the watercourse is augmented by multiple springs on the property which discharge (or feed) groundwater into each of the dams.
[4] Amended defence [6.3], [7.2], [8.4].
[5] Amended defence [4.3] - [4.5] and [16.3].
The defendant denies that as a result of the construction of each of the three dams, the flow of water in the watercourse is 'sensibly diminished'.[6]
[6] Amended defence [8.5].
The defendant does not deny that water is leaking from the third dam into the plaintiffs' property, or seeping from his property into the plaintiffs' property, but says that no 'material quantity' of water is leaking or seeping.[7]
[7] Amended defence [13.1] - [13.2].
The defendant denies that the wall of the third dam alongside the plaintiffs' property is unsafe and/or liable to collapse.[8]
[8] Amended defence [13.6].
The defendant also denies that marron effluent has had a significant adverse effect on the quality of the water in each of the dams, and claims that the quality of the water in the watercourse has not been sensibly diminished as a result of the defendant's marron farming activities on the property.[9]
[9] Amended defence [14.2] and [14.7].
The defendant pleads that in or about April 2018, he constructed an emergency spillway on the south-eastern side of the third dam.[10]
[10] Amended defence [9.6].
The defendant also pleads that if, the plaintiffs have any cause of action against the defendant, then to the extent they accrued more than six years prior to the commencement of the action, those causes of action are statute barred.[11]
[11] Amended defence [21].
Rights inWater and Irrigation Act 1914 (WA) - civil liability
On 13 May 2019, the defendant filed a request for further and better particulars of the statement of claim. One of the requests required further and better particulars of the 'plaintiffs' rights' pleaded in [11] of the statement of claim filed on 15 March 2019, and requested that the plaintiffs identify the particular sections of the Act that they allege to have been breached. In answer, the plaintiffs stated 'Division 1A'.[12]
[12] Further and better particulars of statement of claim, filed 15 May 2019 [2.4].
Although the plaintiffs have not identified specifically the provisions of the Act upon which they rely, the claim can be understood as being under s 5E of the Act in relation to a breach of the statutory duty, imposed by s 5C(1) of the Act, not to take water from a watercourse except in accordance with a right conferred by s 20 of the Act. However, the plaintiffs also contend that their case relies upon s 5A and s 5B of the Act. Their argument is that s 5B prohibits an owner of property from building a dam on a watercourse on that landowner's land.
Sections 5A, 5B, 5C and s 5E are contained within pt III of div 1A of the Act.
Section 5A provides:
5A. Natural waters vest in Crown
The right to the use and flow, and to the control, of the water at any time in any ‑
(a)watercourse; or
(b)wetland; or
(c)underground water source,
vests in the Crown except as allocated under this Act or another written law.
Section 5B provides:
5B. Landowner etc. may carry out certain drainage and storage work
(1)The operation of section 5A does not prevent the owner or occupier of land ‑
(a)subject to any relevant local by‑laws, from ‑
(i)draining the land; or
(ii)making any dam or tank on the land, not on a watercourse or wetland,
if as a result of doing so ‑
(iii)the flow of water in a watercourse, or the amount of water in a wetland, is not diminished; or
(iv)there is no significant adverse effect on the quality of water, or any ecosystem, in a watercourse, or a wetland; or
(b)from making any dam or tank on the land, not on a watercourse or wetland, for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4).
(2)In subsection (1) ‑
diminished means ‑
(a)sensibly diminished; or
(b)if local by‑laws prescribe a greater diminution of the flow or amount of water for the purposes of this section, diminished to a greater extent than is so prescribed.
Section 5C(1) of the Act provides:
5C.Taking of certain water without right or licence, offence
(1)A person must not ‑
(a)take water from any watercourse, wetland or underground water source to which this section applies; or
(b)cause or permit any of those things to be done,
except under and in accordance with ‑
(c)a right conferred by ‑
(i)section 9, 10, 20, 21, 22 or 25A; or
(ii)a local by-law of the kind referred to in section 26L(3)(d); or
(iii)another written law;
or
(d)a licence under this section granted by the Minister in accordance with Schedule 1.
Penalty: $10 000 and a daily penalty of $1 000.
Section 5E of the Act provides:
5E.Breach of s. 5C or degradation of water resource, civil remedy for
(1)Subsection (2) applies if ‑
(a)a person contravenes section 5C and the contravention affects ‑
(i)the exercise by a person of a right referred to in section 5C(1)(c); or
(ii)the taking of water by a person under a licence under section 5C;
or
(b)a person taking or using water from a water resource does not take all reasonable steps to minimise the degradation of the water resource.
(2)The contravention is a breach of statutory duty that is actionable at the suit of ‑
(a)in respect of subsection (1)(a), a person referred to in subsection (1)(a)(i) or (ii); or
(b)in respect of subsection (1)(b), a person directly affected by the degradation of the water resource referred to in that subsection.
(3)Subsection (2) has effect subject to the defences and other incidents applying to actions for breach of statutory duty.
Section 20 of the Act provides:
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.
(2)Every owner of riparian land that was ‑
(a)alienated from the Crown before the commencement of this Act; or
(b)in the process of alienation at that commencement,
has the right, in addition to the rights conferred by subsection (1), to take water described in that subsection for the irrigation of a garden not exceeding 2 ha if no produce is sold from the garden and the garden ‑
(c)is part of that land; and
(d)is used in connection with a dwelling.
(3)The owner of riparian land also has the right conferred by subsection (2) in relation to a watercourse or wetland where, although paragraph (a) or (b) of that subsection does not apply ‑
(a)Division 1B has ceased to apply to the watercourse or wetland; and
(b)immediately before that cessation a right of the kind described in subsection (2), in relation to that watercourse or wetland, was appurtenant to the land by virtue of section 9(1).
(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.
(5)This section has effect subject to Division 3A.
Legal principles applicable to whether leave should be granted to administer interrogatories
It is well established that there is no right to issue interrogatories under O 27 r 1 of the RSC. The discretion to order interrogatories is to be exercised with regard to the case management principles expressed in O 1 r 4B of the RSC.
The purpose of the requirement for leave to be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose. The range of legitimate forensic purposes that can be served by the administration of interrogatories is not closed. A legitimate forensic purpose includes gathering information in relation to events which are outside the knowledge of a party and which can be assumed to be within the knowledge of the party to whom the interrogatories are administered. This is a legitimate forensic purpose because it facilitates the administration of justice by assisting a party to prove a matter particularly within the knowledge of the other party by requiring the provision of sworn answers which can be tendered at trial: Girgis v Poliwka [2015] WASC 446 [2].
Interrogatories must relate to a 'matter in question' between the parties: O 27 r 1. Interrogatories do not relate to a matter in question unless they can fairly be said to be directed at adducing material to support a party's case or destroy that of the party's opponent: Hennessy v Wright (1888) 24 QBD 445, 447; Ugle v The State of Western Australia [2002] WASCA 117 [18].
The ability to give leave to interrogate is not confined to those cases in which the interrogatories relate to facts that are directly in issue. Rather, it extends to the situation where the interrogatories address facts the existence or non‑existence of which are relevant to the existence or non‑existence of facts directly in issue: Marriott v Chamberlain (1886) 17 QBD 154, 163; Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1912) 13 CLR 101, 112; Ugle v The State of Western Australia [18].
The parties' submissions
At the hearing of the application, the plaintiffs' counsel submitted that the proposed interrogatories go solely to exemplary damages.
If exemplary damages are not available on the plaintiffs' claim, it follows automatically that the plaintiffs should be refused leave to administer interrogatories.
The plaintiffs' counsel submitted that exemplary damages are available, but could not refer the court to any authority in support of that proposition other than s 24 of the Act, which preserves a party's rights to civil remedies. As stated at [8], the plaintiffs have withdrawn their claim in negligence.
The defendant submitted that the authorities do not provide support for the proposition that exemplary damages would be available in relation to the cause of action for breach of statutory duty afforded by s 5E of the Act. Ultimately, the type of damages that may be awarded for a breach of statutory duty will be a matter of construction of the words of the applicable statute: see Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 [94]. The defendant contended that there is nothing in s 5E which indicates an intention by the legislature to punish a person who has breached the Act beyond the penalties expressly set out in the Act.
Disposition
Exemplary (or punitive) damages are extra-compensatory damages, the aim of which is to punish the defendant for his/her wrongful conduct and to deter him/her and others from acting similarly in the future: see Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 149 (Windeyer J). In contrast, aggravated damages are compensatory in nature: see Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1.
The seminal authority on the availability of exemplary damages is Lord Devlin's landmark speech in Rookes v Barnard [1964] AC 1129 at 1226; [1964] 1 All ER 367 at 410; [1964] 2 WLR 269 at 1226. Since that decision, the remedy has been confined to just three categories of case. Those are cases of oppressive, arbitrary or unconstitutional conduct by government servants acting in that capacity (Category 1), cases of conduct aimed at making a profit in excess of the compensation payable to the claimant (Category 2), and cases where statute authorises an award of punitive damages (Category 3).
In Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122; [2001] 3 All ER 193; [2001] 2 WLR 1789, the House of Lords allowed an appeal from a decision striking out a claim for exemplary damages for misfeasance in public office on the basis that exemplary damages may be available if available on the cause of action. The defendants had argued that allowing the appeal would make aggravated damages available for breach of statutory duty.
At [9] onwards, Lord Slynn discussed how in Cassell & Co Ltd v Broome & Anor [1972] AC 1027; [1972] 1 All ER 801; [1972] 2 WLR 645, the House of Lords left open the possibility of exemplary damages for certain causes of action where exemplary damages had been allowed pre‑1964 (i.e. pre-Rookes v Barnard) - essentially saying Rookes v Barnard did not close those other categories.
At [120], Lord Scott said in dissent that, if the 'cause of action test' was removed, 'Claims could probably also be made, subject to the same proviso, in actions based upon breach of statutory duty whether or not the statute had expressly authorised such claims.' His dissenting conclusion is expressed at [122]:
Faced with the unattractive alternatives of leaving the cause of action test in place or removing it, I would, for my part, favour a pragmatic solution under which, on the one hand, the cause of action test were removed but, on the other, exemplary damages were declared to be unavailable in cases of negligence, nuisance and strict liability, and also liability for breach of statutory duty except where the statute in question had expressly authorised the remedy. In this way the main objections to the cause of action test would be met and tedious research into pre-1964 case law would be avoided but existing authority as to cases where exemplary damages cannot be claimed would be left broadly unaltered.
Ultimately, the House of Lords left the pre-1964 cause of action test intact. The result is that Lord Devlin's third category in Rookes v Barnard governs the matter before me, unless the plaintiffs can identify a pre‑1964 cause of action. Given that the plaintiffs plead no cause of action other than breach of statutory duty pursuant to s 5E (which was inserted into the Act in 2000), and given that the Act does not provide for punitive damages, an award of exemplary (or punitive) damages is therefore not available to the plaintiffs on their case as presently pleaded. The claim does not fall within Lord Devlin's Category 3.
It should also be noted that the High Court rejected the proposition that there is a common law right to vindicatory (non-compensatory) damages in Lewis v ACT (2020) 381 ALR 375, referring to Kuddus [109] (Gordon J), [172] (Edelman J). See also Gageler J at [22] agreeing with Gordon J at [104] ‑ [121]; Edelman J at [170] ‑ [176]. The court's decision in Lewis leaves Lord Devlin's third category in Rookes v Barnard intact.
Conclusion
The Act does not permit an award of exemplary damages. The plaintiffs assert that the proposed interrogatories go solely to the issue of exemplary damages. No claim falling within Lord Devlin's Category 3 is made against the defendant. Accordingly, the interrogatories do not go to a matter which can be in issue between the parties at trial. Leave is not granted to administer the proposed interrogatories.
The application is dismissed. I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Research Associate/Orderly to the Honourable Justice Buss
4 NOVEMBER 2021
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