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Crossley v English

Crossley v English

Case [2021] WASC 383 4 November 2021

Jurisdiction

Limitation Periods

Breach of Statutory Duty

Statutory Interpretation

Civil Litigation & Procedure

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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,…

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 [2021] WASC 383
Case: [2021] WASC 383
Decision Date

CaseChat Overview and Summary

The interlocutory application in Crossley v English was heard in the Supreme Court of Western Australia in chambers, presided over by Registrar Whitbread. The plaintiffs, William Edmund Crossley and Patricia Margaret Crossley, sought leave to administer interrogatories to the defendant, Paul Christopher English, under O 27 r 1 of the Rules of the Supreme Court 1971 (WA). The plaintiffs, who own a rural property adjacent to the defendant's marron farm, allege that the defendant's construction and maintenance of dams on a watercourse running through both properties has blocked and destroyed the watercourse, depriving them of the benefit of water flowing through it. The defendant disputes these claims, arguing that the watercourse is seasonal and does not flow continuously, and that his actions have not sensibly diminished the flow of water or adversely affected its quality.

The legal issues before the court were whether exemplary damages could be awarded in a claim under s 5E of the Rights in Water and Irrigation Act 1914 (WA) and whether leave should be granted to administer interrogatories solely focused on exemplary damages. The court found that the Act does not permit an award of exemplary damages and that the proposed interrogatories did not go to a matter in issue between the parties at trial. The plaintiffs' claim for exemplary damages did not fall within the third category of cases identified by Lord Devlin in Rookes v Barnard, as the statute in question did not expressly authorise such damages. The court dismissed the application for leave to administer interrogatories and will hear the parties on the question of costs.

In conclusion, the Supreme Court of Western Australia denied the plaintiffs' request for leave to administer interrogatories in Crossley v English. The court found that the proposed interrogatories, which focused solely on the issue of exemplary damages, did not relate to a matter in question between the parties. The court further determined that the plaintiffs' claim for exemplary damages was not permissible under the Rights in Water and Irrigation Act 1914 (WA). The application was dismissed, and the court will consider the parties' submissions on the question of costs.

Orders