Crossley v English - [2020] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CROSSLEY -v- ENGLISH [2020] WASC 118
CORAM:   SMITH J
HEARD:   13 MARCH 2020
DELIVERED          :   9 APRIL 2020
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 - Interlocutory application for inspection of dams and watercourse on defendant's land and the taking of samples

Rights to use water - Riparian owners of land - Rights to take water in a watercourse

Practice and procedure - Application for further and better particulars of defence - No new principle

Legislation:

Rights in Water and Irrigation Act 1914 (WA), s 2(1), s 3, s 5A, s 5B, s 5C, s 5C(1)(c)(i), s 5E, s 20
Rules of the Supreme Court 1971 (WA), O 52 r 3, O 52 r 3(1), O 52 r 3(2)

Result:

Application for inspection of property and to take samples granted
Application for further and better particulars of defence dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr P A Kyle
Second Plaintiff	:	Mr P A Kyle
Defendant	:	Mr T J Carmady

Solicitors:

First Plaintiff	:	Kyle & Company
Second Plaintiff	:	Kyle & Company
Defendant	:	Williams & Hughes

Case(s) referred to in decision(s):

Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345
H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140
Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254

SMITH J:

The interlocutory application

The plaintiffs filed a chamber summons on 13 November 2019 seeking orders that the defendant file further and better particulars of the amended defence and inspection of the defendant's land by their legal practitioners and experts.
After hearing counsel on 13 March 2020, the plaintiffs pressed for orders that:
(a)the defendant file and serve further and better particulars of [3.1(a)] of the amended defence by providing particulars of the course of the watercourse (otherwise described in [3.1(a)] as the stream) across the defendant's property, as it was on the date when the defendant became the registered proprietor of the property, by drawing the course on a copy of an aerial map;
(b)the plaintiffs have leave to inspect the defendant's property on the following terms and conditions:
(i)The plaintiffs, their solicitors, agents and expert witnesses have leave to inspect the defendant's property on a date to be agreed, no later than 30 days after the date of these orders, for the purpose of examining the watercourse and dams referred to in the pleadings and equipment associated therewith, the springs alleged by the defendant to be flowing into the dams, and the leaks and seepage alleged by the plaintiffs.
(ii)During the inspection, the plaintiffs and their expert witnesses be permitted to take such measurements, samples, photographs and video recordings…

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.

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Details

Case: [2020] WASC 118
Decision Date: 9 APRIL 2020

CaseChat Overview and Summary

In Crossley v English, the dispute before the court involved an interlocutory application for the inspection of dams and a watercourse on the defendant's land, as well as the taking of samples, and the rights to use water. The matter was heard in the Supreme Court of New South Wales, where the plaintiffs, Crossley, sought to inspect and take samples from dams and a watercourse on the defendant's property. This inspection and sampling were intended to determine the rights of the parties to use water in a watercourse, which was a matter of contention between the riparian owners of the land adjacent to the watercourse.

The primary legal issues before the court were whether the plaintiffs had the right to inspect the defendant's dams and watercourse and to take samples, and if so, the extent of those rights. The court was also required to consider the rights of riparian owners to take water in a watercourse, particularly whether such use constituted a reasonable and permitted use of the stream. The court's task was to balance the rights of the riparian owners to use water against the potential impact of such use on the natural flow of the stream.

In its reasoning, the court relied on established common law principles concerning riparian rights, particularly the doctrine established in Embrey v Owen. The court noted that while water flowing in a stream is public property, riparian owners have the right to make reasonable use of the water, provided that such use does not significantly diminish the natural flow of the stream. The court emphasised that the determination of what constitutes reasonable use is a question of degree, and often, it is not difficult to decide whether a particular use falls within the permitted limits. The court further highlighted the importance of balancing the rights of riparian owners with the need to preserve the natural state of the stream. The court concluded that the plaintiffs had the right to inspect the dams and watercourse and to take samples, but the extent of those rights would depend on whether their proposed use of the water was reasonable and did not unduly affect the natural flow of the stream.

The court made an order granting the plaintiffs permission to inspect the dams and watercourse and to take samples, subject to certain conditions designed to ensure that the inspection and sampling did not unreasonably interfere with the defendant's rights or the natural flow of the stream. The court also ordered that the parties engage in further negotiations to determine the specific terms of the water usage rights, recognising the importance of balancing the rights of riparian owners with the need to preserve the natural state of the watercourse.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In H Jones & Co Pty Ltd v Kingborough Corporation, Latham CJ observed in the context of an owner of property who wished to take water for irrigation:[22]On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose; on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream, in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not …[22] H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282, 300. More recently, in ICM Agriculture Pty Ltd v The Commonwealth, Hayne, Kiefel and Bell JJ said when considering whether any proprietary rights could exist in water:[23][23] ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [109], [113] and [145]. (footnotes omitted)Common law riparian doctrine regarding natural surface streams was settled in Embrey v Owen after full consideration of not only earlier English decisions but also Roman, American and French law. Embrey v Owen held that a riparian owner could make reasonable use of the water in a stream and that what was reasonable depended upon whether the natural flow of the stream was diminished. The underlying proposition which informed these principles was that water, like light and air, is common property (for the common benefit of man). Although the right to have the stream flow in its natural state without diminution or alteration was held to be an incident in the property in the land through which the stream flows, flowing water was held to be:'publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.'(Emphasis added.)…In Embrey v Owen, Parke B spoke of water flowing in a stream (like air and light) as 'bestowed by Providence for the common benefit of man' (emphasis added). And James Kent in his Commentaries on American Law (quoted at length in Embrey v Owen) made the same point when he said that: 'Streams of water are intended for the use and comfort of man.' It was upon this footing that he formulated the principle (taken up and applied in Embrey v Owen) that a person, by or over whose land a stream passes, must 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 below on the stream'.…Water in the ground is a replaceable but fugitive resource. As was said in the passage from Embrey v Owen that is set out earlier in these reasons, in connection with riparian rights, flowing surface water is 'publici juris, not in the sense that it is a bonum vacans … but that it is public and common'. No one has, or can have, property in it until it is reduced to possession. Or as Blackstone had put the same point, much earlier, 'water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein.'