Crossley v English [No 2]
[2024] WASC 268
•26 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CROSSLEY -v- ENGLISH [No 2] [2024] WASC 268
CORAM: HILL J
HEARD: 11-14 OCTOBER 2022, 23-25 JANUARY 2023
DELIVERED : 26 JULY 2024
FILE NO/S: CIV 1457 of 2019
BETWEEN: WILLIAM EDMUND CROSSLEY
First Plaintiff
PATRICIA MARGARET CROSSLEY
Second Plaintiff
AND
PAUL CHRISTOPHER ENGLISH
Defendant
Catchwords:
Energy and resources - Water resources - Whether plaintiffs have common law claim against defendant for breach of their riparian rights to water - Whether common law rights have been abrogated by Rights in Water and Irrigation Act 1914 (WA) - Proper construction of Rights in Water and Irrigation Act 1914 (WA)
Energy and resources - Water resources - Whether plaintiffs have standing to bring claim under Rights in Water and Irrigation Act 1914 (WA) - Whether there has been a sensible diminishment in flow of water from defendant's property onto plaintiffs' property
Limitation of Actions - Whether plaintiffs' claims are statute barred - Whether continuing cause of action - Turns on own facts
Damages - Claim for aggravated damages - Claim for exemplary damages -Whether available in civil claim under Rights in Water and Irrigation Act 1914 (WA)
Legislation:
Rights in Water and Irrigation Act 1914 (WA) s 2(1), s 3, s 5A, s 5B, s 5C, s 5E, s 20, s 24
Result:
Plaintiffs' claim dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | P A Kyle |
| Second Plaintiff | : | P A Kyle |
| Defendant | : | D M Stone |
Solicitors:
| First Plaintiff | : | Kyle & Company |
| Second Plaintiff | : | Kyle & Company |
| Defendant | : | Williams & Hughes |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Argypoulos v Layton [2002] NSWCA 183
Byrne & Frew v Australia Airlines Ltd [1995 HCA 24; (1995) 185 CLR 410
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Collings Constructions Co Pty Ltd v ACCC (1998) 43 NSWLR 131
Crossley v English [2021] WASC 383
Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127
Delta Corp Ltd v Davies [2002] WASCA 125
Dermer v The Minister for Water Supply, Sewerage & Drainage (1941) 43 WALR 85
Earl of Harrington v Corporation of Derby [1905] 1 Ch 205
Embrey v Owen (1851) 6 Ex 353
H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282
Hanson v The Grassy Gully Gold Mining Co (1900) 21 LR (NSW) 271
Hawkins v Clayton (1986) 5 NSWLR 109
Hill v O'Brien (1938) 61 CLR 96
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140
LCA Marrickville Pty Ltd v Swiss International SE [2022] FCAFC 17
Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207
Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192
Marketform Managing Agency Ltd v Amashaw Pty Ltd [2018] NSWCA 70; (2018) 97 NSWLR 306
McMurtrie v Commonwealth of Australia [2000] NSWSC 1056
Miner v Gilmour (1858) 14 ER 861
Minogue v Victoria [2018] HCA 27; (2018) 356 ALR 363
Mohammadi v Bethune [2018] WASCA 98
Nagle v Miller (1904) 29 VLR 765
Nicolls v Ely Beet Sugar Factory Ltd [1936] Ch 343
Obeid Snr v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Pearson v Connor [2024] WASCA 49
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rapoff v Velios [1975] WAR 27
Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367
SSYBA Pty Ltd v Lane [2013] WASC 445
SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317
Ward v State of Western Australia (1998) 159 ALR 483
Western Australia v Cunningham [2018] WASCA 207
Williams v Cahill (Unreported, WASC, 11 March 1964)
Table of Contents
Factual background
Delay in judgment
The pleadings
Statement of claim
The defence
Issues for determination
Procedural matters
Place of trial
Application for adjournment of trial
Objections to expert evidence
Continuation of trial
Onus and general observations on credibility
Onus and standard of proof
Approach to the evidence
General observations on credibility
William Crossley
Patricia Crossley
Kelli Gillies
Christine Chalmer
Bernadette O'Meara
Brian Humphries
Paul English
Eva-Maria Natemeyer
Alan Russell
John Russell
Proper construction of the Rights in Water and Irrigation Act 1914 (WA)
Structure and relevant provisions of the Act
Have common law riparian rights been abolished by the Act?
Hanson v The Grassy Gully Gold Mining Co
H Jones & Co Pty Ltd v Kingborough Corporation
Thorpes Ltd v Grant Pastoral Co Pty Ltd
Williams v Cahill
Rapoff v Velios
Ward v State of Western Australia
ICM Agriculture Pty Ltd v Commonwealth
Relevant textbooks
Conclusion
Do the plaintiffs have standing to bring a claim under the Act?
Parties' submissions
Disposition
Does the Act prevent a dam being constructed over a watercourse?
Meaning of 'sensibly diminished'
Position prior to construction of the Third Dam
Construction of the Third Dam
Initial approval of the Third Dam
Construction of the Third Dam
Outlet system installed by Mr English
Complaints in relation to the Third Dam
Inspections by the Shire
Application for and retrospective approval of the Third Dam
Closure of bed and breakfast business
Retention of Mr Humphries
Correspondence with the Shire and government departments
Has the flow of water onto the Crossley Property been impacted by the construction of the three dams or any of them and, if so, to what extent?
Did the construction of the Third Dam extend the time when there was no flow of water in the watercourse?
Design of the dams
Conclusion
What, if any, is the relevance of the diversion of watercourse 8?
Did the construction of the Third Dam cause turbulent flows in winter?
Did the change in flow of water in the watercourse have any impact on the Crossley Property?
Did Mr English deliberately ignore the conditions imposed on the construction of the Third Dam?
When did Mr and Mrs Crossley's cause of action arise?
What relief should be granted?
Should an injunction be granted?
Are Mr and Mrs Crossley entitled to damages?
Are Mr and Mrs Crossley entitled to aggravated and/or exemplary damages?
Conclusion
HILL J:
In 1995, former World Bank vice president Dr Ismail Serageldin commented that '[i]f the wars of this century were fought over oil, the wars of the next century will be fought over water.'[1]
[1] Ismail Serageldin, 'Vers la Revolution Doublement Verte' (Speech, World Bank, 2 November 1995).
The parties in this case, who own neighbouring rural properties in the Shire of Denmark (Shire), have been in bitter disagreement since 2011 about whether the activities of the upstream neighbour (Mr English) in constructing dams on his property have substantially interfered with the flow of water in the watercourse that runs through his property to the property of his downstream neighbours (Mr and Mrs Crossley).
During the construction of the third and largest dam by Mr English in March 2011, Mr Crossley complained to the Shire that it was being built too close to the boundary of his property. The Shire did not investigate this complaint or inspect the dam until six to nine months later. From early 2012, officers (as well as local elected representatives) from the Shire attempted to broker a solution between the warring neighbours which did not involve a relocation of this dam.
Both prior to the commencement of these proceedings and since that time, the parties have sought clarification and assistance from the relevant government department (now the Department of Water and Environment Regulation (Department)) as well as the Shire. Regrettably, the information each party has received from these entities has not assisted them to resolve their dispute. More regrettably, while numerous attempts have been made to find a solution acceptable to all parties, this has not been possible.
It is not in dispute that the dam constructed in March 2011 was built across the watercourse. By Mr English constructing the dam in this manner, all water that previously flowed through the watercourse became part of the dam. It was replaced by an outflow of water from the dam which made its way into the watercourse.
In 2015, Mr and Mrs Crossley retained Mr Humphries to assist them in this matter but did not commence proceedings until 15 March 2019.
For the reasons that follow, it is my view that:
(a)the Rights in Water and Irrigation Act 1914 (WA) (Act) has abrogated all material common law riparian rights;
(b)Mr and Mrs Crossley have standing to bring a claim against Mr English under the Act;
(c)by the construction of a third dam in 2011, Mr English took all of the water from the watercourse. This caused an immediate and sensible diminishment of the flow of water in the watercourse in excess of the rights granted to him by s 20 of the Act;
(d)the claim by Mr and Mrs Crossley arose on the construction of the third dam in March 2011, and required proceedings to be commenced by March 2017. This did not occur and accordingly their claim is statute barred;
(e)any sporadic flooding that has been caused by the construction of the third dam in 2011 is not a 'sensible diminishment' of the flow of water in the watercourse and, accordingly, is not a breach of the Act; and
(f)Mr English always intended to construct the third dam across the watercourse and was aware at the time of its construction that it did not comply with the conditions of its approval. However, the application for retrospective approval (which was granted) was accurate in showing the size and location of the third dam. Mr and Mrs Crossley have not established any loss that flowed from Mr English's breach of the conditions of his original planning approval.
Given these findings, the claim by Mr and Mrs Crossley must be dismissed. The detailed basis for these conclusions is set out below.
Factual background
Much of the factual background to the dispute is not in issue and is summarised below. Where matters are contentious and require findings of fact to be made or are material to the determination of the issues raised in the proceedings, I have addressed these matters at the appropriate part of these reasons.
On 6 August 1992, Mr and Mrs Crossley purchased 36 Settlers Boundary Road, Tingledale, being Lot 1224 on Deposited Plan 149123 and the whole of the land in certificate of title Volume 1510 Folio 93 (Crossley Property).[2] The Crossley Property is approximately two hectares. From approximately 1998 until 2013, Mr and Mrs Crossley ran a bed and breakfast business from the Crossley Property.
[2] Exhibit 1.1.
In 2004, Mr English purchased 518 Hazelvale Road, Hazelvale, being Lot 2 on Diagram 58436 and the whole of the land in certificate of title Volume 1556 Folio 311 (English Property). The English Property is approximately 26 ha in size. It is on the western side and contiguous to the Crossley Property. The northern part of the English Property slopes down towards the watercourse.[3]
[3] Exhibit 3, page 59; ts 223.
A watercourse runs from upstream through a culvert under a road into the western boundary of the English Property, through the English Property to the eastern boundary and downstream into and across the Crossley Property underneath a culvert on Settlers Boundary Road. An aerial map obtained from Landgate which has been marked up to show the watercourse is annexed to these reasons as 'Annexure A'.[4]
[4] Exhibit 3, page 64.
The previous owner of the English Property constructed a dam of approximately 5,000 m2 over the watercourse (Original Dam). Since his purchase of the English Property, Mr English has extended the Original Dam and constructed a number of additional dams on the English Property. Three of the dams on the English Property are the subject of these proceedings. An aerial map obtained from Landgate which shows the boundaries of the Crossley Property and the English Property, and the location of these three dams on the English Property is annexed to these reasons as 'Annexure B'.[5]
[5] Exhibit 3, page 61. The markings on this photo are in the original photo obtained from Landgate (ts 224).
Since about 2007, Mr English has held a licence to farm marron at the English Property and does so in each of the three dams. Since 2013, Ms Eva‑Maria Natemeyer, Mr English's partner, has lived with him at the English Property.
In about 2006, Mr English built a dam over the watercourse to the eastern side of the Original Dam. This dam is approximately 18,000 m2 (First Dam).
In 2009, Mr English increased the size of the Original Dam to approximately 10,000 m2 (Second Dam).
On 31 January 2011 (by application dated 28 January 2011), Mr English applied for approval to construct a further dam.[6] Approval was granted on 11 March 2011 subject to a number of conditions.[7] The details of both the application and approval are set out below.
[6] Exhibit 1.5.
[7] Exhibit 1.6.
Construction of the third dam started in March 2011. This dam is approximately 22,000 m2 and is on the eastern side of the English Property (Third Dam). The eastern wall of the Third Dam is close to the boundary of the Crossley Property and runs almost perpendicular with the fence line.
The issues between the parties commenced during the construction of the Third Dam. Mr Crossley first rang the Shire to complain about the Third Dam during its construction. On 2 December 2011, Mr Crossley wrote to the Shire complaining that the Third Dam had not been constructed in accordance with its planning approval.[8]
[8] Exhibit 1.8.
Following receipt of Mr Crossley's letter, the Shire visited both properties and spoke to Mr English, as well as Mr and Mrs Crossley.
On 14 April 2014, the Shire informed Mr English that the Third Dam did not comply with its planning approval, and that he needed to either modify the dam to ensure it did comply or apply for retrospective approval.[9]
[9] Exhibit 1.10.
On 21 May 2014, Mr English applied for retrospective approval,[10] which was granted on 30 June 2014. This was also subject to a number of conditions.[11]
[10] Exhibit 1.11.
[11] Exhibit 1.12.
Mr and Mrs Crossley continued to have concerns about the Third Dam and in about June 2015, engaged Mr Brian Humphries to assist them. Since his engagement, Mr Humphries has sent lengthy correspondence to various government departments as well as the Shire on behalf of Mr and Mrs Crossley.
Ultimately, on 15 March 2019, Mr and Mrs Crossley commenced these proceedings against Mr English.
Delay in judgment
The hearing of this matter took place in October 2022 and January 2023. Regrettably, it has not been possible to finalise my reasons for decision as quickly as I would have liked.
In order to properly assess the parties' cases and the evidence that was given at trial and to ensure this has not been impaired by the delay between the hearing and the publication of these reasons, I have done the following.
First, my conclusions as to the credit and reliability of the witnesses were written shortly after each witness gave their evidence.
Second, I have refreshed my memory by reading the transcript of the evidence of each of the witnesses and re‑listening to portions of the evidence of the major witnesses (namely Mr and Mrs Crossley, Mr Humphries, Mr English and Ms Natemeyer). During the course of the trial, I made contemporaneous notes of their evidence and my observations of each of them as witnesses. My assessment of the witnesses has been assisted by my review of these notes, the transcript, as well as the documents that were tendered in evidence.
Third, I had the benefit of oral closing submissions from counsel and written closing submissions from the defendant. Each made submissions on the evidence given by the witnesses, including as to the findings of fact that each contends should be made. In addition, both counsel made submissions on the credibility of the witnesses, whose evidence I should prefer and the reasons for this.
Finally, my conclusions as to the credit and reliability of the witnesses are primarily based on the consistency of the evidence they gave, including whether their evidence was consistent with contemporaneous documents and the facts that have been objectively established.
The pleadings
As is now commonplace, the parties amended their pleadings on a number of occasions prior to trial. At trial, the pleadings relied on were the further re‑amended statement of claim filed 2 December 2021 (statement of claim) and a further re‑amended defence filed 23 August 2022 (defence). The plaintiffs filed particulars of their statement of claim[12] as well as separate particulars of damages.[13]
Statement of claim
[12] Amended further and better particulars of statement of claim filed 4 November 2020.
[13] Further and better particulars of damages filed 14 March 2022.
Mr and Mrs Crossley plead that at all material times up to 2004, a watercourse ran through the English Property from beyond its western side to their property through which a water stream ran except during the height of summer.[14] They contend that the volume of water in the watercourse at the boundary of their properties ran at the same times and approximately the same volumes as at the point of entry onto the English Property.[15]
[14] Statement of claim [4], [5].
[15] Statement of claim [6].
Prior to 2004, there was an original dam of approximately 5,000 m2 on the English Property which was constructed close to the watercourse.[16] Between 2004 and 2011, three dams were constructed on the English Property being:
(a)the First Dam, which was approximately 17,500 m2 and included the width of the watercourse, constructed between 2004 to 2007;[17]
(b)the Second Dam, which was approximately 8,600 m2 and included the width of the watercourse and the original dam, constructed between 2007 and 2010;[18] and
(c)the Third Dam, which was approximately 25,400 m2 and included the width of the watercourse situated close to the boundary between their properties, which was constructed in 2011.[19]
[16] Statement of claim [7].
[17] Statement of claim [8]. The defence admits the First Dam was built and that it was 18,000 m2 (Defence [7.3]), which is reflected in [12] above.
[18] Statement of claim [9]. The defence admits the Second Dam was built and that it was 10,000 m2 (Defence [8.3]), which is reflected in [13] above.
[19] Statement of claim [10]. The defence admits the Third Dam was built and that it was 22,000 m2 (Defence [9.2]), which is reflected in [15] above.
Mr and Mrs Crossley plead two claims against Mr English in relation to the construction of these dams, namely that:
(a)by blocking and destroying the watercourse and preventing the water stream from running through the watercourse onto the Crossley Property, Mr English has wrongfully deprived them of the benefit of their common law rights of water flowing through the watercourse onto the Crossley Property. Further and alternatively, by sensibly diminishing the flow of water in the watercourse, Mr English has breached the rights of Mr and Mrs Crossley under s 5A, s 5B and s 20 of the Act;[20] and
(b)in breach of the rights of Mr and Mrs Crossley to the flow of water through the watercourse, Mr English's diversion of the flow of water and the system in the Third Dam has caused sporadic flooding of the Crossley Property.[21]
[20] Statement of claim [11]; Answers to amended further and better particulars of statement of claim [2.4]. The answers to particulars refer only to div 1A of the Act (which does not include s 20), although s 20 was referred to in the answers to another request ([4(b)]). In opening submissions (both written (see [2(b)(v)] and [5(a)]) and oral (ts 99)), counsel for the plaintiffs made it clear that the plaintiffs relied on s 5A, s 5B, and s 20 of the Act. No objection was taken by the defendant and I have proceeded on the basis that these are the sections relied upon by the plaintiffs.
[21] Statement of claim [12].
Particulars were requested and provided of the specific matters relied upon in support of these allegations. The particulars provided contend the following:
(a)Each dam has been built over the watercourse, which has destroyed the beds and banks of the watercourse by covering them with soil.
(b)The dam wall blocks the flow of water out of the dam.
(c)The outlet of the Third Dam (consisting of two vertical pipes which connect to two horizontal pipes) is not on the original path of the watercourse.
(d)Water cannot flow out of the dam until the level of water in the dam is higher than the top of the vertical pipes, which has (on occasions) been raised by Mr English.
As a consequence of these matters, Mr and Mrs Crossley say they have been deprived of a flow of water through the watercourse between November and June each year, depending on seasonal variations.[22]
[22] Answers to amended further and better particulars of statement of claim [2.3].
Mr and Mrs Crossley plead that Mr English's actions in constructing the dams were done in 'wilful disregard' of their rights under div 1A (s 5A, s 5B, s 5C and s 5E) and s 20 of the Act to not take water from the watercourse except to the extent permitted by s 20 of the Act, that he deliberately ignored the conditions imposed by the Shire on the construction of the Third Dam, and that he did not, when seeking retrospective approval of the Third Dam, inform the Shire that the Third Dam had been constructed over a watercourse.[23]
[23] Statement of claim [13].
Mr and Mrs Crossley plead that Mr English's actions have caused them loss and damage, including a loss of enjoyment of the Crossley Property, and seek both aggravated and exemplary damages. They also seek damages for the costs that will be incurred in repairing the damage to the Crossley Property (of approximately $70,000) and for reimbursement of the costs they have incurred in investigating their rights (of approximately $54,000).[24] Finally, Mr and Mrs Crossley seek a mandatory injunction requiring the removal of the dams which obstruct the flow of water and seek reinstatement of the watercourse that existed prior to the construction of the First Dam.[25]
The defence
[24] Further and better particulars of damages filed 14 March 2022.
[25] Statement of claim, prayer for relief [1].
Mr English admits that each of the three dams the subject of these proceedings is constructed on the watercourse.[26]
[26] Defence [6.3], [7.2], [8.4].
In answer to the claims of Mr and Mrs Crossley, he pleads that:[27]
(a)the watercourse is seasonal and does not commence flowing on the English Property until sufficient winter rains have fallen, and typically ceases flowing by November or December each year, depending upon the weather; and
(b)the downstream flow of the watercourse is augmented by groundwater, which has its source on the English Property and flows into each of the dams.
[27] Defence [4.3] - [4.5].
Mr English denies that as a result of the construction of each of the three dams, the flow of water in the watercourse has been sensibly diminished.[28] Mr English also denies the Third Dam has not been constructed in accordance with the retrospective planning approval obtained on or about 30 June 2014.[29]
[28] Defence [7.4], [8.5], [9.4], [12.3].
[29] Defence [9.5].
Mr English pleads that in or about April 2018, he constructed an emergency spillway on the south‑eastern side of the Third Dam,[30] and installed an outflow system which allows water to flow out of the Third Dam into the watercourse downstream of the Third Dam and into the Crossley Property during the times of the year when water flows in the watercourse across the English Property.[31]
[30] Defence [9.6].
[31] Defence [10.1A] ‑ [10.1C].
Mr English denies that any sporadic flooding at the Crossley Property has been caused by the construction of the Third Dam. Mr English accepts that flooding occurred in June 2012 but says this was caused by natural phenomena, including the amount and duration of rainfall, and denies this was caused or contributed to by the Third Dam. Mr English says that any waterlogging or boggy conditions on Mr and Mrs Crossley's property are caused by obstructions in the watercourse on the Crossley Property, the accumulation of silt in the watercourse, the failure by Mr and Mrs Crossley to remove obstructions and silting from the watercourse, as well as ground conditions on the Crossley Property.[32]
[32] Defence [11].
Mr English denies that Mr and Mrs Crossley have suffered any loss or damage. In the alternative, he pleads that Mr and Mrs Crossley have caused or contributed to the loss or damage, alternatively, have failed to take reasonable steps to mitigate their loss, by not adequately maintaining the Crossley Property by removing obstructions and silt from the watercourse.
In addition to these matters, Mr English also pleads that if, which is denied, Mr and Mrs Crossley have any cause of action against him, then to the extent the cause of action accrued more than six years prior to the commencement of the action, those causes of action are statute barred.[33]
[33] Defence [16].
Issues for determination
On the basis of the pleadings, the issues that require determination in this matter are as follows:
(a)Did the construction of the three dams by Mr English destroy the watercourse?
(b)Has the flow of water in the watercourse onto the Crossley Property stopped or been sensibly diminished by the construction of the three dams or any of them and, if so, to what extent?
(c)Does the water in the three dams originate from the watercourse or from water which has its source on the English Property and flows into the dams?
(d)Does the outlet system and siphon installed by Mr English allow water to flow into the watercourse during the times of the year when water flows in the watercourse at the entry to the English Property?
(e)Has the construction of the dams or any of them caused sporadic flooding of the Crossley Property or turbulence? If so, was this done knowingly and deliberately?
(f)Is the application by Mr English for retrospective approval of the Third Dam factually accurate? If not, was this deliberate?
(g)Are the claims of Mr and Mrs Crossley statute barred?
(h)What, if any, relief should be granted?
Procedural matters
Before addressing these issues, there are four procedural matters that occurred during the hearing of this matter that require comment.
Place of trial
The writ of summons in this matter was issued out of Perth. Notwithstanding this, the parties agreed that the trial should take place in Albany to enable an inspection of the properties. The inspection occurred on the afternoon of 10 October 2022, the day prior to the formal commencement of the trial. The inspection was attended by counsel for each of the parties, together with representatives of the solicitors for Mr English, the parties, Ms Natemeyer, and experts for each of the parties.
Where my conclusions are based, at least in part, on my observations during this inspection, I have referred to this in my reasons.
Application for adjournment of trial
On the first day of the trial, counsel for Mr and Mrs Crossley applied for an adjournment of the trial, which was opposed by Mr English. The basis for the application arose from the late compliance with a subpoena by the Department. On Friday, 7 October 2022 (the last business day prior to trial), the Department produced approximately 330 documents in answer to the subpoena issued by the court at the request of Mr English. On the evening of 7 October 2022, Mr English's solicitors provided electronic copies of these documents, together with a list of these documents, to counsel for Mr and Mrs Crossley. Having done an initial review of the index of documents and sought instructions, on the weekend prior to the commencement of the trial, counsel for Mr and Mrs Crossley informed the court of their intention to apply for an adjournment of the trial.
At the time of the application, counsel for Mr and Mrs Crossley had not yet reviewed the documents and could not point to any specific prejudice that would arise from the late production of documents. For this reason, I initially adjourned the commencement of the trial until that afternoon so that counsel could undertake an initial review of these documents. At the recommencement of the hearing, I dismissed the application for an adjournment of the trial on the basis that none of the documents I was directed to had not already been discovered or made available to the parties. However, I acceded to a request to adjourn the trial until the morning of Wednesday, 12 October 2022 to enable a more thorough review of the documents to occur before the commencement of the trial.
Objections to expert evidence
During the trial, and part way through Mr Humphries' examination in chief, counsel for Mr English objected to Mr Humphries' report and evidence being received as expert evidence on two grounds.[34] First, it was contended that Mr Humphries did not have the expertise to express the opinions contained in his report. Specifically, Mr English objected to those sections of Mr Humphries' report setting out what is described as a 'hydrologic model of watercourse flows'.[35] Mr English contended that the area of expertise required to give this evidence was hydrology, which is the 'province of a civil engineer'.[36] Mr Humphries' lack of expertise was said to be demonstrated from the number of mistakes which Mr English contended were contained in his report. Second, it was submitted that Mr Humphries lacked independence. His lack of independence was said to arise from the terms of his fee arrangement with Mr and Mrs Crossley (as his payment was dependent on their success in these proceedings) as well as the initial work he had been done for Mr and Mrs Crossley. It was submitted that Mr Humphries was an advocate for Mr and Mrs Crossley and was not an independent expert. In addition, objections were taken to particular paragraphs of both Mr Humphries' report, which were said to be observations on the effect of correspondence from various government agencies,[37] as well as the joint memorandum.[38]
[34] ts 237 - 238.
[35] Exhibit 3 [46] - [56]; Exhibit 4 [92] - [105].
[36] ts 244.
[37] Exhibit 3 [61].
[38] Exhibit 4, charts at pages 10 - 12.
None of these matters had been raised previously in conferral, nor were they raised in Mr English's written or oral opening submissions. As was stated at the trial, this is not satisfactory.[39] In my view, given these objections did not depend on Mr Humphries' oral evidence, notice of these objections should have been given prior to the third day of trial. After taking instructions, counsel for Mr English withdrew his objection to the admissibility of Mr Humphries' evidence and agreed these matters could be addressed by consideration as to the weight (if any) to be given to his evidence. I have addressed the weight I have given to Mr Humphries' evidence both in my findings on his credit and at the relevant part of these reasons.
Continuation of trial
[39] ts 239.
It was not possible to conclude the trial in Albany within the time allocated. Initially, the matter was adjourned for a further three days commencing 21 November 2022 in Albany.
On 31 October 2022, the solicitors for Mr English filed an application seeking leave for his expert to give evidence in Perth at a date to be fixed between 12 and 15 December 2022. The application was heard on 1 November 2022. On that date, I vacated the trial dates in Albany and relisted the matter for hearing on 12 to 15 December 2022 in Perth.
Shortly prior to these dates, counsel for Mr and Mrs Crossley tested positive for COVID‑19. Given this, the parties agreed that the December 2022 trial dates should be vacated and the trial relisted in January 2023. The matter was relisted for hearing on 23 to 25 January 2023 in Perth and concluded at this time.
Onus and general observations on credibility
Onus and standard of proof
Mr and Mrs Crossley accept they bear the onus of proving their claim on the balance of probabilities. Mr English accepts that he bears the onus of establishing the claims of Mr and Mrs Crossley are statute barred.[40]
Approach to the evidence
[40] Defendant's opening submissions [13.1(a)].
At trial, each of the parties gave evidence and called a number of witnesses to give evidence on their behalf. Before setting out my findings on the credit of each of the witnesses, it is useful to summarise the approach I have taken to the evidence in this case.
The credibility and reliability of a witness may be tested by reference to objective facts which can be proved independently, in particular by reference to contemporaneous documents. Contemporaneous documents will often provide more valuable information than the attempted recollection of the facts by witnesses with an interest in the outcome of the litigation. This is particularly the case when the documents are accepted as genuine and were prepared by a person who had no reason to misstate the facts.
Contemporaneous statements are likely to be a more accurate reflection of events than later statements. This is because false memories can intrude, especially when the person recalling events has tried to assemble recollections logically. In doing so, the person can attempt to have some rational explanation in the person's mind as to what has happened. I have kept in mind that memories are both fluid and malleable and are constantly rewritten whenever they are retrieved.
In considering the evidence adduced by the parties, I have accepted that:[41]
Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.
[41] McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).
Given these matters, often the safest course is to place primary emphasis on the objective factual surrounding material, the inherent commercial probabilities and the contemporaneous documents.
General observations on credibility
Mr and Mrs Crossley each gave evidence at trial and called four additional witnesses. Mr English also gave evidence and called three additional witnesses.
William Crossley
Mr Crossley has been retired for a number of years. He and Mrs Crossley moved to the Crossley Property on a permanent basis from 1998.
It was apparent from both the content and manner in which Mr Crossley gave his evidence that he was very distressed about the construction of the Third Dam in breach of the then planning approval and the failure of the Shire or any government department to intervene to address this issue. In his own words: 'when the council said they can do nothing to help me, … I became very despondent'; 'it destroyed my lifestyle' and 'I just gave up doing anything'.[42]
[42] ts 119.
It was clear from his evidence that he genuinely believes the Third Dam has destroyed not only the watercourse running through the Crossley Property but also the vision he had for his retirement. As a result, he considers the only appropriate remedy is for Mr English to be required to move the Third Dam back to the position that was set out in the original application for planning approval.
In my view, Mr Crossley's distress about the situation he has found himself in, which is not entirely of his own making, impacted the reliability of his evidence. By way of example, Mr Crossley initially stated the bridge at the Crossley Property was dislodged in 2012. In cross‑examination, he accepted that he referred to this event in his letter to the Shire in December 2011 and so it must have occurred before then. Mr Crossley was unable to explain why this claim was not included in the statement of claim in these proceedings until the end of 2021, or when he first told Mr Humphries about this. Mr Humphries' evidence was that he did not become aware of this claim until 2019.
On this aspect, I accept that Mr Crossley was first concerned about the flooding on the Crossley Property in June or July 2011 and that he referred to the effects of this in his initial meetings with Mr Humphries. These concerns were documented by Mr Humphries as 'erosion'. I find that the nature of this complaint and its relevance to their claims was not understood by Mr Humphries or the solicitors for Mr and Mrs Crossley until much later in about 2019. This is consistent with the amendment of the statement of claim in 2021 and the content of the joint expert report.[43] On this basis, I do not consider this matter has any impact on my views of the credit of Mr Crossley.
[43] Exhibit 4 [95] - [98].
In general, Mr Crossley answered all of the questions that were asked of him relatively directly and succinctly and made appropriate concessions where required (such as to his error as to when the bridge was dislodged).
While I accept that Mr Crossley was an honest witness and that he genuinely believed the matters of which he gave evidence, I find that his evidence has been impacted by his distress and what he considers to be the unfairness of the situation. In considering his evidence, I have carefully considered it against the contemporaneous documents in order to determine whether or not his evidence is reliable and should be accepted.
Patricia Crossley
Mrs Crossley was an impressive witness. She answered the questions asked of her directly and succinctly. That said, it was clear from her evidence that she does not like Mr English and considers that his actions have destroyed the plans she and Mr Crossley had for their retirement and their enjoyment of what, in her words, was a property that they were 'absolutely overjoyed' with.[44]
[44] ts 202.
Mrs Crossley was clearly worried about the impact that this long‑running dispute has had on her husband's health (both physical and mental) and considers that Mr English is responsible for this. Her evidence was impacted by the strong (albeit understandable) emotional feelings she has about the matter. In considering her evidence, I have weighed it against the contemporaneous documents and the facts which have been objectively proved to determine whether or not her evidence is reliable and should be accepted.
Kelli Gillies
Ms Gillies was previously a Councillor of the Shire between 2011 and 2016. Both the Crossley Property and the English Property fell within her Ward (the Kent/Nornalup Ward).
Ms Gillies was the only witness called by Mr and Mrs Crossley who can properly be described as an independent witness. She answered the questions asked of her carefully and made appropriate clarifications as well as concessions when she did not recall an event.
I find that Ms Gillies was an honest and reliable witness and accept her evidence in its entirety.
Christine Chalmer
Ms Chalmer previously resided at the English Property until her separation from the previous owner. Over the time she lived there, she became good friends with Mr and Mrs Crossley and has maintained that friendship since leaving the area.
In answer to the questions she was asked, Ms Chalmer often gave long and somewhat rambling and irrelevant answers. Her relevant evidence was confined to a very narrow matter; namely, the state of the watercourse on the English Property and Crossley Property prior to Mr English's purchase of the English Property. In so far as her evidence was relevant to this issue, I find that she was an honest witness and accept her evidence.
Bernadette O'Meara
Mrs O'Meara, together with her husband, reside on a rural property. They provided a quotation to Mr and Mrs Crossley to undertake remedial work on the Crossley Property to address the build‑up of weeds and silt in the watercourse.
Mrs O'Meara's stepfather is Mr Humphries who introduced her to Mr and Mrs Crossley. This relationship was not disclosed by Mrs O'Meara until cross‑examination. Mrs O'Meara was, at times, defensive in the answers that she gave in cross‑examination, particularly when asked how she had derived the figures in the quotation. In some instances, while her evidence was that the quotation was the joint work of her and her husband, she was unable to clarify how these figures had been calculated. Notwithstanding this, Mrs O'Meara attempted to answer all questions that were asked of her.
I make no adverse credit finding against Mrs O'Meara. However, given the lack of detail in her evidence, I have carefully considered whether or not her evidence is reliable and can be accepted.
Brian Humphries
Mr Humphries is a licensed land surveyor. He has a Bachelor of Surveying (with Honours) from the University of New South Wales. As part of his degree, he studied fluid mechanics, soil mechanics, hydrology and geology. To the best of his recollection, his study of hydrology was over a full academic year.[45] Following graduation, Mr Humphries was involved in 'satellite image processing, computer mapping and reform of land tenuring in many third world countries'. His evidence was that from the work he has done since retiring, he possesses:[46]
[A]n expertise in the statutory planning approval process with respect to relevant local planning schemes and policies in local government and, more particularly, dams policies in local government.
[45] ts 337.
[46] ts 216.
Mr Humphries explained that he has been contacted by landowners in rural areas for assistance and advice on upstream dams, including the provision of assistance in the process for development application approvals (among other things).[47] Mr Humphries has experience in relation to dam disputes in the Shire, having previously assisted downstream owners below the Quickup dam, which provides the water supply for the Shire, as well as the Wentworth Road dam.[48]
[47] ts 216.
[48] ts 217.
Mr Humphries was retained by Mr and Mrs Crossley in June 2015 to provide assistance with their issues arising from the construction of the Third Dam. He made requests on their behalf under the Freedom of Information Act 1992 (WA) and advocated on their behalf to a number of relevant Ministers and the Shire. Subsequently, Mr Humphries was asked to and did provide an expert report on behalf of Mr and Mrs Crossley that was tendered at trial.[49]
[49] Exhibit 3.
In examination in chief, Mr Humphries provided relatively long answers to fairly straightforward questions. On numerous occasions, his answers were not confined to the question he was asked. On other occasions, rather than giving evidence of factual matters, Mr Humphries answered questions in a manner that was more akin to a continuation of his advocacy for Mr and Mrs Crossley. By way of example, relatively early in his examination in chief, Mr Humphries was asked whether he considered there was a need to measure the flow of water in the watercourse. His response was 'yes and no' before explaining the objectives of what he was seeking to establish; namely, whether there was continuity of the flows between the entry into the English Property as compared to the Crossley Property and why he considered this was important.[50] The lengthy answer that was given was not responsive to the question he was asked.
[50] ts 233.
In cross-examination, Mr Humphries was defensive, and on a number of occasions, appeared frustrated with the questions he was asked by counsel for Mr English. By way of example, at the commencement of cross‑examination, Mr Humphries was asked what reliance should be placed on the modelling in his report. After seeking to explain what reliance he had placed on the modelling and stating that he had submitted the model to the Department to justify Mr and Mrs Crossley's position, in answer to a question from the court, he ultimately accepted that no weight should be placed on his theoretical modelling, but that emphasis should be placed on his factual evidence.[51]
[51] ts 287 - 288.
Mr Humphries was then asked a series of questions about the accuracy of his model. Initially, his response was that there were no flaws in the model.[52] Ultimately, Mr Humphries conceded there were flaws in his model and that the flow rates contained in his report were only estimates or, in his words, 'guesstimates' and that no weight should be placed on these figures. His explanation as to how he had derived these figures was neither clear nor satisfactory.
[52] ts 288.
On occasions, rather than answering the question asked of him, Mr Humphries attempted to explain what had occurred and why. On at least one occasion, he expressed the view that the question he was asked was wasting a lot of time.[53]
[53] ts 293 - 294.
Mr Humphries denied he had written his report to advance the case of Mr and Mrs Crossley in the proceedings or that he was acting as their advocate.[54] This was despite a number of matters which supported a contrary conclusion. Notably, these included:
(a)his website which stated that he is an advocate to the State Government in relation to private dams, which he accepted was an accurate statement;[55]
(b)a media release published on his website which referred to Mr and Mrs Crossley's fears that the Third Dam was leaking and that there was a risk of catastrophic failure.[56] Mr Humphries accepted he had not taken any steps to remove this from his website, even after an expert opinion obtained in June 2020 from an engineer advised that the Third Dam is structurally sound and Mr and Mrs Crossley had deleted this claim from their pleadings; and
(c)his correspondence with the various government departments.[57]
[54] ts 343.
[55] ts 343; Exhibit 15.
[56] Exhibit 16.
[57] See for example, Exhibit 1.36 (Letters 7, 15, 19, 36).
In his correspondence with various departments and the Shire, Mr Humphries used emotive and intemperate language, accused both the Department and the Shire of 'bureaucratic bungling' (among other things) and made very serious allegations against these organisations and various people within them. In re‑examination, Mr Humphries sought to explain the basis and rationale for some of these remarks, including that the relevant officers did not understand the background to the issue, as well as his belief that some staff were breaching their respective codes of conduct.[58] While I accept that some aspects of the correspondence may be explained by his frustration in not achieving the result he wanted, it is not, in my view, a complete answer.
[58] ts 389 (Re-XN).
In my view, Mr Humphries' evidence was significantly impacted by his firm belief that the issues reported by Mr and Mrs Crossley were caused by the construction of the Third Dam. From his correspondence, as well as the manner in which he gave his evidence, I do not consider that Mr Humphries was an independent or impartial witness. Instead, since his initial engagement, he has been a passionate advocate for Mr and Mrs Crossley and has, in my view, lost any objectivity he may have had regarding the matter.
As a result of these matters, I am unable to treat Mr Humphries' evidence as generally reliable. Where his factual evidence is contested, I do not accept Mr Humphries' evidence unless there is independent corroboration for it.
Paul English
Paul English purchased the English Property with his late wife in 2004. Since about 2007, he has operated a marron farm on the property.
In his examination in chief, Mr English answered the questions asked of him directly and politely. In cross‑examination, he was, at times, combative and frustrated with the line of questioning.[59] For example, when asked a series of questions about why he had raised the height of the outlet pipes, Mr English sought to respond with a question or statement.
[59] As he acknowledged at ts 543.
Mr English agreed that he found Mr Crossley's complaints extremely annoying. During his evidence, he described Mr Crossley as unapproachable and, on one occasion, creepy. Mr English accepted that on one occasion when Mr Crossley was filming him on his property, he swore at him, called him a 'fucking paedophile' and made threats, for which he was subsequently charged and pleaded guilty. Mr English's only explanation for this conduct was that he was heavily intoxicated.[60]
[60] ts 602 - 603.
Mr English initially denied that he had been charged with any other offences relating to Mr Crossley before recalling he had pleaded guilty to an offence of dangerous driving where, in his words, 'you could say' an element of the charge was the intimidation of Mr Crossley.[61] He also agreed that he had erected a sign on his property pointing towards Mr and Mrs Crossley's house with the words 'Evil cowards' on it. He explained he had done this because he believed this was what they were. He did not remove this sign until being ordered to do so by a magistrate.[62]
[61] ts 605.
[62] ts 605.
It was clear from the evidence of Mr English that he considers he has done nothing wrong in the construction of any of the dams on his property and believes that Mr and Mrs Crossley are unjustified in the complaints they have made. It was also clear, from the matters referred to above, that there is very significant animosity between Mr English and Mr and Mrs Crossley that has spilled over to the criminal jurisdiction of the courts. This animosity, which is evidenced by these convictions (as opposed to the offences themselves), together with his belief as to his entitlement to build the dams on his property, in my view, significantly impacted Mr English's evidence and the reliability of his recollection of events.
In considering Mr English's evidence, I have carefully considered his evidence against the contemporaneous documents and facts which have been objectively proven, to determine whether or not his evidence is reliable and should be accepted.
Eva-Maria Natemeyer
Ms Natemeyer is Mr English's partner and has lived with him at the English Property since 2013.
Ms Natemeyer was an impressive witness who answered the questions asked of her carefully. That said, it was clear from her evidence that she does not consider there is any merit in Mr and Mrs Crossley's claim and that Mr English is entitled to all water that originates on the English Property, even if it has crossed the boundary of the English Property or flowed into the watercourse. For the reasons set out below, this belief is not supported by the provisions of the Act.
In my view, her evidence was impacted by both her views on the plaintiffs' claim and her understandable support of her partner. In considering her evidence, I have weighed it against the contemporaneous documents, the proper construction of the Act and the facts which have been objectively proved to determine whether or not her evidence should be accepted.
Alan Russell
Mr Alan Russell is an earthmoving contractor who works in the area surrounding Walpole. He had previously done work for Mr English in constructing dams on the English Property, although not in the construction of the Third Dam.
There was only limited cross‑examination of Mr Russell which did not extend to the basis on which his quotation was prepared or his estimate of the work that was required.
I accept that Mr Alan Russell was both an honest and reliable witness and accept his evidence in its entirety.
John Russell
Mr John Russell (who is not related to Mr Alan Russell) is also an earthmoving contractor who works in the area surrounding Walpole. He had also previously done work for Mr English in constructing dams on the English Property, including the construction of the Third Dam.
I accept that Mr John Russell was an honest and reliable witness and accept his evidence in its entirety.
Proper construction of the Rights in Water and Irrigation Act 1914 (WA)
A number of issues in the proceedings turn on the proper construction of the Act. These issues are:
(a)whether common law riparian rights have been abolished by the Act;
(b)whether the plaintiffs have standing to bring a claim under the Act;
(c)whether the Act prohibits a dam being built over a watercourse; and
(d)what is the meaning of 'sensibly diminished'.
Before considering the factual issues in dispute, it is necessary to address these matters.
The principles of statutory interpretation are well known. It involves the 'attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose'.[63] The context of the Act includes both its legislative history and the current state of the law, as well as the mischief which the legislation was intended to address or remedy.[64]
Structure and relevant provisions of the Act
[63] Pearson v Connor [2024] WASCA 49 [50], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]; Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36].
[64] SZTAL v Minister for Immigration & Border Protection [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.
The Act has been significantly amended since its introduction in 1914 to reflect the population growth in Western Australia, the scarcity of water as a resource, and its importance to a functioning society. At present, the Act governs both surface water (which was traditionally the subject of riparian rights) and groundwater (which traditionally was not).
The current long title of the Act, which was inserted in 2000[65] and subsequently amended in 2012,[66] states that the Act is 'to make provision for the regulation, management, use and protection of water resources, and for related purposes'.
[65] Rights in Water and Irrigation Act 1914 (WA) (10 January 2001 reprint); Rights in Water and Irrigation Amendment Act 2000 (WA).
[66] Rights in Water and Irrigation Act 1914 (WA) (9 November 2012 reprint); Water Services Legislation Amendment and Repeal Act 2012 (WA).
Part I of the Act sets out a number of definitions in the Act, including the definition of a watercourse. In s 3 of the Act, 'watercourse' is defined to include (among other things):
(a)any river, creek, stream or brook in which water flows, and including a flow that is only intermittent or occasional; and
(b)conduits which wholly or partially divert a river, creek, stream or brook from their natural course and form part of that river, creek, stream or brook.
Under this definition, it is immaterial whether a river, creek, stream or brook has been artificially improved or altered.
Part III of the Act is entitled 'Control of water resources'. Division 1 of pt III sets out the objects and application of this Part. Section 4(1) of the Act defines the objects of pt III of the Act as:
(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.
Section 5 excludes certain waters from the provisions of pt III of the Act. The exclusions include water which rises to the surface on land or is in a wetland but does not cross the boundaries of a person's land, unless the water is prescribed by local by‑laws as being subject to this part of the Act.
Division 1A of pt III is entitled 'Ownership and control of waters'. Pursuant to s 5A of the Act:
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 of the Act sets out what landowners are entitled to do on their land regarding drainage and storage of water. It provides that:
(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 makes it an offence for a person to take water from any watercourse, wetland or underground water source except in accordance with a right conferred by one of s 9, s 10, s 20, s 21, s 22 or s 25A of the Act, a local by‑law pursuant to s 26L(3)(d) of the Act, another written law or a licence granted by the Minister in accordance with sch 1 of the Act. This prohibition applies to watercourses or wetlands to which div 1B of the Act applies or if prescribed by regulation, as well as to artesian or underground water in a proclaimed area or prescribed by regulation. Schedule 1 of the Act sets out the licensing requirements under the Act.
Pursuant to s 5D of the Act, rights to take, divert, or exclusively use water cannot be acquired by any person except as under the Act or any other written law.
Section 5E preserves the ability for a person affected by any contravention of s 5C of the Act to bring an action for breach of statutory duty and to seek a civil remedy.
Division 1B of the Act sets out the provisions that govern 'Certain surface waters', div 2 governs 'Other surface waters' and div 3 governs 'Underground waters'.
The parties accept that any rights of Mr and Mrs Crossley arise under div 2 of the Act,[67] which applies to all watercourses or wetlands to which div 1B does not apply.[68]
[67] See also Exhibit 1.14.
[68] Rights in Water and Irrigation Act 1914 (WA) s 19(1).
Section 20 of the Act sets out the rights of riparian owners in respect of the watercourses or wetlands governed by div 2 of the Act.[69] Specifically, it provides that:
[69] Similar riparian rights are set out in s 9 of div 1B of the Act.
(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.
Water can also be taken by any person from certain watercourses or wetlands vested in the Crown which can be accessed by a public road or reserve at the point where the water is taken.[70]
[70] Rights in Water and Irrigation Act 1914 (WA) s 21. See also Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83.
Section 22 of the Act sets out the powers of the Minister where they are of the opinion that an unauthorised diversion, taking or use of water has occurred. The Minister's powers include the giving of written notice directing them and specifying the extent to which water can be diverted, taken or used.
Section 24 of the Act is entitled 'Saving of civil remedy' and provides that:
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.
Division 3A of the Act sets out the limitations on the rights conferred by div 1B, div 2 and div 3 of the Act. These limitations can either be imposed by local by-laws, in accordance with s 26GA(3) of the Act, or by direction from the Minister. Section 26GC of the Act enables the Minister to give directions restricting or prohibiting the taking or use of water from a water resource (including a watercourse). These directions displace any rights a person may otherwise have, including any riparian rights, so long as the direction continues in force.[71]
[71] Rights in Water and Irrigation Act 1914 (WA) s 26GF(1).
Division 3C of the Act enables the Minister to establish a water resources management committee for any locality or area of the State, and s 26GM of the Act sets out the functions of this committee. Division 3D enables a plan for the management of water resources to be prepared by the Minister and sets out the process for the plan to be approved.
The general provisions of the Act are set out in pt XI. These provisions include that the institution of criminal proceedings does not affect any remedy sought in civil proceedings.[72]
Have common law riparian rights been abolished by the Act?
[72] Rights in Water and Irrigation Act 1914 (WA) s 69.
Mr and Mrs Crossley say the Act has not abrogated their common law riparian rights and that they are entitled to maintain a claim at common law against Mr English. In support of this contention, counsel for Mr and Mrs Crossley relied on the judgment of Virtue SPJ in Rapoff v Velios.[73] In that case, his Honour declined to follow the decision of the Full Court of New South Wales in Hanson v The Grassy Gully Gold Mining Co[74] (Hanson's case), which held the Water Rights Act 1986 (60 Vic No 20) (Victorian Water Act) had abolished these rights, and instead held that common law riparian rights continued to exist in Western Australia alongside the rights of the Crown created by the Act. This conclusion was due in significant part to the decision of Fullagar J in Thorpes Ltd v Grant Pastoral Co Pty Ltd (Thorpes' case) which doubted the correctness of the Full Court's decision in Hanson's case.[75]
[73] Rapoff v Velios [1975] WAR 27, 31.
[74] Hanson v The Grassy Gully Gold Mining Co (1900) 21 LR (NSW) 271.
[75] Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317, 331 (Fullagar J) (other judges concurring).
In contrast, counsel for Mr English denied Mr and Mrs Crossley have any common law riparian rights and said that any claim they have can only arise under the Act. Counsel for Mr English submitted the decision of Virtue SPJ had been overtaken by the decision in ICM Agriculture Pty Ltd v Commonwealth where the majority of the High Court preferred the reasons in Hanson's case to what was described in the joint judgment of French CJ, Gummow and Crennan JJ as the 'slightly delphic observation' of Fullagar J in Thorpes' case.[76]
[76] ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140 [54].
To explain the conclusion that I have ultimately reached, it is necessary to refer in some detail to each of the cases and textbooks referred to by the parties, as well as to the relevant differences between the state legislation and the amendments to the Act which have occurred over time.
Hanson v The Grassy Gully Gold Mining Co
In this case, the plaintiff contended he was entitled to have water in a creek flow past, through and away from his land and that the defendants' mining company had breached his common law riparian rights by building a dam on the creek, which obstructed this flow.
On a demurrer, the Full Court of the New South Wales Supreme Court entered judgment for the defendants based on their conclusion the Victorian Water Act abrogated the plaintiff's common law riparian rights. In reaching this conclusion, Stephen J expressed the view that:[77]
It cannot be denied that for years and years past the question of the rights of riparian owners in this country, where the conditions are so totally different from the condition of things in England, has been a source of almost insuperable difficulty. There has been a great deal of expensive litigation, and I suppose, for that reason, the Legislature passed this Act, in order to prevent riparian owners above and below from bringing actions against one another. If this Act does not aim to take the old common law rights from the riparian owners and vest them in the Crown, then I do not know what it was passed for nor what it means. It was passed in the public interest to prevent litigation and to determine rights which up to the time of the passing of the Act it was almost impossible for the best lawyers to determine.
[77] Hanson v The Grassy Gully Gold Mining Co (275).
In his reasons, Stephen J emphasised three matters, two of which are relevant to this case. First, the use of the word 'vest', in vesting the right to the use, flow and control of water in the Crown, was clear and 'plainly' divested riparian owners of their common law rights. Second, s 2 of the Victorian Water Act set out the rights of riparian owners, and in doing so, made 'clear that it was the intention of the Legislature to do away with the old rights of the riparian owners'.[78]
[78] Hanson v The Grassy Gully Gold Mining Co (275 ‑ 276).
Cohen J agreed the Victorian legislation abolished common law riparian rights, describing this as a 'fair and common‑sense' interpretation of the Victorian Water Act.[79] His Honour explained that the water, the obstruction of which was the subject of the plaintiff's complaint, was in the river. The right to the use, flow and control of this water had vested in the Crown. As such, his Honour was 'unable to see how that right can possibly remain in the private individual'. On this basis, Cohen J concluded that the Victorian Water Act 'clearly' limited the rights of riparian owners to the 'use of the water running through their land'.[80]
H Jones & Co Pty Ltd v Kingborough Corporation[81]
[79] Hanson v The Grassy Gully Gold Mining Co (276).
[80] Hanson v The Grassy Gully Gold Mining Co (277).
[81] HJones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282.
The plaintiffs were the owners and occupiers of lands which abutted the North West Bay River in Tasmania. They commenced proceedings in the Supreme Court of Tasmania against the Municipality of Kingborough in relation to the proposal of the defendant to dam the river and divert large quantities of water away from it, depriving the plaintiffs of a quantity of water to which they were entitled as riparian owners.
In their defence and counterclaim, the defendant pleaded two primary matters. First, the plaintiffs had lost any common law rights they may have had because their predecessors in title had been paid compensation for their loss of riparian rights. Second, the defendant was entitled to take and divert water from the river for the inhabitants of the water district. The defendant sought declarations that the water had vested in the defendant and that the plaintiff was not entitled to divert and take any water in excess of their domestic needs and for cattle, and a consequent injunction.
In reply, the plaintiffs denied they were compensated for the loss of the entirety of their riparian rights and said that the payment was made to compensate the plaintiffs for the Hobart Town Council taking half of the water in the river at a particular point upstream of their properties. The payment was not for any actions of the defendant which might diminish the remaining flow of the river. The plaintiffs also relied on the provisions of the Hydro-Electric Commission Act 1929‑1944 (Tas) which provided that the sole right to use the water in the river which vested in the Hydro-Electric Commission, was subject to any rights which were lawfully held at the commencement of the legislation and the right of any person to use the water for stock or domestic purposes.
The court at first instance dismissed the plaintiffs' claim and made a declaration in terms of the counterclaim. The plaintiffs successfully appealed to the High Court who made declarations in the terms sought by the plaintiffs and dismissed the counterclaim.
Latham CJ held that the legislation in question had not abrogated the plaintiffs' common law rights as riparian owners. Central to this conclusion was his Honour's finding that the plaintiffs' riparian rights had been preserved by s 49 of the earlier Hydro‑Electric Commission Act 1929-1944 (Tas). On this basis, the rights which vested in the Hydro‑Electric Commission on the enactment of the Hydro‑Electric Commission Act 1944‑1948 (Tas) (which reproduced s 49 of the previous statute in s 65 with an amendment) did not include the plaintiffs' rights.
Dixon J reached the same conclusion on the proper construction of the legislation (although, his Honour dissented as to whether the appeal should be allowed). His Honour's reasons discussed in some detail the nature of common law riparian rights, which included the right to the regular flow of the stream. His Honour went on to explain the effect of the vesting of each river, creek or watercourse within the limits of a water district in the local council by reference to other legislation which vest in a public authority property or works (such as highways and sewers) that serve a public purpose. These statutes have been construed as giving the authority 'less than the full property in the site, less than property unlimited in point of altitude or depth' and confined to the purpose to be fulfilled by the statute. In his view:[82]
The same kind of construction appears appropriate when, as in s. 209, rivers, creeks and watercourses are vested in a water supply authority. The description of the subject vested is indefinite. It is not a piece of land with defined boundaries. The purpose is limited. If any interest in the soil is taken by the council it is no greater than is necessary to enable it to control and use the waters of the streams so that the council may supply water and to that end construct weirs and other works. No doubt the council obtains a proprietary interest in the running waters of the stream but it is an interest in them considered as the running water of a stream and again it is an interest incidental to the exercise by the council of the particular function and does not extend further.
[82] H Jones & Co Pty Ltd v Kingborough Corporation (320) (Dixon J) (citations omitted).
His Honour went on to observe that:[83]
[R]iparian rights are incidents of property: there is no indication of any intention to destroy them and the bare vesting of the stream is not an apt or sufficient way of doing so. Unsatisfactory as the drafting may be, the express saving in s. 209 of previously existing riparian rights from the operation of the power of controlling the flow makes it certain that they are preserved from impairment by the vesting part of the section. Otherwise the express saving would be futile.
[83] H Jones & Co Pty Ltd v Kingborough Corporation (322) (Dixon J).
Fullagar J, in his reasons for decision agreeing with the orders proposed by Latham CJ, noted that the rights of riparian owners in Tasmania were governed by the common law and not by statute. In this respect, the position was different to that which existed in Victoria since the passing of the Water Act 1905 (Vic).[84] His Honour went on to discuss the content of common law riparian rights and its two main features. First, the proprietor of land on the bank of a river has, as incident to his property in the land, a proprietary right to have the stream flow in its natural state. Second, the right includes the right to make all use and derive every benefit from the stream, provided this does not abstract so much water that it prevents others from equal enjoyment of their riparian rights.[85]
Thorpes Ltd v Grant Pastoral Co Pty Ltd
[84] H Jones & Co Pty Ltd v Kingborough Corporation (342).
[85] H Jones & Co Pty Ltd v Kingborough Corporation (344).
Grant Pastoral Co Pty Ltd commenced proceedings against Thorpes Ltd in the New South Wales Supreme Court raising two separate complaints in respect of work done by the defendant on its land. The first was that by the construction of certain works, embankments and channels by the defendant on its land, the defendant had wrongfully and unlawfully diverted the usual course of water from a creek, which was a tributary of the Belubula River. This had caused water to flow onto the plaintiff's land in greater quantities and at greater velocity than would otherwise have been the case. The plaintiff claimed that as a result of these works, some of its pasturage and crops had been destroyed and damaged, parts of its land had been washed away, and sand, silt and debris had been deposited on its land, which reduced its value. The second complaint was based on the negligent construction and maintenance of these works by the defendant which, the plaintiff said, caused the same damage.
In response to the claim, the defence included a plea that any cause of action the plaintiff may have had at common law had been taken away by the Water Act 1912-1946 (NSW) (NSW Water Act).
At first instance, the jury returned a verdict in favour of the plaintiff. The defendant appealed the verdict solely on the ground that the plaintiff's claim had been abrogated by the NSW Water Act. Its appeal was dismissed by a majority of the Full Court of the Supreme Court of New South Wales (Herron and Kinsella JJA, Owen J dissenting). The defendant then appealed to the High Court, who unanimously dismissed the appeal.
In dismissing the appeal, their Honours did not express a concluded view as to whether the decision in Hanson's case was correct and said this should await a case where its correctness was directly in issue.[86] This was because the causes of action pleaded by the plaintiff did not fall within the scope of the NSW Water Act but were based on the common law claim of nuisance.[87]
[86] Thorpes Ltd v Grant Pastoral Co Pty Ltd (324) (Dixon CJ). A similar view was expressed by Kitto J (333).
[87] Thorpes Ltd v Grant Pastoral Co Pty Ltd (325) (McTiernan J), (329) (Fullagar J).
Fullagar J delivered comprehensive reasons, with which Webb J agreed.[88] Relevantly, his Honour noted that s 1 of the Water Rights Act 1896 (NSW) (1896 NSW Water Act) (which was subsequently replaced by the NSW Water Act, which materially preserved this relevant section in s 4A) vested the right to the use, flow and control of water in the Crown. In exercising that right, officers and servants of the Crown were able to enter land and take such measures as thought fit in respect of the conservation and supply of water, its more equal distribution and beneficial use, and protection from pollution and preventing unauthorised obstruction of rivers. The rights of the Crown were subject, among other things, to the right of a riparian owner to use the water from a river or lake for domestic purposes, watering stock, or the irrigation of a garden not exceeding five acres. Fullagar J distinguished the issues raised in this case from Hanson's case which was based on common law rights said to arise from being a 'riparian proprietor'. In his Honour's view, the plaintiff in this case was in an 'entirely different position'.[89]
[88] Dixon CJ also agreed with the judgment of Fullagar J but expressed caution with reaching a concluded view as to the correctness of the decision in Hanson's case.
[89] Thorpes Ltd v Grant Pastoral Co Pty Ltd (330).
Notwithstanding the fact that it was not strictly necessary to consider whether the decision in Hanson's case was correct, his Honour felt 'bound to say that I regard the correctness of that decision as open to grave question'.[90] Fullagar J expressed the view that the object of the 1896 NSW Water Act was to enable the Crown to 'exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water'.[91] In doing this, his Honour considered it was not necessary for anyone's common law riparian rights to be destroyed. In reaching this conclusion, his Honour referred to what he said was the effect given to the 1896 NSW Water Act by the decision in Hanson's case; namely, that a riparian owner had no remedy as of right if a river was dammed by an upper riparian owner so that no water, or only polluted and poisoned water, reached them downstream. In his Honour's view, it would be contrary to the rules of statutory construction to give the legislation this effect in the absence of clear and unmistakable language. For these reasons, his Honour expressed the view that the 1896 NSW Water Act did not remove an owner's private riparian rights but created new rights in the Crown which were 'superior to, and may be exercised in derogation of, private riparian rights'.[92] In expressing this view, his Honour acknowledged the question was not fully argued and that it was 'perhaps better' not to express a concluded view in a case where it was not strictly necessary.[93]
Williams v Cahill[94]
[90] Thorpes Ltd v Grant Pastoral Co Pty Ltd (330).
[91] Thorpes Ltd v Grant Pastoral Co Pty Ltd (330).
[92] Thorpes Ltd v Grant Pastoral Co Pty Ltd (331).
[93] Thorpes Ltd v Grant Pastoral Co Pty Ltd (331).
[94] Williams v Cahill (Unreported, WASC, 11 March 1964).
In this case, both the plaintiff and defendants were farmers in the Bridgetown area of Western Australia. A stream arose on the property of one of the defendants and flowed through the other properties, including through the plaintiff's property. The plaintiff, who was the lower riparian owner, claimed the defendants had dammed the stream and taken water for purposes, further and alternatively, in quantities exceeding their entitlement as upper riparian owners. The defendants denied the dam prevented the flow of the stream or sensibly diminished the flow or quantity of water that would otherwise have come to the plaintiff, and asserted their conduct was consistent with the exercise of their riparian rights.
In considering the claim, Negus J expressed the view that the defendants were entitled to make arrangements to divert the waters of the stream as long as they brought them back to the main channel at a point within their land.[95] However, his Honour concluded that if the defendants' use of water for irrigation caused a sensible diminution in the quantity of water reaching the plaintiffs as lower riparian owners, it infringed their rights. On the facts of this matter, his Honour concluded this had occurred. On this basis, Negus J made the declaration sought by the plaintiff, granted a mandatory injunction and awarded damages.
[95] Williams v Cahill (8).
No reference is made to the Act in the reasons.
Rapoff v Velios
In this case, both parties were farmers who lived at neighbouring properties at Manjimup, in the south-west of Western Australia. Water in a creek that ran through both properties was used by each of the parties in their farming operations. Both parties also had dams on their properties which were used for irrigation purposes.
The quotation sets out the costs of the work Mrs O'Meara considered needed to be done to the Crossley Property over this three year period. This comprised:[376]
(a)spraying of herbicide - $2,500;
(b)cleaning out the watercourse of silt and accumulated debris - $5,000;
(c)repair of the southern end of the walking trail, including replacing the sand with compacted crushed gravel and redirecting the water to a dam - $6,400;
(d)restoration of the slab bridge - $650;
(e)labour - $42,000; and
(f)contingencies, cleanup, removal - $5,655 (10% of the total of the above).
[376] Exhibit 1.31.
Mrs O'Meara accepted she was invited to attend the Crossley Property by her stepfather, Mr Humphries, and that he had shown her around the Crossley Property.[377] This was because Mr Crossley had a broken leg at the time. Following the inspection, she discussed the work that was required to be done with her husband, Mr O'Meara, who is 'the one that actually drives the machines',[378] and prepared the quotation jointly with him. Mrs O'Meara accepted that Mr Humphries gave her guidance but did not tell her what work was required to be done.[379]
[377] ts 197.
[378] ts 188.
[379] ts 198.
Mrs O'Meara could not explain how the individual figures in the quotation had been calculated but denied the figures were inflated.[380] She explained that at least some of the cost arose from instructions to undertake the work with the least amount of impact on the flora and fauna in the area. If these had not been her instructions, Mrs O'Meara accepted the quote would have been different.[381] Mrs O'Meara also agreed that the quote proposed the construction of a bridge, which was an improvement to what was there previously.[382]
[380] ts 188 - 192.
[381] ts 199 - 200.
[382] ts 196.
Mr English denied the quote from Mr and Mrs O'Meara accurately stated the work that was required to be done or its cost. In support of this position, Mr English called two witnesses, Alan Russell and John Russell, who each prepared quotes for the work required to rehabilitate the watercourse. Both attended the Crossley Property on 5 September 2022 for an inspection of the watercourse, from the outlet pipes on the English Property across the boundary to the Crossley Property, prior to preparing their quotations.
Mr Alan Russell's evidence was that he was only able to inspect about 50 m of the watercourse due to the natural scrub vegetation that had fallen from the trees into the watercourse. Mr John Russell estimated this distance as being only 30 m.
Mr Alan Russell prepared a quotation for the work required to clear out the watercourse from the boundary fence to the place where the watercourse ran into the bush. In his view, this required three‑and‑a‑half hours work of a mini‑excavator at a cost of $624.25.[383] Mr John Russell's quotation for this same work, using a 14‑tonne excavator, was $880.[384] No further detail was provided in Mr John Russell's quotation as to the work he considered needed to be done or its cost. In evidence, he explained that the work required the removal of rubbish and the section of the old bridge in the creek, together with a 'light scraping' of the watercourse to remove the current vegetation. In his view, the watercourse was in a 'very poor' state due to a lack of maintenance, including the failure to remove the remains of the bridge in the watercourse, or to take steps in relation to the blue gum that had been uprooted.[385]
[383] Exhibit 17, page 2.
[384] Exhibit 18.
[385] ts 428.
During this same inspection, Mr Alan Russell inspected a small dam at the Crossley Property. His observation was that it was '[v]ery unmaintained', with '[a] lot of vegetation in it' and '[s]tagnant water' and needed an overhaul.[386] He prepared a quotation for this work. In his view, this required eight hours of a mini-excavator at a cost of $1,144.[387] Mr John Russell's observations of the waterhole were similar. His quotation to undertake this work was $990.[388] No further detail was provided in Mr John Russell's quotation as to the work that he considered needed to be done.
[386] ts 414.
[387] Exhibit 17, page 1.
[388] Exhibit 18.
In closing submissions, counsel for Mr English contended that a number of the items set out in the quotation from Mr and Mrs O'Meara included an element of betterment or were otherwise untenable. Counsel for Mr English submitted that most of the matters of which Mr and Mrs Crossley complained were either pre‑existing (the waterlogging near the English Property boundary), unproven (damage to the banks of the watercourse and the fire dam) or a result of neglect (the house dam and the failure to remove or repair the bridge).[389]
[389] Defendant's closing submissions [60].
Mr English submitted the impact from the change in flows of water due to construction of the Third Dam was extremely limited (to the dam near the house and approximately 35 m of the watercourse starting from the English Property boundary) and could have been remedied earlier (and at a lower cost) if it was truly a concern to Mr and Mrs Crossley. The work that was required to repair the watercourse from its entry into the Crossley Property until it entered the bush was relatively inexpensive.[390]
[390] Defendant's closing submissions [60].
Counsel for Mr and Mrs Crossley did not, in submissions, clarify what damages were sought in relation to each of the different causes of action pleaded in their statement of claim. The amounts claimed by Mr and Mrs Crossley were said to arise from each of their causes of action. I do not accept this is the case. In my view, consistent with the reasons set out above, the only damages Mr and Mrs Crossley are entitled to are losses sustained since 15 March 2013, which arise from Mr English taking water in excess of his entitlements pursuant to s 20 of the Act. For the reasons set out below, I find that most of the amounts claimed by Mr and Mrs Crossley do not fall within this category.
First, the claim for the spraying of herbicide. It is not clear whether this damage arises from the loss of water in the summer months, or the excessive water flows during winter. On this basis, I am not satisfied on the balance of probabilities that Mr and Mrs Crossley are entitled to the amount sought. In any event, even if I were satisfied that the dense weeds were caused by the loss of water in the summer months, I am not satisfied that the amount claimed is reasonable. This is because Mrs O'Meara could not explain how this amount had been calculated or the assumptions contained in it.
Second, the claim for the cleaning out of the watercourse and accumulated debris is, in my view, a claim which arises from the excessive water flows during winter. It does not arise from the loss of the flow of water in the watercourse. As set out above, this is not a claim which can be made under s 20 of the Act. No amount should be awarded for the work that is proposed.
Third, any issues associated with the southern end of the walk trail (including the fire dam) do not, as Mr Crossley accepted, arise as a result of the construction of the Third Dam or from Mr English's taking of water in excess of his entitlements under s 20 of the Act. On this basis, no allowance should be made for this part of the invoice.
Fourth, on the evidence before me, I find that the damage to the bridge on the Crossley Property occurred in the winter of 2011. On this basis, any claim for damages for the removal and replacement of the bridge is statute barred. Even if I am wrong in my conclusion, the damage to the bridge was not caused by Mr English taking water in excess of his entitlement under s 20 of the Act but from excessive flows of water. It also proposes work which would improve the bridge which previously existed. For these additional reasons, no allowance should be made for this work.
Finally, I am satisfied that the issues with what is described as the house dam have arisen because Mr English has taken water in excess of his entitlements pursuant to s 20 of the Act. These issues first arose after the construction of the Third Dam in March 2011, but have continued because of the interruption to the flow of water in the watercourse during the summer months each year. If I am wrong in my conclusion that this claim is statute barred, I consider, based on the evidence of Mr Alan Russell and Mr John Russell, and with an allowance for the time difference between the giving of their evidence and delivery of these reasons, that Mr and Mrs Crossley are entitled to damages of $1,200 to enable this work to be undertaken.
In relation to the claim for damages for the invoice of Mr Humphries, these costs concern his work in investigating the issues raised by Mr and Mrs Crossley. From the invoice prepared by Mr Humphries, it is clear these costs relate to work done prior to the commencement of these proceedings. On this basis, I accept they are not costs associated with the litigation.
These costs included work in investigating the approvals that had been obtained for the Third Dam by the Shire and Department, obtaining images from Landgate and freedom of information requests. It also included Mr Humphries' extensive communications with the Department, other government departments and the Shire.
In my view, some of these costs flowed from the breach by Mr English of his entitlements under the Act. These costs include those incurred in obtaining copies of the relevant approvals, images from Landgate and freedom of information requests. However, particularly given the tone and content of much of the correspondence sent by Mr Humphries, I do not consider the costs of this correspondence can be properly claimed as damages. For this reason, if I had been satisfied that the claim was not statute barred, I would have significantly reduced the amount claimed. Doing the best I can on the information available to me, I would have reduced this head of damages to $5,000.
Are Mr and Mrs Crossley entitled to aggravated and/or exemplary damages?
Given my conclusion that all claims of Mr and Mrs Crossley are either statute barred or do not arise under the Act, it is strictly unnecessary for me to consider their claim for aggravated or exemplary damages. However, in case I am wrong in my assessment that there is no continuing cause of action, I briefly set out my conclusions on this aspect of their claim.
At common law, exemplary damages:[391]
[G]o beyond compensation, and are awarded to punish the defendant and provide retribution, to act as a deterrent to the defendant and others minded to behave in a similar way, and to demonstrate the court's disapproval of such conduct. The remedy of exemplary damages arises chiefly, but not exclusively, where there has been conscious wrongdoing in contumelious disregard of another's rights.
[391] Western Australia v Cunningham [2018] WASCA 207 [109] (Buss P, Murphy JA) (citations omitted).
In contrast, aggravated damages are compensatory. Aggravated damages are awarded for:[392]
[T]he injury to the plaintiff which may be intangible, for example, in respect of injury caused by insult, humiliation and the like. They are intended to compensate the plaintiff when the harm done by the wrongful act is aggravated by the manner in which the act is done. This may include the high-handed, malicious, insulting or oppressive manner in committing the tort.
[392] Western Australia v Cunningham [113] (Buss P, Murphy JA) (citations omitted).
As explained by Gordon J in Lewis v Australian Capital Territory:[393]
[D]ifferent categories of damages have different purposes. Exemplary damages are available (at least) where there has been contumelious disregard of the plaintiff's rights. They serve to punish the defendant and to deter the defendant and others from such behaviour. They mark the court's condemnation of that behaviour. Aggravated damages compensate a plaintiff for the way in which damage was caused. Nominal damages mark the fact that there has been an infraction of a legal right.
[393] Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192 [117].
Aggravated damages can be awarded where there has been a breach of statutory duty.[394] However, this requires an examination of the legislation in question, to determine whether its breach will found a cause of action and whether it provides for a remedy. If it does, the presumption is that this supplied remedy should be used.[395]
[394] Collings Constructions Co Pty Ltd v ACCC (1998) 43 NSWLR 131, 155 - 156.
[395] McMurtrie v Commonwealth of Australia [2000] NSWSC 1056 [58].
There is nothing in the Act which prescribes the relief or remedy that is available for a breach of the Act, including s 20 and s 21 of the Act. Section 24 of the Act simply saves the remedies that a person would 'otherwise be entitled in civil proceedings'. In my view, these remedies will include, in the appropriate case, the granting of either a mandatory or prohibitive injunction, as well as an award of damages where a plaintiff can prove that they have suffered loss from a defendant's breach by taking water in excess of the entitlements set out in s 20 or s 21 of the Act.
In Hunter Area Health Service v Marchlewski,[396] Mason P summarised the case law in both Australia and the United Kingdom as to the circumstances in which aggravated damages will be awarded. As his Honour noted:[397]
The upshot is that I find no clear guidance in Australian case law on the broad question whether aggravated damages are capable of being awarded in a negligence action. In point of principle, I seriously doubt the need to engraft an award of aggravated damages upon a negligence claim. Compensatory damages would normally include damages for mental distress or injured feelings so long as they can be linked to the tort through existing principles of causation and remoteness of damage. To speak of aggravated damages as a separate component can only have the capacity to confuse and run the risk as to double compensation.
[396] Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268.
[397] Hunter Area Health Service v Marchlewski [110] (citations omitted).
As was noted by Hasluck J in Delta Corp Ltd v Davies (after referring to Mason P's decision), there is a degree of uncertainty as to whether an award of aggravated damages is available in respect of a claim in negligence. Where aggravated damages have been awarded, it has occurred in cases where there is a lack of bona fides or there has been contumelious conduct on the part of the defendant.[398]
[398] Delta Corp Ltd v Davies [2002] WASCA 125 [155] ‑ [156].
Counsel for Mr and Mrs Crossley could not refer me to any authority where a court had found that a plaintiff had been awarded aggravated damages for a breach of riparian rights. This is understandable as a riparian right is, at its heart, a proprietary right which can be protected at the suit of a person who is in, or entitled to, possession of the property to which these rights are incident.[399] There is nothing in the text, context or purpose of the Act which supports a construction that the legislature intended that a party whose proprietary rights were infringed could seek aggravated damages for any breach of the statutory rights provided by the Act.
[399] Hill v O'Brien (1938) 61 CLR 96, 101 (Latham CJ).
In support of the submission by counsel for Mr and Mrs Crossley that the court could award exemplary damages, reliance was placed on two cases: SSYBA Pty Ltd v Lane[400] and Western Australia v Cunningham. The first of these cases concerned an action for torts of trespass and nuisance. The second concerned claims in tort for battery, false imprisonment and misfeasance. There is no dispute that for these causes of action the court may award exemplary (as well as aggravated damages) in an appropriate case. For this reason, I do not consider either of these authorities are of assistance in resolving this question.
[400] SSYBA Pty Ltd v Lane [2013] WASC 445.
Counsel for Mr English referred me to the reasons for decision of Registrar Whitbread in this matter, refusing the application by Mr and Mrs Crossley to administer interrogatories. In these reasons, Registrar Whitbread summarised (correctly, in my view) the position as to when exemplary damages may be awarded.[401] As the learned Registrar stated:[402]
Since that decision [in Rookes v Barnard], 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).
[401] Crossley v English [2021] WASC 383.
[402] Crossley v English [35] citing Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367 (citations omitted).
To these categories, for the reasons also given by Registrar Whitbread, can be added causes of action arising prior to 1964.[403]
[403] Crossley v English [39].
The question as to whether aggravated or exemplary damages may be awarded for breach of the Act turns on the Act's proper construction. This is not in dispute.
Counsel for Mr and Mrs Crossley did not refer me to any specific provisions of the Act in support of their claim that an award for aggravated or exemplary damages could be made under the Act. They submitted that where a loss of enjoyment of proprietary rights is involved, it is open to the court to award aggravated or exemplary damages. However, this submission relies on the assumption that common law riparian rights had not been abrogated by the Act. As I have already explained, I do not accept this is the case.
There is nothing in the Act which authorises an award of exemplary damages. In my view, Registrar Whitbread correctly concluded that no award for exemplary damages can be made under the Act.
For these reasons, I do not consider Mr and Mrs Crossley are entitled to an award of aggravated or exemplary damages under the Act.
Conclusion
One of the regrettable features of this case is that on the day construction of the Third Dam commenced, no steps were taken by Mr English to address the breaches of the then conditions of his planning approval when he became aware of them. This decision has led to significant disputation over the following 13 years, very significant animosity between neighbours, criminal convictions, and a seven‑day trial in the Supreme Court with significant costs incurred by all parties. All of this to save an amount then estimated to be in the order of $5,000.
Another regrettable feature is that despite Mr and Mrs Crossley immediately complaining about the Third Dam during its construction in March 2011, proceedings were not commenced until 15 March 2019. By that time, their claim was statute barred. As a result, the plaintiffs' claim must be dismissed and judgment entered for the defendant.
Annexure A
Annexure B
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
26 JULY 2024
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