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
Continue reading Crossley v English [No 2]
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- AGLC
- Crossley v English [No 2] [2024] WASC 268
- Case
- [2024] WASC 268
- Decision Date
CaseChat Overview and Summary
The court found that the common law riparian rights had not been abrogated by the Act and were preserved from impairment. The court observed that riparian rights are incidents of property and are not destroyed by the vesting of the stream. The court emphasised that the express saving in section 209 of the Act ensured that previously existing riparian rights were not affected by the vesting part of the section. The court also held that the plaintiffs had standing to bring a claim under the Act, as there had been a sensible diminishment in the flow of water from the defendant's property. The court found that the plaintiffs' claims were not statute-barred as there was a continuing cause of action. Finally, the court held that aggravated damages were available under the Act, but exemplary damages were not.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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] 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).