Crossley v English [No 2]

In Crossley v English, the plaintiffs sought a declaration that they had riparian rights to water from the Murchison River and damages for the alleged diminution of the flow of water onto their land. The case was heard in the Supreme Court of Western Australia. The central legal issues were whether the plaintiffs had a common law claim for the breach of their riparian rights, whether these rights had been abrogated by the Rights in Water and Irrigation Act 1914 (WA), and whether the plaintiffs had standing to bring a claim under the Act. Additionally, the court had to determine if there had been a sensible diminishment in the flow of water from the defendant's property and whether the plaintiffs' claims were statute-barred. The court also needed to consider whether aggravated and exemplary damages were available under the Act.

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.