Hall v Thiess Pty Ltd and Anor (Ruling)
[2018] VCC 160
•2 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-00038
| GARY NICHOLAS HALL | Plaintiff |
| v | |
| | |
| THIESS PTY LTD (ACN 010 221 486) | Second Defendant |
| SUEZ WATER AND TREATMENT SOLUTIONS PTY LTD (ACN 051 950 068) | Third Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2018 | |
DATE OF RULING: | 2 March 2018 | |
CASE MAY BE CITED AS: | Hall v Thiess Pty Ltd & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 160 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Summons – staying proceedings – Victorian Desalination Plant – exclusive jurisdiction – Powell River – tidal movements – overflow – incremental salinization – limitation of action – VCAT – not deeply involved in one piece of litigation – overarching purpose
Legislation Cited: Water Act 1989 (Vic), s16, s17, s19; Building Act 1993 (Vic); Civil Procedure Act 2010, s8, s9; Limitation of Actions Act 1958 (Vic)
Cases Cited: Coles Myer Limited v City West Water Limited [1998] VSC 63; Burbank Australia Pty Ltd v Luzinat & Ors [2000] VSC 128; Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Sadler | Slater & Gordon |
| For the Second Defendant | Mr D Klempfner | Wotton & Kearney |
| For the Third Defendant | Mr D Klempfner | Wotton & Kearney |
JUDICIAL REGISTRAR:
1 This is an application by the plaintiff brought by way of Summons dated 24 January 2018 seeking the following orders:
(a)that the name of the third defendant be changed from Suez Water and Treatment Solutions Pty Ltd to Suez Water Pty Ltd;
(b)that the plaintiff have leave to amend the Writ by adding Aquasure Pty Ltd (ACN 135 956 393) and Nacap Pty Ltd (ACN 006 306 994) as defendants;
(c)that the plaintiff have leave to amend the Statement of Claim in the form of the Proposed Amended Statement of Claim, being exhibit “RLB-13” to the affidavit of Roger Laurence Batrouney sworn 24 January 2018;
(d)that the further conduct of this proceeding be stayed until the hearing and determination by the Victorian Civil and Administrative Tribunal of VCAT, proceeding No BP1641 of 2017;
(e)that the second and third defendants pay the costs of this Summons;
(f)such further or other orders as the Court deems appropriate.
2 For the purpose of the application I was provided with the following:
(a)the plaintiff’s outline in support of Summons issued 24 January 2018; Robert Sadler, counsel for the plaintiff, dated 16 February 2018 (“the plaintiff’s submissions”);
(b)the second and third defendants’ submissions; David Klempfner, counsel for the defendants, dated 16 February 2018 (“the defendants’ submissions”);
(c)affidavit of Roger Laurence Batrouney sworn on 24 January 2018 (“Batrouney affidavit”).
3 A general indorsed Writ was issued on 9 January 2017. In that Writ, the State of Victoria was named as first defendant, Thiess Pty Ltd as second defendant, and Suez Water and Treatment Solutions Pty Ltd as third defendant.
4 On 21 December 2017, the plaintiff’s solicitor filed and served the Statement of Claim dated 21 December 2017 in the proceedings, which made claims in negligence and nuisance.
5 The plaintiff, on 19 October 2009, entered into a contract to purchase a property known as Lot 1, Mouth of Powlett Road, Kilcunda, Victoria 3995 (“the property”). Settlement for the purchase of the property was completed on 11 May 2010. When purchasing the property, the plaintiff had knowledge that a water-transfer pipeline and power supply to service the Victorian Desalination Plant near Wonthaggi would be carried on in an easement, and the additional works on the property. The purchase contract had disclosed the acquisition of an easement by Melbourne Water Corporation over the property in September 2009.
6 Aquasure Pty Ltd had been contracted to finance, design, build, operate and maintain the Victorian Desalination Plant. The plaintiff’s solicitor deposed he believed Aquasure was also the head contractor responsible for the construction of the transfer pipeline and underground power supply for the Victorian Desalination Plant and associated works at the plaintiff’s property.[1] Further, that Thiess Degrémont Nacap Pipeline Joint Venture (“PLJV”) was the subcontractor responsible for the construction of the transfer pipeline at the property.[2]
[1]Paragraph 6, affidavit of Roger Laurence Batrouney sworn 24 January 2018
[2]Batrouney affidavit, paragraph 7
7 The plaintiff’s solicitor undertook an ABN lookup search for PLJV, which recorded that it was a partnership comprised of the following companies:
(a)Degrémont Pty Ltd (now Suez Water Pty Ltd, previously Suez Water and Treatment Solutions Pty Ltd);
(b)Nacap Australia Pty Ltd;
(c)Thiess Pty Ltd.[3]
[3]Batrouney affidavit, paragraph 8
8 At paragraphs 12 to 14 of the Statement of Claim, the plaintiff pleaded that the work carried out by PLJV, to which the second and third defendants were partners, breached a levy or retaining wall on the plaintiff’s property. In doing so, this altered the drainage system into the Powlett River, which resulted in periodic inundation of the plaintiff’s property with saltwater from the river and the incremental salinization of the plaintiff’s property.
9 The plaintiff’s solicitor deposed that as the work had commenced on his client’s property around May 2010, he issued the generally endorsed Writ to protect his client’s interests against time running under the Limitation of Actions Act 1958.[4]
[4]Batrouney affidavit, paragraph 11
10 However, on 21 December 2017, in addition to causing the Statement of Claim to be filed, the plaintiff’s solicitor issued an application and points of claim in the Victorian Civil and Administrative Tribunal, being proceedings No BP1641 of 2007 (“VCAT proceedings”). Those proceedings broadly cover the same factual matters as these proceedings, but rely upon contraventions of s16(1) of the Water Act 1989 and do not make any common law claims.
11 The failure to name Aquasure Pty Ltd as head contractor responsible for the works on the plaintiff’s property, and Nacap Pty Ltd as one of the three parties to the PLJV, was an error admitted to by the plaintiff’s solicitor when the Writ was filed in 2017.[5]
[5]Batrouney affidavit, paragraph 24
12 With respect to the commencement of the VCAT proceedings, the plaintiff’s solicitor deposed that he had briefed counsel in late 2017 to draw the Statement of Claim. It was after conferring with counsel that he became aware that it was arguable that VCAT may have exclusive jurisdiction over the matters pleaded in the proceeding by virtue of s16(1) and s19(1) of the Water Act 1989, and any common law claims may have been abrogated pursuant to s17(1) of the Water Act 1989. However, there was a risk that VCAT may determine that it did not have jurisdiction to hear the plaintiff’s claim, and, if the plaintiff abandoned the County Court proceeding to pursue the VCAT proceeding, and VCAT determined it did not have jurisdiction, then there was a risk the plaintiff would be prevented from pursuing all or part of his claim by reason of the Limitation of Actions Act 1958.
13 It was the defendants’ primary position that the proceedings as a whole should be dismissed without any other order being made except as to costs. The defendants argued that:
(a)The proceeding was not justiciable in the County Court of Victoria by reason of s16, s17 and s19 of the Water Act 1989. In support of this argument, counsel for the defendant submitted that the constituent elements required to establish a claim under s16 of the Water Act 1989 had been made out in the pleading. The Court therefore lacked jurisdiction to hear and determine the plaintiff’s common law claim and the correct jurisdiction was VCAT;
(b)The proceedings were an abuse of process by reason of the fact that it replicates the allegations made by the plaintiff against the same defendants in the VCAT proceedings.
It was submitted that both the County Court and VCAT proceedings are:
(i) against the same defendants;
(ii) in respect of the same factual matters, and
(iii) seeking the same relief in both proceedings.
14 However, the defendants submitted a fall-back position, which was that the Court accede to the plaintiff’s application to stay the proceedings until the hearing and determination of VCAT proceedings, but make no other order except as to costs.
15 It is appropriate that reference be made to the relevant sections of the Water Act, being s16, s17 and s19. These sections are:
“16 Liability arising out of flow of water etc.
(1)If—
(a)there is a flow of water from the land of a person onto any other land; and
(b)that flow is not reasonable; and
(c)the water causes—
(i) injury to any other person; or
(ii) damage to the property (whether real or personal) of any other person; or
(iii) any other person to suffer economic loss—
the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.
17 Protection from liability
(1)A person does not incur any civil liability in respect of any injury, damage or loss caused by water to which section 16 or 157 of this Act or section 74 of the Water Industry Act 1994 applies except to the extent provided by this Act.
...
19 Jurisdiction of Tribunal
(1)The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act or at common law in respect of the escape of water from a private dam.
** * * *
(8)Nothing in this section prevents a person from bringing before a court a claim for damages for personal injury based on a cause of action of a kind referred to in subsection (1).
(9)In determining a cause of action arising under section 15(1), 16, 17(1) or 157(1) of this Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence.
(10)Subject to subsection (8), a proceeding based on a cause of action of a kind referred to in subsection (1) must not be brought otherwise than before the Tribunal.”
16 The Water Act 1989 created a new statutory cause of action and extinguished any civil liability in respect of any injury, damage or loss caused by water to which, inter alia, s16 applies.
17 Counsel for the defendants referred me to the decision of Gillard J in Coles Myer Limited v City West Limited[6] where his Honour considered a common law negligence claim where it was held that s16(1) of the Water Act 1989 applied.
[6][1998] VSC 63
18 His Honour said, at paragraph 38:
“In order to establish a cause of action pursuant to s.16(1) of the Act the plaintiff has to prove–
(i) that water flowed from the land of a person onto other land;
(ii) that the flow was not reasonable;
(iii) that the flow was caused by the defendant;
(iv) that the plaintiff suffered damage or loss.”
19 At paragraph 52, his Honour stated:
“If each constituent element in the proof of the statutory cause of action is established, then the victim of the water caused injury, damage or loss, is confined to the statutory cause of action and any common law cause of action based on the same set of facts is no longer available to the victim.”
20 His Honour said, at paragraph 55:
“In my opinion the words of s.17(1) are clear and result in ‘any civil liability’ being excluded if the facts establishing the injury damage or loss by water prima facie establish the statutory cause of action. If they do, then in my opinion the common law contractual claim is also excluded. This result accords with the intention of parliament which was to confine liability for the flow of water to statutory causes of action.”
21 I was also referred by Counsel for the defendant to the decision of Beach J in Burbank Australia Pty Ltd v Luzinat & Ors.[7] This was a return of a summons filed upon an Originating Motion whereby the plaintiff, Burbank Australia Pty Ltd, sought to restrain the first defendant, the Building Appeals Board, from hearing a dispute between Burbank and the second defendant, Mal Saric, concerning a residence being erected by Burbank for Saric on Lot 225, Blacksmith Drive, Alanbrae.
[7][2000] VSC 128
22 On 24 June 1999, Burbank had filed an application in the Domestic Building List of VCAT, where it sought to recover the cost of the fixing stage and variations. After the matter had been mediated and remained unresolved, a number of direction orders were made for the further conduct of the proceedings, including a hearing date of 22 May 2000 with an estimate of thirteen days.
23 Saric had consulted Bayside Building Surveyors Pty Ltd in relation to the dispute with Burbank, and although he was a party to the VCAT proceedings, he instructed Bayside to make an application to the Building Appeals Board pursuant to s157 of the Building Act 1993.
24 At paragraph 22, his Honour said:
“And so Burbank, which has to date spent in excess of $25,000 on fees to lawyers and consultants concerning the dispute before VCAT (see para 21 of the affidavit of Sebastian Failla sworn 20 March 2000), is now placed in the situation where it must fight on two fronts allegations that in carrying out the work it did at Lot 225 it did not comply with the applicable Building Regulations and the Building Code.”[8]
[8]Burbank Australia Pty Ltd v Luzinat & Ors (supra)
25 His Honour went on to say, at paragraph 28:
“Where a party to a proceeding institutes a second proceeding in a different form in relation to the same subject matter as the first proceeding, prima facie the second proceeding is vexatious and will be stayed: see McHenry v Lewis (1882) Vol.XXII Chancery Division 399 and Williams v Hunt (1905) 1 KB 512.”[9]
[9]Ibid
26 At paragraph 29, his Honour said:
“In such a situation the courts have for many years taken the view that a litigant already deeply involved in one piece of litigation would be unduly harassed if a second piece of litigation was to proceed at the same time as the first. And such a principle applies to proceedings whether they be before a court, a board or a tribunal.”[10]
[10]Ibid
27 His Honour went on to further state, at paragraph 30:
“All the more so where there is a significant risk, as there is in the present case, that VCAT's findings and the Board's findings may be in conflict one with the other.”[11]
[11]Ibid
28 Counsel for the plaintiff submitted there were unresolved legal and factual questions which will determine whether VCAT has jurisdiction and whether the common law claims pleaded have been abrogated by s17(1) of the Water Act. The resolution of those matters will require the hearing of evidence and are matters which cannot be resolved on the basis of pleadings alone. I was referred to four issues which may determine whether or not the s16(1) claim has a proper foundation. They were:
(a)whether the flow of water from Powlett River onto the plaintiff’s land is a flow of water from “the land of a person onto land” for the purposes of s16(1);
(b)whether a flow in s16(1) includes a natural flow from tidal movements, and whether, by installing a pipe which catches the movement of tidal water, is causing a flow;
(c)whether the damage was caused by a flow “onto land”, given how the salinization occurred is presently unclear; and
(d)is the loss and damage caused by “the water” for the purposes of s16(1)?
29 It was submitted that this is not a case where the plaintiff seeks a more convenient forum, or more appropriate forum, or a case where two judicial bodies share jurisdiction. The question is whether, on the facts as finally found, the common law claims have or have not been abrogated by s17(1).
30 I am going to grant the plaintiff’s application and make an order that this proceeding be stayed until the hearing and determination of the VCAT proceeding.
31 In making this Ruling, I have considered the plaintiff’s intention as set out at paragraph 22 of the plaintiff’s submissions, namely that if the VCAT claim proceeds, the plaintiff will take steps to have this proceeding struck out.
32 Here it is not the plaintiff’s intention to “run the proceedings together”. They seek to stay the County Court proceedings while VCAT determines the proceedings. It is for that reason, I believe, that the decision of Burbank can be distinguished to the present facts. The parties are not here, “deeply involved in one piece of litigation” when the further proceedings have been commenced. No direction orders have been made in these proceedings as the Statement of Claim has just been filed.
33 What the plaintiff is seeking to do is to preserve his claim in the event that the elements required to be established under s16 of the Water Act are not proven. Whether those elements can be established is a matter of evidence and it is appropriate, therefore, that the VCAT proceedings be heard first to determine if the claim is correctly brought under the Water Act and at VCAT.
34 I was referred by counsel for the plaintiff to the decision of Finkelstein J in Bella Products Pty Ltd v Creative Designs International Ltd.[12] His Honour stated that it was undesirable that two courts should determine the same dispute and practical considerations based on commonsense and fairness should dictate which action should proceed first. Here, it is practical and sensible that the VCAT proceeding be heard first for the reasons I have set out.
[12](2009) 258 ALR 538
35 I have also taken into account the obligations required of me pursuant to s8 and s9 of the Civil Procedure Act 2010. I have an obligation under s8 to seek to give effect to the overarching purpose of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute. Giving effect to the overarching purpose, I should have regard to the matters that are set out in s9, in particular, in this instance, the just determination of the civil proceeding.
36 It would not be in the interest of justice to deny the plaintiff the opportunity to properly pursue his claim.
37 Returning, then, to the orders that the plaintiff seeks, I have not heard the parties in relation to the issue of leave being granted to the plaintiff to amend the Writ and Statement of Claim. It was the defendants’ fall-back position that if I made an order to stay the proceedings I should not make any orders in regard to amendment of the Writ and Statement of Claim.
38 A proposed amendment in relation to changing the name of the third defendant is not challenged by the defendant.
39 Therefore, I am prepared to hear any submissions from the defendants on this point, but it would appear to me that it is appropriate that the plaintiff seeks to amend the Writ and Statement of Claim by the joinder of the new parties, and to do so now, because of the limitation issues.
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