Puntoriero v Water Administration Ministerial Corporation

[1999] HCATrans 76

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S141 of 1998

B e t w e e n -

FERDINANDO PUNTORIERO and TONETTA PUNTORIERO

Appellants

and

WATER ADMINISTRATION MINISTERIAL CORPORATION

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 APRIL 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR J.A. DARVALL and MR A.A. HENSKENS for the appellants.  (instructed by Denniston & Day)

MR P.M. DONOHOE, QC:   May it please the Court, I appear with my learned friends, MR B.M. GREEN and MR F. KUNC, for the respondent.  (instructed by Department of Land and Water Conservation Corporate Counsel)

GLEESON CJ:   Mr Jackson.

MR JACKSON:   Your Honours, before I commence, may I just say that your Honours should have a one page document which sets out an additional argument which we wish to put in support of our submissions on the appeal.

GLEESON CJ:   Yes.

MR JACKSON:   And may I come to that perhaps in due course? Your Honours, as is apparent from the written submissions, the appellants’ case is concerned with the issue upon which they failed in the Court of Appeal and that is, whether the respondent had a statutory immunity pursuant to section 19(1) of the Water Administration Act 1986. The respondent, of course, seeks to maintain the judgment, in any event, by the matters referred to in its notice of contention and may I deal with those in response to the respondent’s argument?

Your Honours, could I then commence by going – and I will do so very briefly – to the jury’s verdict, which your Honours will see in volume 5 at page 1071.  Your Honours will see that, leaving aside the question of damages, which is not an issue, which is question 4, that the jury gave answers to questions 1, 2 and 3, question 3 having four parts.  Your Honours will see that the verdict meant, by its answer to question 1, that the jury was satisfied that the damage to the appellants’ potato crop was “caused by a phytotoxic substance” - that really means, a poisonous one which has got some relevance to light - your Honours will see a reference to that in volume 1 page 143 to 144.  I suppose I could put it simply by saying it is a form of weed killer really, but that is where your Honours will see something about it:

by a phytotoxic substance applied to it with the water from the Cudgel Channel, when the plaintiffs irrigated the crop, in October 1992.

Your Honours, the Cudgel Channel may be seen in volume 4 in the map which is at page 823.

KIRBY J:   The theory was that somebody had dumped this in the Channel?

MR JACKSON:   Yes.  Unknown, your Honour, who did it.  Various suggestions mooted but unknown.  Now, your Honours will see the Main Canal, the flow of which is, in effect, east to west.  Your Honours will see going from the east a property shaded in yellow.  That is referred to as “Donaldson’s farm” and your Honours will see that running into Donaldson’s farm is a channel called Lateral 240.

If you go further west you will see the Cudgel Channel named in about the middle of the diagram.  The water running from it past on, in effect, its northern or north western side, the green property which is the appellant’s property, and the water then also connects up to the property which is where the name is split in half by part of a channel, the Ainsworth property and the Channel goes underneath the road to Leeton and then your Honours will see that it goes on the northern boundary of the Ainsworth property.  Your Honours will see there in a corner of the Ainsworth property a reference to the fact that two water samples were taken there at a time which was, of course, after the damage to the appellant’s property.

Now, the jury’s verdict involved rejecting a number of theories advanced on behalf of the respondent as to the cause of the damage, including disease in the crop, leaching of nutrients and poor farming practices and I will come to this, of course, in some detail when dealing in response to our learned friend’s argument, but, may I just say that it involved accepting the evidence of Mr Hutchins that you could see the effects of some form of weedkiller not only the appellant’s potato crop but also at the water entrance to the property and along the Cudgel Channel itself and involved accepting the evidence of Mr Salvestrin, an officer then of the New South Wales Department of Agriculture, as to the cause of damage to the crop.

By its answer to question 2 your Honours will see that the jury found that it was foreseeable, and if I could interpolate, that must have been from the earlier damage to the properties of Donaldson and the Atkinson property in 1991, that there could be damage to the appellant’s crop by contaminants in the channel.  And, your Honours, those findings tie up with the four respects in which the jury found against the respondent in relation to failure to exercise reasonable care. 

If I could refer your Honours to paragraphs i to iv of question 3.  Now, your Honours, once one came to question 3, having answered the two prior questions in the way in which they were answered by the jury, the answers, we shall be submitting, were hardly surprising because the respondent, even after it became aware in November 1991 that there were complaints about the water from the Cudgel Channel, did not even test that water, and that the jury’s verdict, of course, involved a rejection of the contention that such testing as was done was, in the circumstances, adequate.

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Now, your Honours, may I go from those findings to the Act itself. Could I go first, your Honours, to section 19(1), and what I propose to do, if I may, is to identify first the broad structure of section 19(1) and come back to it a little later, having been to the other relevant provisions of the Act.

Your Honours will see that section 19(1) of the Water Administration Act consists really of three parts.  First there is the central proposition, namely that:

an action does not lie against the Ministerial Corporation with respect to loss or damage suffered as a consequence of the exercise of a function of it.

That is the central proposition, as it were.

The second thing is that there is an inclusory provision, and your Honours will see the words “including the exercise of a power”, and then paragraphs (a) and (b) follow.  The third feature is the qualification which is found in the opening words of the subsection and that is:

Except to the extent that an Act conferring or imposing functions on the Ministerial Corporation otherwise provides –

Now, your Honours, could I go then to the other provisions of the Act and come back to section 19(1) in a moment. Your Honours will see that by section 7(1) establishes the Corporation as such, and by section 4 of the Act, the objects of the Act are there stated. Could I invite your Honours to note, in particular, the object which is set out in section 4(b), that is:

to provide water and related resources to meet the needs of water users in a commercial manner consistent with the overall water management policies of the Government.

And if I could pause, your Honours, at that point.  The reference in the objects of the Act to provision of the water in a commercial manner, is potentially relevant in three respects.  In the first place, it suggests, your Honours, that that part of the respondent’s activities, is not likely to be the subject of special privileges or disabilities, because the reference to “in a commercial manner” rather suggests that it is to be carried on in a manner akin to the way in which generally similar transactions would be carried on in ‑ ‑ ‑

KIRBY J:   That makes a bold assumption that privatisation is performed in an intellectually rigorous and consistent manner.  Sometimes there are expressions of this kind which are token political slogans  ‑ ‑ ‑

MR JACKSON:   Of course, your Honour.

KIRBY J:   ‑ ‑ ‑ and which may have some legal effect but, nonetheless, the section 19 remains to which effect must be given.

MR JACKSON:   Of course, your Honour, but if one is looking to see what is the ambit of section 19(1) and looking to see what effect follows from that, one does look at the Act as a whole, and whilst the objects of an Act can reflect political slogans, indeed the life of politics, one would think, or part of the life is to end up with legislation, that may accord with the policies of those who are the constituents, in effect, of the government of the day. At the same time, the enactment of legislation having objects is the enactment of something which puts the slogan into the Act, to put it shortly; and then, your Honours, one must look at the Act to see what in toto it means.

All I was seeking to make at this point, your Honours, was simply that the reference to the words “in a commercial manner” is some suggestion that that part of the respondent’s activities is not to be the subject of special privileges or disabilities that would not ordinarily obtain in commerce. Your Honours, if I could take perhaps the simplest example: if one looked at section 19(1) for a moment, one could ask, would that provision of its own force – I use that qualification for a reason to which I will come in a moment – protect against an action for breach of contract?

McHUGH J: Yes, I was just going to put that to you, that it would seem absurd, would it not, if you could enter into a contract for millions of dollars, be in clear breach of it, and yet section 19 could prevent them being sued.

MR JACKSON:   Well, indeed, your Honour, and I was going to say, for example, to supply polluted drinking water.  I am not talking about what - the contract provides to provide water, but if the water was polluted or for, your Honour, for damages for failing to supply water which it had contracted to supply; and, your Honours, indeed, one sees that the Act does contain a special provision in relation to the matter to which I have just referred, that is, failure to supply water.  Your Honours will see that in section 12(5)(b) where it provides that:

No action or proceeding may be brought –

and, one is:

(a) to compel the Ministerial Corporation to supply water –

and the second is:

(b) to recover any penalty or damages from the Ministerial corporation in respect of a failure to supply water.

and your Honours ‑ ‑ ‑

KIRBY J:   Would the answer to that last point or the contract point be that one would then characterise the loss or damage as suffered not as a consequence of the exercise of the power, but as a consequence of the breach of contract?

MR JACKSON:   Well, your Honour, may I answer it by saying this, your Honour. There are really, in a sense, two levels at which one could look at it. What we would seek to say is that, first of all, as a matter of construction, whatever is covered by section 19(1), the presence of the section 12(5)(b) seems to suggest that the subjectmatter of 12(5)(b) would not be covered by it and there is a perceived need for a special provision. If one goes then to ask, what are the types of functions to which section 19(1) refers, what we would seek to say in relation to that is that the presence of a provision like section 12(5)(b) suggests that it does not cover the exercise by the Corporation of the power to sell and to deal commercially.

Your Honours, I was referring to section 4(b). May I say that the second feature of it, we would submit, is that by the reference to provision of water:

to meet the needs of water users in a commercial manner –

it seems unlikely, in our submission, that the provision of water, pursuant to an agreement to do so, is contemplated by the concluding part of section 19(1) and by that I am referring, your Honours, to that part of section 19(1) which includes:

the exercise of a power:

(a)  to use works to impound or control water;

but, more particularly:

(b)  to release water from any such works.

Now, your Honours, what I am seeking to convey in saying that is that, if section 4(b) – and this, in effect, picks up part of the first thing I said - is requiring that the provision of water be:

to meet the needs of water users in a commercial manner –

it seems unlikely, we would submit, that when section 19(1), by the concluding words, seeks to put within the immunity the exercise of a power to use works or release water from the works in the manner there referred to, it seems unlikely that it is dealing with the case of the delivery of water pursuant to contract and what the provision, in our submission, is designed to deal with is to ensure that where the impounding or controlling of water by works causes damage, the person injured is left without a remedy. What I mean by that is the impounding of water, so it backs up to cover properties or causes other damage, or where there is the loss of the benefit of a down-stream flow or where there is the release of waters in times of flood or where flood is caused by the release of waters, for example, in relation to irrigation. Your Honours will be familiar that in times of flooding there are sometimes great debates over whether dams should be opened or dams should be closed; one side or the other tends to suffer.

McHUGH J: Have you given any thought to the proposition that perhaps section 19 has got nothing at all to say about private rights and liabilities; that it is really directed, particularly having regard to the opening words, “conferring or imposing functions”, that it is really directed to ensuring that the Corporation cannot be sued for breach of statutory duties?

MR JACKSON:   Your Honour, that is the underlying concept of it.  What I mean by that, your Honour, is that if one looks at the circumstance which brings the provision into operation, it is the bringing of an action with respect to loss or damage suffered as a consequence of the exercise of a function.  If one looks then to see what are the functions, one sees that, your Honours, from section 11(1) and it makes it clear that the functions that it has are functions which are statutorily conferred.  Your Honours will see that from the two provisions of subsection (1).

McHUGH J: I rather had in mind an action on the case for breach of the statutory duty as opposed to an action for breach of contract, action for breach of fiduciary duty, action for negligence, that sort of thing. In other words, that the whole field of private rights and liabilities stand outside section 19.

KIRBY J:   I think that is your second argument, is it not, as I read it?

MR JACKSON:   I do not know that we would quite put it in quite as restricted a way as your Honour has put it to us. Your Honour, it would be tempting to adopt that. The words of section 19(1) seem to go a little bit wider than that, however.

KIRBY J:   Is not a fundamental problem that the Corporation is a creature of statute?

MR JACKSON:   Yes.

KIRBY J:   It only has the personality that is provided by Parliament and the powers, express or implied, that Parliament gives and therefore, as I understand it, the majority in the Court of Appeal took the view that when you are looking at the words you are really looking at a Corporation that cannot perform functions except pursuant, directly or indirectly, to statute.

MR JACKSON:   Your Honour, that is the view that the Court of Appeal took.  That view, in our submission, is really something that, ultimately, cannot be consistent with this Court’s decision in ‑ ‑ ‑

McHUGH J:   Ardouin, Hudson v Venderheld, Steven’s Case destroyed that line of thinking.

MR JACKSON:   Yes.

McHUGH J:   When I was first at the New South Wales Bar the view was taken that anything done by councils, for example, was done under the Local Government Act.  Hudson v Venderheld denied that in terms and ‑ ‑ ‑

MR JACKSON:   And, your Honour, Newman’s Case really deals specifically with the point.

McHUGH J:   Yes.

MR JACKSON:   What I am seeking to say, your Honours, and I perhaps got a little ahead of what I am seeking to say, is that what is established by, for example, Newman’s Case, to take the most recent of them, I think, what is established by that is that one looks at the particular circumstances that give rise to the cause of action, then looks to see whether that is the performance of the function that is contemplated by the Act, not anything that may be incidental to it.  Your Honour, I am putting that a little badly but what I am seeking to say in relation ‑ ‑ ‑

McHUGH J:   In Hudson v Venderheld, for example, this Court said you do not need any power under the Local Government Act to drive a motor vehicle along the highway, so if you knock somebody down while driving a local government vehicle along the highway, it is not done under the Local Government Act, therefore, the old section 580 was no answer.

MR JACKSON:   Your Honour, I accept that. What I am seeking to say at the moment in relation to section 4(a) is really in a sense that it is the lead in to a number of provisions, none of which, if I may say, immediately, your Honours, says that section 19(1) does not apply where you are, in effect, disposing of water but where it is apparent from the nature of the transactions that are involved that it would be inappropriate for section 19(1) to apply and whether one treats that as being a reading down or a confinement of the operation of the principal provision or else as an operation of the exception provision at the start of section 19(1), in either case the situation is one where it is inapt for section 19(1) to apply.

KIRBY J:   There is one other construction and that is that it is a political aspiration, but, I suppose it appears in a statute and it has to be given some meaning.  If people use this language in statutes they have to expect that it will have legal results.

MR JACKSON:   Well, your Honour, they have to expect that people – as your Honour says, that is what happens and if you have people who have suffered a great deal of damage - your Honours will see from the damages in this case – which, on this assumption is foreseeable and was caused by negligence then one would seek to give, in our submission, the words of section 4(b) a proper meaning rather than one which is hollow.

GLEESON CJ:   I noticed that there were four causes of action sued upon.  The argument seems to be proceeding on the assumption that the cause of action which formed the basis of the verdict was an action in tort for negligence.

MR JACKSON:   In tort, your Honour, yes.

GLEESON CJ:   So, what happened to the action for nuisance or breach of statutory duty or breach of contract?

MR JACKSON:   Not ultimately pursued.

GLEESON CJ:   Thank you.

GUMMOW J:   But if one were asking whether there would be an action for breach of statutory duty, if one were, it is said, trying to discern the statutory intention - now, that notion has been criticised - why would you not say, “Well, here, in fact, there is a clearly expressed statutory intention, that an action does not lie”?  In other words, no action in the case for damages is to be treated as arising here.

MR JACKSON:   Your Honour, that is a possible view, of course, but it is a question, really, of what is the ambit of the prohibition that is imposed?

GUMMOW J:   Well, the question is, what is the phrase “an action does not lie with respect to”?  Does it mean no action is to be taken as coming out of this statute or whatever the private rights would otherwise be, they do not exist.  That would seem to me the threshold question.

MR JACKSON:   Yes.  Well, that is, in a sense, a facet of what Justice McHugh was putting about it.

GUMMOW J:   It is.  Yes.

MR JACKSON:   Yes.  Well, the way in which it is expressed certainly seems to be to say that if there is loss or damage suffered as a consequence of the exercise of a function by the Ministerial Corporation no action lies in respect of that.  The wording, first of all, is appropriate to nip the action in the bud.  The question, of course, is to what actions does that apply?  Your Honours, in the end I am not certain that there is a difference between the two propositions because in the end it comes down to identifying what is the ambit of the concept suffered as a consequence of the exercise of a function of a ministerial corporation because the term “function” is quite widely defined and the term “function” is – section 3(2)(a) and (b) is the provision I was thinking of, your Honours.

GLEESON CJ:   Would section 19 cover a case where, as a result of the negligence of an employee of the Corporation, water was inappropriately released and caused flooding to land?

MR JACKSON:   It probably would, your Honour.

GLEESON CJ:   Would it cover a situation where, owing to the negligence of an employee of the Corporation, water was not released causing a failure of crops which suffered from insufficient irrigation?

MR JACKSON:   Yes, your Honour, it may ‑ ‑ ‑

GLEESON CJ:   Where would that fall within your dichotomy between the non‑exercise and the exercise of a function?

MR JACKSON:   I am sorry, your Honours. I was going to say, in relation to the second thing that your Honour put to me, there is really an anterior question in a sense, or another question involved in that, and that is whether one can identify relevantly doing nothing as being the exercise of the function of the Ministerial Corporation. There, one can understand and, in particular of course, specifically because paragraph (b) says so in section 19(1), that the release of water is something that would, apparently, attract section 19(1). But in relation to the failure to release to the disadvantage of the person who might have got it, your Honour, one then needs to see some other provision which one could regard as giving rise to the exercise of the power in not doing so. Your Honour, that is where section 19(1) – but may not go far enough.

KIRBY J:   Does not your theory of the dichotomy require your answer to the second proposition of the Chief Justice to be no, that section 19 does not apply?

MR JACKSON:   Not necessarily, your Honour.  There is a number of possible dichotomies, I have to say, in relation to that.  But, in our submission, no, it does not ‑ ‑ ‑

KIRBY J:   What is the history of this legislation?  I see it is a relatively recent Act.  Is there anything in the predecessor Act that gives any clue? Was there anything like this section or like the object section?

MR JACKSON:   No, your Honour. The object section, I will come to. But section 19(1) was, as we understand the position, your Honour, was new in this Act. The object section I will have to have checked in relation to that.

GUMMOW J:   What about section 12(5), is that new:

No action or proceeding may be brought:

(a) to compel the Ministerial Corporation to supply water –

That would seem to exclude what would otherwise might be the equity jurisdiction to grant an injunction in respect of breaches of statutory requirements.

MR JACKSON:   Your Honour, I will have to check that, I am afraid, but I am endeavouring to give your Honour ‑ ‑ ‑

GUMMOW J:   It would fit in with what I was putting to you about 19(1).

MR JACKSON:   Your Honour, if I could perhaps go back to what your Honour Justice Gummow was putting to me. The difficulty in taking, if I could put it this way, the narrowest view of the operation of section 19(1) in relation to the question whether its operation is to bring an action, or prevent an action ever arising on the one hand, or prevent an action from succeeding if it might otherwise be brought, is really, in a sense, the ambit of the concept of “functions” because, in the end, it would not matter very much, in our submission, because so much of the activities of the respondent would be covered by what would be described within the ambit of the term “functions”. But, your Honours ‑ ‑ ‑

GUMMOW J:   I am not sure I understand that.

MR JACKSON:   I am sorry, your Honour.

GUMMOW J:   I am not sure I follow.

MR JACKSON:   Your Honour, what I am seeking to say is this, that it is possible, of course, to take the two views to which your Honour adverted.  What we would seek to say, though, or what we are saying is that, because the term “function” is defined in the wide way one sees in section 3(2), to include not just functions in the fullest sense, but rights, powers, authorities and duties and, in particular, I suppose, powers and authorities.  Then, the situation which would obtain would be if the former view were taken about the action not arising, one sees, still, that the term “function” because of the ambit, the width of its definition, would have the result that many cases would still be covered by it.  If one looks at it the other way as preventing an action from succeeding, one would think that many actions - maybe not all of course - and many of the same actions, would be covered by it.

GLEESON CJ:   A possible point of view is that the very width of the description of the functions in section 11 supports a narrow view of section 19.

MR JACKSON:   Indeed, your Honour.

GLEESON CJ:   If you just looked at the very first function referred to in subsection (4), that is:

construct or maintain works or building –

on the view against you, as I would understand it, there could be no cause of action for any harm to anybody resulting from the negligent construction or negligent failure to maintain a building.

MR JACKSON:   Or, presumably, your Honour, for breach of contract in relation to failure to pay the money on time, to the builder.

GUMMOW J:   Yes, that is right, so it seems to me, once you get away from what you describe as the narrow view, does it mean there is an exemption with respect to breach of contract?  In other words, if “any action” includes “any action in contract”, you would reach an absurdity, so it has to be “some actions”.  What are they?

MR JACKSON:   Your Honour, that is something that one has to derive really from looking at the provisions of the Act – I am sorry to put that in so bland a fashion, but that is really what one does come down to.  What we would seek to say is, if one looks at a situation where the provisions of this Act and of the Irrigation Act that I mention in passing, which are the provisions dealing with the obligation to supply and to pay and so on, they make it apparent that one is dealing with the ordinary case of commercial transactions of a particular kind, some statutory backing for them, but, in relation to those, it would seem really quite odd if, in relation to transaction designed to be conducted in a commercial manner, you get provisions that take away the ordinary rights of the other parties to those transactions and persons affected by them.

GLEESON CJ:   Well, take what used to be called an action for occupiers liability. How would you relate that to the provisions of section 11(4)(a), which confers the function of maintaining “works or buildings” and section 19? Suppose somebody walks into a building owned and maintained by the Corporation and slips on the floor.

MR JACKSON:   Well, your Honour, if one were looking at an enactment, which did not contain that specific provision, then the case would be one to which – and I referred earlier to the Court’s decision in Newman – it would be a case similar to that because what one had, in that case was a statute which provided, in relatively broad terms, for the operations of the Australian Airlines Commission, I think, TAA, and it provided for the functions in the broad terms one would expect, together with power to do things incidental to it, and what was held in that case was that the lady who, I think, slipped on the floor in the kitchen was able to recover, notwithstanding the relevant provision – I think in the case it was a limitation provision – because the particular function was not something that was specified in the Act. But, your Honour, in this case, because of the provision as to maintenance, it seemed difficult to say that it was not covered by section 19(1), provided one can identify the particular thing and it is not inconsistent with the nature of it.

CALLINAN J:   Mr Jackson, it would not be very attractive to a joint venturer under (m) if the broad construction were to be preferred.

MR JACKSON:   No, your Honour, and ‑ ‑ ‑

CALLINAN J:   You would not get many people prepared to enter into joint ventures, I would think.

MR JACKSON:   Well, they would not be rushing, your Honour. That may well be why one sees section 12A having been added, and it would seem really unlikely, your Honour, what we would submit that the commercial operations contemplated by 12A would be ones to which section 19(1) would apply. Your Honour, I mentioned 12A simply because it would seem to be something that has been added to cover the case which your Honour mentioned. I do not suggest that 12A is this case.

McHUGH J:   Under 12A(2) they can enter into a trust or a partnership and that must be a function, having regard to the definition.

KIRBY J:   Is that what is meant by one of the exceptions in the opening words?

MR JACKSON:   Well, your Honour, it must be in the end, one would think.

KIRBY J:   There is no other express exception that says, notwithstanding section 19, you are liable for anything you do in relation to this?

MR JACKSON:   Your Honour, 12A is not express, of course ‑ ‑ ‑

KIRBY J:   Yes, but it is still a little elliptical.

MR JACKSON:   Yes, your Honour, one would think to make 12A work, you have to treat it as being something that, one way or other, is not covered by 19(1).

McHUGH J: But one strong indication that 19(1) cannot be intended to give a blanket exclusion from liability is section 19(2) because it would be meaningless if section 19(1) covers the field, then 19(2) would seem to have little work to do.

MR JACKSON:   Well, that is so, your Honour, yes.

CALLINAN J:   Mr Jackson, is there any commercial element in the drawing of water by the appellants?  They paid for it, did they not?

MR JACKSON:   Oh yes, your Honour, I am going to come to that in just a moment, if I may.  Yes, in fact, your Honour, the way in which the water goes on to their property is through a wheel, but the wheel has a meter so that the quantities can be taken and then paid for in due course, and there are quite strong provisions of the Irrigation Act which give some particular powers in relation to non-payment.

CALLINAN J:   That is under the Irrigation Act?

MR JACKSON:   Yes, I am coming to that in a moment, your Honour.

CALLINAN J:   Are there any documents brought into existence when somebody enters into an arrangement to draw water from the Corporation?

MR JACKSON:   Yes, there is a document variously referred to as a “white card” and so on.  There is one in the appeal books, I will give your Honours the reference in a moment, if I may.  But it is the, I think, the request to draw water and in due course, the amount has to be paid.

CALLINAN J:   An invoice is sent, I suppose?

MR JACKSON:   Yes, your Honour, I think the evidence is not 100 percent clear on the actual time of payment in relation to the particular case, but there is no doubt if one looks at the evidence of, for example, Mr Puntoriero is the first witness, in his evidence in‑chief in the early parts of it he describes the system that one has to go through.

CALLINAN J:   But the contract is what, with the irrigation ‑ ‑ ‑?

MR JACKSON:   With the respondent.

CALLINAN J:   With the respondent.

MR JACKSON:   Yes.  Now, your Honours ‑ ‑ ‑

KIRBY J:   Presumably, when section 19 was enacted 12A was not there, and therefore, when it referred to the exception in the opening words, that was a reference to some other provision in the statute. Are there any other such express exceptions?

MR JACKSON:   No, your Honour, not that I am aware of, but what I am seeking to say about it is that one does see, for example, in, I think, it is section 23 of the Irrigation Act, there is a particular but limited exception. I will come to it in just a moment but all I am seeking to say, your Honour, is that whilst I recognise that one cannot identify an express exception to section 19(1), it is possible, by looking at the Act, to identify circumstances in which it would seem curious if section 19(1) were to apply to them including circumstances such as the present where one is speaking about the water that is sold.

KIRBY J:   Well, it must be assumed that Parliament’s purpose was, in enacting those opening words, that there would be exceptions.

MR JACKSON:   Quite, your Honour.

KIRBY J:   And that, therefore, one must construe the statute in a way that implied exceptions should be read into it, otherwise those words would have no effect at the time the statute was enacted.

MR JACKSON:   Your Honours, I was going to go on to say that the third thing that we would say about that section 4(b) - and I know I have taken a while to get, finally, to this - the third thing is that if one treats the reference in section 4(b) as showing that one of the functions of the respondent which attracts the operation of section 19(1) is the provision of water and, your Honours, if I could interpolate to say this, that in other words, turning the argument against us to say if one looks at section 4(b) and treats it as showing that one of the functions of the respondent which would attract section 19(1) is the provision of water, one has to note that section 4(b) is not quite so broadly stated because 4(b) is expressed as being to provide water with two qualifications. One is to meet the needs of water users and the other is in a commercial manner.

Now, your Honours, as to the first of those things, to meet the needs of water users, the needs of water users, I suppose, would contemplate things such as quality, quantity, availability and, to a degree, price, but one thing that one could certainly say about them was that the needs of water users so far as presently relevant were to have irrigation water which would make crops grow, not ones which would, in effect, snuff out their life and the question of the quality is something involved in the needs of water users.

The second thing, and this is, perhaps, just to say the same thing in a different way, is that it could hardly be to provide water to water users in a commercial manner if the water supplied is completely unsuitable for the task for which it is known to be required.

Now, your Honours, if one goes then to see what are the functions of the respondent, one goes first to section 11(1) and what your Honours will see is that the:

Corporation has, and may exercise:

(a)  the functions specified in subsection (4), and

(b)  any other functions conferred or imposed on it by or under this or any other Act.

GUMMOW J:   That is principally the Irrigation Act, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with section 11(4) and then go to the other relevant source which is the Irrigation Act. Your Honours, if one goes to the list in section 11(4), may I say two things about it. The first is that the matters there enumerated and, your Honours, I will not read them out, do not seem to have a great deal to do with the facts of the present case but, and this is the second thing, if one looks at the range of activities that may be engaged in pursuant to section 12(4), they cover a very wide range of situations which might give rise to potential liability.

I have discussed with your Honour the Chief Justice one or two arising out of section 11(4)(a) and it would be very surprising if the rights of people who may have suffered the most ghastly personal injuries were snuffed out by section 19(1) by a blanket provision which would apply to virtually every potential activity – I am sorry, not to every potential activity, but to very many potential activities covered by section 11(4) of the most ordinary and dreary, as it were, kind, not particularly related, apart from their ultimate purpose, to the activities of the respondent.

Your Honours, could I move then to the next provision which is section 12.  Now, your Honours will see that section 12(1) speaks of the right to the use of:

flow, and to the control of: 

(a)  the water in rivers and lakes,

(b)  the water conserved by any works –

Now, your Honour, if I could just pause to say, the definition of “rivers” includes artificial channels and it may be a question whether this case falls within 12(1)(a) or 12(1)(b) or both, it does not seem to matter very much. But, what it says is that:

The right to use and flow, and to the control, of –

those waters –

is vested in the Ministerial Corporation -

and goes on to say in the concluding words of 12(1):

except to the extent that…..the right is divested by the exercise of a function of the Ministerial Corporation.

If one goes to section 12(3), your Honours will see that it is dealing with the taking of measures for the various matters to which it there refers. Your Honours, this case, of course, does not appear to be concerned with the taking of any such measures but perhaps it is in one sense concerned with the release of water contemplated by section 12(4). I referred earlier in passing to section 12(5). It does not have any particular application to this case except that it makes apparent that on an occasion when the legislature has sought to refer to a failure to do something, it has said so specifically. The other provisions potentially relevant are those under the Irrigation Act 1912 and that Act, by section 8, gave the respondent the:

control of any irrigation area and any works within or used in connection with such area –

Your Honours, the respondent was empowered by section 9(1)(a) to “construct works for storage or diversion of water”.  There are various other powers referred to in section 9(1).  By section 12(1) the respondent was under a statutory obligation to:

supply water in pursuance of the water rights which are attached to the land of any occupier. 

“Water rights”, your Honours, are not quite as bounteous as one might think.  They are defined by section 3 to mean a “right to a quantity of 1 megalitre of water, annually”.  The supply must be paid for.  That is section 12(1A).  You will see from section 12(2), the charge is “a fixed charge on the land”.  But, of course, there is also provision for more than the megalitre per property.

Your Honours will see that in section 13(1) that additional water may be supplied and you will see from section 13(1) that the respondent, “may fix the prices to be paid for such additional water rights” from time to time, and, then, the second paragraph of 13(1), the Corporation or respondent is to:

supply him with additional water at such charges as the Ministerial Corporation may determine.

And, then, subsection (2):

may supply water for special purposes in such manner and at such charges as the Ministerial Corporation may determine.

In addition, another reference to the price can be seen in section 14(1)(b).  The opening words of section 14(1) refer to:

a supply of water through pipes under pressure –

but the subsections do not seem to be limited to that type of supply.  I would refer, your Honours also to section 14(1)(c).

The charge is payable by the “occupier of the land”. That is section 15(1). Interest is payable for late payment: section 15(2)(c); and the charges and any interest are debts due to the respondent “by the occupier”. That is section 15(3). A failure to pay them is capable of leading to forfeiture of the land. That is section 15(4).

I mentioned earlier, your Honours, that there is a specific, but limited, protection given by this Act. That is section 23 and, your Honours will see in subsection (1) that the respondent cannot be obliged “to supply water” if the circumstances make it “impracticable to do so”, in its opinion”:

by reason of drought, accident, or other cause –

and by subsection (2), the respondent:

if it is satisfied that by reason of an actual or threatened shortage of water or for any other sufficient cause it is necessary or expedient so to do, determine that:

quantities “be reduced” or “such supply shall be discontinued”. And then, what your Honours will see is, in section 23(2)(d) that:

No matter or thing done by the Ministerial Corporation or by any person whomsoever acting under the direction of the Ministerial Corporation shall, if the matter or thing was done bona fide for the purpose of carrying this subsection into effect, subject the Ministerial Corporation or any such person to any action, liability, claim or demand whatsoever.

GUMMOW J:   But suppose, looking at section 23(1), there was no drought, no accident, no other cause, does section 23(1) assume that this legislation may oblige the Ministerial Corporation to supply?

MR JACKSON:   Your Honour, it does.

GUMMOW J:   In some circumstances.

MR JACKSON:   In some circumstances, your Honour, and it would seem to tie up with section 13(1), where, to put it at the lowest, there was a power to allot additional water rights and to fix the prices for additional water rights. Your Honours, it may be that it would not be possible for a person to enforce such right, as against the Corporation, as there may be under section 13(1), but no doubt section 23(1) is working on the assumption that there may be some such right.

GUMMOW J:   But that, to the extent that there is such a right, no action, if “bona fide”, et cetera, under 23(1)(d).

MR JACKSON:   Yes.

KIRBY J:   Does not that section, that is 23(1)(d), the paragraph in the Irrigation Act, tell against you to some extent in that it is a much narrower exemption and it is posited on certain preconditions, namely, it has got to have been done bona fide, and it is also posited on the exception only for the liability under that section which is related to the supply of water, whereas when you look to 19(1), it looks as though Sir Humphrey slipped in a few more exceptions here.  And, in fact, it is, as Justice Gummow pointed out at the outset, expressed, at least on its face, in very general terms.

MR JACKSON:   Your Honour, it may be, of course, that Sir Humphrey’s work was done after lunch, because the provision that was inserted was one that contains within itself the opening words of the provision.  That has the result, in our submission, that one looks to see what other provisions say and what the effect of the Act in toto is, and if, in reality ‑ ‑ ‑

GUMMOW J:   The opening words of 19(1), as to the exception, would pick up 23, would they not, of the Irrigation Act?

MR JACKSON:   Yes. Your Honour, of course the terms of section 23 of the Irrigation Act do not contain a specific reference to, for example, section 19, and one is ‑ ‑ ‑

GUMMOW J:   No, but 23 does seem to assume that, in some circumstances, there would be an action for breach of statutory duty.

MR JACKSON:   Yes.  Your Honour, it also, of course ‑ ‑ ‑

GUMMOW J:   Subject to the bona fide limitation.

MR JACKSON:   Quite, your Honour. What I am seeking to say is this, that section 23(1) perhaps goes a little further than that and if one had a situation where there had been an agreement to supply, section 23(1) would seem to have the effect that if a circumstance arose that was within the contemplation of section 23 then, notwithstanding the presence of that agreement, the obligation to supply would be at least suspended during a period to which the circumstances in 23(1) were applicable. Your Honour, that can be seen, perhaps, a little more sharply if one looks at the circumstance to which section 23(2)(a) would apply where, for example, there was a shortage of water and one could imagine a situation having arisen where there had been an agreement made today to supply a quantity of water in two months time, but that the rains had not come or there was some other difficulty that prevented the supply.

KIRBY J:   Is there anything in the explanatory memorandum or the Minister’s speech to explain the wide language of 19?

MR JACKSON:   Your Honour, nothing that conveys any light on anything that ‑ ‑ ‑

GLEESON CJ:   Mr Jackson, the judgments in the courts below and the submissions here proceed on an assumption, which may be a perfectly valid assumption, but I would just like to check it.  There is a line of country in relation to exclusion clauses in contracts which establishes that if there is a liability other than negligence capable of being covered by the exclusion clause, then you would read the general words of an exclusion clause as not covering negligence, the thinking behind the reasoning being that, if parties want to exclude negligence in their contracts, they ought to say so.  It strikes me as a possible point of view that if governments want to exclude liability for the negligence of their corporations, they ought to be forced to say so.  Has that line of authority ever been applied to statutory provisions like this?

MR JACKSON:   Not in quite that way, your Honour.  May I just pause to say I am coming in just a moment to deal with the area related to that.  May I just say one other thing about the facts before I move on to it.  All I was going to say was this, that what we would seek to say is that a person who is supplied by goods, to put it shortly, is able to sue both in contract and in tort.  If one supplies goods or products which are to be used for particular purposes and if one knows they are not going to be tested before they are used, then the supplier is potentially liable to the consumer whether the deleterious substance be the assumed snail or be it atrazine or some other herbicide.  That is really part of what is involved in dealing commercially.  That is the point at which, if I may, I could go to something akin to what your Honour the Chief Justice was asking me.

KIRBY J:   Could I not just suggest that there is an important difference.  What private people do in their own contracts is, subject to any special law, up to them, but here we are dealing with what the Parliament has provided, speaking for the people who elect it and for the jurisdiction.  Also the Parliament is not to be identified exactly with the Ministerial Corporation.  On the contrary, given its commercial character, it has a degree of its own role.  Parliament is laying down the terms on which people can sue it, so I do not think it is really analogous to a private contract.

MR JACKSON:   No. Your Honour is right in saying, if I may say so with respect, that it is not analogous to the private contractor. That is true, with respect, in relation to an aspect of it. Its personality is created by a statute. Parliament has given it a number of rights, powers and so on. In giving those it has done, I suppose, two things relevantly. One is to say in respect of matters that fall within section 19(1) you have the protection that is referred to there. Parliament has said on the one hand, “In a broad proposition your activities have to be carried on to meet the needs of, in effect, consumers and to deal with them in a commercial manner”. But the activities that are to be carried on are in significant measure those which are activities involving contracting to dispose of the water that is controlled by it.

In dealing with that aspect of it, your Honour, one sees that Parliament is really recognising that its activities are ones that will be regulated largely by contract.  Terms of the contract of course are to some extent provided for by Parliament or by the Corporation acting pursuant to powers given by Parliament and one sees it has the ability to fix the price.  That part of the bargaining has gone.

But where it is entitled to recover the money as a debt, where it is entitled otherwise to deal, there is no particular reason why one would exclude the ordinary liabilities that would apply to a supplier.  Indeed, your Honour, if one looks at the Act – I do not suggest this provision is in any way decisive on the issue – but what your Honours will see is that section 12(1), which is the provision that confers “The right to the use and flow and control” of waters, and says that “is vested in the Ministerial Corporation”, it goes on to say that there are two qualifications to that, the second of them being:

except…..to the extent that the right is divested by the exercise of a function of the Ministerial Corporation.

Now, your Honours, that contains within itself a recognition that one of the activities of the Corporation will be to sell, in effect, water, to put it shortly, and ‑ ‑ ‑

KIRBY J:   I suppose there is the fiction that is very strongly entrenched that Parliament is not going to act in a way that will take away people’s established, ordinary civil rights, unless it does so clearly, and where one construction of this exemption would take away a very large measure of rights or all rights, and one would confine that to a smaller ambit, then one would perhaps attribute to Parliament the intention to have the smaller ambit, rather than the larger.

MR JACKSON:   Well, your Honour, I suppose another fiction – I do not mean this in the slightest degree offensively, of course – is that Parliament takes account of what decisions of the Court say about provisions of this kind and how they will be interpreted, and that is the matter to which I was going to come now, and that is the view adopted by the Court as to the approach to be taken to provisions of this kind.  May I, in that regard, take your Honours to Australian National Airlines Commission v Newman (1987) 162 CLR 466 where, if I could say something about it first, your Honours, all members of the Court adopted the view that a provision which limited rights should be strictly construed. May I take your Honours at the moment to two passages. The first is that in the reasons for judgment of Chief Justice Mason and Justices Deane, Toohey and Gaudron, at page 471, about point 5 on the page, and your Honours will see that their Honours said in the second sentence:

A limitation provision –

and they were speaking of the provision which appears halfway down the preceding page –

because it derogates from the ordinary rights of individuals, should be strictly construed.

Now if I could pause to say, your Honours, that your Honours will see a reference to Ardouin a little further down the page.  But also the other reference I was going to give was that of Justice Brennan, the other member of the Court, at page 476, about point 7 on the page, where ‑ ‑ ‑

KIRBY J:   But what is, in your submission, the foundation of this approach?  I mean, ordinarily, the law has treated a little bit from differential approaches to different statutes, but why ought one to take a restrictive approach to the language of a limitation provision?

MR JACKSON:   Your Honour, the reason why, I suppose, is that one takes into account first the social context, if I can put it that way, in which provisions of this general kind occur and that is that they are provisions expressed in relatively broad terms capable, if they are read in their broadest fashion, of application to a very wide set of circumstances that the legislature is unlikely to have foreseen, in terms of looking at any particular case.

So the second thing is that one looks at the nature of them and the nature of them is, in one way or another, to take away or diminish rights of individual citizens or individuals in the community and, in looking at that question, a decision has to be made to say, if an issue arises in relation to the application of a provision of this kind, does one, in interpreting it, say Parliament must have intended to take away rights in a broad way or does one say, in dealing with a provision of this kind, one assumes, because Parliament is ultimately representing the will of the electors, that what it is seeking to do is to take away those rights only to the extent to which it is necessary to deal with the issue and, allied to that is, really, a long history of construing provisions of a general kind by reference to the view that if Parliament wishes to take away rights, and is able to do so, then it is for Parliament to make it clear that it has done so.

Now, your Honours, undoubtedly there is a value judgment lying behind all that but it turns on which way the Court is to decide the matters and it decides by reference to considerations which favour those who have no ability to change the law compared with those who have an ability to change it.  Your Honours, I do not know that I can endeavour to put it any higher or a more sophisticated level than that.  It is really a choice of the way in which the law should go in circumstances of that general kind.

KIRBY J:   This is a relatively recent case that you are reading now – 87 – but there has, I think it is fair to say, been a general shift away from special categories like taxed statutes and other statutes receiving a special treatment and there is a tendency in most common law countries now to say you should just construe the statute on its own terms.

MR JACKSON:   Your Honour, that is right.

KIRBY J:   But it may be that what you have said is merely calling in aid a very well‑established principle that common law countries have invoked and that is that you do not impute to Parliament an intention, by an interpretation that would be too wide, to take away fundamental civil rights, unless they make it clear.  You construe it in a way that is defensive of those rights.

MR JACKSON:   Yes, your Honour.  Your Honour, if I could just say in relation to where one can see perhaps an identification of a time at which there was, perhaps, a change in view, one sees in, I think, the foreword that Chief Justice Barwick wrote to Professor Pearce’s work on statutory interpretation where he refers to it but, your Honour, there are really two aspects to it.  One aspect really reflects views that had earlier been taken and that, in a sense, by modern standards, have gone too far.  What I meant by that was that sometimes strained constructions had been adopted to avoid the – particularly in relation to criminal provisions - strained constructions had been adopted so that too much was required of Parliament.

Now, your Honour, one can see that there has been a change in relation to that - the statute is interpreted.  But if at the end of the day – and this is something, in our submission, that really has not changed either in philosophy or really in its application – what you have is a statute that is capable of two constructions, then the construction which is against the taking away of rights, without the more specific statement of it, is that which is the preferred one.  Your Honour, I have spoken perhaps too long on that.  May I move on to the second ‑ ‑ ‑

McHUGH J:   Well, the trend, in effect, has been the opposite in this area, has it not?  Until Ardouin the courts gave a very wide view to limitation actions.  It can be found in English cases like Bradford Corporation v Meyers, I think a case called Clark v St Helens’ Borough Council; and in Justice Dixon’s judgment in Little v The Commonwealth in this Court, but then, starting with Ardouin’s Case, the courts have cut back the wide scope of these immunity provisions and there has been a constant trend since Ardouin in the opposite direction.

MR JACKSON:   Well, your Honour, certainly what one sees is that the passages to which I have referred are ones that continue to be applied - one sees them sought to be applied by the Court of Appeal in this case – and there does not seem to have been any resiling from those propositions; of course, there have not been many cases in this Court since Newman dealing with the precise issue, but there is nothing to suggest, in our submission, that there has been a change in the application of the tests since the cases to which I am referring.

Your Honours, I was going to give a reference to Justice Brennan.  That was page 476 about point 7 on the page and, in the second sentence of the paragraph commencing on that page, his Honour said:

Such provisions are strictly construed for they protect the interests of the statutory authority at the expense of individual rights.

His Honour then referred to Ardouin.  If I could take your Honours for just a moment to what was said by Justice Kitto, for example, in Ardouin’s Case (1966) 109 CLR 105 and to the reference at page 116 – there are two references on the page, point 6 and point 9. At point 6 his Honour said:

By contrast, the protective nature of the provision made in section 46.....is such that a most strict interpretation of its words is plainly demanded.

And then, more fully at the bottom of the page, his Honour said:

Section 46 operates, then, to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.

Now, your Honours, perhaps his Honour’s manner of expression is maybe a little dated by today’s standards, but the concept remains.

Could I refer also to some observations of your Honour Justice Gummow in the Federal Court in Suatu Holdings Pty Limited v Australian Postal Corporation (1989) 86 ALR 532 and at page 541 – I am sorry, I thought your Honours had this, but the answer is that your Honours do not seem to. Could I just give your Honours a reference: it is page 541 between lines 35 and 55, where, if I could perhaps ‑ ‑ ‑

KIRBY J:   Which volume again, I am sorry?

MR JACKSON:   It is 86 ALR.  Could I just read out a short passage, your Honours:

Secondly, a statutory limitation or exclusion provision such as s 104 is to be strictly construed for it protects the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights.

Your Honour referred to Newman’s Case  and another case and then said:

Thus, such phrases in s 104(1) as “in respect of” and “by reason of” are to be construed narrowly rather than generously, as would otherwise be the case.

That takes me back to our written submissions.  Could I go then to ‑ ‑ ‑

KIRBY J:   Of course, it may be that whoever drafted this had Newman and all those cases in mind and said, “Well, this time we’ll make it absolutely clear.  An action does not lie”.

MR JACKSON:   Well, your Honour, maybe that is so.

KIRBY J:   There is a price paid of course for courts cutting down, quite apart from their legitimate constitutional function, and the price paid is that you get very convoluted and very detailed legislation.

MR JACKSON:   Your Honour, one ‑ ‑ ‑

KIRBY J:   I do not want you to repeat what you said.  I do appreciate what you have said and the rule relating to cutting down civil rights is very deeply entrenched in the common law.

MR JACKSON:   Yes indeed, your Honour.  One should not feel too tender about the position of drafters of enactments.  I drafted one which this Court has held invalid, but these things happen.

GLEESON CJ:   Now you have softened us up and told us to be strict and jealous in our construction, what is the construction for which you contend?

MR JACKSON:   Your Honour, we contend first of all – and I am just going to take your Honours to paragraph 15 of our submissions – if I could put it shortly, that one must look at the operative words first of all of section 19(1). It requires that:

an action…..with respect to loss or damage suffered as a consequence of the exercise of a function of the Ministerial Corporation –

Your Honours, if one looks to see what the loss or damage was suffered by, the loss or damage was not, in our submission, suffered by something which can be described as “the exercise of a function of the Corporation”.  What I mean by that is that the damage was not caused by the release of the water or by the sale of the water.  It was damage which was caused because of the fact that none of the actions which are the subject of the jury’s findings had been taken which would have had the result that the water which we had acquired was water which we could safely use.

GLEESON CJ: Would section 19 have applied in the present case if, owing to malice on the part of the Corporation, it had deliberately supplied polluted water?

MR JACKSON:   Well, your Honour, no.  I think the answer is “no”, because I am seeking to draw a distinction between, in effect, two things:  one is the supply of the water; the other is the use by us.  What I should say, perhaps, is that the water was supplied into our dam.  The water sits in the dam.  We then draw the water from the dam to use in the irrigator, and it is the use in the irrigator which, of course, caused the damage to the many acres of the crops.

The terms of section 23 to which I have adverted already in answer to your Honour Justice Callinan assume that there may otherwise be a liability at least under contract. Could we also say that the provisions of section 25 of that Act, whilst clearly enough dealing with the catchment areas, do work on the assumption that water quality may be a matter of interest to the Corporation. If I could just take your Honours to the Irrigation Act for a moment ‑ ‑ ‑

GLEESON CJ: Just before you pass from that last point, if supply pursuant to contract is covered by section 19, then presumably the corollary of that is that it would not be open to the Corporation to enter into a contract which accepted liability for the quality of water supplied.

MR JACKSON:   Yes, it would not be much of a contract, one would think, with respect - only in commercial terms - but your Honour is right.  Your Honour, one would have a situation which really sits a little oddly with the provisions of the Irrigation Act to which I have referred and also the provision of section 26(1)(i) that I took your Honours to earlier which allows, for example:

the forms of agreement for the sale or disposal ‑ ‑ ‑

GLEESON CJ:   No matter how much the customer was prepared to pay for the supply.

MR JACKSON:   Indeed, yes, and that seems to be a little inconsistent with the reference to meeting the needs of consumers on commercial terms in section 4(b) of the Water Administration Act.

GLEESON CJ:   Well, doing things on commercial terms sounds like freedom of contract.

MR JACKSON:   It does, your Honour, yes, and then the essence of commercial terms is that one might be able to identify reasonable ones but very often one cannot identify them in the abstract. They depend on what parties agree. Your Honours, I was going to say if one goes to the provisions of section 26 of the Irrigation Act it does indicate in a number of provisions that there is some interest in the quality of water. Your Honours will see, for example, section 26(1)(a) which allows the making of regulations:

for the prevention of the pollution of water conserved or distributed in works constructed under the Construction Act, or the Murrumbidgee Irrigation Act 1910 –

Your Honours, I will not go through all the provisions of the regulations or the regulation‑making power but very many of them are provisions which deal with the question of pollution and prevention of pollution and, indeed, there have been such regulations made.  Could I refer your Honours to two sets of - your Honours should have copies of these, I think – first of all, the Irrigation General Regulations under the Irrigation Act 1912 and could I refer briefly to those, your Honour. Do your Honours have those, might I inquire?

GLEESON CJ:   We do, yes.

MR JACKSON:   Yes, and your Honours will see Regulation 2 speaks of pollution of waters, “no person shall bathe or deposit”, et cetera.  And, your Honours, there is, by way of passing amusement as it were, in Regulation 3A(1), your Honours will see two provisions which seem to say in two sentences what might have been said in one.  But your Honours will also see in Regulation 6 a provision dealing with depositing rubbish, and the second set of regulations, your Honours, would be the Irrigation (Destruction of Noxious Weeds and Plants) Regulations and, your Honours, they deal with the topic that one might expect from the name, and I refer particularly to Regulation 2.

Your Honours, there is also another set of regulations which deals with the particular area.  I am sorry, these were not able to be photocopied in time to give – they are readily available to your Honours ‑ ‑ ‑

GLEESON CJ:   Thank you.

MR JACKSON:   They are the Yanco and Mirrool (Supply of Water for Irrigation) Regulations.

GLEESON CJ:   Do they apply to your client’s property.

MR JACKSON:   Yes, well, Yanco, your Honour.  Your Honour, that we are appears from, for example, the document which is in volume 4 at page 892.  It is a document which, I think, is the transfer document in relation to the ownership of the particular property and described it as being in the Yanco irrigation area.

Now, your Honours will see that the regulations deal with a significant number of matters in relation to water, for example, Regulation 5, “Payment of charges for water rights”, 6, “Schedule of Deliveries”, 7, “Application for water”, 8, “Special deliveries of water” and so it goes on, your Honours.  There are provisions, for example, Regulation 17 contains some circumstances in which:

The Commission may refuse to deliver water during any delivery or may discontinue any delivery of water –

including -

(i) For the watering of any land if in the opinion of the Commission such delivery would injure or tend to injure the land -

and so on.

KIRBY J:   What do you seek to get from this?

MR JACKSON:   Your Honour, all I am seeking to say, in relation to them, is not to seek a course to derive a cause of action from them or anything of that kind.  All I am seeking to say is that the delivery of water is something that appears to be something dealt with by the Irrigation Act and the regulations thereunder.  It seems plain enough from the terms of the Irrigation Act that what is contemplated is that there will be a contract for the disposal of the water and, your Honours, all we would seek to say about it is that the function of the respondent is, in effect, exhausted, for the purposes of section 19(1), when it…..in the agreement to supply the water and the specific, but limited, exemptions given by, for example, section 23, militate against the view that section 19(1) is the relevant one.

Could I give your Honours, and I will do this finally, references that I said I would give earlier, to where the actual dealings in relation to this water are to be found.  They are in the evidence of Mr Puntoriero in volume 1 at pages 26 to 27, 38, 46, and 70 to 71 and relevant documents are in volume 3 at page 697 and volume 2 at page 362.  Your Honour, I think I said Atkinson a few times and I should have said Ainsworth was the relevant name.  Your Honours, those are our submissions.

GLEESON CJ:   Yes, thank you, Mr Jackson.  Did you want to say anything in reply on the notice of contention matter, Mr Donohoe?

MR DONOHOE:   Yes, your Honour, and I can be brief.  May I say, at the outset, that we had intended by ground 1, and the written submissions that we prepared in relation to the steps taken to ascertain the presence or absence of any contaminant, which have been the subject of a substantial schedule, to address breach of duty.  To make that clear, I seek leave to amend the notice of contention by adding at page 1135 the words “and breach of duty” in paragraphs 2 and 3 of the notice of contention.

GLEESON CJ:   What is your attitude to that?

MR JACKSON:   Well, your Honour, in relation to it, if the Court were to permit that, we would seek to have leave to put in, in writing, within say seven days, any further submission we might wish to make in relation to it.

GLEESON CJ:   Well you better put those submissions in within seven days.  It is a matter we will deal with when we give our reasons for judgment.

MR JACKSON:   Yes, your Honour, and if we wish to make any submission about the ability to take the point, in this Court, we would make it in that document, if we may.

GLEESON CJ:   Very well.  We will deal with Mr Donohoe’s application when we come to give judgment and you can anticipate what we may do by putting in any submissions within seven days, as you wish. 

MR DONOHOE:   I am obliged to your Honours.  May I make these submissions in point form by reference to paragraph 11 of the appellants’ written submissions in reply to the contention submissions.  As to paragraph (c), it is true that tests were not carried out on the Cudgel but logically the place to test was the point where the crops were damaged and the focus of attention was the damaged crops on Donaldson and Ainsworth and then the schedule discloses, “Mr Donaldson appeared to have more troubles”, and so the focus of attention naturally went in that direction.  As to (e), the respondents’ tests to the water of Lateral 240” were indeed of the surface only, but there was no evidence that the sediment should be tested, that paragraphs (f) to (i), the condition of the crop does not explain what caused the deterioration and how it was connected with the events of the preceding year.  As to (k), the evidence of Mr Brown was equally consistent with atrazine being washed away.  As to (h) it is true that Mr ‑ ‑ ‑

KIRBY J:   What does that matter if it is a no evidence point?

MR DONOHOE:   On the no evidence point it does not, it is perverse.  As to paragraph (l) it may be accepted ‑ ‑ ‑

KIRBY J:   It may be the barrier on perverse jury verdicts has fallen in the last 10 years since I used to sit on appeals from perverse jury.  They had to be very, very bad.

MR DONOHOE:   Perverse, yes.

KIRBY J:   It is not just that you just disagree with them.

MR DONOHOE:    No, I accept that.  As to error, it may be accepted that there was evidence that led Mr Hutchins to the view in 1996, that atrazine caused both incidents.  That is not a matter within his knowledge, or the knowledge of the respondent at the relevant time.  We invite your Honours to look carefully at the schedule that we have prepared and the references to the evidence upon which my learned friends rely.  As to (m), Mr Hutchins’ report was influenced, that is the report dated 1996, was influenced by tests on the sand trap in November 1995.  As to (m), Mr Salvestrin’s opinion that the crop loss was the result of phytotoxic substance supplied in the irrigation system may be accepted, but it did not explain how that might be connected with the events of 1991.  Similarly, with the evidence of Messrs Toth and Brown. 

As to (q), it is submitted that it is only a matter of weight that Mr Hutchins was confused about the custody of samples.  When your Honours look at carefully, you will find that he conceded that if it were the fact that as it was proved to be, that there only was one sample in the deep freeze of Mr Puntoriero and it was cut in two, then it was a matter of pure speculation as to where it might have come from.  So, it is not a matter for weight, it is a case of no reliable evidence.  As to paragraph 12, Mr Hutchins saw effective vegetation on the banks of the Cudgel, that is taken from his report at 3515.  He does not state there when he noticed that damage, but at volume 1, 101M to S, he makes it clear enough that he was referring to an inspection in 1992 after the damage  and that offers no explanation of the caual connection between the events of 1991 and the damage in 1992.

Finally, one housekeeping matter.  Your Honours may have noticed that some of the appeal books have pages that are difficult to read or utterly illegible.  My learned junior Mr Kunc has taken this up with my learned friend’s junior.  We have a bundle of pages that it may be convenient to the Court if we hand to the associates so they may be substituted.  May it please the Court.

GLEESON CJ:   If we were to order a new trial, the order of Mr Justice O’Keefe concerning the mode of the trial would continue to operate, would it not?

MR DONOHOE:    Yes.  We would ask your Honours to very carefully reflect upon what the mode of trial should be.

GLEESON CJ:   Well, there was no appeal from that order.

MR DONOHOE:    No, there was not.

GLEESON CJ:   That was a discretionary matter.

MR DONOHOE:    Yes, a discretionary matter.

GLEESON CJ:   We will reserve our decision in this matter.  The Court will adjourn until 10.15 tomorrow morning.

AT 4.32 PM THE MATTER WAS ADJOURNED