Sharp v Goulburn-Murray Water Corporation
[2013] VCC 1852
•28 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-13-05976
| GAYLE SHARP | Plaintiff |
| v | |
| GOULBURN-MURRAY WATER CORPORATION (ABN 46 761 336 846) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2013 | |
DATE OF JUDGMENT: | 28 November 2013 | |
CASE MAY BE CITED AS: | Sharp v Goulburn-Murray Water Corporation | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1852 | |
REASONS FOR JUDGMENT
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Subject: Interlocutory Injunction – Statutory power to discontinue water supply
Catchwords: Discontinuation of water supply – unpaid debt relating to other property – unpaid debt owed by de facto – applicable provisions – whether obligation to provide under Essential Services Commission – Customer Service Code
Legislation Cited: Water Act 1989, s123, s141(1)(h), s231(1)(e)
Judgment: Summons seeking relief in nature of mandatory interlocutory injunction dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Waldren | Wilmoth Field Warne |
| For the Defendant | Dr A Hanak | Maddocks |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by writ on 19 November 2013. By a summons issued on the same day, the plaintiff seeks interlocutory relief against the defendant in the form of a mandatory injunction. She seeks an order that, until further order, the defendant must supply water to her and process all transactions in connection with the supply or possible supply of water to her in accordance with its usual business practices.
2 The facts are relatively complex although not particularly controversial. What is at issue is whether in the factual matrix the defendant was empowered by statute to act as it did.
3 Since 11 September 2013, the plaintiff and her de facto partner, Ian Phillips, have been joint registered proprietors of land situate at 1426 Invergordon Road, Invergordon, being the land comprised in Certificate of Title Volume 9433, Folio 255 (“the Land”). The Land is approximately 15.8 hectares in size and is located within the Shepparton Irrigation District which is an “irrigation district” within the meaning of that term in the Water Act 1989 (“the Act”). The Land is used for cropping.
4 The Land is a “serviced property” within the meaning of that term in the Act identified by the property number 8051910 and the beneficiary of the Water-Use Licence/Registration within the meaning of the Act numbered “WUL020544” held in the Victorian Water Register and the beneficiary of the “delivery share” within the meaning of the Act, numbered DSE020031 which is recorded in the Victorian Water Register.
5 The defendant is the statutory body responsible for the performance of functions and the exercise of powers to store, manage and deliver water in the Shepparton Irrigation District where the Land is located.
6 On or about 11 September 2013, following the settlement of the sale of the Land to the plaintiff and Mr Phillips, the defendant sent a letter to the plaintiff and Ian Phillips confirming that it had:
(a) registered the plaintiff and Ian Phillips as the joint proprietors of the Land in its records; and
(b) transferred the Water Use Licence/Registration-WUL020544 for the Land into the name of the plaintiff and Ian Phillips; and
(c) transferred the Delivery Share for the Land numbered DSE020031 into the name of the plaintiff and Ian Phillips; and
(d) created an “Allocation Bank Account” or “ABA” within its records numbered “ABA091673” in the name of the plaintiff and Ian Phillips as an account to hold a seasonal allocation issued to the water share represented by that licence.[1]
[1]Exhibit “GS-5” to the affidavit of the plaintiff sworn 14 November 2013
7 On or about 2 October 2013, on the application of Ian Phillips as transferor, the defendant transferred a water share of 60 megalitres of water into the ABA091673 for the Land. This volume of water represents the “current water entitlement” in respect of the Land. The plaintiff claims that after 2 October 2013, she had an actual entitlement to require from the defendant, the supply of a quantity of water to the Land not exceeding the volume of the current water entitlement.
8 The plaintiff claims that on 3 October 2013 and at all material times since, the defendant has failed and refused to supply water from the current water entitlement to the Land. She relies upon the contents of a letter from one Phillip Hoare on behalf of the defendant dated 7 October 2013, which states, inter alia:
“Allocation Bank Account #091673 has a stop placed on it in accordance with section 141(h) of the Water Act 1989 until the associated outstanding fees are paid. This will prevent water being delivered against the account. Account holders with authorisation to order water against the account will be able to place an order and have water delivered once the outstanding fees are paid.” [2]
[2]Exhibit “GS-6” to the affidavit of the plaintiff sworn 14 November 2013.
9 There is no dispute that the defendant has stopped the supply of irrigation water to the Land. It is also not in dispute that the defendant, in stopping the supply of water to the Land, exercised the power found in s141(1)(h) of the Act. I will return to that provision later.
10 It is common ground that there are no fees associated with account ABA091673 or the Land that have been notified to the plaintiff or for which the plaintiff is liable to the defendant and which presently remain unpaid. This is conceded by the defendant.[3]
[3]Affidavit of Phillip Hoare sworn 25 November 2013 at paragraph 14 and affidavit of Louise Secomb sworn 23 November 2013 at paragraph 38.
11 The defendant argues that it is entitled by reason of s141(h) of the Act to refuse to supply water to the plaintiff because her de facto partner and joint proprietor of the Land owes it money in respect of the supply of water to other land, not “the Land”. More particularly, the defendant says, inter alia,
“The fact that no money is owed to Goulburn-Murray Water in respect of the supply of water to a particular property is, frankly, not to the point. The legislation provides that Goulburn-Murray Water may cease to supply water to a person (as opposed to a property) where a person owes any debt to Goulburn-Murray Water in respect of the supply or delivery of water. Mr Phillips owes substantial sums to our client and on that basis our client has stopped supplying water to him. The consequence of this is that supply has ceased to any property owned by him and in respect of which he would have a further liability. This includes any properties that he owns jointly with any other person.”[4]
[4]See the third paragraph of the letter from Maddocks to Wilmoth Field Warne dated 18 October 2013.
12 The plaintiff does not dispute that Mr Phillips owes money to the defendant. The extent of the amounts alleged to be owing by Mr Phillips to the defendant are evidenced by the affidavits of Phillip Hoare, Michelle Dixon and Louise Secomb filed on behalf of the defendant in response to the plaintiff’s summons. The plaintiff submits the extent of Mr Phillips’ debt and, how it has arisen and, the fact of other proceedings in the Magistrates’ Court that relates to it, is irrelevant to her claim.
13 Section 141(1)(h) of the Act is found in Part 7 of the Act which sets out the general powers of authorities with responsibilities under the Act of which the defendant is one. Relevantly, s141(1)(h) provides as follows:
“141 Authority may reduce, restrict or discontinue water supply
(1)An Authority may reduce or restrict the quantity of water supplied to any person, or discontinue the supply of water to any person, if—
…
(h)the person has refused or failed to pay any money due to the Authority for the supply or delivery of water to the person.”
14 By its terms, s141(1)(h) gives a power to the authority to discontinue the supply of water to any person who has refused or failed to pay any money due to the authority for the supply of water to the person. The terms of the section may be contrasted with s231(1)(e) to which I will shortly refer. The plaintiff argues that the head of statutory power which ought to have been exercised here was s231(1)(e) and not s141(1)(h). She also argues that even if s141(1)(h) was validly used, she does not fall within its terms either because she is not a person who has refused or failed to pay money due to the authority for the supply of water to her.
15 Section 141(1)(h) is found in Part 7 of the Act which sets out “General Powers” of relevant authorities. Part 7 of the Act commences with s123, an important section relied upon by Dr Hanak in his submissions. That section provides as follows:
“123 Powers of Authorities
(1) An Authority has power to do all things that are necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions, including any function delegated to it.
(2) No other provision of this Act that confers a power on an Authority limits subsection (1).”
16 Dr Hanak argues, correctly in my view, that s123(1) contains a broad general power that permits the defendant to do all things that are necessary to carry out its work under the Act and, the effect of s123(2) is that this power is not constrained or limited by the operation of some other provision in the Act such as s231(1)(e). I accept that submission.
17 Section 231(1)(e) of the Act is found in Part 11. That part of the Act applies to an authority “that has an irrigation district”.[5] Part 11 was the subject of substantial amendment in 2005 and these amendments included s231 which is relevantly in the following terms:
[5]Section 220(2)
“231Authority may reduce, restrict or discontinue delivery of water
(1) An Authority may reduce or restrict the period over which water is to be delivered to any serviced property, or discontinue the delivery of water to any serviced property, if—
…
(e)the owner of the serviced property has refused or failed to pay any money due to the Authority for the delivery of water to the serviced property.”
18 It can be seen that s231(1)(e) provides a power similar in terms, but not identical with the power contained in s141(1)(h). Both sections empower the discontinuance of delivery of water but in different ways. In the latter the authority is empowered to take disconnecting action against “the person” where that person has had water supplied and has refused or failed to pay. Section 231(1)(e), by way of difference, empowers the authority to take disconnecting action against the owner of a “serviced property” who has refused or failed to pay “for the delivery of water to the serviced property”.
19 Simply put, the plaintiff argues that because this dispute is about the supply of irrigation water within Part 11 of the Act, s231(1)(e) provides the relevant disconnection power and, if that section was used by the defendant and not s141(1)(h), then she does not come within the ambit of its operation because as an owner of the Land being “the serviced property” she has not refused or failed to pay anything and nor could she, because there has been no water delivered to the serviced property by the defendant within the section.
20 I do not accept that in purporting to refuse to supply irrigation water to the Land, the defendant was required to exercise the power contained in s231(1)(e) of the Act. There may well be factual circumstances (as here) where the defendant, as the authority, is required to exercise the power in s141(1)(h) to refuse to supply irrigation water rather than the power contained in s231(1)(e). Both sections have a role to play dependent upon the facts. In my view, where a person owes money to the defendant for the supply of water to land which is not the “serviced property” the defendant can use the power contained in s141(1)(h).
21 In my judgment, facts here show that the plaintiff cannot easily distance herself from her de facto partner, Ian Phillips. The facts show there is a long history of dealings between Ian Phillips and the defendant, most of it involving disputation. Ian Phillips is the domestic partner of the plaintiff. He and the plaintiff are the joint proprietors of the Land. Ian Phillips is the farmer. The plaintiff is a nurse working in a hospital and there is no evidence of her working in the farming operation. Ian Phillips is said to have the farming expertise evidenced by his affidavit evidence as to likely losses. All of the dealings in relation to the supply of water to the Land have been between Ian Phillips and the defendant. It was Ian Phillips who transferred an allocation of 60 megalitres of water that he held in his name into the allocation bank account for the Land. That was done whilst the stop order was in place in relation to him. On 30 September 2013, Mr Hoare told Ian Phillips the defendant would transfer the allocation but due to the stop on his supply he would not be able to access the water on the Land.[6] Mr Phillips has a long history of not paying for water supplied to other properties.
[6]Affidavit of Phillip Hoare sworn 25 November 2013 paragraphs 9 & 10
22 The defendant submits, and I accept, that as Mr Phillips is the domestic partner of the plaintiff she would have been fully aware of his ongoing disputes with the defendant. The plaintiff has filed an affidavit and there is also an affidavit from Mr Phillips. Both affidavits evidence that the water which the plaintiff seeks to have the defendant supply is to be used to grow crops. It is Mr Phillips that is wanting to use the water for farming and it is he that requested the water be supplied. It is also Mr Phillips that has refused to pay his outstanding accounts.
23 The defendant argues that in the facts of this case it was entitled to refuse to further supply water to Mr Phillips who is the real farmer in the exercise of the power contained in s141(1)(h), he (Phillips) being a person who has refused or failed to pay money due to the defendant for the supply or delivery of water to him. I accept that argument. I do not accept that the plaintiff can be treated separately from Mr Phillips which is essential to the way the case is put by the plaintiff.
24 The plaintiff’s claim against the defendant based upon an assertion of an unlawful denial of water supply by the defendant to the plaintiff pleaded in paragraphs 8 and 14 to 16 of the Statement of Claim in my judgment is weak and unlikely to succeed.
25 The plaintiff also sets out a cause of action based on an asserted estoppel in paragraphs 9 to 13 of the Statement of Claim. In argument, Mr Waldren conceded, correctly in my view, that claim cannot succeed as presently framed.
26 The plaintiff also argues the defendant had a duty to comply with the Essential Services Commission - Customer Service Code which went into evidence. This is not pleaded. The plaintiff argues the defendant did not take the necessary steps under the Code before advising it would refuse supply. The defendant argues the application of the Code must be viewed in a practical way. I agree. Here, Mr Phillips, on the undisputed evidence, has acted in a way which, in my view, makes compliance with the Code unnecessary. But the Code probably does not apply in the circumstances at all. Here no water has been supplied in relation to the Land by the defendant at all since the time the plaintiff and Mr Phillips became registered as proprietors. This is not a case where previous supply of water has been suspended or where existing supply of water is being restricted within the meaning of the Code. The water has not been supplied at all. In my view, the Code has no application.
27 It follows that in my judgment there is little likelihood of the plaintiff succeeding at trial of this proceeding. The balance of convenience does not favour the granting of an interlocutory injunction. The summons is therefore dismissed.
28 I will hear the parties on costs.
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