Thorpes Ltd v Grant Pastoral Co Pty Ltd

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning a dispute over land damage caused by earthworks. The plaintiff, Grant Pastoral Co. Pty. Ltd., alleged that the defendant, Thorpes Ltd., had wrongfully constructed embankments and channels on its land, which altered the natural flow of the Belubula River and a tributary creek, causing floodwaters, sand, silt, and debris to be diverted onto the plaintiff's land, resulting in significant damage to pasturage, crops, and the land itself. The plaintiff's claim was based on negligence and nuisance. A jury found in favour of the plaintiff, and this decision was upheld by the Full Court of the Supreme Court of New South Wales.

The central legal issue before the High Court was whether the Water Act 1912-1946 (N.S.W.) had abrogated the common law rights of landowners to sue for damages caused by the obstruction or diversion of natural water flows, particularly where such actions resulted in water, silt, and debris being cast upon their land. The defendant argued that the Act vested the control of water in the Crown and that any private rights to complain of interference with water flow had been extinguished. The court was required to determine if the plaintiff's action was solely an infringement of riparian rights, which the defendant contended were abolished by the Act, or if it was based on more general common law rights of landowners to be free from such interferences.

The High Court, in dismissing the appeal, reasoned that the plaintiff's claim was not solely based on the infringement of riparian rights, but rather on the ordinary common law right of a landowner to be free from nuisance and negligence that causes physical damage to their property. The court held that the Water Act 1912-1946, while vesting control of water in the Crown, did not extinguish a landowner's right to complain of damage caused by the unlawful obstruction or diversion of water, especially when it resulted in the deposit of harmful materials like sand and silt on their land. The court distinguished the plaintiff's claim from cases solely concerning the interference with the natural flow of water in a river channel, emphasizing that the damage here arose from floodwaters being diverted and cast onto the plaintiff's land, causing physical injury. Furthermore, the court refused to entertain a late submission by the appellant regarding the "common enemy" doctrine, as it had not been raised at trial or in the prior appeal.