Appellant v Respondent

Supreme Court of Victoria|2014-12-15|Before: McDONALD J

ADMINISTRATIVE LAW - Application for leave to appeal and appeal on question of law - Victorian Civil and Administrative Tribunal - Appeal from decision of Associate Judge refusing to allow proposed question of law - Victorian Civil and Administrative Tribunal Act 1998, s 148 - Water Act 1989 s 157 - Supreme Court (General Civil Procedure) Rules 2005, r 77.06.

1 On 4 and 5 February 2011, two severe rainfall events occurred in the vicinity of Werribee South ('the Storm'). The region, which consists of a large number of irrigated market gardens, experienced widespread flooding. In February 2011, the appellant leased nine hectares of land upon which he grew a variety of crops ('the Land'). The Land was irrigated via a network of irrigation channels, which directed water from headwaters in the northwest to market gardens located within the Werribee irrigation district. There is no dispute that the Land suffered significant flooding and the loss of considerable crops following the Storm. In addition, the appellant suffered further losses as a result of parts of the Land being infested with a fungal disease known as Club Root.

2 The respondent, Gippsland and South Rural Water Corporation ('SRW'), is a water authority responsible for the management of rural water in the Werribee irrigation district.

3 To understand the issues raised in the appeal, it is necessary to set out in some detail the irrigation system which existed in and around the Land in February 2011. The details of that system are set out at paras eight to 11 of the decision of the Victorian Civil and Administrative Tribunal ('VCAT'):[1]

Irrigation water is fed to the Land from irrigation channels located on the western boundary of the Land and stored in an on-farm dam located at the south-west corner of the Land. Water is then delivered to crops through a sprinkler system fed by the on-farm dam. The Land is divided up into fifteen paddocks upon which different crops or varieties of crop are grown. Each paddock comprises furrows and channels running in a north-south direction. Rain water and irrigation water runoff follows the contour of these channels and is directed into two open earthen drains running east-west through the Land. One of these earthen drains is centrally located and divides seven paddocks to its north from the remaining eight paddocks to its south ('the Central Drain'). The seven northern paddocks all drain into the Central Drain. The remaining eight paddocks then drain into the other earthen drain, which is located on the southern boundary of the Land ('the Southern Drain'). The Southern Drain and the Central Drain flow to the east boundary of the Land into another open drain running along the western side of Duncans Road. This open drain is part of infrastructure managed by Vicroads ('the Vicroads Drain'). There are a number of box culverts which intersect the Vicroads Drain and direct water into pipes which run under Duncans Road, eventually draining into a large open earthen drain known as Drain 5 ('Drain 5'). Drain 5 runs in a north-south direction and is located on the east side of Duncans Road. It flows south and eventually discharges into Port Phillip Bay. It is an integral part of the irrigation system managed by SRW.

Two of the box culverts that intersect the Vicroads Drain are located alongside the eastern boundary of the Land. One is positioned marginally south (and downstream) of where the Central Drain intersects with the Vicroads Drain ('the Northern Box Culvert'). The other box culvert is located close to the south east boundary of the Land, close to where the Southern Drain flows into the Vicroads Drain ('the Southern Box Culvert'). It is approximately 250m south and downstream of the Northern Box Culvert. Both box culverts are connected to pipes, which travel under Duncans Road and discharge into Drain 5.

Irrigated properties to the south and west of the Land also drain into the Vicroads Drain and eventually into Drain 5 before discharging into Port Phillip Bay. Irrigation runoff and rainwater collected from these properties enters the Vicroads Drain directly through culverts located to the west of the Land and also via the Central Drain and Southern Drain. This means that the Central Drain and Southern Drain carry loads in excess of what would otherwise be the case if they only carried runoff from the Land.

In 2010, a new crossing was constructed over Drain 5 to allow access to a property located on the eastern side of Duncans Road, opposite the Applicant's Land ('the New Crossing'). The New Crossing is located between the Northern and Southern Box Culverts and was constructed by contractors engaged by the owner of that property but with the authority and consent of SRW. In fact, SRW stipulated the design parameters of the culvert over which the New Crossing was constructed. That culvert is 725mm in diameter. There are other crossings over Drain 5, both to the north and south of the New Crossing. The crossings immediately upstream and downstream of the New Crossing have culverts with diameters larger than 725mm.

4 Before VCAT, the appellant contended that the flooding was caused by the defective design of the culvert under the New Crossing in Drain 5. He contended that the 725mm diameter[2] of the culvert was too narrow, and had been unable to accommodate the volume of the water flowing down Drain 5 at the time of and in the aftermath of the Storm. He contended that this caused the water from Drain 5 to backflow onto the Land. The appellant claimed damages against the respondent totalling $118,300, pursuant to s 157 of the Water Act 1989 ('the Act').

5 VCAT rejected the appellant's claim for damages. The Tribunal's key findings were as follows:

(a) '[T]he severity of the Storm far exceeded a 1 in 100 year ARI storm event.'[3] The Tribunal explained that '[t]he Average Recurrence Interval (ARI) is a measure of the rarity of a rainfall event. It is the average, or expected, value of the periods between exceedances of a given rainfall total accumulated over a given duration.'[4] The report of Mr Prout, the respondent's expert in the VCAT Proceeding, upon which this finding of fact was based, was to the effect that the rainfall intensity on 4 and 5 February 2011 exceeded a 1 in 100 year ARI event by between 30 to 60 per cent;[5]

(b) It was not reasonable for SRW to have designed systems for the delivery of irrigation water and appropriate drainage to cater for such an event;[6]

(c) Floodwaters emanating from properties to the west and north of the Land, together with runoff from the Land, inundated the Land because the water was unable to discharge into Drain 5 through the northern box culvert or the southern box culvert quickly enough to prevent flooding on the Land;[7]

(d) Backflow from the northern box culvert (which was neither owned nor maintained by SRW) and the inability of the northern box culvert to drain floodwater may have exacerbated the flooding of the Land but there was no evidence that these two factors caused the flooding of the Land;[8]

(e) The amount of backflow from the northern box culvert was insignificant when compared with the amount of the water moving over the Land towards and into the VicRoads Drain;[9]

(f) In all probability the flooding of the Land would have occurred even if the New Crossing had not been built;[10] and

(g) The water which back flowed from Drain 5 out of the northern box culvert did not result from negligent or intentional conduct on the part of SRW.[11]

6 The appellant appeals on seven questions of law. The questions are as follows:

Whether the Tribunal's finding that it was appropriate for Mr Prout to rely on rainfall from the Werribee Bureau of Meterology (sic) (BOM) weather station in his modelling (Reasons at [44]) was so unreasonable that no reasonable Tribunal could have so decided.
Whether the Tribunal was justified in finding that there was no evidence that the reverse flow would have occurred in a 1 in 50 ARI storm event (Reasons at [93] and [95]).
Whether the Tribunal erred in law in finding that the flow of water did not result from intentional conduct (Reasons at [93] and [95]) when there is no reasoning to support that conclusion.
Whether the Tribunal was justified in not considering whether the Respondent's conduct concerning the approval of the culvert under the New Crossing was intentional conduct as required by section 157(3) of the Water Act having regard especially to passage on page 521 and 531 of Crea's case and to the fact that the decision to put a new culvert in a drain is similar to a maintenance decision.
Whether the Tribunal erred in law in not stating or finding that it was the duty of the Respondent to exercise its function (by making an operating decision in respect of the size of the new culvert) so as not to direct flood water to locations where it would otherwise not have flowed and to exercise its statutory functions with reasonable care so as to prevent unnecessary flooding.
Whether the Tribunal having found that the back-flow from the northern box culvert under Duncans Road and its inability to drain flood water may have exacerbated the flooding should have then assessed its effect as required by section 157(4)(b) of the Water Act.
Whether the Tribunal erred in law and failed to comply with the rules of natural justice by accepting Mr Prout's further report without affording an opportunity for cross examination, and failing to have regard to the report of Mr Bishop dated 27 June 2013. [12]

7 Leave to appeal has been granted by order of Associate Justice Zammit in respect of Questions 4, 6 and 7. The appellant seeks leave to appeal in respect of the remaining questions.

8 In addition, the appellant also appeals from an order made by Associate Justice Daly on 30 September 2014 refusing to allow the following question to proceed as a question of law:

Whether the Tribunal erred in law in concluding that it was reasonable to design Drain 5 (including the culvert under the New Crossing) to cater for a one-in-fifty ARI event. The Tribunal at paragraph 82 applied the wrong test as to whether the one-in-fifty ARI standard applies to the new culvert.

The nature of an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998

9 The jurisdiction conferred by s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') is confined to appeals on a question of law. It is not the function of the court in exercising that jurisdiction to usurp the fact-finding function of the Tribunal. An appeal under s 148 is not an appeal by way of rehearing. Rather, the proceeding is in the nature of judicial review.[13] Where an appellant under s 148 seeks to have an order set aside and reversed, the question of law must be such that, if there is shown to be error in respect of that question, an appellant's claim to relief will thereby be advanced. On an application for leave to appeal the question of law must bear directly upon the relief which is sought in the appeal and it must be shown that there is sufficient doubt attending that question to justify the grant of leave to appeal.[14]

10 The manner in which the appeal was conducted before me brings the principles set out above sharply into focus. The appeal grounds (both those in respect of which leave has been granted and those in respect of which leave is sought) are wide-ranging. However, there is no basis for quashing the Tribunal's order dismissing the appellant's claim unless the grounds translate into a successful challenge of the Tribunal's findings of fact that:

(i) the flooding of the Land was caused by a flow of water emanating from the west and north and not as a result of the New Crossing on Drain 5;[15] and

(ii) given the severity of the Storm, the reverse flow from the northern box culvert on Drain 5 would have occurred irrespective of the presence of the New Crossing ('the causation finding').[16]

11 By reason of s 157(1)(b) of the Water Act 1989 ('the Act'), any liability of SRW to pay damages to the appellant is contingent upon a finding that the water which flowed onto the appellant's land from Drain 5 caused damage to the appellant's property. For reasons which are set out below, the appellant has failed to impeach the causation finding. The consequence is that even if I had been persuaded that the individual grounds of appeal had merit (which I have not), the appeal would nevertheless have failed.

Section 157 of the Water Act 1989

12 Section 157 of the Act was central to the appellant's claim in the VCAT Proceeding. It provides:

157 Liability of Authorities arising out of flow of water

(a) as a result of intentional or negligent conduct on the part of an Authority in the exercise of a function under Part 8, Part 9, Division 2, 3 or 5 of Part 10, or Part 11 or any corresponding previous enactment, a flow of water occurs from its works onto any land; and

(ii) damage to the property (whether real or personal) of any other person; or

the Authority is liable to pay damages to that other person in respect of that injury, damage or loss.

(2) If it is proved in a proceeding brought under subsection (1) that water has flowed from the works of an Authority onto any land, it must be presumed that the flow occurred as a result of intentional or negligent conduct on the part of the Authority unless the Authority proves on the balance of probabilities that it did not so occur.

(3) For the purposes of a proceeding brought under subsection (1) -

(a) a flow of water is to be taken to have occurred as a result of intentional conduct on the part of an Authority if the flow -

(ii) inevitably and without intervening cause resulted from the exercise of a power by the Authority; and

(b) in determining whether or not a flow of water occurred as a result of negligent conduct on the part of an Authority, account must be taken of all the circumstances including any omission or failure, in the planning, design, construction, maintenance or operation of the works, to provide reasonable standards of capacity or efficiency or exercise reasonable care or skill having regard to the following matters -

(i) the state of scientific knowledge and knowledge of local conditions at any relevant time;

(B) the maintenance and operation of the works; and

(C) works which it would have been necessary to construct to avoid the occurrence of any relevant injury, damage or loss.

(4) The following provisions apply with respect to a proceeding brought under subsection (1) -

(b) the proportion (if any) of the responsibility of the Authority for the injury, damage or loss must be assessed and only that proportion of the assessed damages must be awarded against the Authority;

(c) in assessing damages in respect of damage to property or economic loss the measure of damages is the direct pecuniary injury to the person bringing the proceeding by the loss of something of substantial benefit accrued or accruing and does not include remote, indirect or speculative damage;

(d) if damages are assessed in the proceeding in respect of any continuing cause of action, they may, in addition to being assessed down to the time of assessment, be assessed in respect of all future injury, damage or loss and, if so, the Authority is not liable to pay any further damages in respect of that injury, damage or loss;

(h) a person, not being a party, in whose favour a determination is made may enforce the determination by the same means as if the person were a party.

Questions of law in Further Amended Notice of Appeal dated 17 September 2014

13 The appellant seeks leave to appeal the following question of law:

Whether the Tribunal finding that it was appropriate for Mr Prout to rely on rainfall from the Werribee Bureau of Meteorology ('BOM') Weather Station in his modelling (Reasons at [44]) was so unreasonable that no reasonable Tribunal could have so decided.

14 The appellant contends that the process by which the Tribunal decided that the rainfall measured at the Werribee BOM on 4 and 5 February 2011 was the determining rainfall event, without looking at rainfall measured at other rainfall stations, was fundamentally flawed. The appellant submits that the Tribunal did not adopt the 'recognised process' in deciding what rainfall events caused the flood. He contends that the Tribunal considered facts which ought not to have been taken into account and did not consider facts which it should have assessed, to ensure a proper assessment of available data before it approved the use by Mr Prout of only the Werribee BOM data. In support of this submission, the appellant referred to the judgment of Dixon J in Commissioner of Railways v Stewart.[17] His Honour stated:

The duration of steady rain and the intensity of that falling late in the day does appear to have been very great indeed. The proof that it was unprecedented is not satisfactory. The records of previous rainfall given in evidence were confined to one place. In judging of such a matter a wide area should be considered and reasoning from analogy should play a part.[18]

15 The appellant contends that Mr Prout was selective in his use of data in that he only relied upon Werribee BOM rainfall records. The appellant contends that Mr Prout should also have had regard to neighbouring weather stations. The appellant points to the evidence of Mr Wrigley, a witness called on behalf of Mr Patsuris, who gave evidence to the effect that of the five BOM stations in the Werribee irrigation district, only the Werribee BOM station disclosed an intensity of rainfall which exceeded 75mm in six hours.[19]

16 The Tribunal's finding that it was appropriate for Mr Prout to utilise rainfall data from the Werribee BOM station was a finding of fact. In order to challenge this finding on the ground that it discloses an error of law, the appellant must establish that the finding was one which was not open to the Tribunal on the evidence before it. In order to establish that the finding of fact was not open, it must be demonstrated that there was no evidence to support the finding.[20] Not only was there evidence before the Tribunal upon which it could legitimately base the conclusion that it was appropriate for Mr Prout to rely on rainfall data from the Werribee BOM station, some of this evidence was provided by Mr Patsuris' own expert witness.

17 At para 46 of VCAT's Decision, reference is made to the supplementary report provided by Mr Patsuris' expert witness, Mr Bishop, dated 4 June 2013. At para 46 the Tribunal sets out a relevant extract from this decision including the statement:

I believe based on this data that the Werribee station provides the closest representation to what is likely to have occurred at the subject site's catchment.

18 In circumstances where the expert witnesses for both Mr Patsuris and SRW were in agreement on the question of whether it was appropriate to rely upon the rainfall data from the Werribee BOM station, it was not only open to the Tribunal to rely upon such evidence, it was entirely appropriate for it to do so.

19 Further, at para 45 of the VCAT Decision, the Tribunal concluded that, based on the flood maps which were tendered in evidence and produced by Mr Prout, 'even if it was incorrect to rely solely on the Werribee weather station, the pre-works and current conditions flood maps for various ARI rainfall events still indicate that the construction of the New Crossing made little or no difference to what was likely to occur on the Land based on those rainfall events.' This is a further finding of fact which can only be challenged as an error of law if there was no evidence before the Tribunal upon which such a finding was open. Plainly there was evidence, constituted by the flood maps prepared by Mr Prout, which were tendered in evidence.

20 The challenge to the Tribunal's finding at para 44 that it was appropriate for Mr Prout to rely upon rainfall data from the Werribee BOM was conducted on the basis that 'on the evidence it wasn't a reasonable conclusion to come to.'[21] The arguments in support of the ground essentially involved a re-agitation of the evidence which had been presented at first instance. This approach falls well short of establishing that the relevant finding was not open on the evidence.

21 The appellant seeks leave to appeal in respect of this ground. The appellant has not established an arguable case that there was any error in the Tribunal's decision. As such, leave to appeal is refused.

22 The appellant seeks leave to appeal the following question of law:

Whether the Tribunal was justified in finding that there was no evidence that the reverse flow would have occurred in a 1 in 50 ARI storm event (Reasons at [93] and [95]).

23 The Tribunal was required by s 157(1)(a) of the Act to determine whether 'as a result of intentional or negligent conduct' on the part of SRW, a flow of water occurred from its works onto any land. The Tribunal found that it was reasonable to design Drain 5, including the culvert under the New Crossing, to cater for a 1 in 50 ARI event. The Tribunal also found that:

(i) there was no evidence suggesting that backflow in Drain 5 would occur in a 1 in 50 ARI storm event;

(ii) the severity of the Storm far exceeded a 1 in 100 ARI event;

(iii) it was not reasonable for SRW to have designed systems for the delivery of irrigation water and appropriate drainage to cater for such an event.[22]

24 Question 2 challenges one element of the Tribunal's conclusion at paras 93 and 95 that the water which back-flowed from Drain 5 out of the northern box culvert was not the result of negligent or intentional conduct on the part of SRW.

25 Assuming, in the appellant's favour, that the Tribunal erred in concluding that there was no evidence that a reverse flow would have occurred in Drain 5 in a 1 in 50 ARI storm event, this does not vitiate the Tribunal's finding that the back-flow which did occur in circumstances of a storm far in excess of a 1 in 100 ARI event, was not caused by the presence of the New Crossing.

26 The actual Storm event on 4 and 5 February 2011 was far in excess of a 1 in 100 ARI storm event. No challenge is made by the appellant to the Tribunal's finding that it was not reasonable for SRW to have designed systems for the delivery of irrigation water and drainage to cater for such an event.

27 As noted earlier in this judgment, leave to appeal is contingent upon the proposed ground of appeal having a direct bearing upon the relief sought by the appellant. This proposed ground fails to meet this test for three reasons. First, even if the appellant's submission (that there was evidence that a reverse flow would have occurred in a 1 in 50 ARI event) is correct, it does not translate into a finding that the Tribunal should have found that by reason of the presence of the culvert under the New Crossing there would have been a reverse flow in a 1 in 50 ARI event. Second, the proposed ground of appeal does not relate to the actual circumstance of a storm event of well in excess of a 1 in 100 year ARI storm. Third, the proposed ground does not call into question the Tribunal's finding that the insignificant volume of water which back-flowed out of the northern box culvert onto the appellant's Land did not cause damage to the Land.[23] Such damage was caused by water which flowed onto the Land from properties to the north and the west.[24]

28 The matters set out above provide ample grounds for refusing leave to appeal in respect of Question 2. However, if it had been necessary for me to do so, I would have refused leave to appeal in any event on the grounds that I accept the respondent's submission that the Tribunal's finding at para 93 of the VCAT Decision (that there was no evidence suggesting that the back-flow would occur in a 1 in 50 ARI storm event) accords with the evidence before the Tribunal.

29 The appellant does not point to any evidence which unambiguously is to the effect that there would have been a reverse flow from Drain 5 onto the Land in a 1 in 50 ARI storm event.

30 First, the appellant points to page 10 of Mr Bishop's report dated 19 October 2011:

The situation with the new crossing shows that the water level adjacent to the site is substantially elevated by around 800mm compared with the previous case. This full height would not be achieved, as well before, this flow would overtop Duncans Road and spread into the road reserve and adjacent properties.[25]

In its terms, this evidence says nothing about a reverse-flow in Drain 5.

31 Second, the appellant relies upon evidence in chief given on behalf of SRW by Mr Prout, regarding R P Motors:

... we've actually seen video and evidence and our model as well shows that water would then, because it was so much higher in the D 5 Drain would actually come back out of that drain. Once this flood level got high enough it would actually come back out of that drain and into the Patsuris property.[26]

I accept the submission of the respondent that in its terms, this evidence is not evidence that a reverse-flow in the northern box culvert would have occurred in a 1 in 50 rain event.

32 Further, it is to be noted that Mr Prout, when giving evidence in chief following on shortly from that which is extracted above, and in reference to a 1 in 50 ARI event, stated:

So now we're looking at the flood depth map and there's open drainage on the west side of Duncans Road connecting those two culverts together that cross Duncans Road so the ones working worse are in fact in the opposite direction and the downstream one is working better because the water level's lower in the D5 Drain. The overall net effect is basically nothing. It's 20mm minus in fact in the 50 year event, in some events it might be...[27]

33 The evidence relied upon by the appellant does not support a conclusion that the Tribunal erred at para 93 and 95 in the VCAT Decision in finding that there was no evidence that the reverse flow would have occurred in a 1 in 50 ARI storm event. The appellant has not established an arguable case of error on the part of the Tribunal. Further, the proposed ground of appeal does not have a direct bearing upon the relief sought. Leave to appeal is therefore refused.

34 The appellant seeks leave to appeal the following question of law:

Whether the Tribunal erred in law in finding that the flow of water did not result from intentional conduct (Reasons [93] and [95]) when there is no reasoning to support that conclusion.

35 The appellant's challenge is as to the adequacy of the Tribunal's Reasons at paras 93 and 95 where it concluded that the reverse-flow from the northern box culvert in Drain 5 was not a result of intentional conduct on the part of the respondent.

36 When an appeal is confined to a question of law, the duty to give reasons is satisfied where the Tribunal's Reasons disclose the grounds for the relevant finding.[28] Also of relevance is s 117(5) of the Victorian Civil and Administrative Tribunal Act which provides that if the Tribunal gives written reasons it must include in those reasons its findings on material questions of fact.

37 The appellant submits that the Tribunal should have, but failed to have any regard to, the operation of s 157(3)(a) which deems a flow of water to have occurred as a result of an Authority's intentional conduct in certain prescribed circumstances.

38 Contrary to the appellant's contention, the Tribunal's Reasons clearly disclose the grounds upon which it concluded that the reverse-flow did not occur as a result of intentional conduct on the part of SRW. The Tribunal concluded that the flow was caused by the severity of the Storm. The flow would have occurred irrespective of the presence of the New Crossing. In light of these findings, it was unnecessary for the Tribunal to make any express finding as to whether the flow was deemed by s 157(3)(a) to have been a result of intentional conduct on the part of SRW.

39 The Tribunal's finding that the flow was caused by the severity of the Storm obviates the need for a finding that the flow was designed or intended by SRW, or inevitably and without intervening cause resulted from the exercise of a power by SRW.

40 If, contrary to the conclusion set out above, the Tribunal was in error in failing to give adequate reasons for its conclusion that the flow of water did not result from intentional conduct, I would in any event refuse to grant leave to appeal based on Question 3. This ground of appeal is solely concerned with the question whether, as a result of intentional conduct on the part of SRW, a flow of water occurred from its works onto any land. The ground of appeal in no way impeaches the Tribunal's causation finding. Thus, even if the ground of appeal was upheld, absent any credible challenge to the Tribunal's causation finding, the ground provides no foundation for setting aside the Tribunal's dismissal of the application. Leave to appeal is refused.

41 The appellant argues the following question of law:

Whether the Tribunal was justified in not considering whether the respondent's conduct concerning the approval of the culvert under the New Crossing was intentional conduct as required by s 157(3) of the Water Act having regard especially to the passages on pages 521 and 531 of Crea's case and to the fact that the decision to put a new culvert in a drain is similar to a maintenance decision.

42 The appellant contends that the Tribunal erred in failing to address the proposition that the conduct of SRW in approving the construction of a culvert with a 725mm diameter under the New Crossing was intentional conduct within the meaning of s 157(3) of the Act.

43 The conduct of SRW approving the construction of the culvert can readily be accepted to be intentional conduct on the part of SRW. However, a flow of water is deemed to have occurred as a result of SRW's intentional conduct if the flow was designed or intended by SRW or inevitably and without intervening cause resulted from the exercise of a power by SRW. The characterisation of SRW's conduct in approving the construction of the culvert as intentional conduct does not, of itself, support the conclusion that a flow of water onto the Land has occurred as a result of that conduct. So much is explicit in the appellant's written submissions, which advanced a number of contentious propositions in support of the contention that the flow of water was designed or intended by SRW. First, the appellant submits that 'the placing of an undersized culvert in a large drain has the same effect as if the drain is blocked by weeds.'[29] Second, 'the new culvert caused reverse flow in C1 which brought flooding onto the land and the new culvert also prevented C1 from draining the land.'[30] Third, 'the flooding in this case was due to the failure to maintain the flow in the drain previously permitted in the vicinity of the new crossing'.[31]

44 The three propositions set out above are inconsistent with express findings of the Tribunal at paras 48, 55, 57-8, 77 and 92-3. The conclusion is irresistible that under the guise of Question 3, the appellant seeks to cavil with findings of fact which were determined adversely to the appellant by the Tribunal.

45 The appellant calls in aid two passages from a judgment of the Full Court of the Supreme Court of Victoria in State Rivers and Water Supply Commission v Crea.[32] Concerning intentional flooding within the meaning of s 274(3)(a) of the Water Act 1958, Lush and Crockett JJ stated at 521:

Para. (a) seems capable, in the light of Re Armstrong and State Rivers and Water Supply Commission [1952] VicLawRp 27; [1952] VLR 187 at pp. 198-9, of including in some circumstances flooding which was not designed but which, as the Authority realised, might or would occur if a storm greater than that selected for design purposes by reference to a frequency occurred.

46 Immediately after this passage, Lush and Crockett JJ stated:

In the present case, however, while the Authority was only providing for a 'design storm' its approach to the design of the drain was that although the drain would not carry the water from a larger storm and that consequently flooding might occur, that flooding would not be the result of the construction of the drain. Accordingly, the adoption of a design storm did not involve either intention or realisation that in the event of a larger storm the drain would cause flooding.

47 The reasoning in this passage is of no assistance to the appellant. To the contrary, it is on all fours with the present case (the relevant design storm being a 1 in 50 ARI event) and was determined by the Tribunal on the basis that:

(a) it was reasonable for SRW to have designed Drain 5, including the culvert under the New Crossing, to cater for a 1 in 50 ARI event;

(b) it was not reasonable for SRW to have designed systems for the delivery of irrigation water and appropriate drainage to cater for a storm event which far exceeded a 1 in 100 ARI storm.

48 The appellant also relies upon the following passage at page 531 in Crea:

In a situation such as the present, the Authority cannot argue that negligent maintenance has not caused flooding by saying that the flooding complained of is no greater than would have occurred in pre-works condition. We consider that the Act as applied to such a situation, contemplates that the property of the owner will be regarded as enjoying and entitled to enjoy the service of the works and may be damaged by flooding if deprived of this service. The same concept may apply to damage said to be done by intentional flooding, if the acts relied on as constituting flooding by the Authority are acts done after the construction and possibly after the bringing into service of the works.

49 The appellant seeks to deploy this reasoning in support of the proposition, at para 47 of his written submissions that 'the placing of an undersized culvert in a large drain has the same effect as if the drain is blocked by weeds or silt, because of lack of maintenance.' This proposition simply begs the question of whether the culvert at 725mm in diameter was properly characterised as being undersized and having the same effect as if Drain 5 was blocked by weeds or silt, because of lack of maintenance. This question was answered unfavourably to the appellant: see paras 48, 55, 57, 58, 77, 92 and 93.

50 This ground of appeal must be rejected. It is misconceived. It proceeds on the erroneous assumption that there was a requirement imposed on the Tribunal by s 157(3) of the Act to consider whether the respondent's conduct approving the culvert under the New Crossing was intentional conduct. This appeal ground simply seeks to re-agitate the same issues which arise in respect of proposed ground 3, in respect of which leave has not been granted. Consistent with my finding in respect of proposed ground 3, it is clear from the Tribunal's reasoning at paras 93 and 95 that it determined that the reverse flow from the northern box culvert in Drain 5 would have occurred irrespective of the presence of the New Crossing, including the culvert under that crossing. The reverse flow was caused by the severity of the Storm. These findings have the effect that the Tribunal did not fall into error in failing to consider whether the respondent's conduct in approving the culvert under the New Crossing was intentional conduct.

51 The appellant argues the following question of law:

Whether the tribunal erred in law in not stating or finding that it was the duty of the respondent to exercise its function (by making an operating decision in respect of the size of the new culvert) so as not to direct flood water to locations where it would otherwise not have flowed and to exercise its statutory functions with reasonable care so as to prevent unnecessary flooding.

52 The appellant's sole cause of action was a claim for damages pursuant to s 157 of the Act. The obligation upon the Tribunal was to consider whether the elements of the statutory cause of action prescribed by s 157(1)(a)(b) had been made out. The somewhat convoluted formulation of Question 5 serves to obscure the task which the Tribunal was required to undertake. Plainly, the Tribunal did not fall into error by failing to address questions extraneous to those which it was required to address by the express terms of s 157. There is no duty imposed by s 157 in the terms of Question 5. The elements of the cause of action under s 157 are prescribed by that section. There is no independent duty of care in accordance with common law principles that arise under the tort of negligence. The cause of action under s 157 is a freestanding statutory cause of action.[33]

53 Further, leave to appeal must be refused on the ground that the question has no practical consequence. Even if there was an error of the type contended for, it does not vitiate the Tribunal's decision. The Tribunal found that there was no damage to the Land from water flowing out of Drain 5. Rather, the Land was inundated with water emanating from properties to the north and the west.

54 The appellant argues the following question of law:

Whether the tribunal having found that the backflow from the northern box culvert under Duncans Road and its inability to drain flood water may have exacerbated the flooding should have then assessed its effect as required by s 157(4)(b) of the Water Act.

55 This question is misconceived. It proceeds from the false premise that the Tribunal's findings of fact required consideration to be given to the operation of s 157(4)(b). Section 157(4)(b) only operates in circumstances where there has been a finding under s 157(1)(b) that injury, damage or loss has been caused by a flow of water from an Authority's works. No such finding was made by the Tribunal.

56 The appellant argues the following question of law:

Whether the tribunal erred in law and failed to comply with the rules of natural justice by accepting Mr Prout's further report without affording an opportunity for cross examination, and failing to have regard to the reports of Mr Bishop dated 27 June 2013 and 18 July 2013.

57 There are two aspects to the ground of appeal raised by Question 7. First, the appellant's contention that he was denied natural justice by not being afforded the opportunity to cross examine Mr Prout regarding his report dated 13 June 2013. Second, the Tribunal's alleged failure to have regard to the reports of Mr Bishop dated 27 June 2013 and 18 July 2013.

58 The first contention ignores the fact that both the appellant's and respondent's counsel agreed during the hearing before VCAT on 5 June 2013 that Mr Bishop's report dated 4 June 2013 could be received in evidence without cross examination by the respondent's counsel, provided Mr Prout was given an opportunity to respond to Mr Bishop's report by a further report. It was further agreed on 5 June 2013 that if the appellant wished to address any issues arising from Mr Prout's further report, this would be done by way of the appellant's written submissions in reply. Mr Prout provided a further report on 13 June 2013.

59 The circumstances giving rise to the agreed position referred to above are important. The appellant had been given leave to file a report by Mr Bishop by 31 May 2013. This was not done. Rather, at the commencement of proceedings on 5 June 2013 (which was the last day of hearing of evidence) counsel for the appellant sought to file a report by Mr Bishop dated 4 June 2013. This report had only been provided to the respondent's legal representatives immediately prior to the commencement of proceedings. Counsel for the respondent objected to the tender of the report due to its late filing and the fact that he was not in a position to cross examine on its contents. In response to this objection, the Tribunal suggested, and both counsel agreed, that Mr Bishop's report would be accepted into evidence subject to the right of the respondent to file a report in reply, and with any issues arising out of that report to be addressed in writing in the appellant's written submissions in reply.[34]

60 The contention that the Tribunal denied the appellant procedural fairness by denying him an opportunity to cross-examine Mr Prout upon his report of 13 June 2014, is without merit.

61 As to the second contention, the reports of Mr Bishop dated 27 June 2013 and 18 July 2013 were not tendered in evidence. The final day of hearing was 5 June 2013 and, consistent with the orders made on that day, the final item of evidence was the report of Mr Prout dated 13 June 2013. Counsel for the appellant expressly agreed that issues arising out of that report would be dealt with by way of his written submissions in reply. By necessary implication, in the absence of any application being made to the Tribunal to lead further evidence, this agreed position precluded the appellant from having the right to tender further evidence.

62 Mr Bishop's reports of 27 June 2013 and 18 June 2013 were forwarded to the respondent's solicitors and copied to the Registrar of the Tribunal on 24 July 2013.[35] The appellant filed comprehensive written submissions in reply on 26 July 2013.[36] Consistent with the orders made on 5 June 2013, these submissions responded to matters raised in Mr Prout's report of 13 June 2013. However, the submissions contained no allegation of any breach of natural justice arising from a failure of the appellant to have had the opportunity to cross-examine Mr Prout on his report. Further, the submissions made no reference to the two further reports of Mr Bishop of 27 June 2013 and 18 July 2013, which had been forwarded to the Tribunal on 24 July 2013.

63 During the course of oral submissions counsel for the appellant refined the way in which it was contended that the Tribunal's failure to have regard to the reports of 27 June 2013 and 18 July 2013 was an error of law. Counsel sought to rely upon the following statement of Cavanough J in XYZ v State Trustees Ltd and Anor:[37]

A failure by a Tribunal to address in its Reasons a submission which is worthy of consideration and is seriously advanced to the Tribunal may in itself amount to an error of law for the purpose of a provision like s 148 of the VCAT Act.[38]

64 The reasoning in XYZ does not advance the appellant's case. As the two reports of 27 June 2013 and 18 July 2013 were not admitted into evidence, the Tribunal was not required to have any regard to their contents. The appellant could have but did not make any application to re-open his case to lead further evidence. If such an application had been made a question would have arisen as to the right of the respondent to cross-examine Mr Bishop on the contents of the further reports.

65 This second limb of the appellant's alleged denial of natural justice is also without merit and must be rejected.

66 The appellant appeals from the orders of Daly AsJ made 30 September 2014 refusing to allow the following question (Disallowed Question 4) to proceed as a question of law:

Whether the tribunal erred in law in concluding that it was reasonable to design Drain 5 (including the culvert under the New Crossing) to cater for a 1 in 50 ARI event. The tribunal at paragraph 82 applied the wrong test as to whether the 1 in 50 ARI standard applies to the new culvert.

67 Paragraph 5 of the general form of order made by her Honour on 30 September 2014, under the heading 'Other Matters' records her Honour's conclusion that disallowed Question 4 was 'clearly a question of fact'.

68 Counsel for both parties accepted that the basis of an appeal brought pursuant to r 77.06 against an order of an Associate Judge is an appeal by way of rehearing and the onus is on the appellant to establish that the order which is the subject of the appeal is the result of some legal, factual or discretionary error.[39] Further, pursuant to r 77.06.9(2) if I conclude that the decision of her Honour is attended by error, I have the power to give any judgment and make any order which ought to have been given or made at first instance.

69 The first thing to note about disallowed Question 4 is that the terms in which the question is formulated, prima facie, raises a question of fact not law. Whether the Tribunal erred in concluding that it was reasonable to design Drain 5, including the culvert under the new crossing, to cater for a 1 in 50 ARI event, is a question of fact. The proposed question of law contends that the Tribunal at para 82 applied the wrong test as to whether the 1 in 50 ARI standard applies to the new culvert. This contention misrepresents the Tribunal's findings at para 82. No question arises as to whether the Tribunal applied a wrong test as to whether the 1 in 50 ARI standard applies to the new culvert. The Tribunal's conclusion that it was common ground between the experts that a nominal 50 year ARI design standard was reasonable for the Werribee South district, simply reflected the Tribunal's assessment of the evidence which was before it. Significantly, that evidence included evidence from the appellant's own witness, Mr Bishop, that it was his belief that the nominal 50 year ARI design standard could be considered reasonable for the Werribee South District.[40]

70 At paragraph 83 of its reasons, the Tribunal noted Mr Bishop's evidence that the 750mm culvert under the New Crossing compromised the 50 year ARI design standard because it was inadequate to remove within a 24 hour period irrigation and storm water from 75mm of rainfall falling over a six hour period. At paragraph 84 the Tribunal also referred to the evidence of Mr Prout, whose flood modelling demonstrated that the Land would have been flooded irrespective of the presence of the culvert under the New Crossing.

71 The written submissions of the appellant in support of this proposed ground of appeal reinforce her Honour's conclusion that the issue at the heart of the proposed appeal ground, is a question of fact. Those submissions include detailed reference to exhibits and oral evidence before the Tribunal. Much of that evidence as set out in the submissions goes to the matter recorded by the Tribunal at para 83 of its reasons; ie, Mr Bishop's opinion that the 750mm culvert was inadequate to cater for the design standard of 75mm of rain falling in a six hour period. This evidence was noted by the Tribunal. In truth, the appellant's complaint is that the Tribunal did not give the evidence enough weight. This does not constitute a question of law.

72 Even if the appellant had been able to establish that Daly AsJ erred in disallowing the proposed question, I would not grant leave to appeal. Any error in relation to the Tribunal's finding at para 82 would not vitiate the Tribunal's ultimate conclusion that there was no damage to the Land as a result of a flow of water from the respondent's works. That ultimate conclusion was based upon the actual circumstance of a storm event which was well in excess of a 1 in 100 year ARI event.

73 The appeal from the order of her Honour on 30 September 2014 refusing to allow disallowed Question 4 must be rejected.

74 Leave to appeal is refused in respect of Questions 1, 2, 3 and 5. In respect of Questions 4, 6 and 7, the appeal is dismissed. The appeal from her Honour's order of 30 September 2014, disallowing proposed question 4, is dismissed. There will be an order that the appellant pay the respondent's costs.

[1] Patsuris v Gippsland and Southern Rural Water Corporation (Real Property) [2013] VCAT 1774 (14 October 2013) [8]-[11] (Senior Member Riegler) ('VCAT Decision').

[2] There is some confusion as to the actual size of the culvert. In parts of the VCAT Decision, the culvert is stated to have a 725mm diameter. Elsewhere it is stated to have a 750mm diameter. See for example VCAT Decision [2013] VCAT 1774 [11], [83].

[12] See Annexure to the Honourable Associate Justice Daly's order made 30 September 2014 (emphasis in original).

[13] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, [18]-[21].

[14] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [9], [13]. See also Update Pty Ltd v Commissioner of State Revenue (Vic) [2014] VSCA 218; Naim v Medical Board of Australia [2013] VSCA 205; Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48; GLS v PLP [2013] VSCA 127; Finch v The Heat Group Pty Ltd [2011] VSCA 100.

[15] VCAT Decision [2013] VCAT 1774 (14 October 2013) [55], [58].

[19] Exhibit EPK 13 to the affidavit of Edwin Phillip Kennor sworn 31 January 2014 [5], item 16.

[20] Myers v Medical Practitioner's Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, [42]-[46] per Warren CJ; S v Crimes Compensation Tribunal (1998) 1 VR 83; Bakar v Gruma Oceania Pty Ltd [2014] VSC 206 [13] (Williams J); O'Connor v County Court and Anor [2014] VSC 295 [38]-[39] (Kaye J); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614 [18] (Hargrave J).

[22] VCAT decision [2013] VCAT 1774 (14 October 2013) [93].

[25] Exhibit EPK 2 to the affidavit of Edwin Phillip Kennor sworn 31 January 2014.

[28] Ta v Thompson and Anor [2013] VSCA 344, [37]-[43] per Osborn JA; Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 273-274.

[29] Appellant's written submissions [47].

[33] South East Water Ltd v Transpacific Cleanaway Pty Ltd (2010) 27 VR 387 [32], [42] and [45] (Cavanough J).

[35] Exhibit EPK 47 to the affidavit of Edwin Phillip Kennor sworn 31 January 2014.

[36] Exhibit EPK 48 to the affidavit of Edwin Phillip Kennor sworn 31 January 2014.

[39] Oswal v Carson [2013] VSC 355 [11]; Applebee v Monash City Council [2013] VSC 481 [9]-[20]; Re Nom de Plume Nominees Pty Ltd v Wallace-Smith [2014] VSC 75 [2]-[8].

[40] Exhibit EPK 2 to the affidavit of Edwin Phillip Kennor sworn 31 January 2014, 13.

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

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