DAVID WEDMORE T/AS - ARNHEM PUMPS & IRRIGATION SUPPLIES

ARNHEM PUMPS & IRRIGATION SUPPLIES PTY LTD (ACN 150 151 223)

MATTER TYPE: Review Jurisdiction - Small Claims Act

1. This is an application under section 140 of the Northern Territory Civil and Administrative Tribunal Act for review of a decision by member Coulehan dated 7 June 2017.

1. In that proceeding, the applicants (who are also the applicants in this proceeding) had claimed compensation for loss and damage resulting from allegedly negligent repairs to a bore on their property and a resulting inability to obtain water.

1. He found, in substance, that there was no basis upon which it could be concluded that there had been negligence (or breach of contract) in relation to the repairs to the bore.

1. The original proceeding was brought by the applicants against "Arnhem Pumps and Irrigation". There is, in fact, no such legal entity.

1. This proceeding was commenced by the applicants against 'David Wedmore - Arnhem Pumps and Irrigation Supplies'.

1. Arnhem Pumps and Irrigation Supplies is a business name that was registered in the name of David Wedmore. Mr Wedmore has no ongoing connection to the business.

1. The relevant dealings in this matter were as between the applicants and employees or agents of a company Arnhem Pumps & Irrigation Supplies Pty Ltd. At a directions hearing on 18 August 2017 I made orders joining that company as second respondent. Mr Wedmore remains named as first respondent; however, he played no part in this proceeding.

1. The applicants own a 5 acre block at Humpty Doo. The bore to which this proceeding relates was installed on the block (for a previous owner) in 1996 and was first certified under the Water Act in February 1997.

1. The bore runs to a total depth of 49 metres. Its casing is a 6 inch steel pipe which is 6 mm thick. That pipe extends from the surface to a depth of 32.5 metres. From a depth of 31 metres the bore casing reduces to a 5 inch diameter steel pipe (approximately 1.5 metres of which overlaps with the six-inch pipe).

1. The submersible electric pump (which, in an operational bore, is positioned in the bore casing at the depth of the artesian water source) is not operating. In addition, it has become firmly stuck in the bore casing at or near the bottom of the bore. Several attempts to retrieve the pump have failed. There is no realistic prospect that the pump can be removed for repair or replacement.

1. At issue in this proceeding are the circumstances that led the pump to become stuck in the bore casing.

1. The applicants bear the onus of proving on the balance of probabilities (i.e. that it was more probable than not) that the pump became stuck because of a lack of reasonable care on the part of the second respondent or because of a breach of a contractual obligation owed by the second respondent.

1. On 21 July 2015 the applicants engaged the second respondent to perform repairs to the bore pump, which had ceased operating. The second respondent replaced the bore pump motor, which had seized.

1. Almost exactly one year later, on 26 July 2016, the second respondent again attended at the applicant's premises to undertake repair work on the bore. On this occasion, Tony Peterson (one of the second respondent's directors) replaced the 'wet end' of the pump assembly.

1. When the bore pump was being reinserted into the bore casing, it temporarily became stuck at a depth of approximately 41 metres. Mr Peterson addressed this by rotating the pump rising main clockwise, which allowed the pump assembly to move past the point at which it was stuck and to be returned to its correct position at the bottom of the bore pipe.

1. Approximately one week later, the bore again stopped operating.

1. On this occasion, the rising main had become detached from the bore pump. Mr Peterson once again attended at the applicants' property. As he was again removing the bore pump, it became stuck on two occasions, initially at the depth of approximately 41 metres (as had happened the previous week) and then at the depth of approximately 37 metres.

1. According to Mr Peterson, it was at about this time he said to the second applicant, Mr Kearney, words to the effect that the bore casing had reached the end of its working life, to which Mr Kearney replied with words to the effect that he could not afford a new bore and wished to try and get a few more years out of the existing bore. The applicants dispute that there was such a conversation; however, I am persuaded that Mr Kearney's recollection is substantially correct.

1. When Mr Peterson reattached the pump to the rising main and reinserted it in the bore casing, it again became stuck, this time at the depth of 31 metres (i.e. the point at which the diameter of the casing changes between 6 and 5 inches). According to Mr Peterson, it was necessary to apply force in order to get the bore pump past the 31 meter depth and into its position at the bottom of the bore.

1. The applicants allege that Mr Peterson was in fact asked to put off attempts to reinsert the bore pump until Mr Kearney had collected some collars he believed may have assisted with attempts at relocating the bore pump. Mr Peterson denies such a request. Whether or not the request was made, there is no evidence to support a conclusion that use of the collars would have made any difference.

1. Once the bore pump had again been repositioned at the bottom of the bore, electrical testing revealed that the electrical cable connecting the power supply from the surface to the bore pump motor had become damaged (presumably in the course of efforts to get the pump back into position at the bottom of the bore).

1. When attempts began to again remove the pump from the bore casing, it became evident that the bore pump was now stuck at or very near the bottom of the bore. Over the ensuing day or so, various attempts to retrieve the bore pump were unsuccessful. In the course of those attempts the service cable for the bore pump broke, making the prospects of retrieval extremely remote.

1. The events which caused the bore pump to become stuck in the casing occurred many metres before below ground level. There is necessarily a degree of speculation involved in working out what may have happened.

1. According to the applicants, there was a direct connection between the pump becoming stuck and the circumstances in which the pump became separated from the rising main.

1. They refer to the fact that Mr Peterson (when he replaced the wet-end of the pump assembly on 26 July 2016) advised them to temporarily install a stopper cap in place of a faulty relief valve. The relief valve had been found to be faulty but could not immediately be replaced owing to the non-availability of a suitable replacement part. According to the applicants, Mr Peterson assured them that installing the cap would be a satisfactory temporary fix and would allow the pump to operate until the replacement valve was sourced and installed.

1. The applicants say that the installation of the cap in place of the relief valve meant there was a build-up of pressure in the system when the bore was operated, which caused the rising main to blow off the bore pump. The same build-up of pressure, according to the applicants, caused damage to the bore, which, in turn caused the bore pump to become wedged at the bottom of the bore.

1. The second respondent rejects that analysis. Mr Heidstra (also a director of the second respondent) told me at the hearing that the component parts of the system were all rated to cope with pressures significantly higher than the bore pump would have been capable of generating.[1] He said that the pump itself would have been the first component to fail had there been a pressure build-up of the type described by the applicants. He said that nothing about the condition of the pump or rising main suggested the main had been blown off.

1. I am not satisfied that the applicants' explanation of the circumstances in which the bore pump became stuck should be accepted. Although it is plain that they have become convinced that their explanation is correct - and that the problem with the bore can therefore be traced to the actions of Mr Peterson - it is nothing more than a theory. They have not supported their theory with any expert evidence and it is inconsistent with Mr Heidstra's evidence about the pressure rating of the bore components (which I accept).

1. Nor am I satisfied on the available evidence that that there is any other likely explanation of the pump becoming stuck that points to negligence or breach of contract on the second respondent's part.

1. The exact cause of the bore pump becoming stuck is likely to remain unknown.

1. The most likely causes are that the pump has been become jammed owing to degradation of the casing and/or that the casing (which is made up of several welded segments) has parted, causing an obstruction. The evidence before me permits a conclusion that bores of the age of the applicants' bore are prone to problems arising from corrosion of the steel casing.[2] The evidence regarding the bore pump having been become stuck at various times and at certain levels when it was being removed and reinserted into the bore casing is consistent, in my opinion, with the development of corrosion-related problems at those points.

1. In addition, it seems to me quite likely that the application of force which became necessary when the bore pump became stuck whilst being removed and reinserted may have hastened the failure of the bore casing. I emphasise, however, that even if this was the case, it does not mean that the second respondent acted negligently in applying force; there was little alternative in the circumstances.

1. The applicants have the onus of proving that the difficulties they've encountered with the bore are legally the responsibility of the second respondent.

1. They have not done so. The consequence is that the applicant's claim does not succeed.

1. The decision by member Coulehan was very similar to mine. In my opinion, his decision to reject the applicants' claim was correct and should not be changed.

1. The second respondent made various cross claims in this proceeding.

1. The largest was a claim in the sum of $12360 as damages for defamation.

1. The second respondent says that the first applicant, Ms Barnes, has repeatedly defamed them - by alleging incompetence - in posts made on the Humpty Doo Community facebook page.

1. At a directions hearing on 18 August 2017, I ordered that the defamation claim was not to be pursued in these proceedings because it had not been raised before member Coulehan and because it involved a quite distinct cause of action from the complaint relating to the failure of the bore.

1. Although the second respondent would therefore need to pursue a fresh action in relation to the alleged defamation, it should be noted that NTCAT has now twice dismissed the applicants' allegations of negligence. In the circumstances, if Ms Barnes has made facebook posts such as alleged by the second respondent, she would be well advised to remove them at the earliest opportunity.

1. The second respondent has also sought payment for time spent on attempts to recover the bore pump after it became stuck.

1. The claim in this regard is for a sum of $1760, being 16 hours labour at $110/hr.

1. Although I do not doubt that that time was spent, I do not accept that the work was undertaken in circumstances where the second respondent intended or expected to be paid. On the contrary - and as the cross claim in fact makes clear - the work was undertaken as 'an act of good faith and compassion'. Even if I had considered that this aspect of the cross claim had merit, I would have been reluctant to allow the claim owing to the second respondent's failure to make such a claim in the proceedings before Mr Coulehan.[3]

1. Finally the second respondent has claimed a sum of $1870 on account of lost earnings related to the need to attend to this proceeding. This is a claim for costs and the usual rule in NTCAT proceedings is that the parties are to bear their own costs. I am not satisfied that there are any good reasons for a departure from the usual rule. That claim will therefore be disallowed.

1. Pursuant to sections 140 and 50 of the Northern Territory Civil and Administrative Tribunal Act, the decision dated 7 June 2017 in NTCAT proceeding 21712402 is confirmed.

1. The cross claims in paragraphs 5 and 6 of the second respondent's response in this proceeding dated 17 July 2017 are dismissed.

[1] This was supported by the report of Mr Merington dated 31 March 2017.

[2] See especially the report by Mr Merington dated 31 March 2017.

[3] The matter of the uncharged time was referred to in the response in the original proceeding, but no claim was made. Instead, the second respondent emphasised that the work was done in good faith in an attempt to assist the applicants.