Notwithstanding the repeal of the legislation referred to above the procedure which applied to proceedings under the earlier legislation and the powers, functions and duties which the former Tribunal would have had in relation to the proceeding are preserved by virtue of Clause 9(2)(e) and (f) of Schedule 2 of the Tribunals and Licensing Authorities (Miscellaneous Amendment) Act 1998.

In the submission made by Mr Devries on behalf of the Applicants he claimed that his clients had no alternative than to commence proceedings before the Administrative Appeals Tribunal to obtain redress and that even following a Compulsory Conference before Mr H W Terrill no progress was made to remedy the situation and that therefore his clients were entitled to costs. Mr Devries also asserted that the Shire did not exercise powers vested in it and "apparently chose not to properly investigate the powers that it had".

Mr Devries went on to assert that although the Indigo Shire played a significant role in the necessity for substantial legal cost to be expended by the Applicants that the primary responsibility lies with the First Respondents and that in so far as costs are to be awarded against the Second Respondent they should have an indemnity for those costs from the First Respondents.

In his submission on behalf of the Indigo Shire Council Mr Barton submitted that Section 19(1) of the Water Act 1989 is the basic jurisdictional provision and that the pleadings against the Indigo Shire did not raise any causes of action referred to in that subsection except possibly for those in Section 16(1). However no causes of action exists against the Shire under the latter subsection because it did not cause the flow of water.

On behalf of the First Respondents, Mr and Mrs Snoey, their Solicitors Nevin Lenne and Gross claimed that in the chronology included in paragraph 7 of the Applicant's submissions assertions were made of various matters which have not been the subject of evidence placed before the Tribunal or findings by it and that there is no evidence before the Tribunal as to whether or not the alleged flooding in April 1992 and October 1992 of the Applicants' property would have occurred or not regardless of whether or not the First Respondents had altered the contours of the land.

Having considered the submissions and responses made by the various parties the Tribunal concludes that the evidence submitted to the Tribunal does not warrant a finding by it that there are particular circumstances in this case which would justify an award of costs in favour of the Indigo Shire against the First Respondent however it finds that circumstances do exist which justify the make of an award of costs against the First Respondent in favour of the Claimants.

The Tribunal has considered the Bill of Costs submitted by the Applicants Solicitors and has had regard to comments in respect of certain items made by the representative of the Shire of Indigo. The Tribunal concludes that it is appropriate that costs in the sum of $5,000 should be awarded as follows:-

The Tribunal will order costs of this amount to be paid by the First Respondents to the Claimants within 60 days from the date of this order.

The Tribunal orders that the First Respondents, Mr and Mrs M Snoey are to pay to the Claimants, Mr and Mrs Sumner Berg costs in the sum of $5,000. Such costs to be paid within 60 days from the date of this order.