"The applicant's claim be struck out as disclosing no cause of action by reason that the claims made by it are barred pursuant to the provisions of Section 5(1) and Section 8 of the Limitation of Actions Act 1958."

5. In a reply dated 22 September, the applicant asserted in response to the Limitation of Actions Act defence:

"The Applicant's action is a continuous cause of action arising from an unreasonable flow of water and damage as pleaded in paragraph 8 of the particulars. Therefore s.8 of s.5(1) of the Limitation of Actions Act has no application."

Submissions of Respondent (Applicant for Summary Dismissal)

6. Mr Brendan Griffin, Counsel for the respondent (applicant for summary dismissal) set out the history which I have already narrated.

7. He said that the applicant's cause of action was a purely statutory one based upon Section 16 of the Water Act 1989. He submitted there was no ability to rely upon any Common Law causes of action. He referred to the decision of Gillard J in Coles Myer Limited v City West Water Limited [1998] VSC 63; (1998) 14 VAR 37, 41, 42. He submitted that this cause of action was barred by Section 5(1) of the Limitation of Actions Act 1958 as being an action "founded on tort including actions for breach of statutory duty". He also relied upon Section 5(1)(d) of the Act which put a six year time limit on actions to recover any sum recoverable by virtue of an enactment.

8. Mr Griffin said that the cause of action under Section 16 was complete once the constituent elements as laid down in the sub-section had occurred. According to the pleadings he said it was clear that on the case made by the applicant the allegedly unreasonable flow of water had occurred by reason of is client's acts or omissions and caused the applicant to sustain damage no later than 1996. He continued:

"The corollary of this is that any cause of action which has arisen more than six years before the issue of the applicant's claim being 18 July 2003, ie. 18 July 1997 is statute barred."

9. He said this accorded with the rationale of limitation statutes since an applicant or plaintiff "cannot sit on its rights". He also referred to Section 19(9) of the Water Act 1989 which required the Tribunal in hearing the statutory cause of action to apply to the questions of causation and remoteness of damages the same tests as a court would apply to those questions in an action based on negligence. He continued:

"That section underpins the submission that the principles governing crystallisation of causes of action under the Water Act are the same as those for actions in negligence, nuisance or tort generally. Damage is the gist of the cause of action in negligence, nuisance or tort and once it has occurred, the cause of action is complete. Time runs against the applicant from that point onwards."

10. He referred to a decision of the Planning Appeals Board Oberin v Shire of Deakin (1983) 1 PABR 110 (which is reported only to the extent of a headnote). He referred to paragraph 6 of that headnote under the heading "common law claims" at page 113 which summarises the Board's conclusion on one issue as "That the cause of action in nuisance accrued when the damage occurred. Anns v Merton London Borough [1977] UKHL 4; (1978) AC 728 and other authorities applied". He also referred to my own decision in Turner v Bayside City Council [2000] VCAT 399; (1999) 16 VAR 130, 141-2 [30]. He continued:

"This all supports the proposition that the occurrence of damage first occurring was the concluding component of the cause of action which completes or crystallises it."

11. With regard to the applicant's reply, Mr Griffin submitted:

"The applicant misconceives its rights as a continuous cause of action. If this were correct there would be no time bar to the applicant ever bringing its cause of action so long as damage was ongoing. This concept is flawed. Ongoing damages sometimes but not always constituted element of any cause of action but it does not of necessity revive a cause of action which is barred. By way of example, an injured plaintiff suffering ongoing personal injury effects, does not have a continuous cause of action. The continuation of the effects of the injury suffered is relevant only to the question of damages.

In nuisance, the ongoing effects of damage, ie. by flooding, would be relevant both to the question of damages and injunctive relief. It does not however have any reviving effect on the cause of action of common law or statute once it has crystallised and thereafter becomes stale."

12. Mr Griffin submitted that there was no power to extend the limitation period. No such power existed in the Water Act or in the Limitation of Actions Act. He said that Section 23A of the Limitation of Actions Act which provides for extensions of the limitation period in some circumstances applies only to claims for personal injury.

13. Mr Griffin then submitted that this was a matter proper for summary dismissal because the claim against his client was absolutely hopeless and doomed to fail. He referred to Dey v Victorian Railway Commissioner (1948) 78 CLR 62 per Dixon J and Coles Myer Limited v Bowman [1995] VICSC 219; [1996] 1 VR 457, 459 per Charles JA. Finally, he submitted that since the Water Act 1989 came into operation on the 1st of November 1990 and Section 16(1) has no retrospective effect. Any cause of action relating to the illegal connection should be dealt with, if at all, under the Drainage of Land Act 1975. He referred to an unreported decision of the Planning Division of the administrative Appeals Tribunal constituted by Senior Member Byard and Mr Hicks in Estalyn Pty Ltd v Shire of Korumburra.

Submissions of Applicant (Respondent to Summary Dismissal Application)

14. Mr Kistler appeared as Counsel for the applicant, resisting the respondent's summary dismissal application.

15. Mr Kistler submitted that whilst Section 16 of the Water Act 1989 had extinguished the former Common Law remedies for unreasonable flows of water, viz. actions for private nuisance, nevertheless the statutory cause of action was in the nature of a nuisance suit. He submitted that Section 5(1) of the Limitation of Actions Act simply did not apply to proceedings for nuisance. The section did not refer at all to the tort of nuisance. In contrast, the now repealed Section 5(6) of the Act had made express reference to the tort of nuisance. He said:

"Section 5(1) of the Act has no application as the cause of action found it pursuant to S.16 of the Water Act provides a remedy in relation to water damage which is caused on a continuous basis. The applicant claims that there has been a regular flow of water causing damage as recent as June 2002."

16. Finally Mr Kistler referred to Burton v Shire of Bairnsdale [1908] HCA 57; (1907) 7 CLR 76, 98 as to the extreme care which needs to be employed before summarily dismissing a cause of action.

17. Mr Kistler added that whilst his client's case was that flooding had begun as a result of the applicant's actions no later than 1996, nevertheless there was no clear pleading or evidence at this stage as to when damage was first suffered. Moreover, each separate flood might have caused separate damage. He submitted that to accede to Mr Griffin's submissions would leave his client unable to repair the damage which it had sustained. Without success in this proceeding it would have no legal means of abating the nuisance by water which according to its case was causing damage to its property.

18. The present application was brought presumably pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. That section authorises the Tribunal to effect a summary dismissal of a proceeding which is shown to be frivolous, vexatious, lacking in substance or otherwise an abuse of process.

19. It seems to be established that where a respondent postulates a defence that so completely answers the claim as to render it manifestly hopeless and untenable, it is appropriate to dismiss the proceeding pursuant to Section 75. See Norman v Australian Red Cross Society (1998) 14 VAR 243, 248 per Deputy President McKenzie.

20. I will deal first with Mr Kistler's submission that the Limitation of Actions Act 1958 has no application to the present cause of action at all. This submission it will be recalled, was based upon the repeal in 1983 by Act No. 9884 of the Parliament of Victoria of the express provision in Section 5(6) of the Limitation of Actions Act 1958 specifically imposing a limitation period before proceedings in nuisance. The effect Mr Kistler submitted was to leave nuisance proceedings entirely outside the ambit of the statute. Of course to concede as one must, that the statutory remedy under Section 16(1) of the Water Act 1989 is a statutory codification of the Common Law tort of nuisance in so far as it relates to unreasonable flows of water, does not mean that the statutory cause of action should be characterised as a proceeding in nuisance. I will however for the purposes of dealing with Mr Kistler's submission on this point, assume that that is the correct approach. Is the tort of nuisance now entirely outside the Limitation of Actions Act? Act No. 9884 is entitled the "Limitation of Actions (Personal Injury Claims) Act 1983". The 1958 Act as originally enacted in 1955 and re-enacted as part of the consolidation of 1958 imposed a general six year limitation period for tort and contract claims but in Section 5(6) imposed a shorter three year limitation period for claims in "negligence, nuisance or breach of duty ... where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person". In introducing the Bill which led to the enactment of the Limitation of Actions (Personal Injury Claims) Act 1983 the then Attorney-General, Mr Cain, explained:

"The Bill will overcome the present unsatisfactory scheme for limitation of actions for personal injury claims in Victoria. It will introduce Limitation of Actions Act Scheme that is both simpler and more equitable for all persons who may be involved in personal injury claims." Hansard Legislative Assembly 14 December 1982, 2765.

"In personal injury claims, other than disease or disorder cases, the injured person may bring his case for damages within six years after the date of the accrual of his cause of action. Normally that would be the date of the injury. In disease cases, such as asbestosis or pneumoconiosis, the injured person may bring his action for damages within six years from the date that he knows he has the disease or disorder and that someone is responsible - that is, when he knows he has a cause of action. That knowledge may not come to the injured person until many years after the disease or disorder starts to develop.

In all personal injury claims, if the injured person fails to bring the action within the relevant six year period, he can apply to a court for an extension of time in which to bring his action. The court will decide in all the circumstances of the case whether it is just and reasonable to grant the extension."

22. The provision for a court to extend time beyond the personal injury limitation period is now to be found in Section 23A of the Act. The purpose of these amendments was not to take nuisance outside the realm of the Limitation of Actions Act, rather it was to extend the period for the bringing of actions for personal injury from the three year period which was set out in Section 5(6) to a six year period with the further elaborations explained by Mr Cain.

23. The relevant provisions of Section 5(1) are as follows:

"(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued--

(a) Subject to sub-sections (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;

(d) Actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture."

24. In Hough v Shire of Mitchell (1996) 10 VAR 47, 60-63 I gave my reasons for concluding that a Water Act claim would be affected either by Section 5(1)(a) of the Limitation of Actions Act or Section 5(1)(d) of that statute. The matters to which I then referred still lead me to the same conclusion. I reject Mr Kistler's submission that the Limitation of Actions Act 1958 has no application.

25. It will be recalled that the applicant's pleaded reply to the Limitation of Actions Act defence is a contention that it is relying upon continuous cause of action. Mr Griffin's precise response to this point which is quoted verbatim above, is somewhat obscure. He submits, first, that the applicant "misconceives its rights as a continuous cause of action". As I understand his submission he draws a distinction between an ongoing tort and ongoing damage, the latter, does not of necessity revive a cause of action which is barred.

26. In analysing the nature of the applicant's claimed cause of action it is necessary to pay particular heed to the words of the sub-section upon which it relies. Section 16(1) of the Water Act 1989 provides as follows:

(a) there is a flow of water from the land of a person onto any other land; and

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

the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss."

27. It will be seen that like the Common Law torts of nuisance and negligence an inherent component of the cause of action established is damage suffered by the applicant. To use the traditional language of the Law of Torts, damage is the gist of the action. So much was in those terms asserted by Mr Griffin with regard to the present claim.

28. In Halsbury's Laws of England Volume 28 (Fourth Edition re-issued) in the section dealing with limitation of actions, paragraph 821 at page 420 it is headed "Where damages part of cause of action". The paragraph states, inter alia:

"Where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused."

29. To the same effect is this passage from Preston and Newson's Limitation of Actions (3rd ed. 1953) which occurs under the heading "Nuisance other torts whose gist is damage":

"In all other torts the gist of the action is damage and the arising of the damage is the cause of action. ... two or more sets of damage may flow from the single fact which is the ultimate source of the action. In such a case there are two causes of action and time runs severally in respect of each fresh accrual of damage."

30. The point is well illustrated by the decision of the House of Lords in Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127. In Darley's case the colliery company worked a mine under Mr Mitchell's land. It caused a subsidence there in 1868 and paid compensation. The colliery company did not carry out any more work in the mine but in 1882 there was a further subsidence causing further damage. The colliery company submitted that the claim for the damage caused by the 1882 subsidence was barred by the statute of limitation. The majority of the House of Lords, Lords Halsbury, Bramwell and Fitzgerald (Lord Blackburn dissenting) held that the claim for the 1882 damage could be brought although more than six years had elapsed since the colliery company had last worked the mine. Lord Bramwell said:

"It is a rule that when a thing directly wrongful in itself is done to a man, in itself a cause of action, he must, if he sues in respect of it, do so once and for all. As, if he is beaten or wounded, if he sues he must sue for all his damage, past, present, and future, certain and contingent. He cannot maintain an action for a broken arm, and subsequently for a broken rib, though he did not know of it when he commenced his first action. But if he sustained two injuries from a blow, one to his person, another to his property, as, for instance, damage to a watch, there is no doubt that he could maintain two actions in respect of the one blow. I may apply the test I mentioned in the argument. If he became bankrupt, the right in respect of the watch would vest in his trustee. That for damage to his person would remain in him. I have put the case of a trespass. The same would be true of an action for consequential damages. A man slandered or libelled by words actionable in themselves must sue, if at all, for all his damage in one action. Probably, if he sustained special damage, as that he lost a contract through being charged with theft, he might maintain one action for the actionable slander, another for the personal loss, - certainly if the case in Siderfin is right. But it is not necessary to decide this.

I now come to the case of where the wrong is not actionable in itself, only an injuria, but causes a damnum. In such a case it would seem that as the action was only maintainable in respect of the damage, or not maintainable till the damage, an action should lie every time a damage accrued from the wrongful act. For example, A. says to B. that C. is a swindler, B. refuses to enter into a contract with C., C. has a cause of action against A.; D., who was present and heard it, also refuses to make such a contract; surely another action would lie. And so one would think if B. subsequently refuses another contract. Of course, one can see that frauds might be practised. So they may in any state of law. But I cannot see why the second action would not be maintainable if the second loss was traced to the speaking. And perhaps one might apply the same test. Would not the first right of action pass to the trustees of C. if he became bankrupt? If the second loss was after the bankrupt's discharge, it would not.

There is still another class of cases to be considered, viz., those where the act causing damage is not in itself wrongful. No easier case can be taken than the above ground case of an excavation, whereby an adjoining owner's soil is let down. It cannot be said that the act of excavation is unlawful. A contract to do it could be enforced. No injunction against it could be obtained unless injury was imminent and certain. What would be the rights of the person damaged in such a case? I think the former reasoning would apply. If there was an excavation 100 yards long, and fifty feet of the neighbouring soil fell in, the right of action would be in respect of these fifty feet, and not only in respect of what had fallen in, but what would in future fall in along the fifty feet. But if afterwards the other fifty feet fell in there would be a fresh cause of action. Surely this must be so. If ten feet at one end fell in and afterwards ten feet at the other, it would be impossible to say that there would not be two causes of action. If the excavation was on two sides of a square, the same consequences. The Attorney-General denied this, and was driven to do so. But suppose A. owned the adjoining property on one side, and B. that which was at right angles to it, there must then be two causes of action.

Now apply this reasoning to the present case. There are by the admission of the parties two separate and distinct damages caused to the plaintiff by the acts, including in that word omissions, of the defendants. One a removal of coal and non-providing of supports, which caused a subsidence in 1808. A cause of action accrued then. Another cause of action is the removal of coal, including perhaps the coal which caused the first subsidence, but doubtless also a removal of coal extending to a greater distance, and not immediately under the plaintiff's land, and the non-providing against the consequences; which, when the adjoining owner to the defendants removed his coal, as he lawfully might (though I think that immaterial), caused a creep in the defendants' land, which in time caused the further subsidence. I think this gives a second cause of action. I think therefore, the judgment was right."

31. That reasoning applies to this present case. The evidence and pleadings do not at this stage indicate precisely when damage occurred or whether there is but one individual event of damage to the concrete wall or a series of separate individual damages to the concrete surface. In the event that any damage occurred to the surface within the six year limitation period prior to the commencement of this proceeding there would be no Limitations Act defence against that claim. The precise unfolding of the alleged damage is a matter no properly adapted to a summary dismissal application before the entirety of the evidence in the proceeding has been heard.

Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533-4.

32. It may be objected that the reasoning of the majority of their Lordships and Lord Bramwell in particular in the Darley case depended upon a conclusion that the working of the colliery was not in itself a wrongful act. Here it may be said that upon the applicant's case the connection by the respondent body corporate of its stormwater discharges to the applicant's stormwater system was wrongful and trespasory. However, the present proceeding is one in the statutory tort constituted by Section 16(1) of the Water Act 1989 where damage is the gist of the action as the very terms of the section require. It is beside the point whether any claim in the Common Law tort of trespass could have been brought, say in 1988.

33. Mr Griffin's submissions might appear to receive some support from the decision of Hood J in Arbuckle v President of the Shire of Boroondara [1897] VicLawRp 91; (1896) 22 VLR 513. In Arbuckle's case His Honour considered an action against the municipality for injury to land by reason of an allegedly wrongful construction of a drain through the land. The plaintiff alleged that the municipality in 1890 without his consent constructed a drain which discharged water onto his land. Hood J said that the claim against the municipality was "for a tort of some description". He continued:

"The question is, what is the cause of action? I think undoubtedly it was the wrongful diversion of the watercourse. It is not, as Mr Bryant argued, the pouring on the plaintiff's land from day to day of water which ought not to be there at all. There is one wrongful act only, if this be a question of tort, and it is the wrongful diversion of the watercourse, and for that the plaintiff, on the day after the act was done, if he could have proved his damage, could have recovered every penny that he can get in this action." [1897] VicLawRp 91; (1896) 22 VLR 513, 518

34. The plea based on the statute of limitations therefore succeeded.

35. In my view Arbuckle's case is of no assistance to the present respondent. His Honour did not explain precisely what tort he believed was being alleged in the cause of action; be that as it may, he said that the cause of action resided in the wrongful diversion of the watercourse and that the cause of action was complete as soon as the diversion took place. In contrast here, the terms of Section 16(1) make damage the gist of the action. Whatever the correctness of His Honour's determination with regard to the Common Law of torts it can have no application to the statutory tort with which we are here dealing. Glasson v Fuller [1922] SAStRp 8; [1922] SASR 148 was another example of the operation of the statute of limitations with respect to claims based upon flows of water. Fuller erected a dam across a creek in 1902. The plaintiff complained that the dam created floods in 1909 and 1918, leaving saline deposits on his land. The proceeding was commenced on 27 May 1920. The dam had been washed away in 1917 but reconstructed by a successor in title who was also a defendant in the proceeding. Poole J held that all escapes of water prior to February 1913 could not be the subject of claims by the plaintiff because they were statute barred, however the damage occurring after the 27th of May 1914 was recoverable. His Honour reached this view based upon his conclusion that the construction of the dam was not in itself actionable [1922] SAStRp 8; [1922] SASR 148, 160. In my view this decision also tells against the submissions made by Mr Griffin. Once again, the wrongful connection of the respondent's stormwater to the applicant's system has not been shown to be actionable in itself under the Water Act or if it matters, the Drainage of Land Act 1975. It is only the unreasonable flows of water which would give rise to liability under either of those statutes.

36. In my opinion the better view is that each separate unreasonable flow of water constitutes a separate statutory tort contrary to the Water Act 1989 if it is demonstrated that it has caused damage. As previously noted, the circumstances and the progress of the damage alleged can only be assessed in light of the full evidence at the hearing. Each separate statutory tort would create a separate time for the running of the six year limitation period.

37. For the same reason a consideration of the issue raised by Mr Griffin at the conclusion of his submissions, namely whether the applicant's claim must he judged by reference to the Water Act or the Drainage of Land Act 1975 is something that can only be considered in light of the entire evidence and in particular evidence as to the progress of the alleged damage. Mr Griffin as I understood him conceded this with regard to this final point in his submission.

38. There was also reference in the respondent's defence and in Mr Griffin's written outline of submissions to Section 8(1) of the Limitation of Actions Act stipulating a 15 year limitation for proceedings for the recovery of land. Little or nothing was said as to this in viva voce evidence. The basis for this plea appears to be that included in the applicant's prayer for relief is "a mandatory injunction for the removal of the illegal drainage pipe". It has not been established to my satisfaction that this constitutes an application for the recovery of land. Even if it did, the authorities indicate that precisely what possession of land is to be regarded as "adverse" for the purposes of the 15 year time limit is quite difficult and depends upon a detailed analysis of the evidence. To the extent that I am to regard this part of the respondent's application as having been pressed before me, I would likewise dismiss it.

39. I have heard no submissions as to costs and so will reserve them.