1. The applicants Dr Collins and Mrs Collins have come to the Tribunal seeking damages from Greater City Council of Geelong ("the Council") under s 16(1) of the Water Act 1989 ("the Water Act") in respect of injury, damage and loss arising out of a landslip at the home they owned at Watersedge Terrace, Highton, in Geelong, Victoria ("the Land"). The landslip occurred on 13 December 2008.
2. The applicants seek damages under four headings set out in paragraph 17 of the amended Points of Claim dated 27 March 2018, namely:
   • (A) diminution in the realisable sale price of the Land between July 2009 until 5 August 2013;
   • (B) additional marketing costs;
   • (C) extra bank interest paid between July 2009 and 5 August 2013 by reason of deprivation of the use of funds otherwise realisable from the sale of the Land;
   • (D) loss of amenity and use of the land and general inconvenience, worry and anxiety occasioned by the landslide and the ongoing safety risks including but not limited to: (i) loss of use of the land due to the unstable hillside; (ii) ongoing risks of landslide as evidenced by an emergency evacuation system being installed on the hillside to detect movement and sound an audible alarm; (iii) diminished use of the land due to mud and loss of back yard; and (iv) the applicants and their children were exposed to construction noise, interruption to property access and airborne dust from 7.00am on working days and often on weekends over a period of three years.
3. The Council admits water caused damage to the applicants' Land, but denies that they suffered loss and damage as claimed and quantified, and also denies that the applicants are entitled to recover damages for loss of amenity and/or general inconvenience in an action under s 16(1) of the Water Act.
4. The final hearing of the proceeding began before me on 12 November 2018. In her opening, counsel for the Council confirmed that the Council was contending that the Tribunal had no jurisdiction to deal with the claim for loss of amenity and/or general inconvenience.
5. The applicants' position was that the Tribunal should allow the hearing to run, and make a determination regarding this jurisdictional point following final submissions.
6. The Council argued that this was inappropriate, because much of the evidence to be given by each of Dr Collins and Mrs Collins was relevant to this particular claim. If it was determined at the outset that the Tribunal had no jurisdiction to deal with the issue, then there would be a significant impact on the hearing, as much of Dr Collins' and Mrs Collins' evidence could be excluded.
7. I accepted this submission, and agreed to deal with the issue as a pleading point on the afternoon of the first day of the hearing. This approach was consistent, I considered, with the Tribunal's obligation under s 98(1)(d) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") to conduct the proceeding "with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit".
8. I reserved my decision overnight, and now give my decision.

Relevant sections of the Water Act 1989

1. Both parties referred to s 16(1), s 17(1) and several subsections of s 19 of the Water Act.

1. The Council's primary submission was that the issue of the Tribunal's jurisdiction regarding the applicants' claim for damages for loss of amenity, use of the land and inconvenience made by the applicants had been previously determined in Kopitschinski v Song, a decision of the Tribunal constituted by Deputy President Macnamara, as he then was.[1] The issue determined in that decision relevant to the current proceeding concerned a claim for $1000 "nominal" damages sought in order to compensate the applicant for their "subjective experience of past discomfort or inconvenience". The Tribunal ruled that no damages may be awarded except in accordance with the express provisions of s 16 of the Water Act, and dismissed this particular claim.
2. It was not contended that I was bound to follow this decision. Such a contention would not be sustainable.[2] As Balmford J remarked in Charnley Glen Pty Ltd v Boroondara City Council:

The Tribunal is not, of course, bound by previous decisions, and every case must turn, ultimately, on its own facts. However, consistency between decisions is always desirable, if it can be achieved, and inconsistency should, where possible, be explained and justified.[3]

1. Kopitschinski v Song was argued before Deputy President Macnamara, with counsel appearing for both parties. It was not suggested to me that it was appealed, let alone overturned. The decision was published in October 2007, and has no doubt been providing guidance to parties and practitioners ever since as to the limit of the Tribunal's jurisdiction in cases such as this.
2. I take the view that unless the decision is clearly wrong, I ought to follow it.
3. The relevant paragraphs in Kopitschinski v Song are as follows:
   1. The claim for $1,000 'nominal' damages is however more problematic. Dr Sadler relied in support of this claim upon passages from the Laws of Australia Torts Volume 33.7 [39] page 389 and a decision of Murray CJ in McKenzie v Powley [1916] SALawRp 1; [1916] SALR 1 where His Honour noted that in earlier times nominal damages in the sum of 40 schillings had been awarded in nuisance cases for the injury to the plaintiff's 'right to live in a certain degree of comfort in his own dwelling house'.
   2. Section 19(8) of the Water Act specifically denies the Tribunal any jurisdiction to award damages for personal injury in this class of matter. Mr McDonald on behalf of Ms Song submitted that the $1,000 damages sought here were damages for vexation and hence for personal injury.
   3. The provisions to which I referred in the section on the 'free flow' principle show that these provisions in the Water Act are a code for liability at least in non-personal injury matters for flows of water. No damages may be awarded except in accordance with the express provisions of the statute. Section 16(1)(c) which is the relevant provision as to liability for damages here appears to create the following liabilities:
      • (a) liability for injury to another person;
      • (b) liability for property damage; and
      • (c) liability for economic loss.
   4. The effect of Section 19(8) is that a claim for injury to a person would have to be brought in Court and not in the Tribunal. The Tribunal's jurisdiction is therefore confined to the second and third classes of damage which may be compensated for. The $1,000 damages claim being neither an award of damages for economic nor for damage to property is therefore not available and this claim must be dismissed.
4. Counsel for the Council urged the Tribunal to accept that s 16(1) of the Water Act did create a code regarding the recovery of damages for the flow of water and that the applicants were limited to claims of the type articulated in that subsection. It was then submitted that when this provision was read in conjunction with s 19(8), the applicants would have to bring the claim for loss of amenity, loss of use and inconvenience in a Court.
5. Reference in this regard was made to the manner in which the claim had been set out in the Amended Points of Claim, where there was a reference to "Loss of amenity and use of the land and general inconvenience, worry and anxiety occasioned by the landslide and the ongoing safety risks..."
6. It was contended that the reference to a claim for worry and anxiety was clearly a claim for personal injury.
7. Counsel for the applicants argued that it was incorrect to refer to s 16(1) of the Water Act as a code, and in this connection referred to some passages appearing in the Eighth Edition of the well-known text on Statutory Interpretation in Australia authored by Pearce and Geddes. In particular, she quoted from "[1.25] where it is stated:

A consolidating Act gathers together and re-enacts all legislation on a particular topic: a codifying Act does that and also incorporates all the relevant common-law on the topic into the Act. A code thus becomes a complete statement of all law on the particular issue with which it deals.

1. While I accept that it may not be accurate to describe s 16(1) of the Water Act as a code in the strict sense defined by Pearce and Geddes, that does not undermine the force of what was said by Deputy President Macnamara in Kopitschinski v Song.
2. As counsel for the applicants herself urged, the starting point must be the text of the statute. Section 16(1) reads:

1. That provision must be read in conjunction with s17(1) which provides:

water to which section 16 or 157 of this Act or

section 74 of the Water Industry Act 1994

1. Reading the two provisions together, I think, with respect, that Deputy President Macnamara was right to say at [45] "that these provisions in the Water Act are a code for liability at least in non-personal injury matters for flows of water. No damages may be awarded except in accordance with the express provisions of the statute."
2. Counsel for the Council raised a further argument, which was that the word "damages" where appearing in s 16(1) had to be given its ordinary meaning at common law. She then referred to s 19(9) which provides:

In determining a cause of action arising under section 15(1), 16, 17(1) or 157(1) of this Act the

Tribunal must apply to the questions of causation and remoteness of damage the same tests as a

court would apply to those questions in an action based on negligence.

1. Through this gateway the applicants' counsel made an argument that as a claim for general damages for physical inconvenience and administration expenses had been acknowledged by the Supreme Court of Victoria as an allowable head of damages in a claim for negligence in Thomas v Powercor Australia Ltd,[4] (a case involving a claim for damages following damage to property after a bushfire), a claim for damages for loss of amenity and use of the land and inconvenience could be made as part of a claim for damage to property. In this way, the effect of s 19(1)-which had the effect of excluding from the jurisdiction of the Tribunal claims for damages for personal injury- could be avoided.
2. I find against the applicants in respect of this point. I do so for the following reasons. The claim is articulated in the Amended Points of claim as a claim for "loss of amenity and use of the land and general inconvenience, worry and anxiety occasioned by the landslide and the ongoing safety risks..."
3. Because the claim includes damages for "worry and anxiety" it is clearly a claim for personal injury. This was effectively conceded by counsel for the applicants, because at the conclusion of her submissions, she said that no claim for worry and anxiety was being pressed, and said that if necessary the pleading would be amended to this effect.
4. I confirm the response I gave at the time, which is that it would be unfair to the Council to allow an amendment of the pleading in this respect at such a late stage. The reasons for this were that the jurisdictional point had been taken by the Council in its Amended Points of Defence, and had been restated at the opening of the hearing, and the argument had been conducted on the basis of the pleading as it stands.
5. The applicants' contention that the Tribunal has jurisdiction with respect to the claim for "loss of amenity and use of the land and general inconvenience, and worry and anxiety", fails, in my view, because of the operation of s 16(1) when read with s 17(1) and s 19(1).
6. As noted above, I consider Deputy President Macnamara was right, in Kopitschinski v Song, to say that ss16(1) and 17(1) create a code for liability.

To be claimable at all, damages for "loss of amenity and use of the land and general inconvenience, and worry and anxiety", must fall within one of the categories identified in s 16(1), ie:

(a) injury to any other person; or

(b) damage to the property of any other person; or

(c) economic loss suffered by any other person.

1. Starting with the last category of claim, it was not, understandably, argued that this was a claim for economic loss.
2. In my view, the claim is not a claim for damage to the Land, i.e. a claim for damage to property, because it is a claim for damages in respect of particular emotional responses experienced by Dr Collins and Mrs Collins.
3. It follows that, in order to be claimable under the Act, the claim must be characterised as a claim for injury to any other person.
4. Section, s 19(1) of the Water Act provides:

The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act or at common law in respect of the escape of water.

1. The pleading as it stands includes a claim for damages for personal injury, if it is not entirely concerned with a claim for damages for personal injury. Insofar as it is not a claim for damages for personal injury, it is not claimable at all. If the applicants have a claim for damages for personal injury they must pursue it in a Court. Such a course of action is contemplated by s 19(8) of the Act.
2. For these reasons, I find, and will declare, that the Tribunal has no jurisdiction to determine the applicants' claim for "loss of amenity and use of the land and general inconvenience, worry and anxiety occasioned by the landslide and the ongoing safety risks..."
3. I will order that Paragraph 17D of the applicants' amended Points of Claim dated 27 March 2018 be struck out.

[1] [2007] VCAT 1958.

[2] See the discussion in Pizer's Annotated VCAT ACT Sixth Edition at the 493-494.

[3] [2000] VSC 340 at [33].

[4] [2011] VSC 586.