Di Clemente v Small [1998] VSC 157

[1998] VSC 157

Administrative Appeals Tribunal Act 1984 (Vic) s52 Water Act 1989 (Vic) ss16(1) & (2), 19, 20 Victorian Civil and Administrative Tribunals Act 1998 (Vic) s64(3) Spurling v. Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 Portland Properties v. Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 Michaelis Bayley (Vic) Pty Ltd v. Melbourne & Metropolitan Board of Works (1980) 44 LGRA 65 R v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 City of Greater Geelong v. Herd & Dowling (1997) 20 AATR 293 Tabag v. Minister of Immigration [1982] FCA 276; (1982) 70 FLR 61 RSL (Victorian Branch) Glenroy Sub-Branch v. Moreland City Council (1997) 19 AATR 107 Rampling v. Emergency Services Superannuation Board (1994) 6 VAR 199

Bearing that principle in mind, it is apparent from the determination read as a whole, and particularly from the passages referred to in paragraph 11 above, that the intention of the Tribunal was to express a finding that any flow from the respondents' land to the appellants' land was reasonable. That finding meant that the claim of the appellants under section 16(1) failed on that ground. It was a finding of fact, and well within the competence of the Tribunal as an expert tribunal. As Menzies J said in R v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654_:_

124. I note that in Tabag v Minister for Immigration [1982] FCA 276; (1982) 70 FLR 61 Keely J said at 70-71:

152. Mr Jolson submitted that the concept of damage under the Act was not limited to actual quantifiable damage to property. He referred to authorities relating to nuisance (Madden v Coy [1944] VR 88) and trespass (Beswicke v Alner [1926] VR 72) where injunctions were granted to restrain the flow of water although only negligible damage or no damage was proved. However, his clients are seeking a statutory remedy under section 16(2), which confers an entitlement to damages only where, as a result of interference with a reasonable flow, water causes injury to any other person, damage to the property of any other person or economic loss to any other person. I did not understand Mr Jolson to be submitting that that remedy was available where, as here, no actual damage (absent a claim for injury or loss) was found by the Tribunal to have taken place.

(1966) 116 CLR 644

(1982) 70 FLR 61