* a corresponding variation to the remedies sought under the Claim (and, if applicable, the Reply).

2. Within the aforementioned 21 day period, the Applicant must, pursuant to Section 48 of the Land Acquisition and Compensation Act 1986, also lodge with the Tribunal (and serve on the Respondent) the requisite completed Form 12 under the Land Acquisition and Compensation Regulations 1998, as a supplementary document to the Applicant's amended Claim.

3. Upon the Applicant completing the procedural requirements set out in the orders above, the Respondent will then have 14 days to file at the Tribunal and serve on the Applicant an amended Reply, pursuant to Section 48(2) of the Land Acquisition and Compensation Act 1986.

4. Upon the filing of the amended Reply, the Respondent shall then have a further 14 days to lodge with the Tribunal and serve on the Applicant any documentation relating to the joining of any other third party to this proceeding.

5. There shall then be a Administrative Mention for this matter on Monday 11 October 2004, on which day all relevant parties are required to write to the Tribunal indicating the current status of this matter from that party's perspective, and whether that party is ready for the matter to proceed to a hearing, or whether any other interim matters need to be dealt with.

Mr Robert Miller of Counsel, instructed by KPA Lawyers

Ms Julie Davis of Counsel, instructed by Blake Dawson Waldron Lawyers

1 This matter involves a property at 1-5 Lamana Street, Mordialloc. The Applicant has claimed loss of damages involving issues relating to structural problems affecting the building on the subject site, and the relationship of these structural problems to earlier works by the then Melbourne Metropolitan Board of Works (MMBW) involving the installation of an adjoining sewer main.

2 The main features of the Claim up to this point are as follows:

* The Claim was lodged by the Applicant on 9 January 2004;

* There was then a Directions Hearing before Deputy President Macnamara on 6 February 2004;

* The matter was then transferred to the Tribunal Land Valuation List;

* There was then a Directions Hearing before Senior Member Horsfall on 10 June 2004. At this Hearing Senior Member Horsfall ordered that a further preliminary hearing take place, to deal with the jurisdictional issues that have been raised by the Respondents;

* On 25 June 2004 a "Outline of Argument" document was received by the Tribunal from the solicitors for the Respondent;

* On 8 July 2004 a corresponding "Outline of Argument" document was received from the solicitors for the Applicant.

3 In relation to the jurisdictional points which it was clarified at the beginning of the hearing needed to be addressed, these points are usefully summarised at the beginning of the written submission received from Ms. Davis on behalf of the Respondent.

* Is the respondent and "Authority" for the purposes of Sections 155 and 176 of the Water Act 1989?

* If so, does the Tribunal have original jurisdiction to hear and determine a claim under Sections 155 and 176 of the Water Act 1989?

* If the Tribunal does have jurisdiction under Section 155, is the procedure to be adopted that which is set out in Section 47 of the Land Acquisition and Compensation Act 1986 or by way of Statement of Claim as filed?

* If the Respondent and Authority is liable for compensation under Section 155 of the Act, does Section 176(2) apply to the subject land?

4 Most of the duration of the hearing was taken up by the two parties presenting their written submissions to me, and either elaborating on those submissions or dealing with queries which I raised during the hearing.

5 In particular, there was extensive discussion and submissions made to me regarding whether the Respondent is a "Authority" for the purposes of Section 155 of the Water Act 1989. There were also some associated issues (notably relating to Section 176 of the Water Act 1989) which were also dealt with during the morning.

6 However, near the end of the hearing, the following situation unfolded.

7 Through the discussion of the parties and in response to my queries, it became apparent that even if the Respondent was successful in arguing that there is no jurisdictional basis for the Applicant to make a claim under Section 155 of the Water Act 1989, the Applicant submitted that:

* it maintains, as a matter of principle, that the appropriate forum for this dispute to be resolved remains the Tribunal, rather than the Victorian Magistrates' Court; and

* in the alternative, the Applicant requested that in these circumstances the Tribunal should use its general discretion under Section 127 of the VCAT Act to allow the Claim to be amended, so that the basis of the Claim becomes reliance upon Section 73 of the Water Industry Act 1994, rather than a reliance upon Section 155 of the Water Act 1989.

8 I then stood the matter down to allow the barrister to get further instructions from their clients regarding this new situation which had arisen.

9 When the hearing resumed, I was advised by Ms. Davis that her client (the Respondent) would not object to the Tribunal making an order under Section 127 of the VCAT Act so as to allow the Claim to be varied in the way outlined in the second bullet point above. This position was put forward by the Respondent on the basis that there would be a clear withdrawal by the Applicant of any allegation that the Respondent is an "Authority" for the purposes of the Water Act 1989 (ie. as the Applicant would instead be simply relying upon the status of the Respondent as a licencee under Section 73 of the Water Industry Act 1994).

10 At the conclusion of the hearing, both parties indicated to me that they were happy to proceed on the basis that I would orders to this affect.

11 In addition, it was conceded by Mr. Miller that the Applicant would also need to lodge a "Form 12" notice as required by Clause 48 of the Land Acquisition and Compensation Act 1986, as a supplementary document to the amended Claim. This position also was not objected to by the Respondent. By way of background, the need for this Form 12 to be completed, filed and served reflects the fact that Section 73 of the Water Industry Act 1987 provides that any claim made under Section 73 has to proceed under the procedure set out in the Land Acquisition and Compensation Act 1986 (in particular, see Sections 47 and 48 of that Act).

12 There was then some final discussion regarding the appropriate orders which I should make to allow the Respondent to serve an amended Defence and if appropriate join any other third parties, with these necessary orders also being set out above. It was further agreed that a general Administrative Mention is appropriate once all of these various steps have been completed. I have chosen the date of 11 October 2004 (for convenience) being set out in the orders above as a suitable date for this Administrative Mention to occur. Obviously the parties are welcome to jointly advise the Tribunal at any earlier stage if they are ready to advise of their joint position on a speedy basis.

13 In relation to costs, both parties were content that I simply reserve costs with liberty to apply, which I have done in my orders set out above.

14 Given the basis on which the parties were content to finalise the situation, obviously I no longer need to make any determination regarding the original question of whether the Respondent is an "Authority" for the purposes of Sections 155 and 176 of the Water Act 1989.

15 Overall, I consider that the final position reached by the parties is a sensible and fair outcome, given the Applicant's position that (regardless of its success in relation to Section 155 of the Water Act 1989) it considers the Tribunal to be the appropriate forum for the resolution of this matter, and given the reality that it would be open to the Applicant to simply lodge a new Claim under Section 73 of the Water Industry Act 1994 even if the Respondent was successful in the matters before the Tribunal today.

16 As indicated at the hearing, in making the orders set out above that the Applicant can amend its Claim to rely on Section 73 of the Water Industry Act 1994, I make no finding either way in relation to whether the circumstances in question here come within the relevant scope of allowable claim under Section 73(1), and whether the statutory framework of Section 73 allows the Applicant to seek the type of remedies being sought. In other words, the ability of the applicant to successfully utilise Section 73 is an issue for another day. similarly, I have not been required for the purposes of this initial Order to look at all at the subsidence issues in question here, which are also issues for another day.