Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109

Court of Appeal (Vic)|2016-05-13|Before: Mr P, Tate JA, Kyrou JA

ADMINISTRATIVE LAW - Application for leave to appeal on a question of law - Decision of the Victorian Civil and Administrative Tribunal - Requirements of statutory cause of action - Causation - Procedural fairness - Misapprehension of facts - Leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) - (Vic) - (Vic) s 14C.

WATER LAW - Claim that reverse flow from a drain under the control of the Authority caused flooding and damage to land - Whether the Authority responsible for damage to land by flooding - State Rivers and Water Supply Commissioner v Crea [1980] VicRp 50; [1980] VR 513 considered.

1 I have had the benefit of reading, in draft form, the judgment of Garde AJA. I agree, for the reasons his Honour gives, that the application for leave to appeal should be dismissed.

3 Mr Tom Patsuris is a market gardener who crops cauliflowers, lettuces, cabbages and zucchinis on land at 485 Duncans Road, Werribee South ('the land'). In 2011, much of the land was flooded after a severe storm. Crops were lost. Part of the land became infested with a fungal infestation known as 'club root'.

4 In a proceeding before the Victorian Civil and Administrative Tribunal ('the Tribunal'),[1] Mr Patsuris sought damages from the Gippsland and Southern Rural Water Corporation ('the Authority'), claiming that the flooding of the land was caused by the small diameter of a culvert in a crossing over a drainage channel for which the Authority was responsible. Mr Patsuris said that this caused the water in the channel to bank up and reverse flow, flooding part of the land. The claim failed, principally because the Tribunal was satisfied that the flooding of the land was not caused by the presence of the culvert, or by the intentional or negligent conduct of the Authority.[2] The Tribunal was not satisfied that the Authority was responsible

5 Mr Patsuris obtained leave to appeal to the Trial Division under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') in respect of three questions. He also sought leave to appeal on a number of other questions. The appeal and the application for leave were ultimately dismissed.[4]

6 Mr Patsuris now seeks leave to appeal to the Court of Appeal from the judgment. He seeks to have the Tribunal decision set aside, and his claim reheard by a differently constituted Tribunal.

7 On 4 and 5 February 2011, a severe storm buffeted the Werribee South area ('the storm'). The storm included two main rainfall events. On 4 February 2011, parts of the area experienced 76mm of rainfall over a one hour period, with a total of 115mm of rainfall before midnight. In the early hours of 5 February 2011, a further 32mm of rainfall occurred over a two and a half hour period.[5] In all, the storm resulted in 147mm of rain and widespread flooding in the Werribee South area.

8 The Authority is the water authority responsible for the management of irrigation, stock and domestic water within the Werribee Irrigation District ('the district').[6] The district covers an area of 2,350ha. The land is within the district and is 9ha in area. It consists of 15 paddocks irrigated by sprinkler systems. Irrigation water is supplied by the Authority. Furrows and irrigation channels run through these paddocks in a north-south alignment. Rainwater and irrigation runoff are directed into two open earthen drains which traverse the paddocks in a west-east direction. One of these earthen drains receives runoff from the seven northern paddocks ('Central Drain'). A second drain receives runoff from the lower eight paddocks ('Southern Drain').

9 Central Drain and Southern Drain flow to the east side of the land and connect into an open table drain on the western side of Duncans Road ('the VicRoads drain'). The VicRoads drain connects through two box culverts ('Northern Box Culvert' and 'Southern Box Culvert') under Duncans Road and pipes into a large earthen drain under the management of the Authority ('Drain 5'). The two box culverts are located near the respective intersections of Central Drain and Southern Drain with the VicRoads drain. Drain 5 runs in a north-south direction and is located on the eastern side of Duncans Road. Water in Drain 5 flows south, eventually passing into Port Phillip Bay. Until 2010, there was only one crossing ('the old crossing') over Drain 5 in the vicinity of the land.

10 The claim relates to a new crossing and culvert ('the new crossing ' and 'the new culvert') constructed across Drain 5 in 2010, approximately 50m upstream of the old crossing. The new crossing and the new culvert under it were constructed at the cost of the landowner,[7] but the Authority approved the construction of the new culvert at a diameter of 725mm.[8]

11 Early on 5 February 2011, Mr Patsuris discovered that there was widespread flooding of the eastern paddocks of the land. On closer inspection, he could see that the new culvert restricted the flow of water along Drain 5. The head of water upstream of the new crossing was higher than the level of water downstream. Drain 5 had overflowed, causing significant flooding to commercial premises located upstream, 150m to the north at the intersection of Duncans Road and Hoppers Lane.[9] Moreover, the elevated level of Drain 5 upstream of the new crossing resulted in reverse flow through the Northern Box Culvert into the VicRoads drain.

12 At 11:30 am on 5 February 2011, Mr Patsuris observed no significant change to headwater levels on either side of the new crossing, or to the upstream flooding of Drain 5.[10] Local residents dug a trench around the new crossing to enable the water in Drain 5 to bypass the new culvert.[11] Floodwaters dissipated in about six hours.

13 The district has a network of approximately 62km of drains with 12 outfalls to Port Phillip Bay. According to the Authority, Drain 5 was designed to drain irrigation and rainwater run-off from a catchment of approximately 247ha in a 1 in 50 year ARI event.[12] The design intent of the catchment drainage system is to remove from properties in the catchment all floodwater resulting from 75mm of rainfall over a six hour period within 24 hours.[13] This equates to a 1 in 50 year ARI storm for the area. This standard was set in 1988 by the State Rivers and Water Supply Commission, the predecessor of the Authority.[14] According to the Authority, a key design assumption of the drainage system is that agricultural land can tolerate short term inundation as will inevitably eventuate from storms of greater intensity.

14 The losses suffered by Mr Patsuris were substantial.[15] He claimed $118,300 in damages for loss of crops, clean-up costs, club root control costs, and restoration costs. He claimed that crops were lost on eight paddocks and that club root had infested two paddocks. No claims were made in relation to seven paddocks on higher land.

15 Mr Patsuris brought proceedings to the Tribunal under s 157 of the Water Act 1989 (Vic) ('the Act'), which provides:

Liability of Authorities arising out of flow of water

(1) If -

(a) as a result of intentional or negligent conduct on the part of an Authority in the exercise of a function under Part 8, Part 9, Division 2, 3 or 5 of Part 10, or Part 11 or any corresponding previous enactment, a flow of water occurs from its works onto any land; and

(b) the water causes -

(i) injury to any other person; or

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

(iii) any other person to suffer economic loss -

the Authority is liable to pay damages to that other person in respect of that injury, damage or loss.

(2) If it is proved in a proceeding brought under subsection (1) that water has flowed from the works of an Authority onto any land, it must be presumed that the flow occurred as a result of intentional or negligent conduct on the part of the Authority unless the Authority proves on the balance of probabilities that it did not so occur.

(3) For the purposes of a proceeding brought under subsection (1) -

(a) a flow of water is to be taken to have occurred as a result of intentional conduct on the part of an Authority if the flow -

(i) was designed or intended by the Authority; or

(ii) inevitably and without intervening cause resulted from the exercise of a power by the Authority; and

(b) in determining whether or not a flow of water occurred as a result of negligent conduct on the part of an Authority, account must be taken of all the circumstances including any omission or failure, in the planning, design, construction, maintenance or operation of the works, to provide reasonable standards of capacity or efficiency or exercise reasonable care or skill having regard to the following matters -

(i) the state of scientific knowledge and knowledge of local conditions at any relevant time;

(ii) the nature and situation of the works;

(iii) the service to be provided by the works;

(iv) the circumstances and cost of -

(A) the works; and

(B) the maintenance and operation of the works; and

(C) works which it would have been necessary to construct to avoid the occurrence of any relevant injury, damage or loss.

(4) The following provisions apply with respect to a proceeding brought under subsection (1) -

(b) the proportion (if any) of the responsibility of the Authority for the injury, damage or loss must be assessed and only that proportion of the assessed damages must be awarded against the Authority;

(c) in assessing damages in respect of damage to property or economic loss the measure of damages is the direct pecuniary injury to the person bringing the proceeding by the loss of something of substantial benefit accrued or accruing and does not include remote, indirect or speculative damage;

(d) if damages are assessed in the proceeding in respect of any continuing cause of action, they may, in addition to being assessed down to the time of assessment, be assessed in respect of all future injury, damage or loss and, if so, the Authority is not liable to pay any further damages in respect of that injury, damage or loss;

* * * * *

(h) a person, not being a party, in whose favour a determination is made may enforce the determination by the same means as if the person were a party.

16 Mr Patsuris alleged that the Authority was negligent in authorising the construction of the new culvert at a 725mm diameter in circumstances where the culvert upstream of the new crossing was of 1300mm diameter, and the culvert downstream of the new crossing was of 850mm diameter.[16] He contended that the approved design of the new crossing should have required a larger culvert or an open bridge.

17 Essentially, Mr Patsuris contended that there were a number of flood effects caused by the new culvert. They were:

(1) the flood level of Drain 5 above the new crossing was increased;

(2) there was a reverse flow of water from Drain 5 through the Northern Box Culvert into the VicRoads drain; and

(3) water in the VicRoads drain either flowed onto the land, or exaggerated the effect of flooding on the land.

18 The Authority defended the claim on four main grounds. Three of these grounds remain important to the proceedings before this Court:

(1) the flow of water and resultant flooding of the land did not result from the Authority's conduct. Given the magnitude of the storm, the land would have flooded even if the new crossing had never been built;

(2) the authorisation of the culvert diameter was not negligent conduct. The culvert was constructed to a reasonable standard of capacity and efficiency. The storm far exceeded the design standard of a 1 in 50 year ARI event. The requirement to design Drain 5 to a reasonable standard of capacity and efficiency did not require the Authority to ensure that the drain prevented all flooding. Drain 5 met and performed in accordance with the design standard; and

(3) to the extent that any reverse flow of water occurred from Drain 5 to the VicRoads drain, the volume of reverse flow water was immaterial in the context of the extreme flood event. The inundation of the land was not materially sourced from waters that reverse flowed from Drain 5.

19 Expert evidence played a crucial role in the determination of the proceeding before the Tribunal. Mr Warwick Bishop, a consulting civil engineer with expertise in the assessment of stormwater and flood related issues, was called on behalf of Mr Patsuris. He accepted that a 1 in 50 year ARI design standard was reasonable for Drain 5 and for the area. In his view, the new culvert was not adequate to cater for the nominated design standard of the system. Larger culverts had been used in other locations along Drain 5. He expressed concerns about the peak flood impact of the new culvert on surrounding infrastructure, in particular the road reserve of Duncans Rd and dwelling access. In his view, a 1200mm culvert would have provided an acceptable level of hydraulic performance.

20 Mr Bishop estimated that the extra volume of flow caused by the reverse flow of water from Drain 5 through the Northern Box Culvert into the VicRoads drain was likely to be 4,300m3 over a four hour period based on a total reverse flow estimate of 0.3m3/s while the water levels were high in Drain 5.

21 Significantly, Mr Bishop acknowledged in cross-examination that he had not looked at all at whether the land would have been flooded out in any event by the storm on 4 and 5 February 2011 had the new crossing not been built.[17] He did not express any opinion as to whether the flooding on the land arose because of the new culvert as he had not addressed that specifically.[18] As a result, the Tribunal was essentially dependent on the Authority's expert evidence on the causation issue, assisted by the first hand evidence of Mr Patsuris and other witnesses, and photographic evidence of the extent of flooding as a result of the storm.

22 Mr Andrew Prout, a consulting civil engineer with expertise in waterways stormwater, flood mapping and management, was called on behalf of the Authority. Mr Prout undertook modelling of flooding conditions for storms of varying intensity under the conditions that existed before and after the construction of the new crossing. He determined that the volume of rainfall on 4 and 5 February 2011 greatly exceeded a 100 year ARI storm. He undertook modelling to conclude that the 725mm diameter of the new culvert had a negligible effect on the flooding of the land at the 10, 50 and 100 year ARI levels. At the storm intensity experienced, he concluded that the new culvert did not cause any increase in flood level on the land. Indeed, in every case modelled by Mr Prout, the new culvert had no adverse effect on the flood levels on the land.

23 Mr Prout gave a lower estimate than Mr Bishop of the additional volume of flow caused by the reverse flow of water from Drain 5 through the Northern Box Culvert into the VicRoads drain. Mr Prout estimated the additional volume at 2,000 to 4,000m3, based on a lower maximum reverse flow of 0.1m3/s.

24 Mr Prout also reviewed whether Drain 5 met the design intent; namely, that runoff volumes be removed from its catchment within 24 hours for a 6 hour duration storm event of 75mm of rainfall. He determined that in this circumstance, the maximum depth in Drain 5 was less than 500mm after 12 hours, less than 250mm after 15 hours, and less than 100mm after 24 hours. After 24 hours, Drain 5 was effectively empty, with only a small amount of local ponding in the base of the drain. In his view, Drain 5 met the design intent, draining its catchment within 24 hours of a 1 in 50 year ARI 6 hour duration storm.

25 The Tribunal accepted Mr Prout's evidence,[19] including his evidence as to runoff volumes:

(1) the total volume of runoff from the 247ha Drain 5 catchment was 231,000m3;

(2) the overall volume of runoff on 4 and 5 February 2011 from the Drain 5 catchment into the Northern Box Culvert was 45,000m3, whilst that to the Southern Box Culvert was 38,000m3; and

(3) the reverse flow through the Northern Box Culvert amounted to less than 510 per cent of the total flow to that culvert and less than 1-2 per cent of the total catchment flow along Drain 5.

26 Based on these calculations, the Tribunal accepted Mr Prout's evidence that the overall impact of the reverse flow was insignificant when measured against the total catchment flow. There was no evidence to suggest that the volume of water that reverse flowed through the Northern Box Culvert was hydraulically significant.[20]

27 Fundamental to the calculations as to the extent of flooding is the amount of rainfall received in the catchment. The rainfall recorded at the Werribee weather station was 147mm, compared with 105mm at the Hoppers Crossing weather station. Mr Paul Byrnes, Manager, Distribution Assets of the Authority at its Werribee office for 13 years and a qualified engineer, gave evidence that the most severe path of the storm crossed over the land and the catchment area of Drain 5. In his view, the Werribee weather station was the most representative weather station to measure rainfall over the relevant period. This was later conceded by Mr Bishop in his additional report,[21] and accepted by the Tribunal.[22]

28 Ultimately, the contest as to rainfall level assumed reduced significance in the Tribunal proceeding. The flood maps produced by Mr Prout predicted flooding for a 1 in 10, 1 in 50 and 1 in 100 year ARI rainfall events in the conditions that existed before and after the new crossing was erected. The flood maps showed little or no difference between the predicted flooding of the land with or without the new crossing in any of the three rainfall events modelled. Even if it was incorrect to rely solely on the Werribee weather station, the flood maps for these ARI rainfall events indicated that the construction of the new crossing made little or no difference to the extent of flooding on the land.[23]

29 The Tribunal accepted that the flood maps produced by Mr Prout represented the best evidence of the impact of the new crossing on flooding, and that the construction of the new crossing had little or no impact on the flooding which occurred on the land as a result of the storm.[24] However, some flooding depicted on the flood maps prepared by Mr Prout did not accurately reflect the images seen on a video and in photographs taken by Mr Patsuris on 5 February 2011. Mr Prout's flood maps predicted that Paddocks 12 and 13 on the south-western corner of the land would flood; however, they were not observed to have significant flooding. Moreover, the flood maps did not indicate that Paddocks 6 and 7 on the south-eastern corner and lowest part of the land would flood; whereas they experienced considerable flooding as shown on the video taken by Mr Patsuris.[25]

30 Mr Prout said in evidence that the discrepancies between the video and photographs taken by Mr Patsuris, and the depictions on the flood maps were not of any great significance. He explained that if the photographs were after the peak period of flooding, then Paddocks 12 and 13 at the western end of the land would have had the opportunity to drain to the south or east. Similarly, Paddocks 6 and 7 at the eastern end of the land would accumulate water draining from the west, exacerbating the impact of flooding.[26]

31 Mr Prout's explanation was accepted as plausible by Mr Bishop in a later report.[27] Mr Bishop expected that the flood level downstream of the new crossing would drop more quickly than the flood level upstream.[28]

32 The Tribunal accepted that the minor differences in surface level caused by groundwater could also have impacted on the extent of flooding experienced. It found that the explanations proffered by Mr Prout were feasible and more than likely explained the minor discrepancies between what was observed and what was depicted in the flood maps. The observed discrepancies did not undermine the accuracy of the flood maps.[29]

33 The Tribunal concluded that the most likely scenario was that floodwaters emanated from properties to the west and north of the land and from the land itself. Discharge of water on the land through the Northern Box Culvert and the Southern Box Culvert could not occur quickly enough to prevent the land from flooding. The reverse flow from the Northern Box Culvert, and its inability to drain floodwater, may have exacerbated the problem. However, there was no evidence that these factors actually caused the flooding of the land.[30] As Drain 5 was constructed to remove a limited quantity of water from the sub-catchment, it followed that there would be ponding or flooding if water accumulated in any part of the sub-catchment faster than Drain 5 was capable of removing it. It did not follow that the ponding or flooding resulted from the construction of Drain 5.[31]

34 There was insufficient evidence, in the Tribunal's view, to find that the flooding was caused by water entering the land or being unable to drain from the Northern Box Culvert. The expert evidence of Mr Prout, and the flood modelling that he undertook, was to be preferred to the anecdotal observations of Mr Patsuris and another witness that flooding of the same magnitude did not occur in the forty years prior to the construction of the new crossing. There was no evidence that the same level of rainfall had ever previously been recorded at the Werribee weather station. It was impossible to make direct comparisons with the storm which occurred on 4 and 5 February 2011.[32]

35 The Tribunal found, on the balance of probabilities, that the flooding of the land was not the result of the new crossing throttling the flow of water down Drain 5. The reverse flow from the Northern Box Culvert was insignificant when compared with the amount of water moving over the land into the VicRoads drain. The fact that the Northern Box Culvert was rendered inoperative, when the headwaters upstream of the new crossing rose above the invert of the pipe feeding into Drain5, did not establish that this caused the flooding on the land. The Tribunal found that flooding of the land would have occurred even if the new crossing had not been built.[33]

36 The Tribunal treated the claim relating to club root infestation separately from the claim by Mr Patsuris for damage caused by flood water, and as requiring further consideration.[34] It held that there were difficulties in establishing the precise source of the club root infestation, as the land was inundated with water from the market gardens to the west. A finding that contaminated water flowed onto the land from Drain 5 did not, in itself, establish liability.

37 The Tribunal accepted, as submitted by Mr Patsuris, that the authorisation of the size of the new culvert was part of the management and operation of Drain 5, and was therefore the exercise of a function by the Authority[35] under Part 11 of the Act. If causation was established, the 'central issue' was whether the Authority either intentionally or negligently caused the flow of water from its works onto the land.[36]

38 In addressing this central issue, the Tribunal considered the expert evidence at some length, ultimately determining that the reverse flow from Drain 5 through the Northern Box Culvert to the VicRoads drain was an incident of nature. Having regard to the accepted design limitations of Drain 5, the reverse flow could not reasonably have been prevented by the Authority. It was uncontested expert evidence that it was reasonable for the Authority to design Drain 5, including the new culvert, to cater for a 1 in 50 year ARI event. The storm was an extreme weather event, far exceeding a 1 in 100 year ARI event, which was concentrated on a relatively small catchment area. It was not reasonable to require the Authority to design drainage systems to cater for such an event. There was no evidence suggesting that the reverse flow would occur in a 1 in 50 year ARI storm event.[37] The reverse flow could not be attributed to any intentional or negligent conduct on the part of the Authority.[38]

39 In the Tribunal's view, Mr Bishop's evidence at best established that a reverse flow occurred. He did not say that the reverse flow would have occurred during a 1 in 50 year ARI storm or less, or that it would not have occurred had the new crossing not been constructed.[39]

40 The Tribunal found that the reverse flow of water from Drain 5 through the Northern Box Culvert was not caused by the presence of the new crossing, and did not result from intentional or negligent conduct on the part of the Authority.[40]

41 Under s 148(1) of the VCAT Act, a party to a proceeding may, by leave, appeal on a question of law to a judge of the Supreme Court from an order of a member of the Tribunal in a proceeding.

In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic),[41] the majority of the High Court identified the purpose of s 148, and the means by which it operates:

Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word 'appeal', it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review. That is not to say that there are no other avenues for judicial review ... Nevertheless, it is important to recognise that the essential character of s 148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged.[42]

The limited nature of appeals under s 148 has subsequently been further emphasised by the High Court.[43] Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
The 'question of law' requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[44] It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal. In Transport Accident Commission v Hoffman,[45] Young CJ and McGarvie J said of the predecessor provision to s 148:

How then is it to be construed? It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision.[46]

The interpretation adopted by the Full Court in Hoffman has been accepted and applied in many subsequent cases.[47] Four examples of mistakes that might constitute errors of law were given by the Court of Appeal in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd.[48] They provide an archetypal, although non-exhaustive, list:

whether the tribunal has identified the relevant legal test;

whether the tribunal applied the correct legal test;

whether there is any evidence to support a finding by the tribunal of a particular fact; and

whether the facts found fall within a statute properly construed.[49]

46 In Rugolino v Howard,[50] Bell J set out the principles to be applied when investigating a finding of fact for legal error:

These principles [of judicial decision making] have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held 'the question whether there is any evidence of a particular fact is a question of law.' Therefore a finding of fact is open to challenge as 'erroneous in law', but only if 'there is no probative evidence to support it'. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if 'it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.' His Honour emphasised that the question was not whether the finding was 'reasonably open', for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.

S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners' Board of Victoria, Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was 'not open'. After endorsing the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries that it was 'critical' to making findings of fact that they be based on the evidence, but there would be no error of law 'unless it can be shown that there was no evidence' to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council. After approving the 'not open' test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was 'any evidence' to support it.

In Victoria v Subramanian, Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.[51]

47 Although his Honour in Rugolino was considering an appeal from the Magistrates' Court, the same principles apply to appeals from the Tribunal under s 148.[52]

48 Before the Trial Division, Mr Patsuris relied on seven questions. Omitting the first question which was not pressed on appeal to this Court, they were:

(2) Whether the Tribunal was justified in finding that there was no evidence that the reverse flow would have occurred in a 1 in 50 ARI storm event ...

(3) Whether the Tribunal erred in law in finding that the flow of water did not result from intentional conduct ... when there is no reasoning to support that conclusion.

(4) Whether the Tribunal was justified in not considering whether the [Authority's] conduct concerning the approval of the culvert under the [new crossing] was intentional conduct as required by section 157(3) of the Water Act having regard especially to passage on page 521 and 531 of Crea's case and to the fact that the decision to put a new culvert in a drain is similar to a maintenance decision.

(5) Whether the Tribunal erred in law in not stating or finding that it was the duty of the [Authority] to exercise its function (by making an operating decision in respect of the size of the new culvert) so as not to direct flood water to locations where it would otherwise not have flowed and to exercise its statutory functions with reasonable care so as to prevent unnecessary flooding.

(6) Whether the Tribunal having found that the [reverse] flow from the [Northern Box Culvert] under Duncans Road and its inability to drain flood water may have exacerbated the flooding should have then assessed its effect as required by section 157(4)(b) of the Water Act.

(7) Whether the Tribunal erred in law and failed to comply with the rules of natural justice by accepting Mr Prout's further report without affording an opportunity for cross examination, and failing to have regard to the report of Mr Bishop dated 27 June 2013.[53]

49 Daly AsJ disallowed one further question as not being a question of law ('the further question'):

Whether the Tribunal erred in law in concluding that it was reasonable to design Drain 5 (including the culvert under the [new crossing]) to cater for a one-in-fifty ARI event. The Tribunal at paragraph 82 applied the wrong test as to whether the one-in-fifty ARI standard applies to the new culvert.[54]

50 All grounds failed. McDonald J ('the judge') did not consider that any error had been shown in the Tribunal's decision. Some grounds did not raise a question of law, some were without merit, and some were misconceived. The judge dismissed Mr Patsuris' appeal from the order of Daly AsJ refusing to allow the further question to proceed as a question of law.

51 The test for leave to appeal to the Court of Appeal from a decision of a judge in the Trial Division is whether the proposed appeal has a prospect of success which is real in the sense that it is not fanciful.[55] The same test applies for leave to appeal to the Court of Appeal where the decision of a judge in the Trial Division is made in respect of an application brought under s 148(1) of the VCAT Act.[56]

Application to amend the proposed grounds of appeal

52 Before turning to the issues in the appeal, there is a preliminary application to be determined. Mr Patsuris applies for leave to amend the grounds of appeal relied on in the application for leave to appeal. There have been a series of reformulations of the grounds and contentions relied on by Mr Patsuris since the application for leave to appeal was first made to this court.

53 By an application made on 21 January 2016, supported by an affidavit of the same date sworn by Mr Patsuris' solicitor, a number of amendments to the grounds of appeal are sought. I acknowledge the force of many of the opposing submissions by counsel for the Authority that this has rendered the grounds prolix. Indeed, the grounds are confused, convoluted, rely on extraneous documents and do not clearly articulate the underlying issues of law that are relied on in the appeal. I would refuse leave to amend the grounds of appeal insofar as they travel beyond the issues that were raised orally during the hearing of the application for leave to appeal.

54 As a result, it is appropriate and convenient to address the issues in the appeal as they were raised and argued by Senior and Junior Counsel for Mr Patsuris in oral submissions to the Court and based on the questions before the Trial Division.[57] I will proceed to consider Mr Patsuris' application for leave to appeal based on the clear articulation and arguments of counsel for Mr Patsuris before this Court based on the grounds relied on before the judge.

55 Section 157 provides a freestanding statutory cause of action.[58] It is very different from any cause of action available at common law. It does not require a duty of care akin to that required to establish the tort of negligence. If a claimant proves that a flow of water has occurred from the works of an Authority onto any land causing injury, damage or economic loss to any other person, the Authority is liable to pay damages to the other person unless the Authority proves on the balance of probabilities that the flow did not occur as a result of intentional or negligent conduct.

56 The Act gives the terms used in s 157 wide compass. Section 3 defines 'Authority' to mean a 'water corporation or a Catchment Management Authority'. 'Water corporation' is defined in the same section to mean 'a water corporation established or re-structured under Division 1 of Part 6' of the Act. 'Catchment Management Authority' is defined to mean 'an Authority within the meaning of the Catchment and Land Protection Act 1994'. 'Water' is defined to mean 'water, whether or not it contains impurities'. 'Flow' in relation to water is given an extended meaning to include 'discharge, release, escape, percolation, seepage and passage, and includes both surface and underground flow'.[59]

57 A pivotal feature of s 157 is the reverse onus of proof on the balance of probabilities imposed on an Authority. Before the reverse onus on an Authority can come into operation, it is necessary for the claimant to prove four fundamental matters on the balance of probabilities; namely:

(2) the flow of water emanated from the works of an Authority;

(3) the flow of water continued onto the land of the claimant; and

(4) the flow of water thereby caused injury, damage to property or economic loss to the claimant.

If the claimant fails to prove any of the four matters, the claim under s 157 fails. There is then no need to consider the reverse onus, as the circumstances that trigger the reverse onus do not arise.

58 The present form of s 157 is different from that previously operative in Victoria. Intentional and negligent conduct are given statutory meaning by ss 157(3)(a) and (b). A flow of water is taken to occur as a result of 'intentional conduct on the part of an Authority' if the flow is designed or intended by the Authority or if the flow inevitably, and without intervening cause, results from the exercise of a power by the Authority. Section 157(3)(a) provides a non-exhaustive definition of 'intentional conduct', and is wide enough to encompass conduct that falls within the plain English meaning of the expression. Section 157(3)(b) describes the considerations relevant in determining whether there has been 'negligent conduct on the part of an Authority', and is also expressed in a non-exclusive manner.[60]

59 As the Full Court said in Crea, the matters listed in s 157(3)(b):

... must be taken into consideration, but they are items which have to be considered in relation to each of five procedures, planning, design, construction, operation and maintenance. No doubt the requirements of reasonable care cannot be judged by reference to knowledge not possessed at the 'relevant time' and cannot extend to demanding the substitution of a different service for that which was intended to be provided, but we think that the correct way to apply the definition is to regard the judgment of reasonableness as having to be formed from a synthesis of all four headings, balanced according to the evidence, with the qualification that each of the four may in an appropriate case set a limit to the requirements of reasonableness.[61]

60 These considerations all point to the conclusion that the cause of action in s 157 is defined by the words of the section. It is s 157 that defines when an Authority is liable, and the considerations that are to be taken into account in determining liability.

61 Referring to the judgment of Sholl J in Re Armstrong and State Rivers and Water Supply Commission,[62] Cavanough J noted in South East Water that the predecessors of s 157 had never required the identification of a separate duty of care.[63] Rather, as his Honour said, 'the emphasis has been on ascertaining whether there was a want of reasonable care and skill on the part of the relevant authorities'.[64] As his Honour noted, the expression 'negligent flooding' considered by Sholl J was not elaborated upon in the legislation of the day.[65] In those circumstances, the Authority was implicitly obliged to 'exercise reasonable care in the circumstances to prevent the flooding of others'.[66] In contrast, the present form of legislation clearly articulates the nature of the duty imposed on an Authority, and the considerations to be taken into account.

62 Likewise, s 157(4) provides a framework for the assessment of damages. The assessment process is different from that at common law. The framework includes proportionate responsibility, limits damages for property or economic loss to that derived from direct pecuniary injury, and excludes remote, indirect or speculative damage. In respect of any continuing cause of action, the damages assessed may include an amount in respect of all future injury, damage or loss.

63 As the sole cause of action relied on by Mr Patsuris is a claim for damages under s 157 of the Act, the judge correctly observed that the obligation upon the Tribunal was to consider whether the elements of the statutory cause of action prescribed by ss 157(1)(a) and (b) had been made out. As the judge said, the Tribunal does not fall into error by failing to address questions extraneous to those which it is required to address by the express terms of s 157.[67]

Ground 2: was the Tribunal justified in finding that there was no evidence that the reverse flow would have occurred in a 1 in 50 ARI storm event?

64 The Tribunal accepted that the severity of the storm far exceeded a 1 in 100 year ARI storm, and that it was not reasonable for the Authority to have designed systems for the delivery of irrigation water and appropriate drainage to cater for such an event.[68] The Tribunal then observed, '[g]iven that there is no evidence suggesting that the [reverse] flow would occur in a 1 in 50 ARI storm event, it cannot be said that the reverse flow water occurred as a result of negligence or intention [sic] conduct' on the part of the Authority.[69]

65 In observing that there was no evidence suggesting that the reverse flow would occur in a 1 in 50 year ARI storm event, the Tribunal was undoubtedly correct. Neither Mr Prout nor Mr Bishop said that the reverse flow would occur in a 1 in 50 year ARI storm event. The observations and photographic evidence of Mr Patsuris and other witnesses related to an exceptional storm that exceeded a 1 in 100 year ARI storm event. None of the observations of Mr Patsuris or of the other lay witnesses had any relevance to the flood events that would be experienced in a 1 in 50 year ARI storm event.

66 Further, as the judge observed, even assuming the Tribunal had erred in concluding that there was no evidence that reverse flow would have occurred in a 1 in 50 year ARI storm event, the Tribunal had found that the reverse flow which did occur in circumstances of a storm far in excess of a 1 in 100 year ARI event was not caused by the presence of the new crossing.[70] The error suggested of the Tribunal did not address the failure of Mr Patsuris to prove that the Authority was liable for the damage caused following the storm.

67 Proof of causation was a crucial issue for Mr Patsuris if he was to be successful in his claim. The judge reviewed the evidence put to him in argument to challenge the conclusion reached by the Tribunal that Mr Patsuris had failed to prove causation. None of that evidence impugned the finding made by the Tribunal that there was no evidence that the reverse flow would have occurred in a 1 in 50 year ARI storm event.[71]

68 At the hearing of the application for leave to appeal before this Court, a new argument was developed on behalf of Mr Patsuris. Mr Prout's flood depth map prepared for a 1 in 50 year ARI event, showing current conditions, referred to a spot flood height of 12.14m AHD[72] at the new crossing; whereas the spot flood height of land on the western side of Duncans Road was only 12m AHD. Junior Counsel for Mr Patsuris contended that these spot heights demonstrated that the water in the drain was 140mm higher than the water on the land.

69 This point was not put at the Tribunal hearing; nor was Mr Prout cross-examined as to this issue, although he was extensively cross-examined as to his flood maps. In my view, it would be wrong for this Court to receive a submission as to matters of fact that were not put to the Authority's witnesses. It would be procedurally unfair to the Authority, which should have had the opportunity at the Tribunal hearing to contradict the proposition belatedly now put. Furthermore, it is far from clear that the spot flood heights shown on Mr Prout's '50 year ARI Current Conditions' map lead to the suggested conclusion. The spot flood height of 12m AHD relates to a flood height at a point west of the intersection of Duncans Road and Hoppers Lane, and not to the point where the new culvert is located. Secondly, as the point was not advanced at the Tribunal hearing, there is little or no evidence as to the factual details which would need to be investigated to make the point good. They include the precise configuration and levels of the new culvert, the level of the invert in the pipe feeding into Drain 5, and of the VicRoads drain at the relevant place, and the level of the nearest point of the land as it adjoins the VicRoads drain. Speculative and untested as it is, the contention advanced by Junior Counsel cannot be given any weight. It was a point that should have been put at the Tribunal hearing, if it was to be put at all. It is far too late now to advance a new factual argument.

Grounds 3 - 5: did the Tribunal misconstrue s 157?

70 Senior Counsel for Mr Patsuris submitted that the Tribunal had misconstrued s 157. He said that s 157(1)(b) required the Tribunal to consider whether the water caused damage to the land. He submitted that the Tribunal was concerned with whether the Authority caused the flow of water, but did not address the issue whether the water caused damage to the land. Senior Counsel said that this was the question of law that underpinned questions 3 to 5.[73]

71 I reject this submission. The claim was that the works had caused, or exacerbated the flow of water, thereby causing damage to the land. The Tribunal found that the new crossing did not cause the reverse flow from the Northern Box Culvert, or exacerbate the flow of water out of Drain 5.[74] It also found that there was no or insufficient evidence that the reverse flow from the Northern Box Culvert or its inability to drain water caused or exacerbated the problem.[75] The claim that water for which the Authority was in any way responsible caused damage to the land inevitably failed because the flooding and the damage to the land would have occurred even if the new crossing had not been built.[76]

72 Senior Counsel for Mr Patsuris also submitted that in determining whether or not a flow of water occurred as a result of negligent conduct under s 157(3)(b), the Tribunal was required to address not only the design standard of the Drain 5 catchment, but also the particular works the subject of the claim. This was a much more specific inquiry than a consideration of the general standard to which the drainage system was to be designed. Senior Counsel submitted that the Tribunal did not give any or sufficient consideration to the nature and situation of the works, the service to be provided by the works, or the cost of the works. He contended that the determination made by the Tribunal was a global determination, without considering the individual works in question, and without taking into account the nature and situation, service or cost of the works.

73 In support of this submission, Senior Counsel referred to the decision of Farwell J in Provender Millers (Winchester) Ltd v Southampton County Council.[77] This was a claim by a milling company which derived its water power from a river. As a result of works to a culvert undertaken by the council, the flow of water in the river was permanently decreased so that the millers could not obtain a sufficient head of water to operate the mill. Referring to the speech of Lord Dunedin in Manchester Corporation v Farnworth,[78] Farwell J said that the inevitableness of damage must be considered in light of scientific knowledge at the time and what is practicably feasible. The council could not shelter behind its statutory powers, unless it could show that what it did was in pursuance of the powers and properly done in all respects.

74 In my view, the submission that the Tribunal misconstrued s 157 in this way must be rejected. First, as Counsel for the Authority submitted, the most critical point is that the argument, if correct, does not vitiate the Tribunal's decision. Mr Patsuris failed to demonstrate facts sufficient to raise the reverse onus. The Tribunal found, as a matter of fact, that the land was flooded by overland flows together with run-off from the land itself.[79] As the judge correctly identified, there is no basis for quashing the Tribunal's order dismissing the claim, unless the grounds translate into a successful challenge of the Tribunal's findings of fact as to causation. They were:

(i) the flooding of the [land] was caused by a flow of water emanating from the west and north and not as a result of the [new crossing] on Drain 5; and

(ii) given the severity of the [storm], the reverse flow from the [Northern Box Culvert] on Drain 5 would have occurred irrespective of the presence of the [new crossing] ('the causation finding').[80]

75 In consequence, the judge held, and I agree, that Mr Patsuris had failed to impeach the causation finding. Even if he had been persuaded that the individual grounds had merit (which he was not), the judge held that the appeal would nevertheless have failed.[81]

76 Secondly, it is clear from the Tribunal decision that the Tribunal did consider the nature and situation, the service to be provided, the circumstances and cost of the new crossing and the new culvert, to the extent possible on the evidence before it. The Tribunal made findings that the new crossing was constructed by contractors engaged by the owner of a property located on the eastern side of Duncans Road opposite the land. It was constructed by the contractor with the authorisation and consent of the Authority. It was the Authority that had stipulated the design parameters of the new culvert.[82]

77 The Tribunal directly addressed the claim by Mr Patsuris that the design of the new culvert was deficient, and that its diameter was too narrow, referring to the suggested 'throttling effect of the culvert'.[83] It rejected the claim that the Authority was negligent in authorising the construction of a 725mm culvert under the new crossing even in circumstances where the culvert upstream of the new culvert was 1300mm and that downstream was 850mm.[84]

78 The Tribunal rejected a submission from the Authority that the authorisation of the new culvert was not the exercise of a function under Part 11 of the Act. It held that the Authority could not disassociate the authorisation it gave to construct the culvert under the new crossing from its functions under s 221(a) of the Act.[85]

79 While the Tribunal noted that it was common ground between the experts that a nominal 50 year ARI design standard was reasonable for the Werribee South district, the Tribunal nonetheless gave full consideration to the evidence of Mr Bishop that the new culvert compromised that design standard. This entailed detailed consideration of the expert evidence of Mr Prout and Mr Bishop.[86] The Tribunal came to the view that it was not necessary for the Authority to have designed the drainage system for the delivery of irrigation water and appropriate drainage to cater for such an event. But this is not to say that the Tribunal did not address the particular works in question. It did, and specifically found that it was reasonable to design Drain 5 and the new culvert to cater for a 1 in 50 year ARI event.[87]

80 The consequence of a finding that the works were reasonably designed and constructed was stated in Crea in these terms:

In the present case, however, while the Authority was only providing for a 'design storm', its approach to the design of the drain was that although the drain would not carry the water from a larger storm and that consequently flooding might occur, that flooding would not be the result of the construction of the drain. Accordingly, the adoption of a design storm did not involve either intention or realization that in the event of a larger storm the drain would cause flooding.[88]

(1) an authority constructs drainage works to an appropriate design standard;

(2) a storm occurs with an intensity that exceeds the design standard of the works; and

(3) a flow of water occurs from the works of the authority onto the land of another person;

do not alone show that the flow of water has occurred as a result of the intentional or negligent conduct of the authority.

82 Accordingly, the submission put on behalf of Mr Patsuris does not establish vitiating error by the Tribunal. There was no misdirection or misconception by the Tribunal as to the requirements of s 157.

Ground 6: did the works cause damage to the land?

83 Another way in which it was said that the Tribunal had erred in its construction of s 157,[89] related to the word 'cause'. Senior Counsel for Mr Patsuris submitted that the Tribunal found that the works giving rise to the new culvert were not the principal cause of the flooding, and that the works had exacerbated the flooding, thereby causing damage. There were two limbs to the submission. It was said that exacerbating flooding is causing damage, while preventing water from flowing off the land by causing a counter flow is also causing damage.

84 One immediate problem with this submission is that it does not accurately describe the findings of fact made by the Tribunal. Based on Mr Prout's supplementary report,[90] the Tribunal accepted that there was an increase in the reverse flow through the Northern Box Culvert caused by the construction of the new culvert.[91] However, there was also a small increase in flow in a southerly direction along Duncans Road due to an increase in the hydraulic grade on the west side of Duncans Road including the VicRoads drain.[92] The net increase in hydraulic grade was 11mm. Mr Prout's evidence was that the flow width across Duncans Road (which I take to include the VicRoads drain in the road reserve) was sufficient to pass the extra flow from the reverse flow through the Northern Box Culvert. The stormwater flowed down the west side of Duncans Road without increasing flood levels on the land.[93] This resulted in a very small increase in the peak flow through the Southern Box Culvert.[94]

85 These considerations led the Tribunal to conclude that water would have reverse flowed through the Northern Box Culvert even if the new crossing were not there. The water which reverse flowed through the Northern Box Culvert would have been able to flow down the VicRoads drain without increasing flood levels on the land.[95]

86 Contrary to the submission of Senior Counsel, the Tribunal did not hold that the reverse flow from the Northern Box Culvert and its inability to drain flood water exacerbated the flooding problem on the land. The Tribunal held that it 'may' have done so.[96] Importantly, however, the Tribunal held that there was no evidence that these factors actually caused the flooding of the land.[97] There was no finding by the Tribunal that the reverse flow from the Northern Box Culvert or the inability of the Northern Box Culvert to drain floodwater had any causal connection to the flooding of the land.[98] To the contrary, the Tribunal held that the reverse flow would have occurred as it did had the new crossing not been constructed. There was no evidence that any additional reverse flow caused by the construction of the new crossing had affected the land. As the judge observed, the Tribunal found that the land was inundated with water emanating from properties to the north and the west.[99]

87 After reviewing the evidence at some length, the Tribunal made the following findings of fact:

(1) the reverse flow was an incident of nature that could not reasonably have been prevented by the Authority, having regard to the accepted design limitations of Drain 5;

(2) it was reasonable to design Drain 5, including the new culvert, to cater for a 1 in 50 year ARI event;

(3) the severity of the storm far exceeded a 1 in 100 year ARI storm event;

(4) it was not reasonable for the Authority to have designed systems for the delivery of irrigation water and appropriate drainage to cater for a 1 in 100 year ARI storm event;

(5) there was no evidence suggesting that the reverse flow would occur in a 1 in 50 year ARI storm event;

(6) it could not be said that the reverse flow occurred as a result of negligent or intentional conduct by the Authority;

(7) the reverse flow of water from Drain 5 out of the Northern Box Culvert was not caused by the presence of the new crossing; and

(8) in any event, the Northern Box Culvert and the pipework connected to it were not assets owned or maintained by the Authority.[100]

88 In my view, the Tribunal correctly identified the factors that needed to be established before liability on the part of the Authority was established.[101] The Tribunal also correctly identified what the Authority was required to prove if it was to demonstrate that its conduct was neither intentional nor negligent under s 157(3).[102] In the event, Mr Patsuris could not prove that the reverse flow of water from Drain 5 was hydraulically significant or had caused damage to the land, having regard to the severity of the storm, and the considerable flow of flood waters emanating from the west together with runoff from the land itself.[103]

89 On 5 June 2013, the last day of the Tribunal hearing,[104] Counsel for Mr Patsuris sought to tender an additional expert report.[105] Following objection by the Authority to the very late production of a further expert report after cross-examination of Mr Bishop had been completed, the Tribunal accepted the tender of the additional report, and made orders as to the filing of any further expert reports of the Authority in response to the additional report.[106] In the same order, directions were given for the filing of any written closing submissions in reply. A supplementary report of Mr Prout was filed by the Authority in accordance with these orders. The Tribunal's determination of the proceeding was reserved.

90 In support of ground 7, Senior Counsel for Mr Patsuris submitted that the Tribunal had not dealt with an objection to the supplementary report filed by Mr Prout in response to Mr Bishop's additional report. The objection was said to be found in a letter dated 24 July 2013 from Mr Patsuris' solicitor, and to be that the supplementary report constituted more than a reply to Mr Bishop's additional report. The letter was sent without advance warning, about seven weeks after the Tribunal hearing had concluded and its decision reserved.

91 On examination of the letter dated 24 July 2013, it was found to be a letter from Mr Patsuris' solicitor to the Authority's solicitor. While the letter complained that Mr Prout's supplementary report exceeded the conditions on which the Authority was permitted to file a further report in response to Mr Bishop's additional report, the letter did not contain an objection to the receipt by the Tribunal of the supplementary report. Rather, the letter contended that Mr Bishop ought to be permitted to provide a response to the attachments to the supplementary report, including a hydrological model layout which had not previously been provided by Mr Prout.

92 In truth, the letter dated 24 July 2013 did not make any objection to the Tribunal that the supplementary report of Mr Prout and its attachments should not be received. Moreover, and most importantly, the letter dated 24 July 2013 passed between the parties' solicitors, and was not addressed to the Tribunal. Rather, it was merely copied to the Registrar of the Tribunal's Real Property List. No submission was ever put to the Tribunal to the effect that Mr Prout's supplementary report or the accompanying attachments should not be received. It is not surprising that the issue is not mentioned in the Tribunal's decision.

93 Under cover of the letter dated 24 July 2013, Mr Patsuris' solicitor sought to provide copies of additional letters from Mr Bishop, dated 27 June 2013 and 18 July 2013. This additional material was produced long after the close of the hearing. Leave was not obtained from the Tribunal to do so. No application was made to the Tribunal to re-open the hearing or to receive further evidence from Mr Bishop.[107] No application was made for the hearing to resume in order for Mr Prout to be further cross-examined.[108] Mr Bishop's letters dated 27 June 2013 and 18 July 2013 are not referred to in the Tribunal decision, if indeed they ever reached the Tribunal. Having regard to the orders made on 5 June 2013, it would have been quite wrong for the letters to have been received in evidence without resuming the hearing for further cross-examination of the expert witnesses. There was no denial of procedural fairness to Mr Patsuris by reason of the Tribunal's failure to refer to Mr Bishop's letters of 27 June 2013 and 18 July 2013.

94 On many occasions, courts have commented about the late and unauthorised submission of supplementary materials.[109] In Carr v Finance Corporation of Australia,[110] Mason J said:

The affidavit asserts that the mortgages were extended but no attempt is made to specify the extended expiry dates or the facts giving rise to the alleged extension. The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.[111]

95 In Re Application by the Chief Commissioner of Police (Vic),[112] Kirby J said:

No foundation, in the Rules of Court or in any leave expressly granted by the Court of Appeal, was cited for the course adopted in filing these supplementary materials. Whether they reached the judges of the Court of Appeal is unknown. They were not specifically referred to in the Court of Appeal's reasons, published when its orders were pronounced. This court has deprecated such actions in respect of its own hearings.

Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court. Had that course been followed in the present proceeding, it is likely that the apparent misapprehension on the part of those representing the Chief Commissioner would have been cleared up. The later complaint of procedural unfairness might then have been avoided.[113]

97 Junior Counsel for Mr Patsuris submitted that the Tribunal was under a misapprehension as to the facts when it held that the VicRoads drain connected through to the Southern Box Culvert at the time of the storm.[114] He contended that the VicRoads drain went part of the way down to the Southern Box Culvert, but that it drained north back to the Northern Box Culvert. He referred to Mr Prout's flood depth maps, showing pre-works conditions under various ARI rainfall assumptions,[115] and to maps of the subject site prepared by Mr Bishop.[116] He also referred to the Tribunal's finding that according to the Change in Flood Depth maps, there was no material difference between pre and post construction of the new crossing for all but the 50 year ARI, which showed only marginal flooding, predominantly in the adjoining property to the south of the land.[117] Finally, he sought to rely on a letter from VicRoads to Mr Patsuris dated 11 March 2011.[118] This point is an entirely new point not raised before the judge.

98 Review of the transcript of the Tribunal hearing showed that when the VicRoads letter was sought to be tendered on behalf of Mr Patsuris, Counsel for the Authority objected to the tender, other than for the purpose of demonstrating that Mr Patsuris had received the letter. The objection was on the basis that it was hearsay and required the calling of a witness from VicRoads if the opinion as to the inadequacy of the size of the new culvert expressed in the letter was to be relied upon. In the event, Counsel for Mr Patsuris tendered the VicRoads letter only for the purpose of identification.[119] No VicRoads engineer gave evidence at the Tribunal hearing, and the VicRoads letter was never tendered absolutely.

99 Mr Prout's evidence to the Tribunal was that there was a very small decrease in the flood level (2mm) on the land at the upstream end of the Northern Box Culvert. Together with the 13mm decrease in the water level of Drain 5 at the Southern Box Culvert due to the installation of the new crossing, there would be 'more overland flow' down the west side of Duncans Road.[120] While the change in hydraulic grade was small, 'the flow width is sufficient to pass the extra flow from the reverse flow from [the Northern Box Culvert] down the west side of Duncans Road, without increasing flood levels' on the land.[121]

100 Counsel for Mr Patsuris extensively cross-examined Mr Prout at the Tribunal hearing, including questions about the VicRoads drain. It was not suggested to Mr Prout that the table drain along the western side of Duncans Road did not exist between the Northern Box Culvert and the Southern Box Culvert.[122] In later cross-examination, Mr Prout stated that flow occurred across the road in a southerly direction, as well as through the culverts.[123]

101 In the supplementary report, Mr Prout referred to an increase in flow along the west side of Duncans Road, attributing this to an increase in the hydraulic grade 'on the west side of Duncans Road between [Northern Box Culvert] and [Southern Box Culvert] by 11mm'.[124] This, he said, allowed 'more overland flow to flow down the west side of Duncans Road'.[125] It is apparent from this evidence that Mr Prout principally relied on the increase in the hydraulic grade on the west side of Duncans Road being sufficient to pass the extra flow from the reverse flow from [Northern Box Culvert] down the west side of the roadway.[126] While the Tribunal did find that water which reverse flowed through the Northern Box Culvert was able to flow down the VicRoads drain without increasing flood levels on the land, Mr Prout in his expert report did not assume any particular amount of flow down the VicRoads drain. Rather, it was the flow width down the west side of Duncans Road that was sufficient to pass the extra flow despite the small hydraulic grade.

102 When asked at the hearing before this Court whether Mr Prout had been cross-examined in relation to his modelling with respect to these matters, Counsel for Mr Patsuris responded that other questions were put to him about his model. Under cross-examination, Mr Prout informed the Tribunal that his flood depth maps were prepared with the assistance of LIDAR terrain data[127] basically picking up the level of terrain once every square metre including all of the undulations and the surface levels of the drains, although possibly not minor changes such as new furrows. He was cross-examined at length as to his flood depth maps, and the effect of the Northern Box Culvert and the Southern Box Culvert and Duncans Road in mitigating flooding. It is plain that the issue of fact now raised by Counsel for Mr Patsuris was a matter to be raised before the Tribunal. It is not open to Mr Patsuris to raise issues of fact that could have been put at the Tribunal hearing but were not.

103 The Tribunal held that the Central Drain and the Southern Drain flow into 'another open drain running along the western side of Duncans Road' and that 'this open drain is part of infrastructure managed by VicRoads'.[128] The Tribunal described the locations where the Northern Box Culvert and the Southern Box Culvert intersect with the VicRoads drain, and the fact that irrigated properties to the south and west of the land also drain into the VicRoads drain, and eventually into Drain 5, before discharging into Port Phillip Bay. Moreover, it was part of Mr Patsuris' case before the Tribunal that the increased level of water in Drain 5 upstream of the new crossing caused water to reverse flow from Drain 5 through the pipe connected to the Northern Box Culvert, allowing water to enter the VicRoads drain which had, by that stage, filled to capacity and was spilling out onto the land.[129]

104 The contention that the VicRoads table drain along the western side of Duncans Road did not extend from the Northern Box Culvert to the Southern Box Culvert is a new contention as to a matter of fact, that was not made to the Tribunal, and was not made to the judge. Clearly, it is impermissible for it now to be made to this Court. It would be a denial of procedural fairness to the Authority, whose witnesses were not challenged or cross-examined at the hearing before the Tribunal as to this matter.

105 In my opinion, the Tribunal was well founded as to the factual conclusions that it reached concerning the VicRoads drain. It is now far too late for new factual contentions to be advanced, that should properly have been raised before the Tribunal if they were to be raised at all. It is not this Court's function under s 148 of the VCAT Act to receive new factual contentions, or to hear argument directed to questions of fact that were never put to the Tribunal as the factual decision maker. The Tribunal's findings must inevitably stand to be assessed under s 148 on the basis of the facts and evidence before it, without taking into account supposed facts and contentions that were never put to it.

106 Some reliance was placed on XYZ v State Trustees Ltd,[130] in which Cavanough J said:

A failure by a tribunal to address in its reasons a submission which is worthy of consideration and is seriously advanced to the tribunal may in itself amount to an error of law for the purpose of a provision like s 148 of the VCAT Act.[131]

107 I agree with the judge that the statement does not assist the position of Mr Patsuris. The factual contentions now sought to be put were never advanced to the Tribunal. The Tribunal did not err in law when it did not address factual contentions never made to it.

108 If, on behalf of Mr Patsuris, it was desired to raise any additional factual matter, or to cross-examine Mr Prout on the supplementary report, it was incumbent on the legal representatives for Mr Patsuris to object to the expert reports or to apply to the Tribunal to re-open the hearing to receive further cross-examination of Mr Prout. No objection was made to the supplementary report, and no application was made to re-open the hearing, or for the Tribunal to receive further evidence. When the Tribunal handed down its reserved decision over four months later, this remained the position.

Should the further question have been allowed and upheld?

109 The disallowed further question, as it was before the judge, was in the following form:

Whether the tribunal erred in law in concluding that it was reasonable to design Drain 5 (including the culvert under the New Crossing) to cater for a 1 in 50 ARI event. The tribunal at paragraph 82 applied the wrong test as to whether the 1 in 50 ARI standard applies to the new culvert.[132]

110 The judge held that the further question, as formulated, raises a question of fact and not law. Whether the Tribunal erred in concluding that it was reasonable to design Drain 5, including the new culvert, to cater for a 1 in 50 year ARI event is a question of fact. Further, as the judge noted, that contention misrepresented the Tribunal's findings. It was common ground between the experts that a nominal 50 year ARI design standard was reasonable for the Werribee South district.[133] While Mr Bishop considered that the new culvert was not adequate to cater for the nominated design standard, Mr Prout disagreed. Mr Bishop did not say that the reverse flow would have occurred in a 1 in 50 year ARI storm or less, or would have occurred but for the presence of the new crossing.[134]

111 As a result, the judge held that no question arose as to whether the Tribunal applied the wrong test, as it was common ground between the experts that a nominal 50 year ARI design standard was reasonable for the Werribee South district. The Tribunal's finding simply reflected the evidence before it.[135]

112 Finally, the judge noted that the real complaint of Mr Patsuris was that the Tribunal did not give Mr Bishop's evidence enough weight.[136] This did not constitute a question of law.

113 The judge concluded that he would not grant leave to appeal. Any error in relation to the Tribunal's finding as to the design of the new culvert would not vitiate the Tribunal's ultimate conclusion that there was no damage to the land as a result of the flow of water from the Authority's works. That conclusion was based on the actual circumstance of a storm that was well in excess of a 1 in 100 year ARI.[137]

114 I can find no error in the judge's conclusions.

115 I have reviewed the lengthy written submissions and other material that has been provided on behalf of Mr Patsuris. Much of this material is prolix, repetitive or irrelevant. I can find no basis in it for the grant of leave to appeal to this Court.

116 For the reasons that I have given, I would refuse leave to appeal in relation to questions 2 to 7 as relied on before the Trial Division.[138] I would also refuse leave to appeal from the order of the judge refusing to allow an appeal from the order of

116 Daly AsJ as to the further question. The application by Mr Patsuris for leave to appeal to this Court must fail.

[1] Patsuris v Gippsland and Southern Rural Water Corporation [2013] VCAT 1774 ('Tribunal decision').

[4] Patsuris v Gippsland Southern and Rural Water Corporation [2014] VSC 621 ('judgment').

[6] Summary of agreed facts dated 29 April 2015 ('agreed facts') [5].

[7] The landowner was Mr Angelo Tsardakis of 510 Duncans Road, Werribee South.

[8] There are some differences in the evidence as to whether the diameter of the new culvert was 725mm or 750mm. The difference is immaterial. The parties have used 725mm as the diameter in the agreed facts [12].

[9] Tribunal decision [13]. These premises were occupied by RP Motors Pty Ltd of 500 Duncans Road, Werribee South.

[12] Ibid [19]. The Annual Recurrence Interval ('ARI') is a measure of the rarity of a rainfall event. It is the average or expected value of the period between exceedances of a given rainfall total accumulated over a given duration.

[17] Transcript of hearing on 11 April 2013 341, ln 3.

[31] Ibid [56], relying on State Rivers and Water Supply Commission v Crea [1980] VicRp 50; [1980] VR 513, 521_('Crea')_.

[35] Ibid [69]-[73], referring to D'Agostino v Goulburn Murray Rural Water Corporation [2011] VSC 668.

[43] See Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 ('Osland (No. 2)'), 331-2 [18]-[19]; 351 [71].

[44] Ibid 333 [21], referring to TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178.

[46] Ibid 199 (citations omitted). This point was reiterated in Ovidio Carrideo Nominees Pty Ltd v The Dog Depot [2006] VSCA 6 [59].

[47] May v Transport Accident Commission [1989] VicRp 86; [1989] VR 981, 984; Savage v Crimes Compensation Tribunal [1990] VicRp 9; [1990] VR 96; Abbott v Transport Accident Commission [1991] VicRp 51; [1991] 2 VR 116; Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176, 186 [22] ('Karakatsanis').

[50] [2010] VSC 590 ('Rugolino').

[51] Ibid [10]-[12] (citations omitted).

[52] Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 [247]; Advaland Pty Ltd v Bitcon [2015] VSC 235 [75].

[55] Supreme Court Act 1986 s 14C; Kennedy v Campaspe [2015] VSCA 47.

[56] In Metricon Homes Pty Ltd v Softley [2016] VSCA 60 [60] the Chief Justice acknowledged that this leads to an anomaly that 'if a party who was refused leave to appeal from VCAT to the Trial Division then sought leave to appeal from the Trial Division to the Court of Appeal, the Court of Appeal would be called upon to apply the "real prospect of success" test to the Trial Division's judge's application of the Hulls test'. Her Honour (at [69]) called for amendments to the VCAT Act to be made to remedy the anomaly by the insertion of a subsection in s 148 of the VCAT Act providing for the applicable leave to appeal test from VCAT to the Trial Division to be the 'real prospect of success' test.

[58] South East Water Ltd v Transpacific Cleanaway Pty Ltd (2010) 27 VR 387 [32]-[45] ('South East Water').

[59] See Pumpa v Goulburn-Murray Rural Water Corporation [2010] VSC 169.

[60] See [15] above.

[63] South East Water (2010) 27 VR 387 [32].

[80] Judgment [10] (citations omitted).

[90] Supplementary expert report of Andrew Prout dated 14 June 2013 ('supplementary report').

[100] Tribunal decision [93]-[96].

[103] Ibid [33], [44], [55], [56].

[104] The Tribunal hearing extended for eight days; 8-11 April 2013, 27-29 May 2013 and 5 June 2013.

[105] Expert report of Warwick Bishop dated 4 June 2013 ('the additional report').

[106] Order of the Tribunal dated 5 June 2013.

[107] Mr Bishop had given and concluded his evidence on 11 April 2013.

[108] Mr Prout had given and concluded his evidence on 28 and 29 May 2013.

At a glance

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Judgment (215 paragraphs)

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Legislation Cited (3)

Cases Cited (7)