2 On 24 March 2004 Premier brought a similar action against the same defendants, together with McMullin Nominees Pty Ltd, in the Victorian Civil and Administrative Tribunal.

3 Each action has proceeded through various interlocutory stages and is likely to be ready for hearing in a few months.

4 An application was made to me last Friday that I personally hear the VCAT proceeding. An application was also made to me, in the proceeding in the Supreme Court of Victoria, that I hear that proceeding. The basis of the two applications was that it would be desirable for both proceedings to be heard and determined concurrently; and that I was in the unique position of being able to do this. The application was supported by all the parties to both proceedings, who were represented by experienced counsel.

5 As matters transpired, I decided in the Supreme Court proceeding that, in the interests of judicial comity, I should not deal with the application. That application is now to be considered by Osborn J.

6 I desire to make some comments about the matter in my role as the President of the tribunal.

7 Section 15(1) of the Water Act 1989 provides:

(c) pollutes water, whether or not authorised to do so;

and by that act causes injury to any other person or damage to the property (whether real or personal) of any other person or causes any other person to suffer economic loss is liable to pay damages to that other person in respect of that injury or damage.

Section 3 of that Act defines water to mean "water, whether or not it contains impurities"; and it seems clear from the Act that water includes groundwater. The latter word is defined by section 3 to mean "any water occurring in or obtained from an aquifer and includes any matter dissolved or suspended in any such water". In turn, the word "aquifer" means "a geological structure or formation or an artificial landfill permeated or capable of being permeated permanently or intermittently with water". By reason of these provisions, it will often be a fine question, when land is polluted, whether that is or involves pollution of water.

8 Section 19(1) of the Water Act provides:

(1) 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 from a private dam.

9 Section 19(10) of the Water Act 1989 then provides:

Subject to sub-section (8)[1], a proceeding based on a cause of action of a kind referred to in sub-section (1) must not be brought otherwise than before the tribunal.

10 The effect of these provisions was considered by Gillard J of the Supreme Court of Victoria in Coles Myer Limited v City West Water Limited [1998] VSC 63; (1998) 14 VAR 37. That case was concerned with an action under section 16 of the Water Act. Hence it is not in the same situation as the present action, because in the case of an action under section 16, unlike section 15, a person does not incur any civil liability in respect of any injury, damage or loss caused by water except to the extent provided in the Water Act[2]. However the decision of Gillard J in relation to the exclusive jurisdiction of the Administrative Appeals Tribunal of Victoria would seem to be equally applicable in relation to the Victorian Civil and Administrative Tribunal; and, further, would seem to be applicable to an action pursuant to section 15(1)(c) of the Water Act 1989.

11 It is unnecessary to decide whether the action brought in the Supreme Court is the main action or whether the action brought in VCAT is the main action. What is abundantly clear is that it is highly desirable that the two proceedings be heard and determined in a co-ordinated fashion, not only for efficiency reasons (to the parties and to the jurisdictions), but also in the interests of justice. The reasons for this are amply set out in the outline of submissions filed on behalf of Premier dated 20 May 2004. It is also indicated by the support of all parties to Premier's application.

12 I was informed that the total losses sought to be recovered were in the order of $5 million. I was also informed that the proceedings were complex and would largely turn upon an assessment of expert evidence. Whilst I have no doubt that the Deputy President in charge of the Real Property List (Deputy President Macnamara) would be well equipped to hear and determine the VCAT proceeding, it would clearly be appropriate for a judicial member of VCAT to be assigned to hear the VCAT proceeding.

13 The parties submitted that I was in a unique position to hear the VCAT proceeding and the proceeding in the Supreme Court. It was submitted that, as a Supreme Court judge as well as the President of the tribunal, I could hear and determine both matters. I was referred to provisions of the Constitution Act, the Supreme Court Act and the Victorian Civil and Administrative Tribunal Act in this regard. I was also referred to the Second Reading Speech of the Attorney-General in introducing the VCAT Act in 1988. Having considered these matters, it is abundantly clear that my appointment as President of the tribunal does not, in any way, prevent me from constituting the Supreme Court for the purpose of the exercise by the Supreme Court of any of its functions.

14 Speaking as the President of the tribunal, I endorse the comment of the Attorney-General, when delivering her Second Reading Speech in relation to the VCAT Act, that greater judicial involvement in first instance decision making at VCAT not only should see greater consistency of decision making, enhancing confidence in the civil justice system, but will also enhance the notion of a one stop shop. Thus it would be my intention to exercise whatever powers I have pursuant to the VCAT Act so as to facilitate an efficient, and just, hearing and determination of the dispute at hand. To this end, I will exercise my power pursuant to section 64(3) of the VCAT Act to determine that the tribunal be constituted, for the purpose of the present proceeding in VCAT, in a manner that would facilitate the concurrent hearing and determination of the proceeding in the Supreme Court of Victoria.

15 One option to achieve this, being the option identified by the parties, would be that I assign myself to the VCAT proceeding. If necessary, I would be prepared to do this. This would mean that, if the Supreme Court matter was assigned to me, I would hear both matters concurrently.

16 However, as I indicated to the parties, I believe it is generally undesirable that I hear a lengthy action as it would have the potential to compromise the performance of my day to day tasks as President of the tribunal. Generally it is more appropriate that I assign myself to shorter cases. The present case has been estimated to take three weeks; but it could well take longer.

17 There is another option, which is likely to be preferable. Section 29 of the VCAT Act provides that the Chief Justice of the Supreme Court of Victoria may appoint judges of the Supreme Court to be members of a panel of judges available for acting appointments under that section. As far as I am aware, no such appointments have been made to date. Section 29 then provides:

(3) If the President considers it desirable for an acting judicial member to be appointed temporarily to hear and determine any one or more proceedings, he or she may, with the approval of the Chief Justice ..., appoint a judge who is a member of a panel of judges to be an acting member for the purposes of those proceedings.

Section 29(8) then provides that nothing in the Act prevents a judge of the Supreme Court, appointed as an acting member, from constituting the Supreme Court for the purpose of the exercise by that court of any of its functions.

18 I have requested the Chief Justice to consider appointing judges of the Supreme Court to be members of a panel of judges available for acting appointments under section 29 of the VCAT Act. If a judge or judges are appointed to such a panel, I would consider it desirable for an acting judicial member to be appointed temporarily to hear and determine the present VCAT proceeding. Hence, with the approval of the Chief Justice, I would appoint a judge who is a member of such a panel to be an acting member for the purposes of the present proceeding. It would then be a matter for that acting member to decide how the VCAT proceeding was heard and, more relevantly, whether it was to be heard concurrently with the Supreme Court proceeding.

19 In the light of these comments the appropriate course is to further adjourn the application before me to a date to be fixed.

[1] This sub-section deals with personal injuries.