Pumpa & Ors v Murray Darling Basin Commission & Anor (Real Property) [2008] VCAT 2268

1. The applicants' claims against the first and second respondents are dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Costs reserved.

Mr B. Miller of Counsel, instructed by Morrison and Sawers

Mr M.R. Scott of Counsel, instructed by Blake Dawson

Dr R.J. Sadler of Counsel, instructed by Dawes and Vary Pty Ltd

1. The applicants in this proceeding are owners of farming properties in Winlaton.
2. One of the abiding and intractable problems afflicting Australia's major river system, the Murray Darling, is salinity. The Murray Darling Basin Commission is a body established by an agreement between three States, namely New South Wales, Victoria and South Australia and the Commonwealth of Australia and legislation of the Parliaments of those States and the Commonwealth. The present arrangements reach back to an agreement entered into between the parties as long ago as 1914. The present agreement under which the Commission operates was made between the States and the Commonwealth on 24 June 1992.
3. One of the programs adopted to mitigate salinity in the Murray River entailed damming Barr Creek to the south of the applicants' farm properties. In 1968 a program known as the Barr Creek Drainage Disposal Scheme was implemented. This entailed diverting saline water which would otherwise have flowed down Barr Creek and ultimately into the Murray River and re-directing it for evaporation purposes to a lake system, the largest of which lakes is Lake Tutchewop. The other smaller lakes in the system are Lake William and Lake Kelly and Lake Little. Before the drainage disposal scheme, Lake Tutchewop was a freshwater lake. According to the applicants in the years following the implementation of the drainage diversion scheme there was an increase in the salinity of Lake Tutchewop with an escape of saline water from that lake into groundwater under the applicant's land. This has led to the groundwater level under their land being raised and its salinity increased.
4. According to the applicants the increase in the lake's salinity ceased in the early 1990s. They say this is because the saline water diverted to the lake was migrating out of the lake into the groundwater affecting the fertility of their land. They have sued the Commission and Goulburn-Murray Water Corporation, the State authority charged with the responsibility of implementation of the Murray Darling Basin Agreement on behalf of the State of Victoria for damages arising out of the degradation of their land by salinity.
5. In addition to the complaints which the applicants make based on the drainage diversion scheme they also allege that a channel operated by Goulburn-Murray principally for irrigation purposes and known as the 6/7 Channel has led to the escape of water onto their land, once again leading to a rise in the water table and damage to their properties.
6. The respondents seek relief by way of summary dismissal of these damages claims against them contending that they are frivolous, vexatious, misconceived or otherwise an abuse of process.

1. Mr Scott of Counsel appeared on behalf of the Murray Darling Basin Commission. He opened his submissions on behalf of his client by alleging that the applicants' statement of claim alleged insufficient facts:

To invoke the jurisdictional basis relied upon (Section 157 of the Water Act 1989) and this cannot be corrected by amendment.

1. He said insufficient facts were alleged to invoke any other conceivable jurisdiction of the Tribunal, the claim was statute barred and was embarrassing as pleaded. Mr Scott took me first to the 'Form 9' or face sheet of the applicants' claim. This stated that the claim was being brought under the Water Act 1989. He observed that whilst no particular provisions of the Water Act creating any cause of action were referred to, the matters alleged as far as they went clearly sought to invoke the cause of action established by Section 157 of the Water Act 1989.
2. Mr Scott noted that Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal to grant a summary dismissal of a proceeding that is 'frivolous, vexatious, misconceived or lacking in substance ... or otherwise misuse of process'. He submitted that the claim against his client was misconceived in the sense of being obviously untenable or groundless. He said an order under the section could be made in favour of a respondent who had a clear defence to a proceeding. He referred to Norman v Australian Red Cross Society (1998) 14 VAR 243.
3. According to Mr Scott whilst the applicants' application was not entirely clear on its face it necessarily invoked Section 157 of the Water Act 1989 as the basis for the claim against his client. According to Mr Scott the cause of action created by Section 157 of the Water Act 1989 could be brought only against a body which was an 'Authority' under the Water Act. He observed that whilst the applicants' application alleged that Goulburn-Murray was such an authority, it made no such allegation against his client. For that reason alone a claim based on Section 157 of the Water Act against the Murray Darling Basin Commission must fail, he said. Next he observed that the cause of action under Section 157 was made good only where it appeared that there had been a flow of water from the 'works' of the relevant authority. Mr Scott observed that the applicants' statement of claim did not allege any connection between the Basin Commission and any 'works'. Next said Mr Scott, the statement of claim did not allege any sufficient facts to make good the cause of action in so far as it alleged no flow 'involving' the Basin Commission which was alleged to have caused damage or loss to the applicants. The statement of claim did allege a flow or escape of salt water from Lake Tutchewop since about the early 1990s. The statement of claim alleged no connection between the Commission and the Barr Creek Drainage Disposal Scheme before 2000.
4. Mr Scott noted that the statement of claim made no reference to Section 17(3) of the Murray Darling Basin Act 1993. He said he apprehended however that the claim against his client was at least to some degree intended to be based on that section. The section provides as follows:

(3) Section 157 of the Water Act 1989 applies, with any necessary alterations, to claims for compensation under this Act.

1. The effect of this provision, according to Mr Scott was to create a liability against the 'relevant water authority' for the purposes of the Murray-Darling Basin Act. He submitted that Section 17(3) did not create a separate freestanding liability against some person or body which did not fall within the definition of relevant water authority. That definition which appears in Section 3 of the Murray-Darling Basin Act is as follows:

relevant water authority means the body declared by the Minister by notice published in the Government Gazette to be the relevant water authority for the purposes of this Act;

1. In the present instance it is clear that the relevant water authority is Goulburn-Murray not the Basin Commission. Mr Scott noted that Section 17(1) of the Murray Darling Basin Act empowered the relevant water authority to effect compulsory acquisitions of land in sub-section (2) provided that the Land Acquisition and Compensation Act 1986 applied to the Murray Darling Basin Act for these purposes. The effect of these provisions said Mr Scott was:

To constitute the relevant water authority and "authority" for the purposes of the compensation regimes under the Land Acquisition and Compensation Act 1986 and the Water Act as they apply to authorities. Neither provision of itself creates an independent or new basis of liability. They are facultative machinery provisions.

1. Mr Scott also referred to Section 20 of the Murray Darling Basin Act which provides that for the purposes of carrying out its powers under Section 16, 17, 18 and 19 of the Murray Darling Basin Act:

The relevant authority has and may exercise the powers, authorities and privileges conferred on it by the Water Act.

In other words ss16 to 20 create a regime pursuant to which the relevant water authority can undertake its particular mandate under the Murray-Darling Basin Act as if it were an authority for the purposes of the Water Act. As part of that, the appropriate compensatory regimes included in the Water Act are imported.

1. Next he referred to Section 24(1) of the Murray-Darling Basin Act which provides that the Supreme Court may exercise jurisdiction in relation to the Basin Commission in the same manner and to the same extent as if it were a body representing the Crown in light of the State and as if its commissioners were State officers. Next he noted that Section 31 of the Murray-Darling Basin Act precludes the Supreme Court from hearing

civil proceedings of a kind referred to in S.17 of the Water Act as applied by Section 17 of this Act.

Section 17 of the Water Act refers to claims under ss.16 and 157 of that Act, effectively confining liability of an authority to claims under s.157. In other words, consistent with the approach under s.19(1) Water Act, claims against the relevant authority arising from the flow of water from its works or within the exclusive jurisdiction of VCAT by reason of s.31 of the Murray-Darling Basin Act.

1. He said the claim against his client was therefore obviously untenable or groundless. There was a want of jurisdiction, hence he submitted a summary dismissal should be made. In any event he submitted that the claim was the subject of an effective defence under Section 5(1)(a) of the Limitation of Actions Act 1958 'claims for loss sustained prior to 17 May 2002 are therefore statute barred'. [The present claim was filed in the Tribunal on 6 May 2008.] According to Mr Scott whilst there were imprecise allegations about damage occurring since the 'early 1990s', 'no loss or damage is alleged to have occurred after 17 May 2002'.
2. More generally Mr Scott said that the statement of claim:

Fails to adequately elaborate the causal relationship between any Act of MDBC and claimed loss and damage. The chain of events is largely alleged without reference to particular dates or times, and where general dates are given, they are inconsistent ... as matters stand, the pleading leaves the facts almost entirely at large and should be struck out for that reason.

1. Dr Sadler of Counsel appeared for the second respondent and likewise contended that the claim against his client should be summarily dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Dr Sadler contended as had Mr Scott that the claims mounted in the Statement of Claim should be regarded as made under Section 157 of the Water Act. He analysed the various elements of the cause of action created by this section. He submitted that the applicants' claims did not meet the requirements of Section 157 of the Water Act since sub-section (1) of that section required that there be a flow of water from the relevant authority's work onto any land. Dr Sadler did not deny that his client was an 'authority' for the purposes of the Water Act. He said however that on the facts alleged there was no flow of water onto land for the purposes of Section 157 and further that the injury or damage alleged was not caused by the water or the flow but by the chemical properties of the water namely its increased salinity. He also submitted that the claims made by the applicants were largely or completely barred by the Limitation of Actions Act.
3. Dr Sadler contended that for there to be a flow of water 'onto' land there must be at least some element of surface flow and a migration of water through the ground was insufficient to make out this element of the cause of action. He referred to one of my decisions in Murray Goulburn Co-operative Limited v Leongatha Water Board (1996) 11 VAR 205, 210. He noted a contrary decision of Senior Member Cremean in Lakobend Pty Ltd v City of Boroondara [2004] VCAT 1709 and observed in a more recent decision, namely Transpacific Cleanaway Limited v South East Water Limited [2008] VCAT 1798 I had adhered to the views which I stressed in the Murray Goulburn case. According to Dr Sadler the preposition 'onto' was appropriate to refer to a flow of water onto the surface of land rather than through it. He also noted that the Water Act defined work so as to include things 'on, above or under land' showing an intention to distinguish between the surface of land. He also referred to Section 199 of the Local Government Act 1989 which provides as follows:
   1. Concentration or diversion of drainage

(1) Before a Council executes in or upon any road any work which will concentrate or divert the drainage flowing on the road and discharge it or permit it to flow on, into or through any land, the Council must comply with this section.

(2) The Council must give notice of the proposed work to the owner and occupier of any land likely to be affected by the concentration or diversion of the drainage.

(3) A person has a right to make a submission under section 223 on any proposed work to concentrate or divert drainage.

1. Dr Sadler noted a distinction drawn by Parliament in sub-section (1) between flows of water on, into or through land.
2. Dr Sadler referred again to my decision in Murray-Goulburn. In that case the applicant co-operative sought damages against the water board because the water board had supplied water contaminated with blue green algae through the board's reticulation system. I summarily dismissed this claim for a number of reasons. First, because in the circumstances and in the absence of any surface flow I concluded that there was no flow of water 'onto' any land and secondly because I believed that read as a whole Section 157 of the Water Act was concerned with damage caused by flows of water rather than the chemical composition of the water. Dr Sadler also referred to a decision of Gillard J in Coles Myer Limited v City West Water (1998) 14 VAR 27. He also referred to the heading to Section 157 of the Water Act 'Liability of Authorities Arising Out of Flow of Water' which placed emphasis upon the causative elements of the flow of water rather than the water per se. Dr Sadler conceded that since Section 157 and the heading were enacted prior to 1 January 2001 they are not to be regarded as part of the statute itself. He referred to Section 36(2A) of the Interpretation of Legislation Act 1984. Nevertheless he submitted that the heading could be considered as an aid to interpretation. He referred to Sections 35(b) and 36(4) of the Interpretation of Legislation Act.
3. Next Dr Sadler observed that there was a special statutory cause of action for pollution of water established by Section 15 of the Water Act. Sub-section (2) of that section however, specifically excluded liability for the

Discharge of saline matter in accordance with by-laws made under Section 161(b) of this Act or regulations made under Section 50(d) of the Water Industry Act and all other necessary authorisations.

1. Dr Sadler submitted that the applicants resorted to Section 157 only because the more obvious claim under Section 15 was blocked by this provision. Dr Sadler said the existence of the separate cause of action for the pollution of water supported his contention that Section 157 did not create any liability for the consequences of the chemical composition of water as distinct from the flow of water.
2. Next he turned to the separate claim made against his client with respect to what is described as the 6/7 channel. According to Dr Sadler the applicants' further and better particulars on one view allege that there was both a subterranean flow and a surface flow from the 6/7 channel. He submitted however that upon the proper construction of the applicants' claim 'the flow which caused the harm ... is a wholly subterranean flow'.
3. Dr Sadler conceded on the Limitation of Actions Act point that continuing unreasonable flows of water would be characterised at common law as a continuing use with each new flow of water giving rise to a new cause of action. He referred to Body Corporate 18236 v Body Corporate 25805 [2003] VCAT 1342; Hough v Shire of Mitchell (1996) 10 VAR 47, 60-3. The applicants' statement of claim and the further and better particulars which have been provided nevertheless did not give sufficient information to enable one to determine which elements of damage arose within the six year limitation period and which did not. According to Dr Sadler:

The second respondent reserves its right to argue that part or all of the claim/s is statute barred.

1. He also submitted that with respect to events prior to 1 July 2004 his client would rely on Section 166 of the Water Act now repealed which protected an authority from liability:

For any action taken in connection with the treatment of water (including disinfection or fluoridation) in accordance with this or any other Act.

1. He submitted that the scheme in question here was implemented to prevent or reduce salt or saline water entering the Murray River and hence the process could be regarded as action taken in connection with the treatment of water. If the application was unsuccessful said Dr Sadler, his client wished to obtain orders for further and better and proper particulars in accordance with a number of paragraphs of its requests.

1. Mr B. Miller of Counsel appeared for the applicants to oppose any summary dismissal or strike out of his clients' claim. He conceded in light of the attack which had been mounted on the existing statement of claim that it required re-pleading. The re-pleading would be necessary to allege certain facts with greater particularity specifically to identify when certain events took place, in particular relative to the involvement of the Basin Commission.
2. Mr Miller said that his clients relied not only on Section 157 of the Water Act but also upon Section 16. He submitted:

This claim does not concern the conduct of an authority in the exercise or a function under Part 8, Divisions 2, 3 or 5 of Part 10 or Part 11 of the Water Act. Consequently Section 17(2) does not prevent a claim being made for this flow of water under Section 16.

1. These contentions were put with respect to the claim relative to the Barr Creek Diversion Scheme. Insofar as the claim was made relative to the 6/7 channel Section 157 of the Water Act was solely relied upon.
2. Mr Miller noted it would be necessary to amend the title to the proceeding so as to show the second respondent as 'Goulburn-Murray Rural Water Corporation'.
3. Mr Miller examined the elements of the cause of action created by Section 157 of the Water Act noting that the section creates a reverse onus of proof requiring an authority to establish that a flow was neither negligent nor intentional to escape liability if the flow is from its works and does damage to another person's property. Mr Miller said and I do not understand this to be disputed by any other party that Goulburn-Murray is an Authority for the purposes of the Water Act. According to Mr Miller, Goulburn-Murray was also an 'Authority' for the purposes of the Murray Darling Basin Act. He referred to Section 20 of the Murray-Darling Basin Act which states:

For the purpose of carrying out its powers under Section 16, 17, 18 and 19 the relevant water authority has and may exercise the powers, authorities and privileges conferred on it by the Water Act 1989.

Consequently [Goulburn-Murray] is the relevant water authority operating and maintaining the BCDDS is entitled to exercise the powers, authorities and privileges conferred on it by Section 157 of the Water Act and should be considered an authority for the purposes of this section.

1. He submitted that the 'works' from which the flow of water in question here comprised:

The damming of the Barr Creek and the pumping of the creek waters into channels that take it to Tutchewop Lakes ...

1. The applicants contended according to Mr Miller that when this water flows into Lake Tutchewop it flows 'onto land'. He observed and I did not understand this to be disputed that Lake Tutchewop was frequently dry, hence the water pumped from Barr Creek into Lake Tutchewop sometimes or perhaps frequently falls upon dry ground rather that into existing water. He also relied upon Section 16 of the Water Act 1989 stating:

The works were initially constructed by the State Rivers and Water Supply Commission, they are now the responsibility of the Second Respondent, GMW which occupies the dammed areas of the Barr Creek from where the waters are taken. Thus GMW is liable to pay damages for loss in respect of any damage or loss incurred by the applicants as GMW being the current occupier of the land from which the waters flow has failed to take any steps reasonably available to prevent the causing of the flow.

1. He referred to Section 16(5) of the Water Act. Accordingly, Mr Miller submitted that Goulburn-Murray was liable under Section 16 of the Water Act for causing the relevant flow 'As it is responsible for the operation and control of the BCDDS'.
2. According to Mr Miller the Barr Creek Drainage Diversion Scheme constitutes 'joint works' in accordance with the Murray Darling Basin Agreement of 24 June 1992, hence he said, both the Basin Commission and Goulburn-Murray were responsible for those works. He referred to correspondence and statements which variously stated that the Basin Commission 'took over' the Diversion Scheme in 1998 or the year 2000 at which time viz. in March 2000 according to Mr Miller a new weir was constructed and salt harvesting was used as the preferred option for the long-time sustainability of the Tutchewop Lakes. Mr Miller said:

The new weir and new operating rules resulted in significantly increased quantities of water being diverted into the Tutchewop Lakes.

1. According to Mr Miller the recent works were authorised by the Basin Commission under Clause 50 of the Murray Darling Basin Agreement.
2. According to Mr Miller, Section 17(3) of the Murray Darling Basin Act incorporates Section 157 of the Water Act 'with any necessary alterations' for claims for compensation under the Murray Darling Basin Act. He said significantly the reference in this sub-section in contrast to references earlier in Section 17 and in Sections 18 and 19 do not restrict this sub-section to the 'relevant water authority' which in the present case is Goulburn-Murray. This showed he submitted, that Parliament did not intend to exclude the possibility of a claim under Section 157 of the Water Act against the Commission. He submitted the effect of Section 31 of the Basin Commission Act was to located jurisdiction for such a claim in this Tribunal rather than in the Supreme Court. The reference in Section 31 of the Basin Commission Act to Section 17 of the Water Act meant he submitted, that claims could be brought not only under section 157 of the Water Act against the Commission but also under Section 16.
3. He submitted that his clients' claim against the Commission could be brought not only under Section 157 of the Water Act but also under Section 16. He submitted that under Section 16(5) a current occupier of land could be liable in damages for a state of affairs brought about by that occupier's predecessor:

If the current occupier has failed to take any steps reasonably available to prevent the causing of the flow.

One of two joint occupiers [of the relevant works and] has since becoming a joint occupier, not taken any step to prevent the flow onto Lake Tutchewop but has in fact made the situation worse as a result of authorising the construction of a new weir and implementing the new operating rules that have led to an increased quantity of water flowing onto Lake Tutchewop and then into the applicants' lands.

1. He submitted therefore that the Commission was liable in damages under Section 16 of the Water Act.
2. Finally, he submitted that a summary dismissal of his clients' claims should be made only in the clearest of cases with the onus resting upon the person seeking the summary dismissal. He referred to Winterton Constructions Pty Ltd v Hambros Australia Ltd [1991] FCA 171; (1991) 101 ALR 363; Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169, 171 per Dawson J and Collins v The Supreme Court Library Committee [1953] VicLawRp 26; [1953] VLR 161 per Gavan Duffy J. Generally he submitted a litigant is entitled to have a full trial of his claim. He referred to Cox v Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713, 720 per Dixon J and Ngo v State of New South Wales [1996] HCA 17; (1996) 137 ALR 40, 42 per Kirby J; Norman v Australian Red Cross Society (1998) 14 VAR 243 and Dey v Victorian Railway Commissioners (1949) 78 CLR 62.

1. Sections 16 and 157 of the Water Act 1989 are central to the disposition of the present application, hence I will set them out in full:
   1. Liability arising out of flow of water etc.

(a) there is a flow of water from the land of a person onto any other land; and

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

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

(a) a person interferes with a reasonable flow of water onto any land or by negligent conduct interferes with a flow of water onto any land which is not reasonable; and

(b) as a result of that interference water causes -

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

the person who interfered with the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

(3) If the person who caused, or interfered with, the flow (as the case requires) -

(a) is the servant of another person and acted in the course of the servant's employment; or

(b) is the agent of another person and acted within the scope of the agent's authority -

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

(4) The existence of a liability under subsection (3) does not extinguish the liability of the servant or agent under subsection (1) or (2), as the case requires.

(5) If the causing of, or the interference with, the flow (as the case requires) was given rise to by works constructed or any other act done or omitted to be done on any land at a time before the current occupier became the occupier of the land, the current occupier is liable to pay damages in respect of the injury, damage or loss if the current occupier has failed to take any steps reasonably available to prevent the causing of, or the interference with, the flow (as the case requires) being so given rise to.

(6) The existence of a liability under subsection (5) extinguishes the liability under subsection (1) of the person who caused the flow or the liability under subsection (2) of the person who interfered with the flow (as the case requires).

1. Liability of Authorities arising out of flow of water

(a) as a result of intentional or negligent conduct on the part of an Authority in the exercise of a function under Part 8, 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

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

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 -

(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;

(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.

1. Counsel for both respondents correctly observed that Mr Miller's submissions included a number of contentions which were not to be found in the statement of claim already filed. This was conceded by Mr Miller. He said that in any event his clients would wish to reformulate their claim asserting additional facts, making clearer references to Section 157 of the Water Act and introducing the claim or claims under Section 16 of that Act. Mr Scott in particular objected to 'quotation in Mr Miller's submissions of certain documents which had not been properly proven'. I did not finally rule on those objections. I note however that in any application for summary dismissal it is incumbent upon the applicant for summary dismissal to show (as based upon the authorities referred to in this regard by Mr Miller and many others) that there is no basis in fact or law for the claim sought to be summarily dismissed. No doubt the types of objection made by Mr Scott would be well made at trial. In the present case however, the burden of persuasion and proof lies not upon the applicants but upon the respondents as claimants for summary dismissal. If for instance the degree to which the Murray Darling Basin Commission took control of the relevant diversion scheme or 'occupied' its works whether jointly or otherwise remains uncertain, then on this point of uncertainty no summary dismissal should be made. On that particular point it would only be proper to base a summary dismissal if the facts were clearly and incontrovertibly proven by the respondents or one or both of them. Once Mr Miller conceded a need to re-plead his clients' claim the respondents in seeking summary dismissal were left with the rather more difficult task of shooting down a moving target rather than a 'sitting duck'. What these respondents are seeking is not merely the strike out of a pleading but the dismissal of the underlying cause of action, hence the necessity for their success to achieve clear proof of any facts upon which they rely for the summary dismissal and to establish clear and incontrovertible legal rules to the extent that questions of law are relied upon to justify the summary dismissal.
2. I turn first to the claim postulated against the Basin Commission under Section 157 of the Water Act. I should note at the outset that I heard no submissions as to the precise nature of the Commission or whether it should be regarded as a creature of Federal Law or State Law or both. In particular I heard no arguments based upon Chapter III of the Commonwealth Constitution or any submissions as to whether a claim of the type postulated here should be regarded as within Federal jurisdiction. If the latter were the case it would be necessary to consider whether this Tribunal could be regarded as a Court of a State capable of exercising federal jurisdiction under Chapter III of the Commonwealth Constitution. As it is I heard no submissions on this point and so I will say nothing further on the subject.
3. The scheme of the Water Act which codifies liability for the consequences of flows of water in Victoria superseding the old Common Law of Nuisance is generally to render a person who causes an unreasonable flow of water that inflicts damage liable for that damage (Section 16). 'Authorities' under the Water Act and licensees under the Water Industry Act are put in a somewhat different situation. With respect to flows of water from their works, the authorities and licensees are liable only if the flows are unreasonable and only if the flows are the result of intentional or negligent conduct by the authority or the licensee (Section 157 Water Act 1989, Section 74 Water Industry Act 1994). On the question of negligence there is a reverse onus so it is incumbent upon the authority or the licensee to disprove negligence rather than upon the claimant to prove it. An ordinary citizen is subject to strict liability for the consequences of any unreasonable flow of water which he causes but no such strict liability attaches to an authority or licensee. It is in that context that the provision in Section 157 of the Water Act which attaches liability under that section only to an 'authority' must be seen. Parliament has established a deliberately different regime of liability for unreasonable water flows for authorities hence the requirement that the respondent to a Section 157 claim must be an 'authority' within the meaning of the Water Act is an essential part of the cause of action.
4. The reference in Section 17(3) of the Murray Darling Basin Commission Act to Section 157 is problematic. It provides for claims for 'compensation' to be brought under Section 157. Section 157 as its own terms indicate provides for damages claims not for compensation claims. Further, the compensation claims which according to Section 17(3) may be brought under Section 157 of the Water Act are compensation claims 'under this Act', that is, under the Murray Darling Basin Act 1993. It is not evident however what provision of that Act creates an entitlement to bring a claim for compensation. For that matter, if there were such a section, one might ask why should the compensation claim not be brought under that section? what need would there be to have resort to Section 157 of the Water Act?
5. Whether there are any satisfactory answers to these difficult questions I need not ponder today. In my view, it is essential for an effective claim under Section 157 that the respondent to it be an authority under the Water Act. In my view, the fact, if it be the fact, that the Basin Commission have been co-operating, approving or co-occupying works with Goulburn-Murray which clearly is an 'authority' under the Water Act cannot transform the Commission itself into an authority under the Water Act hence, whilst the combination of Section 17(3) of the Basin Commission Act and Section 157 of the Water Act might, other things being equal, authorise a claim to be brought against Goulburn-Murray, these provisions cannot authorise a claim to be brought against the Commission under Section 157.
6. To the extent that the applicants' claims against the Commission are based on Section 157 of the Water Act they must be dismissed.
7. Next, I turn to the claim against the Commission in so far as it might be formulated under Section 16 of the Water Act. Aside from any other consideration Mr Scott on behalf of the Commission submitted his client was protected by Section 17(2) of the Water Act which provides as follows:

(2) Sections 15 and 16 do not create any liability in respect of a flow of water from the works (including any dam) of an Authority in the exercise of a function under Part 8, Division 2, 3 or 5 of Part 10 or Part 11 or any corresponding previous enactment or of a licensee in the exercise of a function under its licence.

1. Mr Scott's contention was that this provision did not merely protect an 'authority' from liability under Section 16 remitting its liability if any, to the rather different regime under Section 157 of the Water Act. The sub-section he said went further such that if there were a flow of water from the works of an authority no other person could be liable. A somewhat similar issue arose in Barlow v South East Water Limited [2001] VCAT 659; (2001) 17 VAR 382 a proceeding in which coincidentally Mr Scott also held a brief, on that occasion for South East Water Limited, a licensee under the Water Industry Act. In Barlow's case I held that Section 17(2) did not provide a protection to sub-contractors to the licensee. The words 'in respect of' have been held to be very wide words indeed. On the very limited argument which I have heard in the present case I would not be prepared to regard it as so clearly established as to justify a summary dismissal that Section 17(2) of the Water Act operates to protect persons other than licensees or authorities from liability under Section 16 of the Water Act.
2. But are there any other reasons why a claim under Section 16 against the Commission would be deemed to fail? Dr Sadler who appeared for Goulburn-Murray, it will be recalled, submitted that there could be no claim for damages against his client either under Section 16 of the Water Act or under Section 157 because both provisions require that there be a flow of water 'onto' any land. He referred to two of my decisions in which I held that the requirement of a flow of water 'onto' land necessitated that there be at least to some degree, a surface flow of water and not a merely subterranean one. Mr Scott did not postulate the same submission himself but informed me he was content to support it if it found favour. For his part this proposition was denied by Mr Miller who relied upon a decision of Senior Member Cremean in Lakobend Pty Ltd v City of Boroondara [2004] VCAT 1708. He submitted in any event that there was clearly a flow of water 'onto' Lake Tutchewop. He submitted that for most if not all the time, Lake Tutchewop was dry.
3. I recently considered the issue of whether the stipulation in Sections 16 and 157 of the Water Act that there be a flow of water 'onto' any land required a surface flow. In Transpacific Cleanaway Limited v South East Water Limited [2008] VCAT 1798 I reaffirmed the view which I have taken in Murray Goulburn Co-operative Limited v Leongatha Water Board (1996) 11 VAR 205, 210 at [40] in the Transpacific case I said:

In my view the use of the preposition 'onto' with its connotation of movement to a surface clearly recognises the usage in common speech of the top of the soil in a particular location as being the surface of the land. The word 'onto' therefore created a distinction between something moving on that surface and something moving through the soil. I am unpersuaded that the common law entitlement of a land owner to ownership of the land from the top of the sky to the middle of the earth is of significance in this context. No doubt any uncertainty caused by the inconsistent decisions of the Tribunal can be resolved by some statutory clarification or by a decision of the Supreme Court. Meanwhile, I adhere to the views that I expressed in Murray Goulburn.

1. . For those reasons I remain of the same opinion in the present case, hence for the applicants to succeed they must demonstrate at least to some degree a surface flow.
2. I have heard no evidence and therefore it would be wrong to be too downright on the subject of the types of flows which are alleged. I accept for the purposes of the present application that the operation of the diversion scheme entails at some times and perhaps most times, a flow of water onto the bed of Lake Tutchewop. Hence in that respect there clearly is a flow of water 'onto' land, however it was Dr Sadler's contention on behalf of Goulburn-Murray that this was insufficient to make good the cause of action under Section 157 of the Water Act or if it mattered, Section 16 unless this could be regarded as the same flow which did the damage over which the present proceeding has been brought. The requirements of liability under Section 157 are first, that there be a flow of water from the works of an authority 'onto any land' and secondly that the water causes injury or damage. This second limb of the cause of action to be found in paragraph (b) of Section 157(1) might on one view more happily have been framed as a stipulation that the 'flow of water' causes damage. Nevertheless, the use of the definite article 'the' in paragraph (b) makes clear that the water referred to in that paragraph was the same water as the water constituting the flow referred to in paragraph (a). I accept Dr Sadler's submission therefore that for a successful claim to be brought under Section 157 of the Water Act the damage in question must be caused by the same flow of water that flowed 'onto any land'. When one looks at the structure of Section 16(1) of the Water Act the same analysis leads to the same conclusion, namely that the flow of water 'onto' any land must be the water or the relevant damage, hence if the movement of saline groundwater from Lake Tutchewop into the applicant's farmlands can be regarded as the same flow as the flow of saline water into Lake Tutchewop then the objection to the validity of the claim on this score is answered. As I have previously noted, a summary dismissal should be effected only if the point of fact or law relied upon by the applicant for summary dismissal is clear and incontrovertible. If there is doubt or obscurity on the point no summary dismissal should be made.
3. Over the years I have heard studies which demonstrate the rate at which tidal flows into bodies of water such as Port Phillip Bay and its constituent bays and coves takes into the bay and then out again with a relatively rapid movement in and out in areas close to the heads such as Swann Bay, the periods of months involved in the movement of waters which reach the northern parts of Port Phillip Bay. In the present proceeding there is simply no evidence of this type, whether the process of ingress of saline water into Lake Tutchewop and its progress through the groundwater is so rapid that it would be reasonable in substance to regard it as one in the same flow or so slow and discontinuous that no single flow could be regarded as taking place between the initial inflow into Lake Tutchewop and the eventual arrival of saline groundwater in the vicinity of the applicant's property remains unknown. In those circumstances I believe I should proceed upon the footing that it remains a logical possibility that there could be proof of sufficient continuity so as to find that there is but a single flow and the requirements of Sections 16 and 157 are met on that score.
4. I would not effect a summary dismissal based upon a view that there has been no flow of water 'onto' any land which has caused damage.
5. In Murray-Goulburn Co-operative Co Limited v Leongatha Water Board (1996) 11 VAR 205 a claim was brought against the Board as an authority under Section 157 of the Water Act. The contention was that the water supplied to the Co-operative's factory was infected with blue-green algae as a result of which the Co-operative suffered loss and damage relative to its manufacturing processes with a total claim of $3,742,861. The contaminated water entered the Co-operative's factory through the Board's reticulation system. In those circumstances I held that there had been no flow of water 'onto' any land and the claim failed for that reason. I have already expressed my views in the present proceeding and for the present state of evidence as to whether in the circumstances it could be clearly demonstrated that there was no flow of water 'onto' any land causing the damage alleged in this proceeding. I postulated a further reason why the Co-operative's claim against the Leongatha Water Board should be summarily dismissed, namely that Section 157 of the Water Act was concerned with damage caused by flows of water not by the chemical composition of water. I said:

The damage alleged by the Co-operative was caused by the chemical composition of the water, not by its flow. Despite the fact that S.157(1)(b) speaks merely of loss caused by the 'water' read as a whole it is clear that the sub-section is speaking of damage caused by the flow of water not merely by the water itself. Of course the chemical composition of water may be relevant to the damage done by a flow of water. A flow of toxic water would not doubt be more damaging than a flow of fresh water. As long as the flow was to some extent causative of damage. The claim allegedly arising under Section 157 was ill-founded first because it was not [a flow of water] onto the claimant's land and secondly because the damage alleged did not result from the flow but rather from the composition of the water.

(1996) 11 VAR 205, 211

1. It seems to me now as it seemed to me then clear that the Water Act causes of action whether they arise under Sections 11 or 157 are concerned with the effect of flows of water not with the effect of the chemical composition of water. Dr Sadler correctly observes that this point is made the clearer by the existence of a separate cause of action under Section 15 of the Water Act for polluting water. According to Dr Sadler Section 15(2) specifically excludes liability upon an authority for saline water if it is discharged in accordance with by-laws made under Section 161(d) of the Water Act. In the present case we have no idea what those by-laws are nor whether the saline discharges were made in accordance with them. For present purposes however it is sufficient to note that no claim is made under Section 15 of the Water Act. In my view the claim against the Commission based on Section 16 is doomed to fail for that reason.
2. It follows that both foreshadowed claims against the Commission are doomed to fail for the reasons given. It is demonstrated with the necessary clarity that those claims must fail hence the commission is entitled to a summary dismissal of the claims against it pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
3. I turn to the claims made against Goulburn-Murray. The same reasoning with respect to the relevance of the chemical composition of the water rather than its flow would appear to defeat a claim against Goulburn-Murray whether that claim be mounted under Section 16 or Section 157 of the Water Act. For present purposes it is unnecessary for me to express any view as to whether in the circumstances what Goulburn-Murray has done or is doing constitutes the exercise of a function under Part 8, Division 2, 3 or 4 of Part 10 or Part 11 of the Water Act (see Section 17(2)). The reasoning as to relevance of the chemical composition of the water as distinct from the consequences of its flow apply equally in my view to Sections 16 and 157 of the Water Act. It follows therefore that the second respondent is likewise entitled to an order under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 dismissing the claims against it.
4. The same reasoning necessitates the dismissal of the applicants' claim against Goulburn-Murray relative to the 6/7 channel.

1. I have heard no submissions on the question of costs and hence I will reserve them.