Roads Corporation v Maclaw No 496 Pty Ltd and Ors [2001] VSC 435

Water Act 1989 - sections 16, 17, 19

2. This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") against a decision of the Victorian Civil and Administrative Tribunal ("the Tribunal"), constituted by Deputy President Macnamara, on 27 October 2000 in its Real Property List.

5. Leave to appeal was granted on 4 December 2000 by Master Wheeler, who ordered that the question of law to be determined on the appeal was:

Does [the Tribunal] have jurisdiction to hear and determine claims brought by the respondents against the appellant in negligence and in nuisance with respect to the planting and maintaining of two plane trees adjacent to the respondents' property, the roots of which penetrated the respondents' property and extracted moisture from the land thereunder?

9. The first respondent ("Maclaw") and the second respondent ("Gita") are respectively the owner and occupier of a building at 16 Hoddle Street Abbotsford ("the building"). The third respondent ("Ilana") is the owner and occupier of the adjoining premises at 20 Hoddle Street. Severe cracking and damage has occurred to the building. Maclaw and Gita issued a writ in this Court on 26 July 2000 claiming damages in negligence and nuisance against Ilana, the appellant ("VicRoads") and the fourthnamed respondent ("the Council"), on the grounds, so far as Ilana and the Council are concerned, that the damage was caused by (in bare summary):

s the failure of Ilana to maintain the gutter and downpipe on its premises causing an unreasonable flow of water from the premises of Ilana which has undermined the foundations of the building; and

s the failure of the Council to maintain two plane trees planted by VicRoads in front of the building, which has allowed those trees to extract water from under the building, thus undermining the foundations.

14. The grounds of the claim against VicRoads need to be set out here at greater length. The claim is that in or about 1979 VicRoads widened the roadway of Hoddle Street in front of the building, and planted the two plane trees on the footpath in close proximity to the building; and that by reason of planting the plane trees and/or of its statutory obligations, it owed a duty of care to Maclaw and Gita:

to ensure that the roots did not become a nuisance to Maclaw and Gita;

to install an effective root barrier between the plane trees and the building to preclude the roots from penetrating and extracting moisture from the land under the building; and

if the plane trees caused a nuisance, to remove them and make good the damage.

VicRoads had failed to carry out those obligations and duties (in summary, had failed to maintain the trees) and in consequence the roots of the plane trees had penetrated under the building and extracted moisture from the land below causing extensive cracking and damage to the building. VicRoads had been requested to abate the nuisance but had failed to do so.

22. Also relevant in the present context is the specific claim that the discharge of water under the building resulting from Ilana's claimed failure to maintain its gutter and downpipe attracted the roots of the plane trees which VicRoads planted and failed to maintain, so that they penetrated under the building and extracted moisture ("the tree root attraction claim").

25. Maclaw claimed $486,812 as the cost of rectification of the building, and Gita claimed damages for lost business and loss and damage resulting from the problems caused by that rectification.

28. Ilana in its defence claimed, in reliance on section 19 of the Water Act 1989 ("the Water Act"), that the action against it could only be brought in the Tribunal. The Supreme Court proceedings were discontinued as against Ilana on 15 March 2000, but are still on foot against VicRoads and the Council. On 25 September 2000 VicRoads filed a notice of contribution against the Council. An application that the contribution proceedings be dismissed was brought by the Council and heard by Hedigan J. On 29 June 2001 His Honour handed down his reasons for finding that that application should be adjourned until after the determination of the appeal presently before me.

31. On 25 September 2000 Maclaw and Gita issued Application no 16/2000 in the Tribunal against Ilana under sections 15 and 16 of the Water Act, the points of claim being essentially similar to the statement of claim in the Supreme Court proceeding. Although that application is on its face described as brought under sections 15 and 16 of the Water Act, section 15 appears to have no reference to this appeal.

34. On 25 October 2000 Maclaw and Gita gave notice to VicRoads and the Council of an application pursuant to section 60 of the VCAT Act to join them as additional respondents to the Tribunal proceeding. No copy of the application is before the Court. However, the solicitor for Maclaw and Gita, Ms Peters, deposes in her affidavit of 23 October 2000 in support of that application that the causes of action, factual issues and witnesses are identical in each action: that is, in both the Supreme Court proceeding and the Tribunal proceeding.

37. Ms Peters also deposes, in relation to the tree root attraction claim, that a report obtained from Kinhill Pty Ltd, engineers, identifies that the damage to the building was caused inter alia by the roots of the trees being attracted to the water escaping from the property of Ilana.

40. The application for joinder was heard and determined by the Tribunal on 27 October 2000. The Tribunal ordered that VicRoads and the Council be joined and that the pleadings filed in the Supreme Court proceeding stand as pleadings in the Tribunal proceeding.

43. This appeal is brought by VicRoads alone against the first of those orders. Although the Council did not appeal, it was represented at the hearing of the appeal pursuant to the order of Master Wheeler of 3 April 2001, submissions being made on its behalf in support of VicRoads. Ilana was represented pursuant to an order of the same date, submissions being made on its behalf in support of Maclaw and Gita.

Accepting then that the convenient course is to consider the entire controversy here, is there power in the Tribunal so to do? I am persuaded in a general sense that to quote the final words of sub-section (1) of Section 60 "that it is in the interests of justice that this joinder be effected". I accept the submission made by Mr Delaney however that Section 60 in itself cannot be a source of jurisdiction. It is only if the jurisdiction is found to be bestowed by the Water Act that the orders of joinder can be made.

Section 19(1) gives the Tribunal power to exercise jurisdiction over all causes of action. In my view, the causes of action asserted here, at least in so far as they relate to the direct flows of water are clearly within the Water Act. Also, in so far as it is suggested that there has been an unreasonable flow of water and the unreasonable flow of water has attracted the tree roots, I believe that that claim in so far as it is made against the present respondent is also within Part 1 of the Water Act. The balance and that includes the claims against the other respondents are so totally entwined and comprehended by that, that I believe that the words of Section 19(1) of the Water Act extend to them. There is after all a complete identity if one accepts the allegation made of damage as between the cases made against the several defendants in the Supreme Court proceeding. The facts are interrelated in so far as it is contended that the operation of the roots is the result, not only of the management of the relevant trees by the proposed joined parties but also as a result of the flow of water for which the present respondent is said to be responsible. Therefore, with the hesitation that I have expressed I am prepared to accede to the application for a joinder and will make those orders accordingly.

51. The relevant provisions of the VCAT Act are sections 43 and 60, which read as follows, so far as relevant:

The original jurisdiction of the Tribunal is invoked -

(a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or

(b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or

(c) in any other way permitted or provided for by the enabling enactment.

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(2) The Tribunal may make an order under sub-section (1) on its own initiative or on the application of any person.

65. The relevant provisions of the Water Act are sections 16, 17 and 19 which read as follows, so far as relevant:

(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.

(1) A person does not incur any civil liability in respect of any injury, damage or loss caused by water to which section 16 . . . of this Act . . . applies except to the extent provided by this Act.

(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.

(8) Nothing in this section prevents a person from bringing before a court a claim for damages for personal injury based on a cause of action of a kind referred to in sub-section (1).

(9) In determining a cause of action arising under section 15(1), 16, 17(1) or 157(1) of this Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence.

(10) Subject to sub-section (8), 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.

87. It is common ground that the effect of sections 16 and 19 of the Water Act is that a claim falling within section 16(1) may be brought only in the Tribunal. Mr Tiernan, for VicRoads, submitted that the claim against VicRoads did not fall within that provision, as it could not be said that VicRoads caused a flow of water on to the land on which the building stood. Accordingly, there was no jurisdiction to bring this proceeding in the Tribunal against VicRoads, and it could not be joined as a party.

90. However, the tree root attraction claim does in effect allege that VicRoads, by planting the trees and failing to maintain them, bore some responsibility for the unreasonable flow of water having the effect of attracting the roots, with consequent damage caused by the roots to the foundations of the building.

93. Like the Tribunal, I am satisfied that it is in the interests of justice, in the context of section 60(1)(c) of the VCAT Act, that an order of joinder be made, so that all of the issues can be litigated, between all of the affected persons, at the one time and in the one venue. It is obvious that this would avoid the problems of duplication of work and increased costs, to say nothing of the very real possibility of inconsistent findings of fact in different venues.

96. And like the Tribunal, I am satisfied that section 60 does not, itself, confer jurisdiction where no jurisdiction exists. The Tribunal is the creature of statute, and its jurisdiction, extensive though it is, is precisely defined in the various enabling enactments (see sections 41 and 42 of the VCAT Act). The issue is whether the Tribunal has jurisdiction to deal with the claim against VicRoads. If that is not the case, the joinder of VicRoads would be futile.

99. It seems to me that at least the tree root attraction claim is justiciable against VicRoads under section 16(1) of the Water Act, and thus falls within the jurisdiction of the Tribunal by virtue of section 19(1) of that Act. There is a difficulty here. If the Tribunal were to find that the roots were not attracted by the flow of water, but that any effect of the roots on the foundations of the building was independent of the flow of water, it might be that the proceeding against VicRoads would need to be litigated in this Court rather than in the Tribunal. However, that is an issue for another day.

102. Mr Thompson, for the Council, submitted, citing no authority, that section 16(1) created jurisdiction only in the case of a flow of water on to land, not off land; and thus that the tree root attraction claim could not be brought under that provision. That may or may not be correct; but it seems to me that this is not the place to decide the question.

105. Counsel for the first to third respondents sought to rely on the decision of Byrne J in Greenhill Homes Pty Ltd v Domestic Building Tribunal [1998] VSC 34. In that case His Honour exercised the power of joinder of "another person" conferred by section 56 of the Domestic Building Contracts and Tribunal Act 1995 ("the DBC & T Act"). In view of the conclusion I have reached it is not necessary for me to consider that decision in detail, and I do not propose to do so. I would say only that the DBC & T Act as it then stood was an unusual and distinctive piece of legislation, designed to ensure that as far as possible all issues relating to domestic building contracts could be litigated in the tribunal established by that Act. The provisions of that Act, and the considerations to be taken into account in its interpretation, are not identical with those relevant to the present issue, and that decision is not necessarily applicable to the question before me. In particular, section 56 of the DBC & T Act is in very different terms to section 60 of the VCAT Act.

108. Having considered the matter, I find the answer to the question posed in the order of the Master to be Yes. The appeal will be dismissed. Counsel may wish to make submissions as to costs.