Chapman & Ors v State of Queensland [1998] QSC 281

U lj IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 9486 of 1998 Before the Hon. Mr Justice Mackenzie [Chapman & Ors v State of Queensland] BETWEEN: AND: BETWEEN: AND: BETWEEN: AND: BETWEEN AND: JOHN FREDERICK CHAPMAN, GLADYS FAY CHAPMAN, SANDRA HELEN CHAPMAN, DAVID JOHN CHAPMAN. BRUCE DOUGLAS CHAPMAN AND RODNEY MARK CHAPMAN Plaintiffs STATE OF QUEENSLAND Defendant No. 9487 of 1998 EILEEN MARY HEATH and ·ANDREA LOGAN OLSON Plaintiffs STATE OF QUEENSLAND Defendant No. 9488 of 1998 BARRY ALLEN GALLOWAY Plaintiff STATE OF QUEENSLAND Defendant No. 9489 of 1998 AINSLEY MARTHA GALLOWAY Plaintiff STATE OF QUEENSLAND Defendant No. 9490 of 1998 SCOTT ELWORTHY McGHIE, JILL LOGAN McGHIE and MARGOT BRENDA McGHIE Plaintiff STATE OF QUEENSLAND Defendant -- 1 of 7 -- ( ) i 1 . ) "-~ JUDGMENT - MACKENZIE J. Judgment delivered 17 December 1998 CATCHWORDS: Counsel: Solicitors: Hearing Date: PRACTICE - Jurisdiction of the Supreme Court generally - whether certain provisions of the Water Resources Act preclude the action being heard in the Supreme Court - objection to the damages orders sought - mediation order. Water Resources Act s.248 Crown Proceedings Act 1980, s.8 Masterwood Pty Ltd v Far North Queensland Electricity Board 1997 Aust Torts Rep 81-443 Mr K Downes for the plaintiffs Mr G Gibson Q.C. for the defendant Deacons Graham & James for the plaintiffs Crown Solicitor for the defendant 2 December 1998 -- 2 of 7 -- Cj IN THE SUPREl\1E COURT OF QUEENSLAND Brisbane Before the Hon. Mr Justice Mackenzie [Chapman & Ors v State of Queensland] BETWEEN: No. 9486 of 1998 JOHN FREDERICK CHAPMAN, GLADYS FAY CHAPMAN, SANDRA HELEN CHAPMAN, DAVID JOHN CHAPMAN, BRUCE DOUGLAS CHAPMAN AND RODNEY MARK CHAPMAN Plaintiffs AND: STATE OF QUEENSLAND Defendant No. 9487 of 1998 j/ '~BETWEEN: 0 AND: BETWEEN: .'" ", i~J AND: I i ) G BETWEEN: AND: BETWEEN AND: EILEEN MARY HEATH and ANDREA LOGAN OLSON Plaintiffs STATE OF QUEENSLAND Defendant No. 9488 of 1998 BARRY ALLEN GALLOWAY Plaintiff STATE OF QUEENSLAND Defendant No. 9489 of 1998 AINSLEY MARTHA GALLOWAY Plaintiff STATE OF QUEENSLAND Defendant No. 9490 of 1998 SCOTT ELWORTHY McGHIE, JILL LOGAN McGHIE and MARGOT BRENDA McGHIE Plaintiff STATE OF QUEENSLAND Defendant -- 3 of 7 -- 2 JUDGMENT - MACKENZIE J. Judgment delivered 17 December 1998 This is an application for all actions to be heard together and for mediation and for directions concerning the mediation. There is no dispute that both steps are appropriate if action of the kind commenced can be brought in the Supreme Court. It is in respect of the last qualification that the issue for determination arises. There is no application before me to strike out the action. The resistance to the orders sought was based on the matters to which reference will be made. oEach plaintiff is a landholder whose property is allegedly affected by water banked up by the Bedford Weir on the Mackenzie River. It is alleged that the inundation is caused by an increase of 0 about 4 metres in the height of the weir for which approval was given by the Governor-in-Council, pursuant to the Water Resources' Act on 25 January 1996 and the work done in 1996 and 1997. It is alleged that the use of some land has been lost and some partially lost as a result of increased flooding of pastures and because ofthe need to fence off river frontage land to prevent stock losses due to the conditions created. It is also alleged that the land has not been res~med notwithstanding 0 that an Impact Assessment Statement prepared before the height of the weir was raised said that resumptions may be necessary. The Director-General, Department of Natural Resources, deposes that it is now proposed that certain resumptions will proceed as soon as practicable. At the time the matter was argued, there were no pleadings. A statement of claim has now been delivered and was annexed to additional written submissions requested at the end of the hearing. No objection was raised to my having regard to it. The writs claimed damag·es including punitive and exemplary damages for nuisance and trespass. There was no allegation of negligence in the writs. The statement of claim alleges loss and damage as a result of negligence nuisance and/or trespass. The question I am required to decide arises from certain provisions of the Water Resources Act which, the respondent says, preclude action in the Supreme Court and leave the applicants to any remedy they o -- 4 of 7 -- 3 may have under the Water Resources Act for compensation. Compensation in certain circumstances is provided for in s.238 ofthe Act. The respondent's argument focuses on s.248 of the Act. Section 248(1) provides that any "act, matter, thing, recommendation or decision done or made by or any agreement, arrangement or contract entered into by" a number of named persons for the purpose of carrying out or giving effect to the Act, or done in good faith and purporting to be for the purposes ofthe Act must not subject {' ", them or the Crown to any action, liability, claim or demand. The respondent did not rely on this ( ) provision. While Mr Gibson did not attempt expressly to define its scope it was implicit in his submissions that typically it was concerned with anterior events of a different kind from those 'J allegedly causing the damage in this action. Section 248(2) provides that ifthere is no provision for compensation elsewhere in the Act, "any action, liability, claim or demand does not lie against or attach to the Crown" or anyone else for or in respect of, amongst other things, any injury, loss or damage occasioned or alleged to be occasioned or in any way arising out of or in connection with the exercise of the powers and C) authorities or the performance of the functions and duties conferred or imposed by or under the Act. Section 248(3) provides that notwithstanding the Act, "any action, liability, claim or demand ~/- does not lie against or attach to" a variety of persons connected with the corporation for or in respect of: (i) escape of waters from works where the escape is not attributable to negligence or default; and (ii) withdrawal into works and works associated therewith of surface or sub-soil water or for distortion of land adjacent to or in the vicinity of the works and . works associated therewith, constructed and maintained without negligence and proceeded with without undue delay. -- 5 of 7 -- 4 The respondent relied on s.248(2) as a basis for submitting that the plaintiffs were restricted to any right of compensation open to them under the Act, and were not permitted to pursue the action for damages. It is noted that while ss.248(1) and (2) refer to the Crown, s.248(3) does not. I also note that the actions have been brought against the State of Queensland not against the statutory corporation, the Primary Industries Corporation, which appears to be the constructing authority. There may be an issue whether the proper defendant has been named (s.8, Crown Proceedings Act 1980). In generiiterms some effect on the lands adjacent to the river was foreseen as a result of increasing the weir's height. In general terms, if inundation and injury, loss or damage occurred in a way foreseen in the planning, there is a substantial issue whether the consequences fall within s.248(2). Where such consequences occur, issues such as the relationship between the various provisions of the Act including s.248 and the powers given to the corporation to do the works, and the power to deal with lands in doing so, viewed in the context of facts found, appear to be important in deciding whether it can be said that any injury, loss or damage has been occasioned by or has arisen out of or in connection with the exercise of the powers and authorities of the corporation or the performance of its functions and duties conferred or imposed under the Act. While it is not necessary to resolve the status of Masterwood Pty Ltd v Far North Queensland Electricity Board (1997) Aust Torts Rep 81-443, Mr Gibson's analysis of it shows that it is difficult to regard it as determinative of this case. If the inundation occurred in a way or to an extent which was not within what was designed the question whether s.248(3)(a)(i) is applicable may be an important issue. It is not of much utility to'speculate about what may ultimately prove to be the case. However, it can be concluded that it is premature to reach a final conclusion as to the existence of a right of action in the Supreme Court in the absence of a clear understanding of the detailed facts which govern the outcome. I am satisfied () o ·0 (J -- 6 of 7 -- 5 that in principle if the action is to proceed in this Court as an action for negligence, trespass and nuisance rather than a claim for compensation which may ultimately be determined in the Land Court, it is appropriate for all matters to be heard together since the issues with regard to each case appear to be intimately related. Given the risk that if the action does proceed in this Court, but it is ultimately found that it should not have been brought in this Court, it is particularly important that the parties explore all avenues for reaching a solution through mediation to avoid the considerable waste of money which ! will result from futile proceedings. The orders are the following, in each matter: 1. That this action be heard together with each of the other actions referred to in the reasons for judgment. 2. That costs of the application be costs in the cause. 3. That orders concerning mediation be made in terms of paragraphs 2 to 9 of the summons. -- 7 of 7 --