Dwyer v Director-General, Department of Natural Resources [1997] QLC 155 (1997-1998) 18 QLCR 140

LAND COURT BRISBANE 29 September 1997 Re: Claim for Compensation pursuant to Section 240 of the Water Resources Act 1989. (A97-22). DJ and EC Dwyer v. Director-General, Department of Natural Resources DECISION ON JURISDICTION The claimants (DJ and EC Dwyer) made a claim for compensation pursuant to Section 239 of the Water Resources Act 1989 (the Act) in the sum of $87,150. The claim was for injury, loss or damage sustained following the failure of a dam wall in respect of which the respondent's officers both designed and supervised construction. The claimants have referred the matter of the amount of compensation payable to the Land Court pursuant to the provisions of Section 240 of the Act. In their claim for compensation dated 5 December 1996, the claimants made certain allegations concerning the failure of the new dam wall, which occurred on or about 4 May 1996. They have set out particulars of what they allege was the Department's failure to properly supervise and provide technical and other advice in connection with the development and construction of the new dam. The respondent has challenged the jurisdiction of the Land Court to hear this matter, contending that it is not one contemplated by the Water Resources Act 1989. It was submitted that the District Court, not the Land Court, is the proper forum for determining the issues, particularly the issues of negligence, raised by the claimants. On the other hand, the claimants deny that any point of jurisdiction arises. The Relevant Provisions of the Water Resources Act 1989 Although the present Act has been in force since 1989, some of its provisions, or provisions which are similar to present provisions, are of much greater antiquity. The Water Resources Act 1989 is essentially an amalgamation of four former Acts: •the Water Resources Administration Act 1978-1989; •the Irrigation Act 1922-1986; [1997] QLC 155 -- 1 of 11 -- 2 •the Water Act 1926-1987; and •the Farm Water Supplies Assistance Act 1958-1989. The sections of the Act relating to compensation for injury, loss or damage come under the general provisions in Division 3 of the Act. Section 238 is headed "Compensation for injury, loss or damage". The relevant parts of that section read: "(1)Except where this Act otherwise provides - (a)the Corporation; (b) a board; must pay compensation in accordance with this Act to a person who sustains injury, loss or damage to property arising out of the exercise of a power or authority or the performance of a function or duty conferred or imposed by or under this Act or any other Act - (c) by the Corporation, chief executive or an officer, or person acting under the authority of the Corporation or chief executive; (d) by a board or an officer, employee or agent thereof acting under the authority of the board; in relation to any act, matter or thing in connection with the exercise or performance in respect of which that person is not in default. (2) Compensation payable by the Corporation or a board under subsection (1) ... is the sum agreed upon by and between the parties or, in the case of a dispute, determined by the Land Court or on appeal the Land Appeal Court. " Section 239 sets out the details which must be included in a claim for compensation including in ss.1(b)(ii) "the nature of the injury, loss or damage in respect of which the claim is made". Subsection (2) requires the claimant, upon requisition, to furnish to the chief executive or the board, further information and particulars with respect to the claim. Section 240 outlines the procedure to be followed where the chief executive (or board) fails to reach agreement as to the amount of compensation payable. Either party may refer to the Land Court for hearing and determination, the amount of compensation. Subsection (6) empowers the Court to order the claimant to file further and other particulars with respect to the claim. Section 241 requires the Land Court to hear and determine the claim for compensation. Section 242 provides for appeals to the Land Appeal Court against a decision of the Land Court as to the amount of compensation payable. Section 248 is headed "Protection against liability". The relevant parts of subsection (2) -- 2 of 11 -- 3 state as follows: "(2) Except where it is expressly provided by this Act with respect to the payment of compensation, any action, liability, claim or demand does not lie against or attach to the Crown, the Minister, Corporation, chief executive, or any officer, employee, worker or other person for or in respect of (a) ... (b) ... (c)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 authorities or the performance of the functions and duties conferred or imposed by or under this Act. " Subsection (3) of Section 248 extends that protection to the construction and operation of works of the Corporation, but provides for exceptions. It commences with the words "Notwithstanding this Act, any action, liability, claim or demand does not lie against or attach to" the chief executive for or in respect of any injury, loss or damage sustained by a person in respect of certain matters relating to the works, but which are either "not attributable to the negligence or default" of the chief executive or his officers, etc., or where works of the Corporation are constructed and maintained "without negligence". Subsection (4) states that "Subsection (3) does not affect or in any way limit the liability of the Corporation to pay damages for personal injury to a person where the Corporation would be, but for this Act, so liable. " The Arguments At the hearing in relation to the matter of jurisdiction, Mr Jones, Counsel for the respondent, contended that because of the series of allegations concerning the injury, loss or damage suffered by the claimants, the claim is characterised as an action in tort. The claim alleges facts and circumstances which amount to unlawful acts and/or omissions on the part of the respondent. The following argument was advanced on behalf of the respondent: •the scheme of the Water Resources Act, and particularly Section 238, limits the jurisdiction of the Land Court to determining compensation in respect of any "injury, loss or damage to property arising out of the exercise of a power or authority or the performance of a function or duty conferred or imposed by or under this Act or any other Act". (Section 238(1)(b)); -- 3 of 11 -- 4 •the jurisdiction of the Land Court is limited to awarding compensation under Section 238 in respect of any injury, etc., only in those circumstances where the injury, etc., arises out of the lawful activities of the respondent; •the Land Court does not have jurisdiction to deal with claims for compensation when such claims allege a tort on the part of the respondent; •in the absence of any intention in the provisions of the Act for it to extend to tortious acts or omissions, "compensation" for the purposes of Section 238 and Section 241, should be restricted to meaning compensation for any injury etc., to property arising from lawful acts of the respondent, which acts apart from the statute, might otherwise not be compensable; •since the Land Court does not have the power to make a third party, such as the person who actually constructed the dam, a party to the matter, nor to make any findings against such third party by way of any contribution, the respondent would be denied the opportunity to avoid liability or to recover a contribution in respect of any compensation awarded and thereby denied natural justice. Mr Hughes, Counsel for the claimants, contended that Section 238 confers a right to compensation on a person who sustains injury, loss or damage to property which arises out of the exercise of a power or authority, or the performance of a function or duty conferred or imposed by or under this Act or any other Act, provided such person was not in default. He argued that the Dwyers' claim falls squarely within Section 238(1) for the following reasons: •they are persons who have sustained injury, loss or damage to property; •that injury etc., arose out of the exercise of a power or performance of a function conferred or imposed by or under the Act, i.e. the provision of technical, supervisory and other advice with the exercise of a power of the respondent conferred by Section 17 of the Act; •the Dwyers were not in default within the meaning of Section 238(1)(d). It was submitted on behalf of the claimants that it is irrelevant that their claim for compensation may also have characteristics of a claim for damages in an action in tort; they are entitled to compensation without establishing that the Department or its officers were negligent; they need only establish the requirements contained in Section 238; in that respect they bear an evidentiary onus, but they do not bear a persuasive onus to establish that the dam failed because of some default or negligence on the part of the Department's officers. It was further submitted that the claimants' opportunity to pursue common law damages against the Department is precluded by Section 248; that section specifically denies any right to pursue any claim arising out of or in connection with the work performed by the Department's officers, except where it is expressly provided in the Act for the payment of compensation under Section 238; there is a distinction where a claimant seeks compensation against the chief -- 4 of 11 -- 5 executive and where a claimant seeks compensation against a board; in the former case, a right of action for damages is precluded by Section 248, but not where it is against a board, where: •if the loss, etc,, was suffered as a result of some lawful act of the board, compensation must be pursued under Section 238; but •if the loss, etc., arose out of some unlawful act of the board, e.g. negligence, then the only remedy is to pursue a common law action in damages against the board, which does not have the protection of Section 248. Finally, it was submitted on behalf of the claimants that if they cannot obtain compensation pursuant to Section 238, they are left without remedy by virtue of Section 248. (Larkin v. Capricornia Electricity Board (1994) 84 LGERA 367 was cited by Mr Hughes as an example of where legislation excluded an authority from any liability.) Jurisdiction of the Land Court to Hear and Determine the Claim The only question which is before the Court is whether the Land Court has jurisdiction to hear and determine the claimants' claim for compensation. Should it be determined that the Court has jurisdiction, it will still be necessary for the claimants to establish that their claim fulfils the requirements of Section 238. The Land Court is a court of statutory creation and its jurisdiction is bestowed by statute. The general jurisdiction of the Court is conferred by Section 37(1) of the Land Act 1962: "The Court shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court. " Jurisdiction for the Land Court to hear and determine a claim for compensation for injury, loss or damage to land is provided by Sections 240 and 241 of the Act. However, a claimant's right to compensation arises under the provisions of Section 238(1). In determining this matter of jurisdiction, I express no opinion about the merits of the claimants' claim. For them to be successful it would be necessary for them to demonstrate that there was a causal link between the activities of the respondent's officers and the damage to their property. However, for reasons which will emerge, I do not think that they would have to prove that there was any negligence on the part of the respondent. They would, however, also have to prove that they (the claimants) were not in default. The issue here is whether having alleged negligence, the claimants can have no valid claim for compensation under section 238. The respondent contends that the claimants' remedy lies in an action in tort brought in the District Court. This brings squarely into question the extent of the immunity from liability provided by Section 248(2). If, as was argued on behalf -- 5 of 11 -- 6 of the claimants, Section 248(2) provides a general immunity from liability for the respondent, then unless the claimants can bring themselves within the exception where the Act has expressly provided that the payment of compensation, i.e. section 238, then the claimants are left without a remedy. In support of his submissions Mr Jones referred to several cases: Pegoraro v. South Burdekin Water Board [1972] Qd.R. 306; Ellis v. Commissioner for Main Roads (1991) 74 LGRA 96; Metropolitan Water Supply and Sewerage Board v. R Jackson Limited (1924) St R.Qd 82 and Caprino v. Gold Coast City Council (1982) 53 LGRA 243. With the exception of Pegoraro which will be considered in some detail, these cases were concerned with quite different legislation. However, they all endorse the general proposition that unless compensation is expressly provided for, if an authority acted as it is authorised by law to act, then any person injured by such acts is without remedy; but if such act was performed unlawfully or negligently, then the person could bring an action at common law. In Ellis v. Commissioner of Main Roads, the Full Court of the Supreme Court of Queensland was considering the scope of the word "compensation" in s.51 of the Local Government Act 1926. Mackenzie J. (with whom the other members of the Court agreed) said at p.100: "Provisions of this kind in legislation imposing statutory functions on public authorities have a long history. The purpose of such provisions is to allow a statutory remedy to a person who suffers damage by reason of the fact that the authority has exercised its statutory powers without negligence in a manner that, but for the statute, would have been actionable." In referring to Pegoraro, after briefly outlining the circumstances of that matter, his Honour continued at p.100: "In dismissing the argument that the District Court was deprived of jurisdiction to hear the plaintiff's claim, the Full Court held ... that "compensation" in the context of the Water Act meant compensation for lawful acts...". There is no doubt that the principle explained in those authorities is the general rule. However, it is clear that this rule applies only in the absence of any contrary indication. In Pegoraro, the Full Court found there was no such contrary indication in Part III of the Schedule to the Water Act 1926 in relation to a Board, but implied that cl.13(4) provided such contrary indication in Part I in relation to the Commissioner. Similar provisions are found in s.248(2) of the present Act. Pegoraro v. South Burdekin Water Board It seems that the relevant sections of the present Act have not been the subject of judicial consideration. However, somewhat similar provisions contained in its predecessor, the Water Act 1926, were considered by the Full Court of the Supreme Court of Queensland Pegoraro v. South Burdekin Water Board [1972] Qd.R. 306. That was an appeal from a decision of the District Court that it had no jurisdiction to hear an action for damages for negligence and/or nuisance, or for compensation pursuant to the Water Act. The plaintiffs alleged damage to -- 6 of 11 -- 7 crops and land arising from flooding caused by the negligence of the respondent Water Board in the construction of an artificial water channel along the boundary of the plaintiffs' land. The District Court upheld an objection to jurisdiction by the respondent Water Board based on clauses 34 and 35 of Part III and clause 13(4) of Part I of the Schedule to the Water Act. In order to understand the argument and findings in that case, it is necessary to set out material parts of those clauses: Clause 34 of Part III provided: "In the exercise of its powers in relation to the execution of works under this Act, the Board shall do as little damage as may be." Clause 35 provided: "Any compensation payable by the Board to any person by reason of the exercise of any powers conferred by this Act ... shall be such sum as may be agreed upon by and between the parties or as, in the case of dispute, may be fixed by a police magistrate upon summons. " In his judgment in Pegoraro, DM Campbell J. referred to earlier clauses in Part III where provision was made in certain circumstances for payment by the Board of compensation. He then proceeded to consider whether the word "compensation" in Clause 35 should be given a meaning wide enough to include common law rights. After examining a number of authorities, he concluded at p. 320: "In the absence of any contrary indication in the Water Act, my view is that the meaning of the word `compensation' in Clause 35 of Part III of the Schedule should be similarly restricted to compensation for lawful acts." His Honour continued at p. 320: "The question is whether there is any contrary indication in other parts of the Acts. A statute will not be construed as taking away ordinary rights unless that intention emerges with `sufficient clearness': Clowes v. Staffordshire Potteries Waterworks Company (1872) L.R.8 Ch.125,139; and see Manager of the Metropolitan Asylum District v. Hill (1881) 6 App.Cas.193. In this regard, the respondent relied on cl. 13(4)(b) of Part 1 of the Schedule, which is to the following effect:- `Save as by this Act is expressly provided with respect to the payment of compensation, no action, indictment, information, claim for compensation, or other proceedings shall be commenced, presented, made, prosecuted, or maintained against the Crown or the Minister or the Commissioner or any employee or other person for or in respect of - (b) Any damages, loss, or expenses occasioned or alleged to be occasioned or in anywise whatsoever -- 7 of 11 -- 8 arising from the exercise of any of the powers under this Act.' The argument advanced on the strength of this clause was that the only saving provision was in cl. 35 of Part III which gave a magistrate exclusive jurisdiction to fix compensation. " His Honour noted that Part I of the Schedule (which included Clause 13) was specifically applicable to the Commissioner, while the provisions of Part III of the Schedule (which included Clauses 34 and 35) applied to a board. He commented that the appellants argued "rather hopefully" that the words "or other person" in Clause 13(4) were meant to refer to the Commissioner. His Honour then considered the reason for the wording of the heading of Part I of the Schedule ("Provisions Relating to the Business, Property, Works and Undertakings of the Commissioner"), before continuing at p.322: "... there is still another reason for not extending cl. 13(4) of Part I to Water Boards. A subsequent clause, cl.33, protects the Commissioner against liability for any damage caused, for example, by the escape of water from any of the Commissioner's works `where the escape of such water is not attributable to any neglect or default on the part of the Commissioner'. The same clause provides `that nothing in this section shall be construed to limit the liability of the Commissioner to pay compensation for an actual personal injury to any person occasioned by (his) operations'. Clearly, cl. 13(4) has to be read subject to cl.33; but it is impossible to construe the word `Commissioner' in cl.33 to mean a Water Board. Clause 35 of Part I undoubtedly uses the term compensation in a wide sense in providing for claims against the Commissioner to be determined by the ordinary courts and in investing the tribunal in each case with a special discretion as to costs. However, enough has probably been said to indicate that this clause fits into a different pattern to that into which cl. 35 of Part III fits. It would be iniquitous if the Commissioner could be held liable by the ordinary courts of the land for negligence resulting in the escape of water from his works or for personal injury but a Water Board could not be held liable. Yet, this would be the result if cl. 13(4) were applied to Water Boards. " (Emphasis added) The latter part of this quotation would seem to indicate that D.M. Campbell J. considered that Clause 13(4) excluded the Commissioner from any liability, except where the Water Act expressly provided for payment of compensation. There is an obvious similarity between Clause 13(4)(b) and Section 248(2) of the present Act. However, there is an important distinction between Pegoraro and the present case. Clause 13(4)(b) applied to the Commissioner but not to a board. The issue there was whether the right to common law damages was excluded in respect of the Water Board. In the present case the issue is whether Section 248(2) applies to exclude the chief executive from liability for common law damages. -- 8 of 11 -- 9 In the last-quoted extract from his judgment, DM Campbell J. referred to cl.33 of Part I of the Schedule. That clause was headed "Limitation of Liability" and paragraph (1) commenced with these words: "Notwithstanding anything in this Act contained, no action, claim, or proceeding shall be maintained or allowed against the Commissioner for or in respect of - (i) Any injury, loss, or damage sustained by any person which is caused directly or indirectly by reason or in consequence of - ..." the remainder of paragraph (1), although not identical, is similar to the provisions of s.248(3)(a) and (b) of the present Act, including the important qualifications "not attributable to any neglect or default" and "without negligence". It is evident that DM Campbell J. concluded that Clause 13(4) of the Water Act excluded the Commissioner from being "held liable by the ordinary courts". However, Clause 33 of Part I provided for some limited liability of the Commissioner in certain specified circumstances, where there was neglect or default on the part of the Commissioner. His Honour interpreted "compensation" in Clause 35 of Part I in a wide sense as there claims were to be determined by "the ordinary courts". There is no equivalent to Clause 35 of Part I in the present Act, s.241 providing that the Land Court must hear claims for compensation. The other judges in Pegoraro agreed with the analysis of Clause 13(4) by DM Campbell J. Stable J. at p.307-308 pointed out that in performing the works on the plaintiffs' land the Board was acting within the scope of statutory authority and that the claim was that the work was so negligently done that a right of action for damages for negligence had occurred. He continued at p.308: "The question is whether provisions in the Schedule to the Acts have deprived the plaintiffs of their common law rights so that all the remedy they have is a claim for compensation which has to be pursued within the framework of those provisions. A valiant effort to show that the plaintiffs' common law rights had been taken away was made by invoking clause 13(4)(b) of Part I of the Schedule, which has been set out by Campbell J. in his reasons. It appears to me that this Part of the Schedule applies to the Commissioner as defined in the Acts and is clearly related to what is contemplated by s.17(6), and that it does not apply to a Board as defined by the Acts and functioning under Part III of the Schedule. This emerges as a matter of construction upon looking at the legislation, and I also agree in the remarks of Campbell J. on this aspect. " Skerman J., after tracing the history of the legislation, came to the conclusion that the clauses in Part I of the Water Act were restricted to the Commissioner. He concluded at -- 9 of 11 -- 10 p.313-314: "I agree with the conclusions arrived at by my brothers Stable and Campbell that clause 13(4)(b) of Part I of the Schedule does not apply to the respondent Board which has been duly constituted and to which, pursuant to s.27(2) of The Water Acts, the provisions set forth in Part III of the Schedule are applicable. " It is clear that all members of the Full Court agreed that Clause 13(4)(b) did not apply to the Water Board in that case and therefore did not exclude it from a common law action for negligence. The Full Court did not have to consider whether the clause would have excluded the Commissioner from liability, but it is sufficiently clear from their judgments that they would have reached such a conclusion. The only exception would have been where the Water Act expressly provided for the payment of compensation, under that Act to be heard and determined by "the ordinary courts". However, under the scheme of the present Act, such claims are to be heard and determined by the Land Court. Conclusion The provisions of Section 248(2) of the present Act are comparable, but not identical, to Clause 13(4)(b) of the Water Act 1926. They apply to the respondent chief executive, but not to a board. Based on the reasoning of the Full Court in Pegoraro, the claimants argue that the right to bring an action for common law damages against the respondent is excluded by Section 248(2), the liability of the respondent being limited to the payment of compensation where that is so provided under the Act, i.e. Section 238. The respondent argues that "compensation" in Section 238 must be interpreted narrowly. If the respondent's submissions are correct and the provisions of Section 238 are applicable only where the damage was occasioned by the lawful actions of the respondent, then on the reasoning of the Full Court in Pegoraro, Section 248(2) may well exclude the respondent from liability for common law damages and the claimants in this case would be denied any remedy. In my view, such an outcome could not have been the intention of the Legislature. In my opinion Section 248(2) of the Act excludes the respondent from liability for any injury, loss or damage to the claimants' land, except as provided by the Act for the payment of compensation under Section 238. Under Section 241 of the Act, the Land Court is given the responsibility to hear and determine such a claim. It is therefore immaterial whether the acts or omissions of the respondent which caused the damage were lawful or negligent. Provided that the claimants can prove that such acts or omissions caused the damage and that they were not in default, they are entitled to compensation. They are relieved of the requirement of proving negligence on behalf of the respondent. Of course, they must prove the quantum of their claim. -- 10 of 11 -- 11 As for the submission on behalf of the respondent that the Land Court could not make the contractor a party to the matter, I am of the view that a determination of compensation by the Land Court would not prevent the respondent from bringing an action elsewhere against the contractor to recover the amount awarded or a contribution thereto. Therefore, for the reasons outlined, I find that the Land Court has jurisdiction to hear and determine the claim for compensation referred to the Court under Section 240(1) of the Act. (JJ Trickett) President of the Land Court -- 11 of 11 --