Bailey v Worsley

[1969] VR 79

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(Judgment by: Lush, J)

Bailey
v. Worsley

Court:

Judge:
Lush, J

Subject References:
Statutes
Interpretation
Unlawful damage to 'a drainage channel of an Authority'
'Drainage channel'
'Of any Authority'
Management and control of channel

Legislative References:
Water Act 1958 (No. 6413) - s 377

Hearing date: 12, 13, 21 August 1968
Judgment date: 25 September 1968

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Judgment by:
Lush, J

For the reasons which I have given, the order nisi will be made absolute upon grounds 1, 2 and 3. In the course of argument, a difference arose between the parties as to the course to be taken in the event that the order was made absolute. The informant submitted that I should deal with the matter myself by imposing such penalty as I thought fit. The defendant wished to have the matter sent to the court at Echuca. This in turn was opposed by the informant, because it would be necessary to take again special steps to constitute a court to deal with the defendant's case. In this difference of opinion, I think that I should in this case take the course of sending the matter back to be dealt with where it arose.

Accordingly, the order of the Court will be that the order nisi will be made absolute. The matter will be remitted to the court of petty sessions at Echuca, with a direction that the facts proved by the informant established the commission of the offence charged, and that the defence that the defendant honestly believed on reasonable grounds that he had a right to remove the bank was rightly rejected, and that the matter should be further dealt with by the court of petty sessions in accordance with that direction.

Order absolute.

Statutes - Interpretation - Unlawful damage to "a drainage channel of an Authority" - "Drainage channel" - "Of any Authority" - Management and control of channel - Water Act 1958 (No. 6413), s377.

The defendant was charged under s377 of the Water Act 1958 with unlawfully damaging a drainage channel of an Authority, to wit the State Rivers and Water Supply Commission. The defendant was the registered proprietor of certain farm land at Tragowel, over portion of which, in 1946, he granted an easement to the Commission, which excavated a drainage channel along the easement, the excavated soil being placed within the easement and along both sides of the channel to form banks. In 1967 the defendant removed the whole of the western bank of the channel and used the soil in the course of levelling his land for irrigation. The information having been dismissed on the ground that it had not been proved that the drainage channel was owned or vested in the Commission,

Held: the excavated channel and the banks formed by the excavated soil comprised a drainage channel and, by virtue of the easement and the fact that such channel was under the management and control of the Commission, it was a "drainage channel of an Authority" within s377.

Robinson v Milne (1884) 53 LJ Ch 1090, applied.

Order to Review

The facts appear fully in the headnote and judgment, infra.

R Brooking, for the informant, to move the order absolute.

BJ Shaw, for the defendant, to show cause.

Lush, J, delivered the following written judgment:

This is an order to review a decision of the court of petty sessions at Echuca given on 4 June 1968.

The defendant, Worsley, was charged upon information that between 18 March 1967 and 31 May 1967 at Tragowel he did, contrary to s377 of the Water Act 1958, unlawfully damage a drainage channel of an authority, ti wit the State Rivers and Water Supply Commission, such channel being that part of the Nine Mile Creek drain on crown allotment 13, Parish of Tragowel. This information was dismissed. The reasons for dismissal may be sufficiently, at this stage, stated as being that the magistrate took the view that it had not been established that the drainage channel in question was either owned by or vested in the State Rivers and Water Supply Commission, and, therefore, it had not been proved that the drainage channel was a drainage channel of the Commission.

On 27 June 1968 an order nisi to review this decision was granted on the following grounds:--

1.

That on the evidence the stipendiary magistrate should have found that the drainage channel was a drainage channel of the State Rivers and Water Supply Commission within the meaning of s377 of the Water Act 1958.

2.

That the stipendiary magistrate misdirected himself as to the meaning of the expression "of any Authority" in the said s377.

3.

That the stipendiary magistrate misdirected himself by holding that the said expression "of any Authority" connoted a channel owned by or vested in the Authority.

4.

That the stipendiary magistrate was wrong in holding that the expression "any Act" in s29(1) of the Water Act 1958 meant "Any Act other than the Water Act 1958".

The evidence showed that the defendant had for a considerable time been the registered proprietor of allotment 13 in the Parish of Tragowel. On 7 November 1946 he had executed a document entitled "Creation of Easement" in favour of the Commission. This instrument granted to the Commission "All that the full and free right and liberty to and for it and them and its and their servants, agents and workmen at all times hereafter to enter in and upon the land hereinafter described and to clear the same of obstructions and to dig cut excavate and construct a water channel and water works for the purposes of water supply and drainage through in and upon such land and in such manner and of such width depth and nature as the Corporation or its transferees may deem advisable and to use such channel and waterworks for all purposes of water supply and drainage and also to repair and alter the said channel and water works and also to deposit or place and allow to remain on or along the said land or any part thereof all timber earth soil stone gravel or other substance matter or thing which may be removed or excavated in clearing the said land or in the making or construction of the said channel and waterworks or in repairing or altering the same and also to go pass and repass for all the purposes aforesaid either with or without horses or other animals carts or other carriages through over and along" the portions of the land indicated in an accompanying plan. The plan and other evidence showed that the easement covered a strip of land two chains wide.

At some time not disclosed by the evidence a drainage channel was constructed along the strip of land over which the easement was granted by excavating to a depth of something over seven feet and placing the excavated soil on each side of the excavation to form banks. On the western side of the channel the bank within the boundaries of allotment 13 was approximately 18 chains long. Evidence was given that, and the magistrate found that, the western bank was an "integral part of the drainage channel". The evidence also showed that on the defendant's instructions a contractor carrying out the work of levelling the defendant's ground to the west of the channel in the course of laying it out for irrigation had removed the whole of the length of the western bank within allotment 13 and used the material so obtained in the course of the levelling operations. This happened in approximately April 1967. Evidence was also given, and was not contradicted, that the excavated part of the drain and its two banks had all been within the boundaries of the land over which the easement was created.

The drainage channel concerned was the Nine Mile Creek Drainage Channel which is within the boundaries of the Kerang Irrigation Area. This area is part of the Goulburn-Murray Irrigation District: see s62 and Schedule 3A of the Water Act 1958, as amended. That section establishes irrigation districts and irrigation areas as from 30 June 1959. S62B(8) states that "An irrigation district shall from the date of its constitution become subject of the jurisdiction and control of the Commission and the Commission shall be the Authority under this Act empowered to manage and control the works for the service of such district".

No evidence was given to show who constructed the relevant section of the drain or when it was constructed. The following matters were given in evidence with the apparent object of proving that the Commission exercised control over it and operated it for the purposes for which it was built:--

(a)

The drainage channel came under the control of the district engineer of the Commission at Kerang.

(b)

The Commission's water bailiff was responsible for the operation and inspection of the relevant part of the drainage channel.

(c)

The purpose of the drain was to provide drainage services by the Commission for irrigators whose land was in its vicinity.

(d)

The removal of the relevant section of the bank had caused silting of the channel and the Commission had employed a dragline to clean out the silt from the bed of the channel.

(e)

The reinstatement of the bank had been carried out by the Commission.

(f)

The Commission's bailiff inspected the drain at the relevant time in the sense that he saw it probably two or three times a week and sometimes passed through the area several times a day.

(g)

The drain had been cleaned from time to time and the additional spoil so obtained had been placed on top of the spoil which already constituted the channel banks. The affidavits do not show that it was specifically stated that this cleaning had been done by the Commission, but the clear inference seems to be that this was the fact.

(h)

From time to time the officers of the commission granted permission for the removal of part of the spoil constituting the banks of the drain.

It is convenient to deal first with the point in the nature of a preliminary point taken by Mr. Shaw, who appeared for the defendant to show cause. Mr. Shaw argued that s382 to s384 and s387 of the Water Act require that prosecutions for offences under the Act should be instituted only by persons generally or specially authorized by the relevant Authority. He argued that since no evidence of the existence of any such authority had been given at the hearing of the case the magistrate should have dismissed the information on that ground. He admitted that the point had not been taken before the magistrate.

Mr. Shaw cited the following cases: R v Waller, [1910] 1 KB 364; O'Connor v Seiyler (1891) 13 ALT 115; Cruikshank v Kitchen (1870) 1 VR (L) 29; Cameron v Moore (1894) 20 VLR 66, and Schulz v Virgin, [1966] SASR 94.

The submission founded upon these authorities was that, although they established that, if a consent to a prosecution is necessary, the point that no consent has been given must be taken at the first hearing of the case, they did not apply in the present case where under the terms of s382 and s383 any penalties recovered are to be applied to the purposes of the Authority. In the situation resulting from these sections, Mr. Shaw contended, proof of authority was essential. Mr. Brooking for the informant relied upon s389(1) of the Act. So far as relevant, that sub-section states that "In any prosecution or legal proceeding under the provisions of this Act instituted by or under the direction of any Authority no proof shall be required (until evidence is given to the contrary) of--... any order of the Authority to prosecute; the particular or general appointment of any secretary or other officer of the Authority to take proceedings against any person...". In general terms it would seem likely that this section was intended to protect the prosecution in cases such as the present from the objection taken by Mr. Shaw. However, it leaves open the question how it is to be known or shown that the prosecution was one instituted by or under the direction of an Authority, a fact which on the terms of the section seems to be a condition precedent to its operation.

In my opinion, there is no substance in the distinction which Mr. Shaw wished me to draw between the situation in the present case and the situation which existed in the cases where the question of the necessity of proving a consent to the prosecution was considered. A useful statement of the principles to be applied in dealing with a problem such as that now under consideration is to be found in Price v Humphries, [1958] 2 QB 353. In that case the prosecution had closed its case without proving that the proceedings had been instituted with the consent of the Minister, a matter required by the relevant legislation. The magistrates had refused the prosecution permission to re-open the case in order to prove the consent. At p. 359, Lord Goddard, CJ, said: "In a case such as this justices would do well to bear in mind that there is a distinction between an objection which goes to the merits and one which goes only to procedure. If it goes to the merits and the prosecution have failed to prove something upon which the guilt or innocence of the dependant depends, justices must be very careful about allowing cases to be re-opened and must consider the doctrine laid down in R v Day (1940) 27 Cr App Rep 168. But if it is only a matter which goes to procedure, as this does, and as it does in a large number of cases where the consent of the Director of Public Prosecutions or some other officer is required to the proceedings, then I do not think that they ought to allow an objection which has been, so to speak, kept up the sleeve until the last minute, so that when the prosecution have been induced to say: 'We have closed our case, ' it is then said: 'You have not proved consent'."

The objection taken here is one which goes to procedure and, by analogy with the passage which I have just quoted, a court entertaining an appeal ought not to allow the point to be taken when it was not taken below.

The main argument in the case centred around the first, second and third grounds of the order nisi, which are concerned with the meaning of the words "of any Authority" in s377. The text of s377 is as follows: "Every person who unlawfully destroys or damages or attempts to destroy or damage any reservoir dam weir tank cistern supply channel drainage channel tunnel water course aqueduct pipe sluice valve wheel meter measuring appliance bridge roadway engine or other part whatever of the works of any Authority shall be liable to imprisonment for a term of not more than ten years or to a penalty of not more than 1,000 pounds or to both such imprisonment and penalty."

The magistrate took the view that in the present case it had not been established that the drainage channel, of which the bank formed part, was the drainage channel of the Commission because it was not shown that the Commission owned it or that it was vested in the Commission.

The Act contemplates that works may exist upon or be built or established upon land which is vested in the Commission or other Authority or land over which the Commission or other Authority is entitled to an easement. The vesting of the freehold in land is contemplated by s27(1), s29(2), and s30(4)(5). On the other hand, s32 contemplates that works will exist or be established upon land over which the Commission has an easement, and s307(1)(i) and s307(2) comtemplate that races and drains may be constructed upon land over which the Commission holds an easement. The Act plainly intends that drains, supply channels, and water races may constitute part of the works of the Commission or other Authority. The Commission is given general power to acquire free- hold land or easements by s17. So far as I have been able to find, there are no provisions in the Act which direct in what circumstances the Commission is to acquire freehold land and in what circumstances it is to acquire easements. Nor have I been able to find any provisions in the Act which indicate that the draftsman or draftsmen of the Act had in mind any particular policy of differentiation in purpose between the two types of interest to be acquired which is relevant to my present considerations.

In the Act various expressions are used to describe or indicate a relationship between the Commission or other Authority and its works. In s377 the simple description "works of any Authority" is used. In s376 the words used are "works or fittings belonging to or under the control and management of any Authority". In s378 the words are "aqueduct or pipe belonging to or under the control and management of any Authority". In s378(2) a penalty is imposed upon any person "who without the permission of any Authority interferes with the banks of any supply channel or drainage channel": there are no express words in this sub-section defining the relationship between the channels referred to and the Authority referred to. In s32(1)(b) and s379AA(1)(a) the expression used is "under the control of". In s32(1) the expression "under the jurisdiction and control of the Commission" is used, while in s379(1) the words "under its jurisdiction" are used without other words. In s101A, by a reversal of words previously referred to, the expression is "under the management and control of the Commission", while s204(1)(b) refers to "any reservoir, channel or drain which is vested in or under the control and management of the Commission".

The argument in this case did not disclose any pattern or system underlying the use of these various expressions, and it is to be remembered that the Act in its present form is the end product of a great many enactments and amendments. S377 itself has its origins in s86 of Act No.716, the Water Conservation and Distribution Act 1881. That section referred to "the works of any Water Works Trust". The preceding section, s85, referred to "any water works stream or reservoir which is the property of any Water Works Trust", and the section which followed, s87, referred to "any reservoir water course conduit or pipe belonging to the Trust". The comparison of the various expressions used in these three sections of the 1881 Act suggests that the words used in s86 are of wider import than the other expressions used in s85 and s87. The word "of" is not a word of precision in defining a relationship between a person and a thing, and the use of this word in contrast with words more specifically denoting a proprietorial relationship leads to the inference that the word is intended to include situations which do not involve ownership but which involve, to avoid expressions used in the Act, the existence or the exercise of a legally authorized dominion over the works. The expression now used in s377 has not changed its meaning since 1881 and the comparison of the words in that section with those of s376 and s378 still leads to the conclusion that the words "of any Authority" in s377 include the concept "belonging to or under the control and management of" and other relevant concepts of management, control and possibly jurisdiction referred to in the various sections of the Act. The changes made in bringing the original s85 and s87 to their present state--they may both be traced in the present s378(1)--suggest that the real object of the legislature in amending them was to give them a width comparable with that of what is now s377, or in other words to make them wider rather than to make s377 narrower than it was in its original form in 1881.

On the other hand, it was argued that the wording of s378(2), in contrast with the wording of s377, indicates that the legislature intended that the heavy penalties provided by s377 were applicable where the channel damaged was the property of the Commission while the lighter penalties prescribed by s378(2) were applicable when the channel damaged or interfered with was not the property of the Commission. In support of this argument it was pointed out that s378(2) was introduced by Act No. 4678 which itself amended and modified the provisions of s377.

I have come to the conclusion that the real reason for the introduction of s378(2) creating a new offence is to be found in the distinction between the operative words of that sub-section and those of s377. S378(2) is concerned merely with "interference" while s377 is concerned with destruction or damage or attempts to destroy or damage. I am unable to draw the inference that the introduction of s378(2) should be taken to point to the fact that the correct construction of s377 is that it is limited to works which are vested in or the property of an Authority. S378(2) does not deal with the same actions as s377. Nor is it likely that there was no prohibition against damaging channels not vested in the Commission or other Authority until s378(2) was introduced. I think that both in their original and in their present setting the words of s377 were intended to cover situations in which the relevant works did not belong to and were not vested in the relevant Authority. I am not attracted by the suggestion that the legislature regarded damage to a channel not vested in an Authority as a less serious offence than damage to a channel vested in such an Authority and provided for the former by s378(2). The damage may be of the same consequence in both cases.

This leads me to the conclusion that the magistrate decided the present case upon grounds which were wrong in law.

I turn to examine the question what is the proper description of the relationship between the Commission and the bank with which this case was concerned and the question whether that relationship is such that the channel of which the bank formed an integral part can be said to be a channel "of the Authority", namely, the Commission. The granting of an easement to the Commission left the freehold in the land vested in the registered proprietor at the time of the grant, and it also left the registered proprietor in possession of the land over which the easement was granted. The Commission became entitled to a servitude. The Commission had no property other than its easement rights in the excavated bed of the drain. Whether it had any right of property in the material excavated from the bed of the drain and used to form the banks is a problem. The only case which I have found which throws any light on this subject is Robinson v Milne (1884) 53 LJ Ch 1070. That case concerned a mining lease the terms of which gave the lessee the right to carry out the necessary excavations to get at the coal, and authorized the lessee to deposit spoil and make a spoil bank on the land demised. One of the covenants of the lease required the lessee to remove the spoil bank on the termination of the lease. A stranger having interfered with and removed part of the spoil bank, a question arose whether the lessee had any right in the materials constituting the spoil bank which would enable him to bring an action against the stranger. North, J, said; at p. 1074: "It appears to me, looking at the language of the document in the present case, that the property in the spoil-bank-- if that is the right term to use--at all events the right to dispose of the materials it contains--is for all present purposes vested in...the assignee of the leases of 1860. In my opinion the right to dig for..... [coal]....carried with it the right to remove and appropriate such portions of the strata as had to be removed either in making the necessary shafts and other workings to win it, or in getting the coal itself when won, just as the power to build houses carried with it the right to dig the necessary foundations and to appropriate the materials got in so doing." At p. 1075, North, J, said: "No other person [i.e. other than the lessees] could have any right to enter upon the lands or remove or deal with the spoil. The spoil-bank partook very much of the character of a trade fixture; and, in my opinion, the property in and the right to remove and dispose of that bank was and is vested in the original lessees and those claiming under them, and not in the lessors and those claiming under them." That case was a case arising under a lease, and that circumstance necessarily distinguishes it from the present case. However, I have no doubt, and, in my opinion, the instrument creating the easement intends, that property in the excavated material passed to the Commission. The instrument makes it clear that the Commission could carry the excavated material away if it wished to do so, but it also authorizes the Commission to leave it upon the servient tenement. The material could revest in the owner of the freehold if, when deposited upon the servient tenement or when formed into banks of a drain on the servient tenement, it should be regarded as having become a fixture. The second passage quoted from the judgment of North, J, indicates that this last is a possibility, but I am doubtful whether the deposit of earth or other spoil on the freehold land of a person other than the owner of the earth or spoil makes the earth or spoil a fixture or part of that land. It is perhaps more likely to be a fixture if it is formed into a structure. The question of the legal ownership of the materials of the bank removed by the defendant was not argued before me and I do not propose to rest my decision upon the ownership of the property in the materials.

In my opinion, the evidence placed before the magistrate showed that the drain was part of the works of water supply and drainage within an irrigation district. While s62B(8) may apply only to newly constituted irrigation districts created under that section, a study of the various sections carrying the number 62 and the sections which immediately follow leads to the conclusion that s62B(8) is merely declaring in relation to new irrigation districts a matter of law which is already applicable to existing irrigation districts referred to in s62 and Schedule 3A. It follows that the Commission was in point of law the Authority empowered to manage and control the works for the service of that district. In point of fact, in my opinion, the evidence showed, as Mr. Shaw admitted, that the drain was being used as part of a system worked by the Commission. Mr. Shaw, however, maintained that the evidence did not show that the drain was managed and controlled by the Commission, but in respect of this my opinion is that the evidence showed that the Commission supervised and maintained the drain and used it as part of its general irrigation scheme in the area, and, in the circumstances, it follows, I think, that the Commission exercised management and control over the drain.

I should note also an argument put by Mr. Shaw that the only finding made by the stipendiary magistrate was that the drain was not vested in the Commission, that there was no finding that the Commission had the control and management of the drain, and that the evidence was insufficient to support such a finding. The affidavits, including an affidavit filed by the stipendiary magistrate to which I shall refer, indicate that the facts relevant to this issue were not in dispute, and, in my opinion, they establish that the Commission had the control and management of the drain. No other finding was open.

In the context of this Act, I think it is proper to describe the drain used and administered in the manner described in the evidence as a drainage channel of the Commission, and to that extent the informant's case was fully and properly made out.

After argument had closed, it was found that the stipendiary magistrate had sworn an affidavit giving the grounds for his decision in some detail: see Justices Act 1958, s167 and s168. I relisted the case and gave counsel an opportunity to submit observations in writing on the affidavit, and this counsel did. I have myself given the affidavit careful consideration. It shows that the aim of the prosecution had been to establish that the Act operated to vest the drain in the Commission. This attempt failed, and it was not renewed before me. Upon a detailed examination of the Act, the magistrate decided that s377 referred only to situations in which the works were vested in the relevant Authority. I have found the magistrate's affidavit most helpful, but on what I regard as difficult matter I have reached a different conclusion.

The defendant at the hearing raised a defence based on Proudman v Dayman (1941) 67 CLR 531; [1944] ALR 64, that he honestly believed on reasonable grounds that he had a right to do what he did. Mr. Shaw contended that this defence had not received proper consideration, and should either be treated as having been made out or referred back to the magistrate for further consideration. The evidence designed to support this plea was given by the defendant himself, and it was to the effect that he believed that the soil used to make the bank was his property, and that he had the right to take it. He said, apparently in support of this proposition, that he had granted the easement to the Commission without consideration. He also said that the banks were not necessary either to keep water in or keep water out of the channel. This evidence was not make the subject of cross-examination, but certain questions were put to the defendant by the magistrate, his answers to which showed that he knew that the removal of the bank created a danger that silt would be washed into the drain. The magistrate did not find that the defendant had an honest belief that he was entitled to remove the bank, but he said that if the defendant had such a belief it was not reasonable because he himself had executed the easement document. Reading the magistrate's questions and the answers to them and this finding together with the magistrate's finding of fact that the bank was an integral part of the drain, it is apparent that the magistrate took the view that the defendant knew that the Commission had the right to maintain a drain on the easement and that what he, the defendant, did was likely to damage that drain: the defendant might have honestly believed on reasonable grounds that the soil was his, but there were no reasonable grounds for a belief that it was not part of the drain or that he was entitled to remove it from the easement area in such a way as to damage the drain. I see no reason for re-opening this part of the magistrate's decision.

Solicitor for the informant: Thomas F Mornane, Crown Solicitor.

Solicitors for the defendant: Morrison and Sawers.

JEREMY DARVALL