McClymont v Nelson[2023] QSC 59

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The applicants (“plaintiffs”) are the registered owners of freehold land and the permittees under a Permit to Occupy land operated as a cattle station located near Richmond known as “Wilburra Downs”.
2. [2]
   The respondents (“defendants”) are the registered lessees and permittees of land near Richmond on which there is a cattle station known as “Moselle Downs”.
3. [3]
   The defendants acquired their interests in 1992.
4. [4]
   On one of the boundaries of the cattle stations the respective properties are opposite the other separated by the Flinders Highway and the Mount Isa railway line.
5. [5]
   Since approximately 1924 an artesian water bore known as “Moselle Siding Bore” has existed on Moselle Downs. It is upon that part of Moselle Downs comprised by the “Rolling Term Lease”, Lot 4 Crown Plan RM76 (Title Reference 40018336). It is situated approximately 100 metres south of the Flinders Highway / Mount Isa railway line.
6. [6]
   The plaintiffs purchased Wilburra Downs in about December 2005 and on 10 August 2018 the leasehold interests were converted to freehold and the plaintiffs were registered as proprietors as joint tenants.
7. [7]
   For many years including before the plaintiffs purchased Wilburra Downs water from the bore was sourced by the proprietors of Wilburra Downs for use in their grazing enterprises conducted upon that property.
8. [8]
   On 16 March 2018 the defendants were granted a Water Licence in respect of the bore (reference 03618J) that expires on 30 June 2111.^[1] The licence provided:^[2]

“WATER LICENCE

Water Act 2000

Reference 03618J Expiry Date 30/06/2111

LicenseeBARRY LLOYD NELSON

CHERYL DOREEN NELSON

Authorised Activity The taking of underground water from the Eromanga North Hooray (Great Artesian Basin) with the point of take under Lot 4 on RM76.

Authorised Purpose Stock

Description of Land Attached to the land described as Lot 4 on RM76.

This water licence is subject to the conditions endorsed hereon or attached hereto.

Given at Longreach this SIXTEENTH day of MARCH 2018.

Delegate of the Chief Executive

Department of Natural Resources, Mines and Energy  ”

The licence was subject to conditions contained in Schedule A to the licence.^[3]

9. [9]
   On 9 November 2020 the solicitors for the defendants wrote a letter addressed to Mr McClymont.^[4] The letter was to the effect:

“(a) stated that the Respondents intend to use the full flow of the water from the Moselle Siding Bore on their own land;

2. (b)
   demanded that the Applicant’s use of water from the bore cease;

3. (c)
   stated that the Respondents would be disconnecting anything that directs water from the bore away from Moselle Downs from 9 December 2020; and

4. (d)
   denied any further permission for the Applicants to enter the Respondent’s land.”

Litigation

10. [10]
    The plaintiffs disputed the defendants’ entitlement to act as threatened and engaged lawyers. The parties remain in dispute. This proceeding was commenced by an Originating Application.^[5] The plaintiffs in their Originating Application sought relevantly:

“1. A declaration that the Applicants are entitled to relief under s. 180 of the Property Law Act 1974 (Qld) for the imposition of an easement which grants reasonable use for stock purposes of water from the bore known as “Moselle Siding Bore”, having registered bore number 3618, and all such ancillary rights as are necessary for the sustainment of that use.

2.  …

3.  An interlocutory and permanent injunction restraining the Respondents, their servants and agents from:

a. restricting or limiting the Applicants’ use of and access to water from the Moselle Siding Bore.

b. taking any other step that interferes with the Applicants’ reasonable use of and access to water from the Moselle Siding Bore.

4.  Such further or other orders as are required or necessitated by s. 180 of the Property Law Act 1974 for the grant of such easement or which the Court deems just or necessary.”

11. [11]
    The parties have exchanged pleadings.^[6] By their Statement of Claim the plaintiffs’ claim (relevantly):^[7]

“(a) A declaration that the plaintiffs, as registered owners of Lot 2 on Crown Plan RM52 having title reference 51155079, have a statutory right of user under s 180 of the Property Law Act 1974 … .

2. (b)
    An order under ss 180 (5) (b) of the Property Law Act 1974 …, that the defendants execute and deliver up to the plaintiffs an easement in registrable form which attaches Plan of Easement A being plan SP324864 dated 25 February 2021 and which easement prohibits the registered lessees of Lot 4 on Crown Plan RM76 and their successors in title from interfering with or restricting in any way the flow of water from the Moselle Siding Bore to Wilburra Downs^[8] and provides that the owners from time to time of Lot 2 on Crown Plan RM52 have a right over the rolling leasehold to Lot 4 on Crown Plan RM76 such that they may enter the land described in Crown Plan RM76 to go to the Moselle Siding Bore by the most convenient route and to attend the route of the pipeline between the Moselle Siding Bore and the boundary of Lot 2 on Crown Plan RM52 which route is shown on Survey Plan SP324864 dated 25 February 2021 as “EMT A”, for the purpose of carrying out, for the benefit of Lot 2 on Crown Plan RM52, any necessary works, maintenance or repairs of the said pipeline or to the head taps and any other equipment which caps the Moselle Siding Bore, including conducting any necessary excavation, provided any such excavations are limited to the area shown as “EMT A” on Survey Plan SP324864 and provided further that following any such excavation or repairs the earth or other excavated material is replaced and compacted so that the ground is restored to the state it was previously in to the extent practically feasible.

…

5. (e)
    Further or alternatively an interim and permanent injunction restraining the defendants from taking any step that materially limits or reduces the flow of water from the Moselle Siding Bore to Wilburra Downs.”

12. [12]
    In both the Originating Application and the Statement of Claim as filed the plaintiffs claimed an easement by prescription. These claims were withdrawn by the plaintiffs as recorded in the Order of BrownJ of 7 October 2021.
13. [13]
    The parties remain in dispute. In the interim the plaintiffs continue to source water from the bore pursuant to an interlocutory injunction granted under an Order of 16 December 2020. By Order on 7 October 2021 BrownJ made directions for applications by the defendants pursuant to UCPR 171 and 293. The defendants’ application was filed on 12 October 2021.
14. [14]
    In support of the application the defendants relied upon the filed documents identified in the bundle of documents filed 21 January 2022.^[9] The plaintiffs relied upon the documents copied and contained in the bundle filed 31 January 2022.^[10] In addition the plaintiffs relied upon the affidavit of AJ Banbrick^[11] and an Amended Reply.^[12]
15. [15]
    Thus at the hearing the pleadings were comprised by:

    1. (i)
       The Statement of Claim filed 27 April 2021;
    2. (ii)
       The Amended Defence filed 28 June 2021; and
    3. (iii)
       The Amended Reply filed 8 March 2022.
16. [16]
    As well the parties relied upon extensive written outlines:

1. (i)
   Defendants’ Outline filed 12 October 2021;^[13]
2. (ii)
   Plaintiffs’ Outline filed 26 October 2021;^[14] and
3. (iii)
   Defendants’ Reply Outline filed 25 November 2021.^[15]

17. [17]
    At the hearing counsel addressed at length by reference to their written outlines and the filed material relied upon. There was no challenge by cross examination to any opponent^[16] and with respect to factual aspects of the history of the bore and the dealings between the parties the facts were either admitted or not challenged.^[17]

The Three Reasons

18. [18]
    In written and oral submissions the defendants’ Counsel advanced three reasons why, it was submitted, the plaintiffs’ claim whether as advanced in the Originating Application or in the Statement of Claim could not succeed. The three reasons were summarised in the Defendants’ Outline:^[18]

“1. A right to take or interfere with water is not a right in respect of land. As such, the right sought to be imposed is not a right of user to be imposed upon the servient tenement and, as such, no claim pursuant to s 180 of the PLA can be made (first reason);

2.  Rights to take or interfere with water are governed by the Water Act. No such application is or could be made by the McClymonts (second reason); and

3.  The rights to take water from the Moselle Siding Bore have already been allocated to the Nelson’s pursuant to the Water Licence (third reason).”

19. [19]
    The defendants’ Counsel in oral submissions canvassed the reasons in that order. In both his written and oral submissions Counsel for the plaintiffs engaged with the defendants’ arguments in the order outlined. Thus it is convenient to consider the arguments in that order.^[19]

The First Reason

20. [20]
    In submissions the defendants’ Counsel relied upon s 26 and 27 of the Water Act 2000 (“Water Act”). Section 26 vests in the State all rights to the use, flow and control of all waters. The Act defines water to mean, among other forms, underground water which is defined to include water occurring naturally in an acquifer which means a geological structure that holds water in sufficient quantity to provide a source of water that can be tapped by a bore.^[20] From this, it was submitted, and I accept, the water the subject of the licence the defendants hold is water within the Act. The defendants contend that while s 27 provides that the State may allow the use of water and authorise persons (relevantly by a Water Licence^[21]) to take or interfere with water the section does not vest in a licensee what s 26 vests in the State.
21. [21]
    Relevantly, the defendants contended, the effect of s 26 and s 27 is to separate from land the rights vested in the State in respect of water and establish a regime of authorisation to take or interfere with water. They contended that they are the persons with the statutory authorisation and that the plaintiffs have no entitlement under the Water Act to the water and consequently to an easement to prevent others from “interfering with or restricting in any way the flow of water from” the bore to Wilburra Downs.
22. [22]
    Turning to the “statutory right of user” under s 180 of the Property Law Act 1974 (“PLA”) the defendants drew attention to s 180 (1) and that “land” not “water” is the subject of a statutory right of user. Further to this they direct attention to s 180 (7) and the definition of “statutory right of user” which includes rights in respect of land. Pulling this together the defendants submit that what was described as the “Primary Easement”^[22] claimed by the plaintiffs preceded on the false basis that the plaintiffs have a right to the use of a flow and control of water.
23. [23]
    The plaintiffs submitted that distinction between land and water contended for by the defendants is wrong and misstates the law. Relying upon a number of case authorities^[23] the plaintiffs submitted that the Water Act did not restrict their entitlement to the flow of water to their property. As I understood the plaintiffs’ submission at this juncture the plaintiffs’ contention was that without more the prior enjoyment of a flow of water from the bore to Wilburra Downs could be the foundation for an easement preventing the defendants (or their successors in title) from interfering with or restricting in any way the flow of water from the bore to Wilburra Downs. And that this easement could be imposed with respect to the water from the bore the Water Act notwithstanding.
24. [24]
    In reply Counsel for the defendants challenged the plaintiffs reliance upon the cases specified in their Outline. They pointed out that many of them were from common law jurisdictions without legislative regime such as the Water Act^[24] or concerned a legislative background unlike the Water Act.

The First Reason – Preliminary Observations

25. [25]
    I do not find the cases relied upon by the plaintiffs helpful in this matter. For the reasons submitted by Counsel for the defendants they are distinguishable. None of them concern a statutory regime like the Water Act nor claims involving an interaction of sections such as s 180 of the PLA and the land referred to in that Act with the provisions of the Water Act. In Queensland water and water rights are highly regulated by the Water Act. Both sections 26 and 27 are found within Chapter 2, Part 1 of the Act which concerns the management and the allocation of water and water rights. Section 26 is found within Division 1 which concerns the ownership of water and s 27 in Division 2 concerning allowing use of water. On it’s face s 26 vests in the State all rights to the use, flow and control of all water. Section 27 allows the defendants under a licence to take or interfere with water from the bore. It will be noted that s 27 does not vest or revest the rights identified in s 26 and vested in the State in the defendants. Its licence is more limited, the taking or interference with water. Further the Water Act says nothing about the rights or interests in land upon which water may be found. That Act concerns water and in that way separates the rights with respect to water from land as submitted by the defendants.
26. [26]
    I have no difficulty with the proposition that a land owner with an established entitlement to water can obtain a statutory right of user in the form of an easement under s 180 of the PLA to facilitate the movement of water over the land of another to his land, Ward v Hull^[25] is an example. But the circumstances applying here are very different. The State has not allowed or authorised the plaintiffs to take water from the subject bore. There is a certain circularity in the plaintiffs’ case in light of Sections 26 and 27 of the Water Act. They seek an easement to protect water flow which flow the statute does not protect and simultaneously they assert their interest in a water flow to establish the easement.

The Second and Third Reasons

27. [27]
    The arguments advanced in the Written Outlines and submissions reveal that in certain respects the second and third reasons^[26] are refinements or elaborations upon the first reason. Therefore the ultimate consideration of the defendants’ Application for Judgment (or strikeout) requires a consideration of the competing submissions concerning all three reasons. So, notwithstanding my preliminary observations concerning the first of the defendants’ reasons, it is necessary from me to consider all three and in light of my conclusions then turn to the application.
28. [28]
    The defendants’ submissions concerning the second reason echoed submissions made upon the first reason. Pointing to the terms of the “Primary Easement”^[27] the defendants submitted that the plaintiffs were seeking to enforce rights in a “flow of water” contrary to the statutory framework of the Water Act. The defendants submitted that the bore water the target of the plaintiffs claimed entitlement was “water” and particularly “underground water” within the meaning of those terms in the Water Act.^[28] I did not understand that this submission was controversial.^[29] Repeating the submissions made concerning the first reason the defendants submitted that this water was vested in the State (recall s 26) and could only be taken by the defendants because only they held a licence (recall s 27).
29. [29]
    The plaintiffs pointed to s 96 (2) of the Water Act and submitted that they were the owners of land adjoining a watercourse and consequently were entitled to take water from the watercourse for stock purposes. It will be recalled that the licence held by the defendants^[30] authorised the defendants to take water for stock purposes. Further in this context the plaintiffs referred to s 119 (2) (b) of the Water Act and submitted that it, presumably in combination with s 96 (2), permitted the taking of water for stock purposes to or upon Wilburra Downs.
30. [30]
    In response the defendants directed attention to the definition of “watercourse” found in s 5 of the Water Act and particularly to the words “river, creek or other stream” and submitted that these were the “governing words of the definition”, referring to the reasons in the High Court of Elston v Dore^[31] concerning the definition found in an earlier version of the water legislation. In support of the submission that there was a “watercourse” in the form of a “river, creek or other stream” plaintiffs’ Counsel directed my attention to some aerial photographs and photographs of the bore exhibited to affidavit of the surveyor Mr Atkinson^[32]. In support of his submission that there existed a natural channel within the meaning of that term used in s 5, the definition of watercourse, Counsel submitted that the photographs exhibited to Mr Atkinson’s affidavit demonstrated the existence at a time in the past of a natural watercourse. Mr Atkinson exhibited a number of aerial photographs taken of the bore, the railway line and adjacent land. One photograph was taken in 1960 (Exhibit DIA3) and another in 1974 (Exhibit DIA4) and a third in 1978 (Exhibit DIA5). According to Mr Atkinson these photographs revealed the existence of a table drain over which from time to time he asserted water might have flowed from the bore to and underneath the railway line and beyond to Wilburra Downs. Mr Atkinson exhibited a further photograph taken in 1998 (Exhibit DIA6). By that time in 1998 the table drain had been apparently back filled and underground pipes were present which presumably took water from the bore to Wilburra Downs. Mr Atkinson’s conclusion was that sometime between 1978 and 1998 the table drain was replaced by underground pipes. All these photographs were taken before the passing of the Water Act in 2000.  In this context it will be remembered that Mr McClymont in his affidavit did not suggest a natural flow of water. His evidence is that the bore was first drilled in July 1924.^[33] Unsurprisingly he offers no evidence of what natural features existed upon the land before the bore was drilled, almost a hundred years ago. Further in this context the evidence coming from Mr Banbrick (the expert in bores in the district) from his report^[34] is instructive. In his report Mr Banbrick says:

“ The Moselle Siding Bore closed constantly to Wilburra Downs … down the 2-inch polyethylene pipeline from the bore to an open discharge into a bore drain on Wilburra Downs and then to …”

Mr Banbrick says nothing about the natural flow of water nor of a river, creek or stream (see s 5) nor a spring (see s 96 (2)). There is simply no evidence of the natural flow of water from a spring or from any other feature before the drilling of the bore in 1924. More particularly there is no evidence whether the features that could be seen in the photographs taken in 1960, 1974 or 1978 reflect a natural or an artificial channel. One can only speculate what effect upon the surrounds the intervention of the man-made bore made upon the surrounding land. Ultimately I did not find the evidence from the affidavits particularly persuasive or helpful concerning the natural flow of water to Wilburra Downs or whether the flow was as a result of artificial channels. The photographs were in some cases poor quality and indistinct. Moreover of the three witnesses who swore affidavits in the plaintiffs case, including Mr McClymont, the others a surveyor and Mr Banbrick (who is very experienced in attending to and working with bores)^[35] none gave evidence in their affidavit that there was a “river, creek or other stream” in about or nearby the bore. The evidence was in a sense unsatisfactory but it is plain that no witness spoke of the presence of a river, creek or other stream and it is only a matter of speculation that the water that presumably flowed from the bore to Wilburra Downs before 1998 flowed in a natural channel.

31. [31]
    Further in relation to the claim made under s 96 (2) of the Water Act in conjunction with s 119 (2) (b) the defendants’ Counsel submitted that s 119 did not in terms permit the plaintiffs to take water under the licence rather it permitted licensees to make private agreements with others for “stock or domestic purposes”.
32. [32]
    The third reason can be summarised quite briefly as the submissions were short. Essentially the defendants submitted that they were the licensees and it was they not the plaintiffs who were entitled to take water from the bore. In response the plaintiffs’ Counsel effectively repeated the submission made in relation to s 96 (2) in the circumstance where the licence is for “stock purposes”.

Consideration of the Application

33. [33]
    The defendants seek summary judgment under UCPR 293. The application maybe made at any time after filing a defence. To succeed the Court must be satisfied that the plaintiff has “no real prospect of succeeding” and that “there is no need for a trial”. The principles are not in doubt. In their Outline the defendants submitted:

“[16] The phrase “no real prospect of success” is intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3] (McMurdoP). A party is not to be denied the opportunity to place his or her case before the court in the ordinary way, except in the clearest of cases; Salcedo at [3] (McMurdoP).

17. [17]
    The court should treat applications for judgment by defendants cautiously as a plaintiff should not be prevented from advancing a case that might possibly succeed.
18. [18]
    In CSR Limited v Casaron Pty Ltd & Ors [2002] QSC 021 Homes J applied Lord Hope’s observations in Three Rivers DC v Bank of England (No. 3) [2001] 2 All ER 513 in considering whether a defendant resisting summary judgment has prospects of successfully defending, citing the following passage:

“It may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases, it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be [to] take that view and resort to what is properly called summary judgment but more complex cases are unlikely to be capable of being resolved that way without conducting a mini trial on the documents without discovery and without oral evidence. As Lord Woolf MR said in Swain’s case [2001] 1 All ER 91 at 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”

19. [19]
    If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable: Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] 2 Qd R 249, 254 (Wilson J).”

34. [34]
    The following reasons and conclusions should be read in light of my “Preliminary Observations” in paras [25] and [26] above and [30] above.
35. [35]
    The terms and effects of the Water Act are clear and decisive. Section 26 vests the water in the State and s 27 gives a licensee the limited entitlements to take water or to interfere with water. Here the licence has been granted to the defendants. The plaintiffs are not mentioned or identified. The licence authorised the defendants to take bore water from the subject bore which is on their land for stock purposes. The water here is “underground water” within the Act and the licence on its face gives the plaintiffs no right or interest in the water. The relief sought in the so called “Primary Easement” concerns the “flow of water”. As drafted the easement resembles an injunction not an interest in land which is what is contemplated by s 180 of the PLA. That section’s title makes it plain that the statutory right of user that can be imposed pursuant to s 180 is “in respect of land”. The very subject matter of an easement (if that is the form to be taken, see s 180 (2)) is land. The easement secures access to land where the servient land is burdened with an obligation that will depend upon the precise terms of the easement. When an easement is being considered, if it is to concern a better access to water then a prior entitlement to the water will have to be demonstrated. The very nature of an easement securing access to water presupposes a prior entitlement to the water. Such easement does not concern establishing entitlement it concerns enjoyment of entitlement. In passing I should mention a submission made by Counsel for the plaintiffs but, in fairness, only faintly. He referred me to the definition of “utility” contained in s 180 (7) and directed my attention to the presence of “water”. It was submitted that that was an indication that s 180 did not only concern land but could concern water as well. The submission is unattractive. In the context of the words and phrases used in the definition of “utility” in s 180 (7) the right or entitlement to the use of and enjoyment of water is not an issue because rather the concept concerns something entirely different from an entitlement to take water for stock purposes under the Water Act. In context “water” there refers to public utilities that commonly have to cross and burden land so as to deliver essential services such as electricity, gas, power, telephone, water and others as mentioned in s 180 (7). The plaintiffs claim to be able to take water as the owner of land adjoining the watercourse under s 96 (2) of the Water Act is misconceived. The words “river, creek or other stream” govern the words of the definition in s 5.^[36] While there is evidence that suggests that an artificial channel to accommodate the pipes that facilitate the movement of water from the bore to Wilburra Downs has been constructed no witness has given evidence of the presence of a “river, creek or other stream” which might enliven s 96 (2).^[37] The plaintiffs have not pointed to a “right, title or interest” in the water from the bore which is vested in the State. The vesting essentially severs the bore water from the land where the bore sits. The Water Act does not give the plaintiffs a right or interest in the “flow of water” essential to enliven a right to a statutory right of user under s 180 of the PLA. I form the view that the plaintiffs’ claim to the relief sought cannot succeed, in terms of UCPR 293 there is no real prospect of success in respect of the plaintiffs’ claim. There is no need for the trial. The defendants are entitled to summary judgment.
36. [36]
    In written submissions the Counsel for the plaintiffs advanced an argument why, for discretionary reasons the application should not succeed. Essentially his point was that the issues were so complex that the claim should go to trial in the conventional way and was not capable of being summarily determined. To the contrary, I have concluded, to a high degree of confidence, that the plaintiffs have no real prospect of succeeding and that there is no need for a trial.
37. [37]
    The defendants alternatively sought to strike out the plaintiffs’ claim under UCPR 171. In the circumstances it is unnecessary for me to consider this aspect of the defendants’ application.

Orders

38. [38]
    The defendants are entitled to judgment. I will hear submissions as to costs.
39. [39]
    The orders will be:

    1. Judgment for the respondents in the proceeding against the applicants.
    2. The Originating Application is dismissed.
    3. Unless otherwise agreed the parties are to submit within 21 days written outlines (not exceeding two pages) with respect to costs.