H Jones & Co Pty Ltd v Municipality of Kingborough [1950] HCA 11

High Court of Australia Latham C.J. Dixon and Fullagar JJ. H Jones & Co Pty Ltd v Municipality of Kingborough [1950] HCA 11

ORDER Appeal of plaintiffs allowed with costs. Judgment of Supreme Court discharged. Declare that the plaintiff H. Jones & Co. Pty. Ltd., as the owner of the lands known as Brookfield, the plaintiff Worsley as the owner of the lands known as Willowbrook and the plaintiff Klingler as the owner of the lands known as Rocklyn are respectively entitled to the use of the waters flowing in a defined and natural channel in the North West Bay River as such waters have been accustomed to flow down to the plaintiffs' lands subject only to the lawful user of the said waters by riparian owners higher up upon the said stream. Declare that the works under construction by the defendant and the scheme and undertaking proposed to be conducted by it for the diversion and supply of water from the said stream to residents in the townships and districts of Margate and Snug are contrary to the respective rights of each of the plaintiffs. Order that the defendant its servants agents and contractors be restrained from further constructing the said works and from obstructing or diverting the water of the said stream so as by such further construction or obstruction or diversion to interfere with the rights of the plaintiffs so declared. Defendant to pay the plaintiffs' costs of action. Appeal of H. Jones & Co. Pty. Ltd. as to counterclaim allowed with costs. Counterclaim dismissed with costs. Case remitted to Supreme Court with liberty to apply to Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

May 16 Latham C.J.

The three appellants are plaintiffs in an action in which they claim as against the defendants, the Warden, Councillors and Electors of the Municipality of Kingborough (to whom I shall hereafter refer as the municipality) a declaration that they as riparian owners of land upon the North West Bay River are entitled to the accustomed flow of the stream subject only to the ordinary and reasonable use of the stream and waters by the riparian owners higher up upon the said stream. They further claim a declaration that certain works under construction by the defendant and a proposed scheme for supply of water to the respondents in the townships and districts of Margate and Snug are contrary to the rights of the plaintiffs, and a consequential injunction. This claim was dismissed by the Supreme Court of Tasmania (Morris C.J.). The municipality counterclaimed as against the plaintiff H. Jones & Co. Pty. Ltd. for a declaration that the waters of the river within the water district which was managed and controlled by the defendant were vested in the defendant and for a declaration that the plaintiff H. Jones & Co. Pty. Ltd. was not entitled to divert and take any water at all from the river or, alternatively, any water other than what was required for the domestic needs of the said plaintiff and its cattle. An injunction was also claimed. Upon the counterclaim the learned Chief Justice gave judgment for the defendant for declarations as sought but declined to grant an injunction because it was not shown that the plaintiff company's use of the water could have any effect in relation to the defendant or its water scheme.