Anchorage Farming Pty Ltd v Chief Executive, Department of Natural Resources

[2001] QLC 28

[2001] QLC 28

 

LAND COURT

BRISBANE

18 APRIL 2001

Re:           A00-17 and A00-28

An Application for Orders -

R Kidd as Licensee and Chairman of St George Irrigation Area Pty Ltd in the matter of an appeal by Anchorage Farming Pty Ltd and Ors from a decision of the Chief Executive, Department of Natural Resources

D E C I S I O N

Mr K Pearce, a Chartered Professional Engineer, acts as a consultant to St George Irrigation Area Pty Ltd, a private company, the shareholders of which are owners of land and licensed irrigators within the St George Irrigation Area.  Mr Kidd is the Chairman of the company and owner of Farm 156 being Lot 156 on Registered Plan BLM840837. 
           In response to the advertisement of Application 12185 pursuant to the Water Resources Act 1989 (the Act) being the legislation relevant at the date of application, by Anchorage Farming Pty Ltd & Ors to, inter alia, amend certain existing licences, Mr Pearce objected to the application on instructions from and on behalf of Mr Kidd and "other shareholders" of St George Irrigation Area Pty Ltd.
           It is sufficient, in my opinion, in consideration of the application presently before the Court, to note that Ground 1 of the objection was - "the effect that the granting of the application and operation of the works so licensed can have or is likely to have on the entitlements of my clients."
           The objection, in the form in which it was received, was given consideration by the chief executive's delegate in the inquiry conducted relevant to the application, pursuant to s.43(1) of the Act.  The concerns of "the objectors" were not considered by the chief executive to be central to the decision which was made to refuse the application.
           The applicants for the amended licences appealed to this Court from the decision of the chief executive.  Certain orders have been made relative to procedural matters and exchanges of witness' statements and experts' reports, preliminary to the hearing of the appeal, which is set down to commence on 28 May 2001.
           Mr Pearce's clients are satisfied with the decision of the chief executive in refusing the application.  However they seek to be heard in the appeal proceedings.  Their concern is that the decision was made based on reasons other than their primary ground for the initial objection; that the relevant officers involved in the inquiry may not necessarily have been opposed to the granting of the application; and the Land Court might decide to vary or revoke the decision of the chief executive, without the benefit of hearing the objectors' opinions through Mr Pearce, who is experienced in the water industry.
           Both the appellants and the chief executive oppose the objectors' application for reasons not necessarily commonly shared, but generally associated with the status of the objectors to the original application and the lack of statutory provision for original objectors to be heard in appeal proceedings when they are not "dissatisfied" persons.  There is no intention by the chief executive to call Mr Pearce as an expert witness.
           In an endeavour to validify the objectors' status, Mr Pearce has submitted that, as an individual landowner and licensee, Mr Kidd qualified as an objector as would have various individual shareholders of St George Irrigation Area Pty Ltd, had he provided the relevant details of those other shareholders in the letter of objection. 
           While the question was raised as to whether Mr Kidd's land was located "as prescribed" in confirmation of his objector eligibility, I do not see it as necessary, in the circumstances for him, to prove that he is the owner of land situated "as prescribed".  I would accept that other shareholders in St George Irrigation Area Pty Ltd owned land situated as prescribed and could have been substituted for Mr Kidd as an eligible objector, if the necessity had arisen.
           As the chief executive had done initially, I accept that a valid objection was made and that Mr Kidd would have qualified as a dissatisfied person, with right of appeal, had the chief executive granted, rather than refused, the original application.  As the legislation stood, that in itself does not give Mr Kidd statutory standing for joinder with the respondent in defence of the grounds of appeal.  Nevertheless, Mr Kidd is a person whose presence through Mr Pearce, may be necessary to enable the Court to adjudicate effectually and completely on one aspect of the matter in dispute - ie Ground 1 of the original objection.
           A difficulty confronting the objector is the inability of Mr Pearce as an engineering expert, to say that there will, or will not, be deleterious effect on the objectors' licensed entitlement, until he is provided with certain information part of which - the chief executive's relevant "flood harvesting policy" - the chief executive's delegate undertook to provide to Mr Pearce as a result of the objection inquiry.  It may be that there would be no need for Mr Pearce to be heard, once he has sufficient information to form a professional opinion.
           Subsection (8) of s.51 of the Act permits the Court, where it considers it necessary to do so in a particular case, to "give directions as to the procedure, practice and other matters and things with respect to the appeal". 
           The Land Court Act 2000 relevantly provides as follows:

"7.     In the exercise of its jurisdiction, the Land Court -

(a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and

(b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts."

There is no provision in the Land Court Rules for the inclusion of a person as a party in a proceeding.  However, Rule 4(1) provides as follows:

"     4.(1)  If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the 'uniform rules') would provide for the matter, the uniform rules apply in relation to the matter with necessary changes."

Rule 62 of the uniform rules is as follows:

"     62.(1)  Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding. 

(2)  The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding.

… "

I have decided that, in order to enable the Court to "adjudicate effectually and completely on all matters", Mr Kidd, through Mr Pearce, should be given the opportunity to be heard in the proceeding, but in respect only to Ground 1 of the original objection.  To that limited degree, Mr Kidd's application, effectively for joinder with the respondent, is granted.
           As the preliminary procedures in the appeal should by now be proceeding in terms of orders made by the Court, it is not considered appropriate that compliance with those orders should be delayed or amended by the granting of this application.  Further orders are made as follows:

(i)Mr Pearce, as agent for Mr Kidd, be provided with the chief executive's relevant flood harvesting policy.

(ii)Mr Pearce be provided with the respondent's response to Order 2 of the Court dated 21 December 2000.

(iii)Mr Pearce be provided with copies of those witness' statements (including experts' reports) exchanged in terms of Order 7 dated 21 December 2000 which touch on matters associated with Ground 1 of the objection.

(iv)Mr Pearce be provided with a copy of the document referred to in Order 9 dated 21 December 2000.

(v)Mr Pearce file and provide to the appellants and respondent chief executive on or before 15 May 2001, his report as an expert, including a list of factual contentions and particulars of any matter to be relied upon in support of such contentions relating to Ground 1 of the objection.

(vi)Mr Pearce be provided with documents when filed and exchanged, in compliance with Order 10 dated 21 December 2001.

(vii)The objector be excluded as a party on his further application.

RE WENCK

MEMBER OF THE LAND COURT