Corish Farms P/L v D-g, Department of Natural Resources

[2000] QSC 283

SUPREME COURT OF QUEENSLAND

CITATION:

Corish Farms P/L v D-G, Department of Natural Resources [2000] QSC 283

PARTIES:

CORISH FARMS PTY LTD ACN 066 694 657
(applicant)
v
DIRECTOR GENERAL OF THE DEPARTMENT OF NATURAL RESOURCES
(respondent)

FILE NO/S:

SC No 5022 of 2000

DIVISION:

Trial Division

DELIVERED ON:

18 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2000

JUDGE:

Chief Justice

ORDER:

Orders as sought by the applicant, as per para [1] of reasons for judgment.

Order the respondent pay the applicant’s costs to be assessed.

COUNSEL:

H Alexander for the applicant
J Batch SC for the respondent

SOLICITORS:

Hunt & Hunt (Brisbane) acting as Town Agents for Fox & Thomas (Goondiwindi), for the applicant
Crown Solicitor for the respondent

1. de JERSEY CJ:   The applicant Corish Farms Pty Ltd seeks an order that the respondent, the Director General of the Department of Natural Resources, forthwith cause inquiry to be made under s 43(1) of the Water Resources Act 1989, in relation to the applicant’s application to amend water harvesting licence no. 47929H; an order that the respondent decide that application within 21 days; and an order otherwise adjourning the applicant’s application for statutory review (including as to licence 47930H) to a date to be fixed to be brought on on 3 days’ notice.

1. The applicant has acquired the property Yattlewondi, to which the licence with which I am present concerned, 47929H, relates.  It wishes to have the licence transferred to its other property 25 kilometers upstream, Wolonga.

1. On 1 February 2000, the applicant sought from the respondent:

(a)         the transfer to the applicant of that licence consequent upon its acquisition of Yattlewondi, and

(b)         amendment of the licence to alter the location of the works from Yattlewondi to Wolonga.

The respondent advertised the application, and received no objection. The time for lodging objections expired on 17 March 2000.  On 7 April 2000, the applicant queried the respondent’s delay in dealing with the applications. 

1. On 15 April 2000 the respondent transferred the licence to the applicant. He has not yet determined the application to amend the licence to relocate it to Wolonga.  On any view, the delay has been substantial and intolerable, subject however only to the respondent’s claim not to have been obliged to process the application.  The respondent takes the view that it was brought under s 45, yet the applicant was not then a “licensee” as required by the provision.

1. Enclosed with the letter of 1 February 2000 was an application by the applicant to amend the licence, dated 14 December 1999.  It reads as an application for a licence for Wolonga, by reference to the existing licence of Yattlewondi – obviously seeking a transfer.  Yet as Mr Batch SC, who appeared for the respondent, pointed out, the applicant could not seek a transfer until it held the licence (s 45).

1. The applicant sought to deal with this in the letter.  The letter is in two parts.  The first covers the transfer of the licence (together with others).  The second deals with amendment of the licence.  The form of presentation of the letter, and its language, contemplate that the issue of amendment will be processed once the licence has been transferred to the applicant, being the only way that could regularly occur.

1. The only point taken by Mr Batch in opposing the application was that on 1 February 2000, when it applied to amend the licence, the applicant was not the licensee in terms of s 45.  That may be correct (subject to a contrary submission with which I need not deal).  But the applicant must be taken then to have presented the application for amendment on the basis that it be processed when it became licensee, which occurred on 15 April 2000.  The respondent should then have expeditiously processed the application to amend the licence.

1. As it was put by Mr Alexander, who appeared for the applicant:

“Under the terms of the letter dated 1 February 2000, the applications to amend the licences were lodged in escrow conditional upon the transfer of the licences to Corish Farms Pty Ltd:  see Pym v Campbell (1856) 6 E and B 370; 119 ER 903. Upon the satisfaction of that external condition, the applications to amend became immediately operative according to their tenor …”

1. Interestingly, the respondent did not on receipt of the application for amendment on 1 February raise any objection: he in fact proceeded to advertise it.  That is said now to have been a mistake.  Another view is that the application was accepted, in a commonsensical way, in the manner intended, that is as described in the preceding paragraph of these reasons.

1. Mr Alexander alternatively submitted that the application to amend should in any event be regarded as an application under s 42.  There is no need to go into that submission.

1. On the uncontradicted evidence, there is at least a strong suggestion that the respondent’s delay is referable to a wish not to progress the application pending the introduction of a Water Resources Plan or a Flow Management Plan under a Water Act 2000, the Bill for which is to be read a second time in the Legislative Assembly next Tuesday 22 August. That would be an inappropriate ground for deferring consideration of such an application, which an applicant is entitled to have determined expeditiously in accordance with the current, established legal framework.

1. The orders proposed by Mr Alexander allow the respondent up to three weeks in which to make a determination on this application.  There having been no objection, any further “inquiry” in terms of s 43(1) would surely be limited.  See Stevenson v Wenck (1996)QdR 84, 87-9. It was there said:

“It may be assumed that sometimes an application to which no objection is made may appropriately be subjected to only a rather cursory inquiry, perhaps confined to information already held by the Chief Executive; but of course that will not necessarily be so.”

Because of the limited nature of the challenge currently mounted by the respondent, and the lengthy period for which he has already held the responsibility to determine this application, I would expect it should reasonably be decided well within that three week period.

1. I make the orders sought by the applicant, as per the first paragraph of these reasons, and order the respondent to pay the applicant’s costs to be assessed.