Corowa v Ministerial Corporation - [2000] NSWLEC 60

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Corowa and Ors V Ministerial Corporation and Ors [2000] NSWLEC 60

PARTIES:
APPLICANTS
Corowa and Ors

RESPONDENTS
Ministerial Corporation and Ors

CASE NUMBER: 30236 of 1999

CATCH WORDS: Practice & Procedure

LEGISLATION CITED:
Water Act 1912
Water Administration Act 1986
Crown Lands Act 1989

CORAM: Bignold J

DATES OF HEARING: 13/03/00

DECISION DATE: 27/03/2000

LEGAL REPRESENTATIVES

FIRST TO THIRD APPLICANT:
Mr Oshlack (Agent)
SOLICITORS
N/A
SIXTH APPLICANT:
Mr T Howard, Barrister
SOLICITORS
Environmental Defenders Office

FIRST RESPONDENT:
Mr D Armstrong, Solicitor
SOLICITORS
Solicitor Department Land and Water Conservation

JUDGMENT:

IN THE LAND AND        Matter No. 30236 of 1999
ENVIRONMENT COURT OF  Coram: Bignold J.
NEW SOUTH WALES  27 March 2000

ROBERT COROWA

First Applicant

MATHEW BENSON

Second Applicant

PETER STANFORD

Third Applicant

NSW NATIONAL PARKS AND WILDLIFE SERVICE

Fourth Applicant

ENVIRONMENTAL PROTECTION COALITION

Fifth Applicant

TIMBARRA PROTECTION COALITION

Sixth Applicant

MINISTERIAL CORPORATION

First Respondent

CAPRICORNIA PROSPECTING PTY LIMITED
ACN 008 819 252

Second Respondent

JUDGMENT ON SECOND RESPONDENT’S CHALLENGE TO JURISDICTION

Bignold J:

A.INTRODUCTION

By Notice of Motion filed 28 February 2000, the second Respondent seeks an order that the present class 3 proceedings, being a reference to this Court made pursuant to the provisions of the Crown Lands Act 1989 s 27 and s 28 (the statutory reference) be dismissed for want of jurisdiction.
The alleged “want of jurisdiction” is not that the Court is not duly seised of a proceeding within its jurisdiction as conferred by the Land and Environment Court Act 1979 s 19(a), (see also Crown Lands Act, s 29) but that the proceeding is based upon what is asserted to be a legally incompetent or flawed direction given by the Ministerial Corporation to the Local Land Board pursuant to the Water Act 1912 s 11(5) (Water Act) to hold a public inquiry as to the desirability of granting a water licence application made by the second Respondent under the Water Act s 10.
The Motion is resisted by the Applicants (at least by all those who have participated in the hearing) and by the first Respondent (the name of which by leave has been amended to “the Ministerial Corporation” as defined in the Water Act).
Before considering the basis for the second Respondent’s assertion that the Ministerial Corporation’s direction to the Local Land Board was legally incompetent or otherwise flawed, it will be convenient to consider the circumstances of the statutory reference to this Court and the litigation history that followed that reference.

B.THE STATUTORY REFERENCE TO THIS COURT

By letter dated 25 August 1999, the Chairman of the Local Land Board for the land district of Tenterfield referred to this Court the matter for public inquiry that was the subject of the Ministerial Corporation’s direction given to the Board pursuant to the Water Act s 11(5).
The reference was expressed to be made pursuant to the power conferred by the Crown Lands Act 1989 s 27(1) which provides as follows:
A local land board, instead of giving a decision in a case, may, after taking evidence, refer the case and the evidence for decision by the Land and Environment Court.
The Chairman’s letter stated that “during the hearing of the inquiry”, the Board had been requested by the objectors to the application for the water licence to make the reference to this Court and that the Board had decided to make the reference. A copy of the Chairman’s letter making the reference is annexed hereto and marked “A”.
Upon the reference being so made, the second Respondent, by Notice of Motion filed on 6 October 1999, sought a declaration that this Court had no jurisdiction in the case on account of the Board’s “reference” being invalid, as being beyond the power of the Board to make such a reference, in circumstances where it had not received all the evidence that the parties appearing at the public inquiry wished to adduce. Additionally, the second Respondent sought an order returning the case to the Board with the direction that the Board complete its hearing of the evidence. (It was common ground that the Board had only received a small amount of the evidence the parties collectively wished to adduce.)
When that Motion came on for hearing on 29 October 1999, the parties agreed that the Motion be adjourned in order that the Minister might give consideration to making a reference to this Court of the case, thereby avoiding any doubt concerning the competence of the Board’s reference to this Court.
A short time thereafter, the Minister referred the matter to this Court pursuant to the Crown Lands Act 1989 s 28(1)(d) which provides as follows:
The Minister may refer to the Land and Environment Court any decision of a local land board if it appears that:

(d) a re-hearing or further consideration is warranted.

A copy of the Minister’s letter making that reference to the Court is annexed hereto and marked “B”.
Thereafter, and upon resumption of the second Respondent’s adjourned Notice of Motion, the Court, by consent, ordered that the second Respondent’s Notice of Motion be discontinued with no order as to costs.
On that occasion, the second Respondent informed the Court that it wished to challenge the competence of the proceedings before the Local Land Board. It was in these circumstances that the Court gave the following direction:
The Second Respondent file and serve a Notice of Motion and supporting affidavit on a question of law (whether the proceedings before the Land Board are competent) within twenty eight (28) days of the date of these orders.
In response to this direction, the second Respondent’s Motion was filed on 28 February 2000, supported by an affidavit sworn by Russell Hetherington on the same day. Mr Hetherington, a consultant, has been appointed as the second Respondent’s agent in the proceedings and conducted its case on the hearing of its Motion.

C.THE GROUND FOR THE SECOND RESPONDENT’S CHALLENGE TO THE COURT’S JURISDICTION

The sole ground advanced by the second Respondent in support of its contention of want of jurisdiction is the assertion that the objections received to the public notification of the second Respondent’s application for a water licence were received outside the statutory period of 28 days prescribed by the Water Act, s 11(2A). In consequence of this asserted fact, the second Respondent argues that the Ministerial Corporation had no power to give a direction to the Local Land Board pursuant to the Water Act, s 11(5) with the further legal consequence that the proceedings before the Board were invalid, producing the ultimate legal consequence that the Minister’s reference of the case to this Court is likewise invalid.
The second Respondent’s argument, stated more expansively, proceeds upon the following lines:
The Water Act s 11(2A) provides the opportunity for private objection to be raised to a water licence application.
However, that opportunity must be exercised within the statutory period of 28 days stipulated in s 11(2A). It is only if the opportunity is so exercised that a valid objection is raised.
This is because compliance with the statutory period of 28 days for an objection to be made is a mandatory requirement requiring strict compliance.
Where there is no strict compliance, the objection is not a valid objection in the sense that it does not enliven the duty of the Ministerial Corporation to give a direction to the Local Land Board pursuant to the Water Act s 11(5) to hold a public inquiry in respect of the desirability of granting the water licence application.
Since the existence of a valid objection is a condition precedent to the duty conferred upon Ministerial Corporation by the Water Act, s 11(5) to give a direction to the Local Land Board, the direction given in the present case is invalid, with the consequence that the Local Land Board had no jurisdiction to consider the case.
Since the Local Land Board had no jurisdiction to consider the case, the statutory reference to this Court (either that made by the Local Land Board or that made by the Minister) upon the basis of the proceeding before the Local Land Board, is itself invalid and the Court therefore lacks jurisdiction to determine the statutory reference.
The foregoing analysis of the second Respondent’s argument that this Court lacks jurisdiction to determine the pending proceeding simply traces the history of the case back to what the second Respondent asserts to be the mandatory requirement that an objection to a water licence application be made within the 28 day statutory period stipulated in the Water Act s 11(2A). (As will appear, this interpretation of the Act, is challenged by all parties resisting the Motion.)
An abbreviated analysis of the second Respondent’s argument is that the requirement that an objection be made within the 28 day statutory period is mandatory in the sense that “unless strictly obeyed, …. the whole proceedings that subsequently follow must come to an end” per Lord Penzance in Howard v Bodington (1877) 2 PD 203 at 210-211.
On this alternative analysis of the second Respondent’s argument, the alleged serial legal consequences (ie nullification) of non-compliance with the statutory requirement that an objection be made within the statutory period of 28 days, include—

the direction given by the Ministerial Corporation to the Local Land Board pursuant to the Water Act s 11(5);
the proceedings before the Local Land Board;
the statutory reference made to this Court; and
this Court’s jurisdiction to determine the statutory reference.

No direct authority was cited concerning the proper construction of the Water Act s 11. However, the second Respondent’s argument, if it can establish the major premise (namely that the requirement that an objection be lodged within 28 days is a mandatory requirement which operates as a condition precedent to the Ministerial Corporation’s duty to direct the Local Land Board to hold a public inquiry) that the ultimate legal consequence is a lack of jurisdiction in the Court to determine the statutory reference, appears to gain some analogical support in the decided cases.
Thus, in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, the majority of the High Court held that the Queensland Local Government Court lacked “jurisdiction to determine” a development application which the majority found to be legally defective on account of failing to specify the whole of the land to which the development application related.
Stephen J (with whose judgment Murphy J concurred) said at 506:
The consequence of the applicant having failed, in its application, to specify the whole of the land to which that application related or applied, instead restricting its application to part only of the subject land, must be to have deprived the Local Government Court of jurisdiction to determine the application. Judge Given rejected such an objection to jurisdiction because he regarded the nomination by the applicant of the site of the quarry and processing plant as the subject land as, in effect, conclusive. What was proposed to be done off the subject land as thus identified was an external activity which could not, he thought, be caught by the extended definition of use. However, once use is perceived as determinative of land, rather than vice versa, the application may be seen to be defective and the Local Government Court to be without jurisdiction. The Full Court of the Supreme Court was correct in so holding.
Wilson J, who gave the other majority judgment said at 517:
It follows from the matters that I have discussed that, in my opinion, the appellant’s application for consent did not comply with the requirements of the Act and the City of Brisbane Ordinances. The application neglected to include in the description of the land the subject of the application that part of lot 1 over which it was proposed to transport metal from the quarry. This error was then carried into the advertisements of the application, which failed to comply with s.22(1A) of the Act, but the defect in the application was itself fatal to the proceedings. Consequently, Judge Given erred in law when he overruled an objection to jurisdiction based on the invalidity of the application before him: cf. Scurr v Brisbane City Council (1973) 133 CLR 242 at 258.
Later, by way of summary, Wilson J said at 518:
Substantial compliance with the Act and Ordinances is a condition precedent to jurisdiction to grant consent in relation to—the contents of the application (ordinance, ch. 8, Pt 2, cl 2); the advertisement of the application (s. 22(1)); and service of notice of the application on abutting owners (s. 22(2)).
This last mentioned passage was cited by the NSW Court of Appeal in Helman v Byron Shire Council (1995) 87 LGERA 349 at 359 but not, so it seems to me, for the purpose of establishing a “want of jurisdiction” in the court, but as supporting a mandatory construction of the relevant statutory requirements that a development application be accompanied by a fauna impact statement.
That the Court of Appeal was not asserting a “want of jurisdiction” is confirmed by the fact that its orders allowing the appeal set aside the development consent (that had been granted by this Court) and substituted an order that the development application be refused.
The reason for the order refusing development consent was not on account of the merits of the case but because “the consent authority is bound to refuse consent because of non-compliance with essential preconditions”: at 359 per Handley JA.
In my respectful opinion, that line of reasoning explains the true basis for, and effect of, the majority decision in Pioneer Concrete. So understood, there was no “want of jurisdiction” in the court in Pioneer Concrete to determine the case, however, there was no power to grant approval to the application because it was legally defective (and incurably so) for failing to strictly or substantially comply with relevant statutory requirements, concerning the making of a development application and its public notification etc.
The foregoing analysis, of the cited cases, in my judgment, is supported analogically by the decision of the High Court of Australia in Hunter Resources Ltd v Melville and Anor (1988) 164 CLR 234, a case involving the Western Australian Mining Act 1978 and in particular, the power of the mining warden to grant a prospecting licence under s 40(1) of that Act which provided:
subject to this Act, the warden may, on the application of any person grant to that person a licence to be known as a prospecting licence.
The question at issue in that case was whether “the power of a mining warden to grant a prospecting licence under s 40(1)….. is conditioned upon precise compliance by the applicant with the requirements of regulation 59 ….regulating the marking out of the land which is the subject of the application”: at 237 per Mason CJ and Gaudron J.
The majority of the Court (Wilson J, Dawson J and Toohey J in separate judgments) held that the question should be answered affirmatively (as the mining warden had held at first instance). However, as Dawson J observed at 251:
The question is not whether the first respondent’s application was null and void because it was not preceded by observance of the relevant marking-out requirement or whether it was insufficient to invoke the jurisdiction of the warden — for it is clear that the warden must have had jurisdiction to dispose of the application in one way or another — but whether the warden acted in accordance with the law in rejecting it for non-compliance with the Act. The warden may only grant a prospecting licence subject to the Act and therefore it is apparent that he may not properly proceed to grant a licence upon an application made in contravention of a requirement of the Act.
To similar effect was the following observation of Toohey J at 256:
It is necessary at the outset to identify precisely the question involved in this appeal. The question is not whether the warden had jurisdiction to entertain the application of the first respondent for a prospecting licence. Clearly the warden had jurisdiction to deal with the application, whether or not there had been a failure to comply with a marking-out requirement.
So here in the present case, I am of the opinion that the Court must be regarded as being vested with the jurisdiction to determine the statutory reference. In this situation, the next question to arise is how should the Court deal with the matter, or more particularly, is the Court bound to dismiss proceedings if it accepts the second Respondent’s argument that there is no relevant objection upon which to legally found the Ministerial Corporation’s direction to the Local Land Board, pursuant to the Water Act, s 11(5).
The solution to this question is to be found in the proper construction of the relevant provisions of the Water Act.
However, before considering the Water Act I pause to observe how inherently unlikely it is that the Legislature would intend the jurisdiction vested in this Court to determine the statutory reference should depend upon the existence of an objection made to a water licence application.
As Dixon J pointed out in Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 at 391, although there exists the “abstract possibility” of the Legislature adopting the course (of making the existence of any event, fact, or circumstance a condition upon which the jurisdiction of a court depends), because “it provides so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed”.
I would respectfully understand the following passage from the High Court’s judgment in Craig v South Australia (1995) 184 CLR 163, in the context of providing examples of jurisdictional error committed by an inferior court as not questioning the proper approach to the interpretation of relevant statutory provisions as advocated by Dixon J in Parisienne, but as predicated upon the assumption that the relevant legislation has such an effect:
If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even thought he matter is the kind of matter which the court has jurisdiction to entertain.
Even as applied to the Local Land Board, it is not readily to be reckoned, in my judgment, that the jurisdiction conferred upon the Local Land Board, by virtue of the Ministerial Corporation giving it a direction pursuant to the Water Act s 11(5), to hold a public inquiry is conditioned upon there being in existence a valid objection to the water licence application. Prima facie, the jurisdiction is conferred by the giving of the direction.
Hope JA, in the course of his extensive survey of decided cases in his judgment in the NSW Court or Appeal’s decision in Hatton v Beaumont (1977) 2 NSWLR 211 (expressly approved by the High Court of Australia on appeal—see 52 ALJR 589) noted at 220:
…the cases show that in respect of inferior tribunals the question to be decided is often not whether something which has been duly commenced should be nullified, but rather whether anything has been commenced

His Honour continued:

Inferior tribunals are often given jurisdiction, subject to conditions. Sometimes the tribunal itself is empowered to decide whether the condition has been satisfied, but in other cases it does not have this power conclusively; and a supervisory court can determine, from the face of the record, or from evidence, whether the necessary conditions have, in fact, been satisfied. In this class of case the question is not whether failure to comply with a statutory provision imports a nullification of subsequent proceedings; the question is whether there is any jurisdiction in the relevant tribunal to take any step in the proceedings: see, for example Ex parte Toohey’s Limited; Re Butler (29); Minahan v Baldock (30). But, before a case falls into this class, it must first be decided that the statutory provision imposes a condition on jurisdiction.

29 (1934) 34 SR (NSW) 277, at pp. 281-283; 51 WN 101, at p. 102.
30 (1951) 84 CLR 1, at p. 11..

In my opinion, the Local Land Board’s jurisdiction in the present case is solely founded upon the existence of a direction given to it by the Ministerial Corporation pursuant to the Water Act, s 11(5).
These observations do not provide a conclusive answer to the second Respondent’s argument but they do show how far removed from a direct challenge to this Court’s jurisdiction is the foundation stone of the second Respondent’s argument, namely that to be a valid “objection” under the Water Act, s 11, to a water licence application, the objection must have been lodged within the statutory 28 day period.
Not only is the foundation for the second Respondent’s challenge obviously remote and indirect, but it is principally directed to legislation, namely the Water Act and the Crown Lands Act 1989 (the latter of which constitutes the Local Land Board) which are enactments not falling within this Court’s express jurisdiction.
It is presumably on account of these formidable difficulties that the second Respondent has framed its argument as a challenge to this Court’s jurisdiction (including the Court’s power) to determine the statutory reference in this case.

D.THE RELEVANT STATUTORY PROVISIONS

The Water Act Pt 2, Div 3 contains provisions relating to the grant of a water licence. Application for such a licence may be made in accordance with s 10.
Section 11, which is headed “Notification of application for licence” provides as follows:
(1) On application being made for a licence under section 10, the Ministerial Corporation shall cause to be advertised once in the Gazette and once in a newspaper published and circulating in the district where the work is or is proposed to be situated, a notice containing particulars of the application.
(1A) Subsection (1) does not require the Ministerial Corporation to cause to be advertised a notice containing particulars of an application unless it is satisfied that the applicant occupies, or will obtain the right to occupy, the site of the work.
(2) Where, at the time the application is made, the work is, or is proposed to be, situated within a proclaimed local area, any:

(a) local occupier, or
(b) statutory authority,

whose interest may be affected by the granting of the application may, within 28 days after the date of the publication of the later of the advertisements referred to in subsection (1), lodge with the Ministerial Corporation an objection thereto.
(2A) Where, at the time the application is made, the work is not, or is not proposed to be, situated within a proclaimed local area, any person whose interests may be affected by the granting of the application may, within 28 days after the date of the publication of the later of the advertisements referred to in subsection (1), lodge with the Ministerial Corporation an objection thereto.
(2B) An objection referred to in subsection (2) or 2A) shall be in writing and shall specify the grounds of objection.
(2C) If, after the application is advertised:

(a) the applicant amends the application as advertised; and
(b) in the opinion of the Ministerial Corporation the changes warrant the advertising of the application as amended,

the Ministerial Corporation shall advertise the amended application in the manner referred to in subsection (1) and:

(c) the provisions of this section shall apply to the amended application as if it were a new application; and
(d) the application as originally made shall be deemed to be withdrawn.

(3) (a) After the expiry of a period of twenty eight days after the date of the publication of the later of such advertisements, the Ministerial Corporation shall decide whether the application should be granted or refused.
(b) Where the decision of the Ministerial Corporation is that the application should be granted the Ministerial Corporation shall give the applicant notice of the period, terms, limitations and conditions proposed to be applied to the licence.

(4) In any case where the decision of the Ministerial Corporation is that the application should be refused, the applicant shall be notified in writing of such decision and may, within ninety days from the date of such notification, appeal to the Land and Environment Court against such decision.
The appeal shall be made as prescribed by rules of court of the Land and Environment Court and be accompanied by a fee of ten dollars as security for the costs of the appeal. Notice of appeal in the prescribed form shall be given by the appellant to the Ministerial Corporation upon the lodging of the appeal in the Land and Environment Court.
Where the appeal is upheld the Land and Environment Court shall specify the period, terms limitations and conditions (if any) to be applied to the licence.
The decision of the Land and Environment Court upon any such appeal shall be final.

(5) In any case where the decision of the Ministerial Corporation is that the application should be granted but an objection has been lodged pursuant to subsection (2) or (2A), or the applicant is dissatisfied with the decision of the Ministerial Corporation as to the period, terms, limitations and conditions proposed to be applied to the licence and has lodged with the Ministerial Corporation an objection thereto in writing within twenty eight days after notice has been given to him in accordance with subsection (3), the Ministerial Corporation shall direct the local land board or a Magistrate to hold a public inquiry as to the desirability of granting the application or as to the period, terms, limitations and conditions proposed to be applied to the licence, as the case may be.
The holding of the inquiry shall be notified once in the Gazette and once in a newspaper published and circulating in the district where the work is or is proposed to be situated.
The Ministerial Corporation and:

(a) where, at the time the application is made, the work is, or is proposed to be, situated within a proclaimed local area, any:

local occupier; or
statutory authority,
whose interests may be affected by any matter the subject of the inquiry; or
(b) where, at the time the application is made, the work is not, or is not proposed to be, situated within a proclaimed local area, any person whose interests may be affected by any matter the subject of the inquiry,
shall be permitted to be heard at the inquiry, in support of, or in opposition to, the matter.
The local land board or Magistrate, as the case may be, holding any inquiry under this subsection shall announce its or his decision in open court, and shall thereupon report in writing upon the inquiry to the Ministerial Corporation.
Where the inquiry is as to the desirability of granting the application and the report of the local land board or Magistrate as the case may be is in favour of the granting of the application the report shall embody the period, terms, limitations and conditions to be applied to the licence.
Where the inquiry is as to the period, terms, limitations and conditions proposed to be applied to the licence the report shall specify the period, terms limitations and conditions to be applied to the licence.
(6) Where an inquiry is held under subsection (5), the Ministerial Corporation or the applicant or any person or authority so interested as aforesaid may, within twenty-eight days from the announcement of the decision as provided for in the said subsection, appeal to the Land and Environment Court against the decision of the local land board or Magistrate. The decision of the Court shall be final.
The appeal shall be made as prescribed by rules of court of the Land and Environment Court and be accompanied by a fee of ten dollars as security for the costs of the appeal. Notice of appeal in the prescribed form shall be given by the appellant to the Ministerial Corporation upon the lodging of the appeal in the Land an Environment Court.

Section 12 provides for the grant of a licence, subsection (1) providing as follows:
(1) (a) The Ministerial Corporation shall, where its decision is that an application for a licence should be granted and no objection has been lodged under section 11, issue a licence to the applicant in the prescribed form for such period and subject to such terms, limitations and conditions (if any) as may be determined by the Ministerial Corporation.
(b) The Ministerial Corporation shall in compliance with any decision of the local land board or stipendiary magistrate upon an inquiry held under section 11 (5) or of the Land and Environment Court upon appeal favouring the granting of an application for a licence or as to the period, terms, limitations and conditions to be applied to a licence, issue a licence to the application in the prescribed form for the period and subject to the terms, limitations and conditions set out in the decision of the local land board or stipendiary magistrate or the Land and Environment Court, as the case may be.
It is also necessary to note some relevant provisions of the Crown Lands Act 1989.
Section 20 creates a local land board for every “land district”.
Section 22 which deals with the jurisdiction of local land boards include the following:
The Minister may refer:
(a) any matter arising out of the administration of this Act, or of any other Act dealing with the administration of Crown land, or
(b) any other prescribed matter,
to a local land board or Chairperson sitting alone for inquiry and report.
A local land board or Chairperson has power to hear and determine all references, appeals and other matters coming before the board or Chairperson under this or any other Act.
Division 3 Pt 2 provides for appeals and references to the Land and Environment Court.
Section 26 provides for an appeal to this Court against the decision of the local land board by any party to the proceedings before the board.
Section 27 provides for a reference to this Court by a local land board “instead of giving evidence in the case”.
It was pursuant to that section that the Court first received the statutory reference in this case.
Section 28 provides for the reference to this Court by the Minister of any decision of a local land board. It was pursuant to s 28(1)(d) that the Court received the statutory reference from the Minister in this case.
Section 29, which deals with the powers of this Court on appeal or reference made to it under the Crown Lands Act 1989 provides as follows:
The Land and Environment Court has power to:

(a) hear and determine all appeals made to it under this Act or the Crown Lands (Continued Tenures) Act 1989 and any matters referred to it by the Minister or by a local land board, and
(b) make any order or decision which the nature of the case may require.

E.THE RELEVANT FACTS

The relevant facts can be chronicled as follows:
On 2 June 1998, the second Respondent applied for a water licence under the Water Act s 10.
On 25 June 1998, the Ministerial Corporation caused to be advertised in the “Tenterfield Star”, a newspaper published and circulating in the district where the proposed work is situated, notice of the second Respondent’s licence application.
On 26 June 1998, the Ministerial Corporation caused to be advertised in the Government Gazette notice of the second Respondent’s licence application.
On 4 July 1998, the Ministerial Corporation caused to be re-advertised in the “Lismore Star”, another newspaper, notice of the second Respondent’s licence application.
No written objection was lodged with the Ministerial Corporation within 28 days of the date of publication of the advertisement in the “Tenterfield Star” or of the date of publication in the Government Gazette.
However, six (6) objections were lodged with the Ministerial Corporation within 28 days of the date of publication of the advertisement in the “Lismore Star”, all such objections being received in the period between 27 and 31 July 1998.
Thereafter (some time in 1999), the Ministerial Corporation decided that the second Respondent’s licence application should be granted, but because of the existence of objections, the Ministerial Corporation gave a direction to the Local Land Board, pursuant to the Water Act, s 11(5) “to hold a public inquiry as to the desirability of granting the application”.
The Proposed work, the subject of the licence application, is not situated within a proclaimed local area—hence s 11(2A) is the relevant provision for the lodging of objections to the licence application.

F.ADJUDICATION ON THE COMPETING ARGUMENTS

Having regard to the relevant statutory provisions and the relevant facts, in order to succeed in its challenge to this Court’s jurisdiction to determine the statutory reference, the second Respondent must sustain each of the following propositions—

The Ministerial Corporation had no power to re-advertise notice of the licence application, as it did in the “Lismore Star” on 4 July 1998.
That re-advertising in the “Lismore Star” had no legal effect in that it was legally incapable of generating any valid objections under the Water Act, s 11(2A).
Section 11(2A) imposes a mandatory requirement that any objection to the licence application must be lodged with the Ministerial Corporation within 28 days of the later date of publication of the original advertisement in the newspaper and in the Government Gazette.
Any objection lodged outside that statutory period of 28 days so computed, is not a valid objection.
The duty of the Ministerial Corporation to direct the Local Land Board to hold a public inquiry is predicated or conditioned upon the existence of a valid objection, ie an objection lodged within the statutory period of 28 days.
The Ministerial Corporation had no power (except for the duty imposed upon it by s 11(5)) to direct the Local Land Board to hold a public inquiry as to the desirability of granting the licence application.
In the circumstances, the Ministerial Corporation’s direction to the Local Land Board purportedly given under s 11(5) was null and void.
In consequence of the direction being null and void, there was no valid proceeding in respect of the second Respondent’s licence application that was before the Local Land Board or within its jurisdiction.
There being no valid proceeding before the Local Land Board, there could be no “decision of a local land board” which the Minister might refer to this Court in terms of the Crown Lands Act 1989, s 28(1)(d) as warranting “a re-hearing or further consideration”.

In so formulating these several propositions (all of which are essential to the success of the second Respondent’s challenge to this Court’s jurisdiction), I have reflected generally the competing arguments of the parties opposing the second Respondent’s Notice of Motion. Of course, I intend no disrespect to the parties by so presenting their competing arguments. It is a convenient way to assemble the competing case and has the virtue of emphasising the sustained chain of reasoning that the second Respondent’s argument must encompass, if it is to succeed.
In my judgment, the second Respondent’s argument has failed at every point in the chain of reasoning to establish any of the foregoing propositions.
It follows that its Notice of Motion must be dismissed with costs.
My reasons for so concluding which are founded upon a proper interpretation of the relevant statutory provisions may be briefly noted, but I can say at once, that it is my rejection of the mandatory interpretation of the time requirement stipulated in s 11(2A), truly the linchpin of the second Respondent’s argument, that compels my conclusion.
I preface my reasons with a brief description of the overall statutory scheme of the Water Act (contained in s 10, s 11 and s 12) concerning the grant of a water licence.
Firstly, there must be an application made by a proper applicant with proper particularisation of the proposed work: s 10.
Secondly, there must be public notification of the application with the opportunity for persons apt to be affected by the licence, to object: s 11.
Finally, there must be a final decision by the Ministerial Corporation to grant or to refuse the application: s 11 and s 12. That final decision may be arrived at, depending upon the circumstances, with or without any independent inquiry by the Local Land Board and with or without any appeal to this Court. Those circumstances will necessarily involve an independent inquiry if there exists any objection to the application or dissatisfaction by the applicant with either the Ministerial Corporation’s refusal of the application or proposed terms and conditions of the licence. Where such an inquiry or appeal is involved, the ultimate fate of the application is determined by the result of that inquiry or appeal.
In this context, the statutory function of the Ministerial Corporation should also be noted. It is created by the Water Administration Act 1986 s 7 with the statutory functions vested in it by that Act—see in particular s 11, s 12, s 12A and s 13.
The Water Act is obviously the principal source and authority for the various functions vested in the Ministerial Corporation. However, the Water Administration Act s 12(1) vests in the Ministerial Corporation
the right to the use and flow, and to the control of:

(a)         the water in rivers and lakes;
(b)         the water conserved by any works;
(c)         water occurring naturally on the surface of the ground; and
(d)         sub-surface water

and that right prevails over any authority conferred by or under another Act, including a later Act than this Act: subsection (2)

Subsection (3) confers comprehensive powers in the exercise of such “right” including:

(a)         the conservation, replenishment and supply of water;
(b)         the equitable distribution of water;
(c)         the beneficial use of water;

…………

It is in the light of this overall responsibility for the State’s water resources that the particular role of the Ministerial Corporation, in the statutory scheme pertaining to water licences, needs to be appreciated.
An obviously important feature of that statutory scheme is the requirement for public notification of a licence application with the opportunity for persons apt to be affected, to object to the grant of the licence. The purpose or object of this requirement is obvious and may generally be equated to the purpose and object of counterpart statutory requirements existing under town planning legislation for public notification of certain types of development application with the potential for objectors to participate in the decision making process. Judicial decisions on those town planning requirements have comprehensively expounded the statutory purpose or object of such requirements eg the High Court of Australia in Scurr v Brisbane City Council (1973) 133 CLR 242: see also the decisions in Pioneer Concrete; and Helman that I have earlier discussed..
However, these statutory provisions though similar, are not entirely uniform. For example, a curious feature of the Water Act s 11 is the fact that there is no express duty on the part of the Ministerial Corporation to take into consideration, in deciding whether the application should be granted or refused, any objections lodged with it, subsection (3)(a) merely postponing the decision until the expiration of the statutory period of 28 days.
It is, I think, entirely legitimate to draw the implication from this postponing provision that the purpose of the postponement is to enable the Ministerial Corporation to receive and to consider objections lodged with it.
However, there is another possibility (albeit I think far less likely) namely, that the Ministerial Corporation, in making its decision, postpones it pending receipt of objections and thereafter merely notes the existence of any objection in the sure knowledge that if it decides to grant the application, it is duty bound to give a direction pursuant to s 11(5) that the Local Land Board hold a public inquiry into the desirability of granting the application. In other words, the Ministerial Corporation deliberately leaves to the decision of the Local Land Board, the evaluation of the objections and the applicant’s competing case for the grant of the water licence.

However, there is a distinctive feature of the Water Act s 11 concerning objections, which I think throws decisive light on the legal significance of the requirement of s 11 (2A) that an objection be lodged within the statutory period of 28 days. It is that the section does not confer upon an objector a right of appeal or a right to demand a public inquiry in support his or her objection. Instead, the section requires the Ministerial Corporation to give a direction pursuant to s 11(5) where an objection has been lodged but the entitlement to be heard at the inquiry is not conferred upon an objector but is extended to “any person whose interests may be affected by any matter the subject of inquiry”. Such persons may of course include an “objector”, but that is not the entitling qualification.
Thus, unlike for example the right of an objector under the Environmental Planning and Assessment Act 1979 to bring an appeal to this Court (vide s 98), against the grant of a development consent, the existence of an objection under the Water Act s 11, confers no automatic rights upon the objector to appeal or to insist upon the holding of a public inquiry by the Local Land Board.
This distinctive feature of the Water Act s 11 very persuasively suggests that the requirement that an objection be lodged within the statutory period of 28 days was intended to be directory, and not imperative or mandatory.
The legislative purpose of the lodging of an objection against a licence application is thus not to provide an objector with an entitlement to appeal etc but rather, it is to assist the Ministerial Corporation in its decision whether to grant or to refuse the licence application, by an awareness of the existence of objections and probably by a consideration of them. Once this legislative purpose has been discerned, it follows that it could not have been the legislative purpose that the making of an objection outside the statutory period of 28 days should simply be regarded as having no effect. Rather, the legislative purpose is attained by according recognition and effect to an objection even if made outside the statutory period of 28 days, so that the Ministerial Corporation can proceed to determine the licence application, either with the benefit of the objection by having regard to it or in the knowledge that the existence of the objection will necessarily give rise to a direction being given pursuant to s 11(5) for the Local Land Board to hold a public inquiry into the matter at which inquiry “any person whose interests may be affected by any matter the subject of the inquiry” shall be permitted to be heard .
In so concluding, I would respectfully adopt and apply the approach expressed in the following passages from the judgment of McHugh JA (with whom Hope JA agreed) in Woods v Bate (1986) 7 NSWLR 560 at 566 and 567:
The effect of a requirement as to time:
A statute which requires an act to be done within a particular period does not necessarily invalidate the doing of that act outside the period. The purpose of the statutory requirement may be directory rather than mandatory. It depends on the terms of the enactment. If the purpose of the provision is to ensure that the act is done within the stipulated period, then the doing of the act outside that period is of no effect. If, however, the purpose of the provision is to state a direction but not an imperative requirement, then the doing of the act outside the period will not necessarily invalidate it. To determine what is the purpose of the provision, it is necessary to weigh the various consequences of a failure to comply with the statute: R v Ingall (1876) 2 QBD 199 at 208; Caldow v Pixell (1877) 2 CPD 562 at 566 and cf Clayton v Heffron (1960) 105 CLR 214 at 247.
Although a directory provision need not be strictly followed, it does not mean that it can be ignored. In Scurr v Brisbane City Council (1973) 133 CLR 242 at 256, Stephen J, with whose judgment the other members of the Court agreed, pointed out that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement. Nonetheless, it is an error to think that his Honour intended to say that there must be substantial compliance with every element of the statutory provision. Many cases can be found in the reports were an act was held valid even though an anterior condition was not carried out at all: see, eg, Clayton v Heffron What Stephen J was emphasising is the necessity for examining the whole of the relevant provision to ascertain whether the substance has been fulfilled after taking into account the omissions as well as the acts done pursuant to it.
In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition: see Simpson v Attorney-General [1955] NZLR 271; Clayton v Heffron; Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; Ex parte Tasker; Re Hannan [1971] 1 NSWLR 804; Attorney-General (NSW): Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 reversed on another ground sub nom Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd) (1977) 52 ALJR 218; 17 ALR 63; Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont (1978) 52 ALJR 589; 20 ALR 314. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 226 per Mahoney JA.
My conclusion that the requirement for lodging an objection within the 28 day period is directory is consistent with a conclusion that the lodging of an objection (including any lodged outside the 28 day period) is nonetheless a necessary condition for the enlivening of the statutory duty imposed upon the Ministerial Corporation to give a direction under s 11(5) for the holding of a public inquiry.
In passing, I would add that I would not confine the Ministerial Corporation’s power to give such a direction to the Local Land Board to the circumstances that give rise to the statutory duty to give such a direction. This is because of the fact, already referred to, of the very comprehensive powers vested in the Ministerial Corporation in respect of its prevailing rights to, and control of, the water resources of the State.
In other words, if in the exercise of any its very broad responsibility and powers the Ministerial Corporation wished to have the benefit of an inquiry and report by the Local Land Board, it would be open to it to make the appropriate references pursuant to the Crown Lands Act 1989 s 22(1).
Since I have rejected, for the foregoing reasons the central plank in the second Respondent’s argument, namely that the requirement for an objection to be lodged within the 28 day statutory period is mandatory, it follows, without more, that the second Respondent’s challenge to this Court’s jurisdiction to determine the statutory reference fails, and must be rejected.
In these circumstances, I shall state but briefly, my reasons for concluding that the second Respondent has established none of the propositions which I have earlier formulated and which were essential for the success of its argument.
As to the re-advertising of notice of the second Respondent’s licence application, I do not think it legitimate to infer from the requirement in s 11(1) that the Ministerial Corporation shall cause the necessary notice to be advertised “once”, that there is no power to advertise more than once. There may be circumstances where notice to potential objectors could not be adequately given, unless there was more than one advertisement in more than one newspaper. However, that is but a background fact or possible fact. Simply, as a matter of construction, a statutory duty to advertise a notice “once”, does not imply a duty not to advertise more than once. Nor does it imply a lack of power in the Ministerial Corporation in its discretion, and in fulfilment of its comprehensive responsibilities in relation to the State’s water resources, to advertise a relevant notice more than once in an appropriate newspaper.
Once it is concluded that a re-advertising of the notice in the same or another appropriate newspaper does not involve a breach of statutory duty, or an unauthorised exercise of power or discretion, there simply can be no basis for concluding that the re-advertising of the notice has no legal effect (including the effect of generating objections to the licence application).
The remaining propositions that I have held the second Respondent’s argument has failed to establish are principally consequential upon my conclusion that the requirement that an objection be lodged with the Ministerial Corporation within the statutory period of 28 days is a directory, and not a mandatory, requirement. They therefore need no elaboration.
Finally, it remains for me to notice that the second Respondent’s argument proceeded upon an unstated assumption, namely that if the Court had accepted its argument that the time requirement be interpreted in a mandatory fashion, it would have necessarily followed that the second Respondent was entitled to the grant of a licence that the Ministerial Corporation had proposed to grant. This assumption, in my view, is legally flawed because it totally fails to appreciate that the Ministerial Corporation’s decision to grant the licence was made on the basis that there existed a number of objections raised against the licence application. The significance of this fact, and in particular its obvious impact on the Ministerial Corporation’s decision to grant the licence application, was that in making the decision, the Ministerial Corporation must be taken to have known that it was, in the circumstances, bound to give a direction under s 11(5) for the holding of a public inquiry into the desirability of granting the licence application.
Absent that factor, it is simply speculative and problematical how the Ministerial Corporation would have determined the licence application, particularly if it had accepted the second Respondent’s contention that it was only objections that were lodged within the statutory period of 28 days that qualified as valid objections, ignoring totally the fact of the re-advertisement of the notice.
In these circumstances, and in light of the known fact that there were a number of objections raised against the licence application, albeit lodged a little time outside the 28 day statutory period, (again assuming acceptance of the second Respondent’s argument that the re-advertising was legally of no effect), it simply cannot be assumed, as the second Respondent’s argument would have it, that the Ministerial Corporation would have decided to grant the licence application.

G.CONCLUSIONS AND ORDERS

For all the foregoing reasons, I would reject the second Respondent’s challenge to the jurisdiction of the Court to determine the statutory reference made to it.
Accordingly, I order that the second Respondent’s Notice of Motion be dismissed with costs.

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Annexure A

Annexure B