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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 60
Decision Date: 27 March 2000

CaseChat Overview and Summary

The New South Wales Land and Environment Court was called upon to determine a challenge to its jurisdiction to hear a statutory reference made pursuant to the Crown Lands Act 1989. The second respondent, Capricornia Prospecting Pty Limited, sought to have the proceedings dismissed on the basis that the Local Land Board did not have jurisdiction to consider the matter, as no valid objections to a water licence application had been lodged within the statutory period prescribed by the Water Act 1912. The court was required to decide whether the requirement to lodge objections within 28 days was mandatory, and if non-compliance rendered the proceedings before the Local Land Board and the subsequent reference to the court invalid.

The court held that the requirement to lodge objections within 28 days was directory rather than mandatory, and thus non-compliance did not invalidate the proceedings. The court found that the purpose of the statutory period was to provide the Ministerial Corporation with notice of objections to assist in its decision-making process, not to confer automatic rights upon objectors. The court concluded that the Local Land Board had jurisdiction to consider the matter, and therefore the court had jurisdiction to determine the statutory reference.

The court dismissed the second respondent's challenge to its jurisdiction, and ordered that the second respondent's Notice of Motion be dismissed with costs. The court found that the re-advertising of the notice of the water licence application did not breach any statutory duty and had legal effect in generating objections, which were considered in the proceedings before the Local Land Board.

Orders