Draycott P/L v Minister for Environment and Conservation - [2006] SASC 384

Supreme Court of South Australia
(Civil: Application)
DRAYCOTT P/L v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2006] SASC 384
Judgment of The Honourable Justice Debelle (ex tempore)
14 December 2006
PROCEDURE - COSTS
Application for judicial review – plaintiff granted extension of time to bring proceedings – plaintiff sought setting aside of notice pursuant to s 16 of Water Resources Act 1997 – defendant revoked notice and published fresh notice – whether plaintiff entitled to costs – plaintiff entitled only to costs of application for extension of time.
Water Resources Act 1997 s 16, referred to.
Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood [1999] SASC 327, applied.

DRAYCOTT P/L v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2006] SASC 384
Civil

DEBELLE J. This application for costs stems from the fact that a notice given pursuant to s16 of the Water Resources Act1997 has been revoked.
On 3 February 2005 the defendant published in the Government Gazette pursuant to s 16 of the Water Resources Act1997 a notice prohibiting the taking of water from wells. The notice was given in respect of wells in the Hundred of Peake. The plaintiff takes water from a well in the Hundred of Peake for commercial purposes. He is but one of three persons taking water from wells in the Hundred of Peake.
By an application dated 9 February 2006, the plaintiff brought an application for judicial review seeking to set aside the notice on the ground that it had not been accorded procedural fairness in the making of that notice. It will have been noticed that the application was made one year after the notice had been published in the Gazette. It was necessary, therefore, for the plaintiff to apply for an extension of time within which to bring the application. The plaintiff did so. The application was opposed by the defendant. On 6 July 2006, a Master of this Court made an order extending the time in which the application could be made.
The notice published in the Gazette on 3 February 2005 was to remain in effect for two years unless earlier revoked. It was due to expire on 3 February 2007. It is common ground that in the latter months of 2006, the plaintiff has been in negotiations with the defendant Minister. The Minister heard representations on behalf of the plaintiff concerning the making of a fresh notice. In the result, the Minister revoked the notice made on 3 February 2005 and published notice of that revocation in the Gazette of 30 November 2006. However, on the same day and in the same Gazette, the Minister published a fresh notice in relation to the taking of water from wells in the Hundred of Peake. To all intents and purposes, the notice is in the same terms as the notice published on 3 February 2005.
Given that the notice has been revoked, the plaintiff has applied to discontinue the proceedings. That…

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: [2006] SASC 384
Decision Date: 14 December 2006

CaseChat Overview and Summary

Draycott P/L, an applicant for a water license, applied for judicial review against the Minister for Environment and Conservation of Western Australia, challenging the validity of a notice issued under the Water Resources Act 1997. The dispute centred around the procedural fairness of the notice and the entitlement to costs incurred by the plaintiff during the proceedings. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court were whether the plaintiff was entitled to costs for the entire proceeding and, if not, whether it was entitled to costs associated with the application for an extension of time. The plaintiff argued that it should be awarded costs for the entire proceeding, citing procedural unfairness and the defendant's revocation of the original notice. The defendant contended that the plaintiff should only be awarded costs for the application for an extension of time, as the substantive application had been withdrawn.

The court considered the circumstances under which costs are awarded in judicial review proceedings and found that the plaintiff was not entitled to costs for the entire proceeding. The court held that the substantive application had been effectively withdrawn when the defendant revoked the original notice and issued a fresh notice, thus rendering the original application moot. Consequently, the plaintiff was only entitled to the costs incurred in making the application for an extension of time.

The court's final order was that the plaintiff, Draycott P/L, was only entitled to the costs of the application for an extension of time and not for the entire proceeding. The court's decision emphasised the importance of procedural fairness but also underscored the limitations on costs awards in judicial review cases where the substantive application has been withdrawn.

Orders