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

1. 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  This application for costs stems from the fact that a notice given pursuant to s16 of the Water Resources Act1997 has been revoked.

2. 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.

3. 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.

4. 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.

5. Given that the notice has been revoked, the plaintiff has applied to discontinue the proceedings. That application is not opposed. The plaintiff also seeks the costs of these proceedings. That application is opposed.

6. The plaintiff puts its case for costs on the footing that there was a manifest departure from the rules of procedural fairness in that there were only three persons taking water from wells in the Hundred of Peake. Implicit in that contention is the further contention that there is nothing in the scheme of the Water Resources Act and, in particular, the terms of s 16 which excludes the operation of the rules of procedural fairness.

7. The issues in this case are not so much as to the content of the rules of procedural fairness, which are well settled, but, instead, as to the question whether the scheme of the Water Resources Act precludes the operation of those rules. The plaintiff asserts that this is a clear instance of a breach of the rules of procedural fairness, given that the Minister did not afford a hearing prior to the making of the notice which was published on 3 February 2005, asserting that that conclusion is confirmed by the Minister having heard the plaintiff in relation to the replacement notice. The plaintiff further asserts that the fact that the notice published on 30 November 2006 is in all material respects in the same terms as the notice published on 3 February 2005 is not a fact which should deny it an entitlement to its costs, especially as the plaintiff is considering whether it should challenge the notice published on 30 November 2006.

8. The application for costs is opposed essentially on the ground that it is arguable that the scheme of the Water Resources Act and, in particular, the operation of s 16 of that Act, have excluded the rules of procedural fairness. The defendant refers to the fact that the notice under s 16 is dealing with a natural resource and the notices are made to give effect to the public interest in the preservation and reasonable allocation of a limited resource.

9. The issues for consideration in an application of this kind were considered by me in Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood [1999] SASC 327. This is a case where there is a serious question as to whether, in all the circumstances, the rules of procedural fairness apply in respect of the making of a notice pursuant to s 16 of the Water Resources Act. For the reasons I expressed in Boscaini Investments, it is rare for a court, where there has been no trial in the merits, to determine how the costs of proceedings should be borne.

10. The usual rule is that where the matter has not proceeded to a final determination and the proceedings are compromised or withdrawn, there will be no order as to costs. Subject to one exception which I shall mention in a moment, this is a case where effect should be given to that principle.

11. As I have said, the question in this case is whether the rules of procedural fairness apply. The fact that the Minister has accorded procedural fairness when making the decision the subject of the second notice is not a factor which can affect the proper determination of that question nor indicate whether the rules of procedural fairness do in fact apply. The fact that the Minister revoked the first notice is equivocal as the notice was due to expire on 3 February 2007. There is, therefore, no basis for an order as to the costs of the whole proceedings.

12. The plaintiff had to apply for an extension of time within which to make the application. It was open to the defendant to agree to the extension of time. Instead, the defendant opposed the application. The plaintiff has thereby incurred a cost which could have been avoided had the defendant accepted that, in all the circumstances, it was appropriate to extend time. In those circumstances, it is appropriate that the defendant pay at least part of the costs of the application to extend time. Those costs should be all costs of and incidental to the application to extend the time in which to bring the application which were incurred after the issue of the application to extend time and any affidavit in support of that application, the costs of which the plaintiff had to incur in any event.

13. The plaintiff has not entirely succeeded on its application for costs. The only order I am prepared to make as to costs of today is that the plaintiff recover half of its costs of today’s hearing.

14. The orders will, therefore, be that the defendant pay the costs of the plaintiff on its application to extend the time within which to make its application, such costs to be limited to those costs incurred after the filing of the application and the affidavit in support. The defendant will pay half the costs of the plaintiff’s application for costs.