Eidsvold Shire Council v Department of Natural Resources and Mines
[2005] QLC 36
•1 July 2005
LAND COURT OF QUEENSLAND
CITATION: Eidsvold Shire Council v Department of Natural Resources and Mines [2005] QLC 0036 PARTIES: Eidsvold Shire Council
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)SunWater
(applicant)FILE NO: A2003/0108 DIVISION: Land Court of Queensland PROCEEDING: Application for joinder DELIVERED ON: 1 July 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RS Jones ORDER: Application for joinder granted. CATCHWORDS: Procedure - Parties - Practice under Rules of Court - Whether the applicant's interest in an interim water allocation is sufficient for it to be joined as a party pursuant to Rule 69(1)(b) of the Uniform Civil Procedure Rules APPEARANCES: Mr D Kevin for the appellant
Mr M Heather for the respondent
Mr A Watt for the applicantSOLICITORS: King & Co for the appellant
Legal Counsel, Legal Services, Department of Natural Resources and Mines for the respondent
Principal Legal Officer, SunWater, for the applicantBackground
These proceedings concern an appeal by the Eidsvold Shire Council ("Eidsvold") against a review decision of the Chief Executive, Department of Natural Resources and Mines ("the Chief Executive") under the Water Act 2000.
The material facts leading up to the appeal and this application can be briefly stated. On or about 13 December 2000 the Chief Executive made a decision pursuant to s.1113 of the Water Act to grant interim water allocations. Pursuant to this decision Eidsvold was granted an interim water allocation of 150 ML per annum and SunWater 200 ML per annum.
On or about 9 April 2001, following an application for a review of the original decision by Eidsvold, the Chief Executive made a review decision pursuant to s.1115 of the Water Act to grant a fresh interim allocations. Under this decision the interim water allocation of Eidsvold was 200 ML and SunWater 150ML.
By an Originating Application filed in this Court on 13 June 2003 Eidsvold appealed the review decision of the Chief Executive pursuant to s.877 of the Water Act. The relief sought by Eidsvold is as follows:
"The applicant seeks an order that the review decision be substituted with a decision that the applicant be granted an interim water allocation of 350 megalitres per annum of high priority water."
By way of a general application filed in this Court on 5 May 2005 SunWater seeks to be joined as a party in the appeal. SunWater, as I understand it, is relevantly for these proceedings a "corporatised entity" and an "interested person" under the Water Act. Notwithstanding the interference with its original interim allocation on review, SunWater did not appeal the review decision.
Positions of the Parties
In its application, the grounds relied on by SunWater in support of it being joined as a party were stated to be:
"Under the Water Act 2000 SunWater is:
(a)an interested person for the review of an original decision - s.1115(4);
(b)an interested person entitled to receive an information notice concerning the review decision - s.863(3);
(c)an interested person who may appeal a review of an original decision - s.877.
A decision concerning the interim water allocation made under the Water Act 2000 for the 350 ML, where the interim water allocation has been divided between SunWater and the Eidsvold Shire Council or allocated wholly to one of the parties, will directly affect SunWater's ownership of the property in the 350 ML of interim water allocation.
SunWater has a direct connection with any decision made and will be directly affected by (the) any appeal concerning the review decision and the original decision for the 350 ML of interim water allocation.
As an interested party, SunWater is entitled to participate in the proceedings and any interlocutory stage in the proceedings, to be heard in any court process to resolve the matter, including any mediation (whether court nominated or voluntary) and any hearing.
SunWater's presence is necessary to enable the Court to adjudicate effectively and completely, on all matters in dispute and/or in the alternative on all issues raised in the proceedings."
The application to be joined was supported by the Chief Executive but opposed by Eidsvold.
When the matter first came before me, Mr Watt, as I understood his submissions, contended that pursuant to various provisions of the Water Act, as an "interested person" under that Act, SunWater was "as of right" entitled to be and/or required to be joined as a party to the appeal. Mr Watt pressed this position when the matter came back before me on 14 June 2005.
Neither Mr Kevin for Eidsvold nor Mr Heather for the Chief Executive supported Mr Watt's argument on this point.
On 13 May 2005, when it first appeared that there might be some difficulties with his primary argument, Mr Watt also sought to rely on Rule 69(1)(b)(ii) of the Uniform Civil Procedure Rules ("UCPR"). Rule 69 relevantly provides:
"(1) The court may at any stage of a proceeding order that -
(a) …
(b) Any of the following persons be included as a party -
(i)A person whose presence before the court is necessary to enable the court to adjudicate effectively and completely on all matters in dispute in the proceedings.
(ii)A person whose presence before the court would be desirable, just and convenient, to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
(2)However, the court must not include or substitute a party after the end of the limitation period unless 1 of the following applies.…"
No technical points were taken by Mr Kevin concerning the applicability of Rule 69 to proceedings such as these. In my view Mr Kevin was correct to adopt such a position. The substantive appeal here is a "proceeding" for the purposes of the UCPR.[1] Also, by virtue of R4 of the Land Court Rules 2000, the relevant parts of the UCPR are applicable. It was common ground between all the parties that there were no limitation period issues concerning the operation of R69(1)(b) in the circumstances of this case.
[1] R7 and definition of "originating application", Land Court Rules 2000; s.36 Acts Interpretation Act 1954.
On 13 May 2005 the matter was adjourned as no affidavit material was available showing SunWater's relevant interest in the appeal (R70 - UCPR). On 14 June 2005 Mr Watt relied on the affidavit of Mr T Vanderbyl,[2] Manager Strategic Water Management of SunWater. No part of Mr Vanderbyl's affidavit was challenged.
[2] Ex. 1.
In paragraph 19 of his affidavit, Mr Vanderbyl states:
"The amount of SunWater's interim water allocation could be affected by a decision of the Land Appeal Court."
Such a result would appear to be the inevitable consequence of the operation of s.1115(5) of the Water Act. Mr Kevin acknowledged on 14 June that if his client was entirely successful in its appeal then SunWater could be left with an interim water allocation of zero.
It is for this reason that Mr Watt says that it would be "… desirable, just and convenient (to join SunWater) to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding."
The third limb of Mr Watt's submissions in support of joinder was that the equity and good conscience provisions of s.7 of the Land Court Act could be relied on in the facts of this case.
Before proceeding further with the positions of the parties, it is appropriate at this stage to deal with the first and last of Mr Watt's arguments. Like Mr Kevin and Mr Heather, I found no support in the Water Act for the proposition that SunWater has some form of substantive right to be a party to this appeal. Further, in my view, if SunWater is not able to satisfy the requirements of R69(1)(b) of the UCPR, s.7 of the Land Court Act is not available to facilitate joining it as a party to the appeal in any event.
Section 7 "does not give to (this) Court power to deal with matters according to some arbitrary concept which is unknown to or unascertainable by the parties. The provisions of the relevant statutes must be observed. The Court cannot ignore or act contrary to statutory requirements or basic principles of natural justice".[3] I cannot give to s.7 of the Land Court Act a meaning which would effectively render meaningless or add a further and less stringent test for joinder under R69(1)(b) of the UCPR.
[3] Cox v the Commissioner for Water Resources (1992-93) 14 QLCR 304 at 320. (LAC)
Returning then to the position of the parties concerning the operation of R69(1)(b), Mr Heather went a step further than Mr Watt and submitted that SunWater was a person whose presence before the Court was "necessary" for the purposes of R69(1)(b)(i)
It was submitted by Mr Heather that SunWater was a "necessary" party because, first, SunWater was a party whose evidence would be necessary concerning the matters required to be considered by the Chief Executive pursuant to s.1113 of the Water Act. Second, as SunWater's water allocation was at risk in the appeal, it stood to lose "property" and had a right to be heard.
Eidsvold opposes the application on the bases that neither subparagraphs (i) or (ii) of R69(1)(b) are met. The arguments put forward to support the position of Eidsvold, as identified in the written submissions of Mr Kevin were:
"a)As a general proposition relating to both limbs of rule 69, Sunwater has no interest in the 'matters in dispute' in or connected with the proceeding. The matters in dispute relate entirely to a claim by the appellant that is entitled to an interim water allocation based on certain historical facts relating to a previous authority and the circumstances under which that authority operated.
b) The presence of Sunwater as a party to the appeal is not necessary to enable the Court to adjudicate effective (sic) and completely on all matters in dispute in the proceeding. The matters in dispute are exclusively between the appellant and the respondent and there is nothing that Sunwater could add to assist in the determination of these very specific issues.
c) The presence of Sunwater in the appeal is neither desirable, just nor convenient to enable the Court to adjudicate effectively and completely on all matters in dispute connected with the proceedings. Sunwater's presence in the proceedings can add nothing that couldn't already be done in the respondent's case and will more than likely result in duplication and additional unnecessary costs.
d) The scheme of the Act is that Sunwater as the corporatised entity operating the relevant infrastructure automatically picks up the residue of any interim water allocation for unallocated water. A customer is entitled to argue that its interim water allocation be increased and if it is successful, Sunwater's residual allocation must be reduced (see section 1115(5)). The outcome for Sunwater is determined by a statutory mechanism. This process does not contemplate that the corporatised entity should be able to either argue against the customer's right to an allocation or assert that its rights are somehow superior to that of the customer. Although it can be affected as a consequence of the proceedings, and therefore would naturally be interested in the outcome, it is submitted that it can have no legal interest in the actual matters in dispute in the proceeding for the purposes of Rule 69 and 70 of Uniform Civil Procedure Rules."
A further matter was raised by Mr Kevin in oral argument on 13 May, namely that the delay in the making of the application for joinder by SunWater ought to work against it in the exercise of my discretion.
The Relevant Tests
(a)Rule 69(1)(b)(i)
As to the submission that SunWater was a necessary party because it would be required to give evidence about some of the matters to be taken into account by the Chief Executive pursuant to s.1113 of the Water Act, that may or may not be correct. There is no evidence before me one way or the other on this issue.
However, there is no dispute that a consequence of the appeal might be that the amount of SunWater's water allocation is reduced, potentially down to zero. That is, the legal right SunWater now has to its 150 ML allocation could be affected by the outcome of the appeal. This is not a case where any allocation lost by SunWater would simply be replaced by a further or new allocation.
In Coolibah Pty Ltd v Commissioner of Taxation[4] the Full Court, when considering O3 R11 of the then Rules of the Supreme Court, which is in similar but not identical terms to R69(1)(b)(i), saw the existence of a legal right to a thing which might be affected in the proceedings as an important consideration in determining whether or not it was necessary for a person to be a party to those proceedings. In Interchase Corporation Ltd (in liq) v FAI General Insurance Company Ltd[5] Byrne J, when considering O3 R11, drew a distinction between a party having only a commercial interest which might be affected by the outcome of legal proceedings and actual property and legal rights which might be affected. The dichotomy between "commercial" and "legal interests" was sought to be avoided by Lord Diplock in Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52 when he proposed the following test:
"Will (the persons) rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action."
This test was adopted by the Full Court of the Federal Court in News Ltd & Ors v Australian Rugby Football League Ltd & Ors[6].
[4] (1981) QdR 69 at 73.
[5] (2000) 2 QdR 301 at 317 L15-20
[6] (1996) 139 ALR 193 at 298; see also Macquarie Bank Ltd v Fu-Shun Lin & Anor (2001) QSC 341, per Holmes J.
In my view, the interests of SunWater in the matter which lies at the heart of the appeal, namely who is finally entitled to how much water by way of allocation, is sufficient to make it a party necessary for the purposes of R69(1)(b)(i).
(b)R69(1)(b)(ii)
If I am wrong in my conclusion concerning R69(1)(b)(i), I would, in any event consider SunWater's participation in the future conduct of the appeal authorised by R69(1)(b)(ii).
The interest of SunWater in the subject matter of this appeal is clearly in my view such that at the very least it would be desirable, just and convenient for it to be involved in the proceedings. In Kioa & Ors v West[7] Mason J stated:
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it … The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."
[7] (1985) 159 CLR 550 at 582; The Commissioner of Police v Tanos (1957-58) 98 CLR 383 at 395; Greig & Duff as Liquidators of Australian Building Industries Pty Ltd (in Liq) v Australian Building Industries Pty Ltd (in Liq) & Ors (2003) QCA 298, per Fryberg J at paras [135] and [136].
The nature and extent of SunWater's interests in the matter at the heart of the substantive appeal outweighs, in my view, all of the arguments raised by Mr Kevin. Notwithstanding this conclusion I would make the following observations. First, as to the said "lateness" of the application, no real prejudice was pointed to as being suffered by Eidsvold due to the timing of this application. Second, it should not, in my view, be assumed that the Chief Executive would or could run the appeal in a manner SunWater considered appropriate or necessary. In this context I also do not consider that it would be safe to assume that, on all material matters, the Chief Executive and SunWater would have identical interests. Third, while the introduction of SunWater as a party to the appeal may well add to the length of the appeal, the very limited nature of the appeal, as acknowledged by Mr Kevin, should mean that any additional hearing time should not be overly burdensome on the parties. Further, it is open to the parties to seek directions from the Court designed to facilitate the most efficient prosecution of the appeal.
In addition to being joined SunWater sought further orders concerning service of applications and disclosure. I do not consider those orders are necessary. SunWater is now in possession of the originating application filed by Eidsvold, and, if joined as a party, it will be required to be served with any amended pleadings. Further, I do not see any reason, and one was not advanced on behalf of SunWater, for any special or specific orders requiring disclosure to be completed on or before 8 July 2005.
Conclusions on the Joinder Issue
For the reasons set out above the application for joinder will be granted. None of the other relief sought will be given.
The parties will have the opportunity to consider these reasons and make submissions as to the final form of the order and any outstanding costs issues.
RS JONES
MEMBER OF THE LAND COURT
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