Gallo v Chief Executive, Department of Environment and Resource Management - [2013] QLAC 6

LAND APPEAL COURT OF QUEENSLAND

CITATION: Gallo v Chief Executive, Department of Environment & Resource Management [2013] QLAC 6

PARTIES: Filomena, Francesco Ralph and John Peter Gallo
(appellants)

v.

Chief Executive, Department of Environment & Resource Management
(respondent)

FILE NO:
Appeal No. LAC005-12
Land Court No. WAA021-07

DIVISION: Land Appeal Court of Queensland

PROCEEDING: Appeal

ORIGINATING COURT: Land Court of Queensland

DELIVERED ON: 6 December 2013

DELIVERED AT: Cairns

HEARD AT:
DATE OF HEARING:

Cairns

21 March 2013

THE COURT
Henry J
CAC MacDonald, President of the Land Court
MD Evans, Member of the Land Court

Joint reasons for judgment of Henry J and MacDonald P. Separate reasons of Mr Evans, concurring as to the orders made.

ORDER:
1.     The appeal is allowed.

2.     The respondent is ordered to grant a licence to take 267 megalitres of water per water year, such licence to be for a stated term and subject to the imposition of appropriate conditions as to the monitoring and management of the licence, the term and conditions to be agreed, or failing agreement to be determined by the Land Court.

3.     The parties are to meet and seek to negotiate an agreed term and conditions as to the monitoring and management of the licence, within 42 days of the date of this decision.

4.     The parties are to jointly advise this Court of the outcome of these negotiations by no later than 4.00 pm on Friday, 17 January 2014.

5.     In the event that the parties are not able to reach agreement as to the term of the licence and its conditions, the matter is remitted to the Land Court for determination of the term and conditions.

6.     Any submissions seeking costs are to be filed and served by 4.00pm on Friday, 20 December 2013.

7.     Any submissions in response to such application are to be filed and served by 4.00pm on Friday, 17 January 2014.

CATCHWORDS:
WATER - water licences - three-way regulatory scheme : Water Act 2000, Water Resources Plan, resources operations plan - statutory criteria for deciding applications - relevant date to apply criteria - need to consider existing entitlements.

PRACTICE AND PROCEDURE - appeal to Land Appeal Court - nature of appeal, rehearing - need to prove factual, legal or discretionary error - decision governed by law and facts at date of decision.

STATUTORY INTERPRETATION - Acts Interpretation Act s 20 - accrued rights - presumption displaced by contrary statutory intent - such present here - resources plan pre 2009 amendment to apply.

WORDS AND PHRASES - "additional information" - not a technical phrase - context and Act as a whole suggests ordinary meaning to apply.

PRACTICE AND PROCEDURE - appeal to Land Court (under Water Act) - nature of appeal - appeal de novo - to hear matter afresh - can admit fresh evidence.

EVIDENCE - direct evidence - inferences - Court not limited to consider "direct" evidence only - inferences permissible from evidence of expert witness - equity and good conscience provisions.

EVIDENCE - hearsay - evidence from expert as to what applicant landowner may have "proposed" arguably hearsay - no objection taken - properly admitted.

EVIDENCE - Jones v Dunkel rule - no evidence from applicants personally on proposed use - but such a course does not sustain an inference against them as to proposed use - other expert evidence proved such use.

PRACTICE AND PROCEDURE - de novo hearing - apply law at date of hearing - applicable conversion rate - no accrued right to procedural provision - discretionary considerations not static to date of application - "purposive" provisions of Acts Interpretation Act supports approach.

PRACTICE AND PROCEDURE - Land Appeal Court - when fresh evidence allowable - limits under Land Court Act s 56 - displaces principles applicable in other appellate courts - but requirements of Water Act a relevant consideration.

WORDS AND PHRASES - "it is anticipated", "it is proposed" terms used in expert report - not in a legal document where different expressions may suggest different meaning - terms not significantly different when taken in context of report.

PRACTICE AND PROCEDURE - no general positive duty on litigant to alert opponent of gap in case or to cross-examine on evidence not led.

Acts Interpretation Act 1954
Barron Resource Operations Plan 2005
Land Court Act 2000
Land, Water and Other Legislation Amendment Act 2013
Statutory Instruments Act 1992
Water Act 2000

Water Resource (Barron River Plan) 2002

Allesch v Maunz [2000] 203 CLR 172
Arrowsmith v Micallef [2013] QCA 142
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463
Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 347
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404
Coal and Allied Operations Pty Limited v Australia Industrial Relations Commission (2000) 203 CLR 194
Clodumar v Nauru Lands Committee (2012) 245 CLR 561
De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 15.
De Tournouer v Department of Natural Resources and Water (2009) 30 QLCR 150
De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200
Devries v Australian National Railways Commission (1993) 177 CLR 472
Drew v Makita (Australia) Pty Ltd [2009] 2 QdR 219
Dwyer v Calcol Timbers Pty Ltd (2008) 224 CLR 124
Eastman v The Queen (2000) 203 CLR 1
Esber v The Commonwealth (1992) 174 CLR 430
Fox v Percy (2003) 213 CLR 118
Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15
Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 188 LGERA 193
Gronow v Gronow (1979) 144 CLR 513
Heslin v Director-General, Department of Environment and Resource Management [2010] QCA 347
House v The King (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 QdR 162
Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573
Langdale v Danby [1982] WLR 1123
Mickelberg v The Queen (1989) 167 CLR 259
Mooy v Williams [1992] QCA 114
Morrow v McMahon (1985) 167 CLR 259
North v South East Water Corp Ltd [2003] QSC 407
Orr v Holmes (1948) 76 CLR 632
Phillips v Commonwealth (1964) 110 CLR 347
Radioactive Substances Act 1958
Re Coldham : Ex parte Brideson [No. 2] (1990) 170 CLR 267

Re Schubert [1989] 2QdR 95
Rowe v Kemper [2009] 1 QdR 247
Shambayati v Commissioner of Police [2013] QCA 57
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Stockman v Chief Executive. Department of Natural Resources and Mines [2012] QLC 72
Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 QdR 210
Totterdell v Nelson (1990) 26 FCR 523
Victorian Stevedoring and General Contracting Co Pty Ltd and Dignan v Meakes (1931) 46 CLR 73
Zuvela v Cosmaran Concrete Pty Ltd (1996) 71 ALJR 29.

COUNSEL: Mr DP Morzone QC for the appellants
Mr MD Hinson QC with Dr G Sammon for the respondent

SOLICITORS: p&e Law for the appellants
Crown Solicitor for the respondent

Henry J, MacDonald P:

Filomena, Francesco Ralph and John Peter Gallo ("the appellants") have appealed to the Land Appeal Court from a decision of the Land Court.[1] The proceedings relate to a decision by the Chief Executive, Department of Environment and Resource Management ("the respondent"), under the provisions of the Water Act 2000 (Qld) ("the Act"), to grant an allocation to take underground water for irrigation, stock and domestic supply purposes, up to an entitlement of 130 megalitres ("ML") per annum. The licence application had sought 990 ML/year for that purpose.
[1]Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15.
The respondent’s initial decision was confirmed by the respondent on review. The appellants' appeal to the Land Court against the respondent's review decision was unsuccessful and, consequently, the appellants have appealed to this Court. In their Notice of Appeal to this Court, the appellants have sought an allocation of 813 ML/year.

Decision of the Land Court

The Land Court dealt with two appeals against two decisions by the respondent, one by the current appellants and the other by RF and MO Williams. The appeals were heard together, there was a single body of evidence and the Land Court delivered one judgment. The Williams' appeal was allowed by the Land Court and there has been no appeal to this Court against the decision of the Land Court in that regard. Accordingly, the following summary of the decision of the Land Court relates only to those parts of the decision which are relevant to the Gallo appeal.
Similarly, as those parts of the Land Court's decision dealing with the equity of the departmental practices relating to water allocation in the relevant area are not in issue in this appeal, they are not included in the summary below.
As there was no dispute between the parties as to the availability of water and the impacts of taking water on the environment and other users, the principal issues before the Land Court and this Court were whether the appellants had provided sufficient information, in their licence application or otherwise, as to their proposed use of any water allocation, and the volume of water to be taken.
The appellants own property on the Atherton Tableland. On 17 February 2005, they applied, under the Act, for a licence to take water from under their land, which is located in the Atherton Subartesian Area - Management Area B.
The appellants used the appropriate form to make their application[2] but, as the learned Member found, the section of the form, "Part F Water Requirement", that required information as to irrigation requirements - the proposed area, the maximum weekly application, maximum monthly volume and time of year required - had been left blank. The crop type was described as "Pasture, Corn and Potatoes". In "Part G Amount of Water", the maximum annual volume of water stated to be required was 990 ML but, as the learned Member found, Part G's section about the maximum rate at which the water was to be taken and the maximum area to be irrigated had also been left blank.
[2] Ex 3.
The learned Member noted that the decision of the Court of Appeal in De Tournouer v Department of Natural Resources and Water[3] related to facts which, the learned Member said, were very similar to the facts with respect to the Gallo application. In both De Tournouer and Gallo, water licences were sought for Area B of the Atherton Subartesian Area. The Land Court continued: [4]
"The facts also show that many water licences were applied for within Area B. The respondent processed a significant number of applications and then imposed what it referred to as a departmental moratorium which was subsequently followed by a Ministerial Moratorium. A number of applications made before the institution of either moratorium remained to be considered after the Ministerial Moratorium took effect. These applications included De Tournouer, Gallo and Williams."
[3] [2011] 1 QdR 200.
[4]Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15,[20].
The learned Member then quoted two paragraphs from the decision of the Court of Appeal in De Tournouer:
"[12]The appellant lost for the different reason that she failed to provide evidence which would allow the Member to consider the third element, concerning the use to which allocated water was to be put. That element comprehends both efficiency of water use practices in terms of ss 11(2)(c) and 51(2)(b) of the Barron Plan and the continuous use of water issue in s 11(2)(b) of that plan. In conformity with those provisions, the application form (in “Part F Water Requirement”) required the applicant to describe “the proposed water scheme”. Under a sub-heading “Irrigation Requirements”, the form called for information about “Crop Type”, “Proposed Area”, “Maximum Weekly Application”, “Maximum Monthly Volume”, and “Time of Year Required”. The applicant left all of those spaces blank, save that under the heading "Crop Type" the form records, “Pasture Hay”, “Maize” and “Potatoes". The form contained no information which would allow for any decision about the efficiency of proposed water use practices or whether the water would be used continuously.
…
[26] In challenging this reasoning the applicant’s senior counsel pointed to evidence to the following effect: the application had a long history going back over five years; the applicant and her son had invested a large amount of money in seeking a suitable water allocation, including drilling bore holes and engaging and paying large amounts of money to experts and lawyers; the applicant's son, upon whose evidence the applicant relied, was an experienced man of the land; and an officer of the respondent encouraged him to make an application based on the statutory maximum of 5 ML/ha if he was able to locate good bores (which he did). None of that justified an inference that the water allocation would be efficiently used. As I have mentioned, that topic was simply not addressed in any meaningful way in the application or in the evidence."
In Gallo, the Land Court noted that the application form’s Part F water requirement had only been partly completed by the appellants in almost identical fashion to that of De Tournouer. Further, the learned Member said, he had scoured all of the evidence with respect to the Gallo application but was unable to find any statement or other indication by Gallo indicating in clear terms the use to which the appellants proposed to put any water obtained as a result of the application. He noted that the appellants did not give evidence at the hearing nor was any statement or other evidence from the appellants provided to the Court. The learned Member said that although there was clear evidence as to what, theoretically, could be produced on the land by use of the proposed water allocation, there was no evidence as to the proposed intentions of Gallo other than for the scant reference in Part F of the application, which was not sufficient.
By contrast, the Court said, Williams had provided answers to all relevant questions asked in Part F. The contents of Part F of his application were not challenged. Furthermore, Mr Williams provided a written statement to the Court and gave evidence at the hearing.
The learned Member noted that in the expert crop water resource and groundwater allocation report prepared and submitted on behalf of the appellants, Mr Sutherland said at paragraph 4.2:
"It is anticipated that the irrigated cropping regime would be based on crops such as potato for fresh vegetable sale, maize for harveststore fodder and improved pasture (rye grass/clover) for dairying." (Emphasis added by the learned Member)"
The learned Member said that Mr Sutherland's analysis regarding the Gallo property was entirely hypothetical as there was nothing in the evidence to explain adequately the proposed use of water. By way of contrast, Mr Sutherland's report, in referring to the Williams' application, used the word "proposed" in relation to the use of any groundwater allocation. The use of the word "proposed" by Mr Sutherland was not accidental, the learned Member concluded. It showed an appreciation of an actual purposeful intent by Williams.
The learned Member concluded that as the circumstances with regard to the Gallo application were virtually identical to De Tournouer, he had no option but to refuse the application.
Nevertheless, the learned Member did consider an appropriate allocation for the appellants. He said that there was no dispute between the parties that the irrigation requirement for the appellants’ property at full agricultural production was 1303 ML/year. Using that as his starting point he said that it was appropriate to deduct from that amount the existing groundwater irrigation licence for the appellants' property of 61 ML/year. Further, he was satisfied that in accordance with s 45(2)(b)(ii) of the Water Resource (Barron) Plan 2002 ("the Barron Plan"), the current surface water entitlement enjoyed by the appellants over an area of 98 ha equated to a volumetric entitlement of 980 ML/year.
Therefore, the amount of water which the appellants could use to fully irrigate the arable areas of their property amounted to 262 ML/year (1,303 - 980 - 61). Although this amount was, the learned Member said, an apparent reduction of 490 ML from the 813 ML that Mr Sutherland considered appropriate, the amount of 61 ML under the existing entitlement was to be taken into account as well as a further 98 ha at 5 ML which equated to 490 ML, which was an essentially unneeded source arising from the 98 ha current volumetric entitlement. Thus the amount of 262 ML is again arrived at.
The learned Member acknowledged that this was a conservative approach, but, he said, it was appropriate given the legislative considerations that he was compelled to take into account.

Regulatory scheme

There is a three tier regulatory regime applicable to water licences. At the peak of the hierarchy is the Water Act. The Act is implemented by the relevant water resource plan, in this case the Barron Plan. Section 50(3)(a) of the Act provides that a water resource plan is subordinate legislation. The Act also provides that the chief executive may prepare a resource operations plan to implement a water resource plan.[5] The resource operations plan must not be inconsistent with the water resource plan.[6] It appears that the resource operations plan is a statutory instrument.[7]
[5] Section 95, Water Act 2000.
[6] See s 103(5)(a) Water Act 2000.
[7] See ss 7 and 8 of the Statutory Instruments Act 1992.
Section 210(1) of the Act sets out the criteria which the chief executive must consider in deciding applications for water licences:
"210 Criteria for deciding application for water licence
(1)In deciding whether to grant or refuse the application or the conditions for the water licence, the chief executive must consider the following -
(a) the application and additional information given in relation to the application;
(b) if notice of the application has been published - all properly made submissions made about the application;
(c) any water resource plan, resource operations plan and wild river declaration that may apply to the licence;
(d) existing water entitlements and authorities to take or interfere with water;
(e) any information about the effects of taking, or interfering with, water on natural ecosystems;
(f) any information about the effects of taking, or interfering with, water on the physical integrity of watercourses, lakes, springs or aquifers;
(g) strategies and policies for the sustainable management of water in the area to which the application relates;
(h) the sustainable resource management strategies and policies for the catchment, including any relevant coastal zone and regional aquifer systems;
(i) the public interest.
(2)The chief executive may also consider whether the applicant has been convicted of an offence against this Act, the repealed Act or an interstate law." (emphasis added)
Section 210(1)(c) requires the chief executive to consider, inter alia, any water resource plan and resource operations plan which may apply to the licence. The Barron Plan provides in s 11(2):
"11 General outcomes
(2)Both surface water and subartesian water are to be allocated and managed in a way that seeks to achieve a balance in the following outcomes -
(a)     to allow water to be used for the following -
(i)agriculture;
(ii)aquaculture
(iii)industrial needs;
(iv)small scale uses;
(v)stock and domestic purposes;
(vi)tourism and recreational uses;
(vii)urban needs;
(b)to provide for the continued use of all water entitlements and other authorisations to take or interfere with water;
(c)     to encourage the efficient use of water;
(d)to maintain areas of significant tourism and recreational value, including the Barron Falls, Barron Gorge and Tinaroo Falls Dam;
(e)to allow cultural use by Aboriginal or Torres Strait Islander communities;
(f)     to provide water to support natural ecosystems." (emphasis added)

Applicable Law

At the hearing before this Court, an issue arose as to the relevant date at which the statutory and regulatory provisions are to be applied. This was important because the Barron Plan 2002 was amended, inter alia, by the Water Resource (Barron) Amendment Plan (No 1) 2009 which came into effect on 27 November 2009.[8] The original ROP for the Barron catchment was approved on 16 June 2005 and amended on 16 October 2011 and 6 June 2013. There were no relevant amendments to the Act.
[8]Other amendments to the Barron Plan since the application for a water licence was lodged are not relevant to this appeal.
Section 210(1)(d) of the Act requires the chief executive, in deciding whether to grant or refuse a licence, to consider existing water entitlements and authorities to take or interfere with water.
It is convenient to deal initially with the 2009 amendments to Part 6 of the Barron Plan. The effect of the introduction of and amendments to the ROP will be considered later in this decision. Prior to the 2009 amendments, the Plan relevantly provided:
"51 Decisions about taking subartesian water
(1)This section applies to an application for or about a water licence to take or interfere with subartesian water if granting the application would have 1 or more of the following effects on subartesian water -
(a)    increase the volume of water taken or interfered with;
(b)    change the location from which water may be taken or interfered with;
(c)    change the conditions under which water may be taken.
(2)In deciding the application, the chief executive must have regard to -
(a)    the availability of an alternative water supply for the purpose for which the water is required; and
(b)    the efficiency of the proposed water use practices; and
(c)    whether the proposed taking or interfering is likely to have a direct adverse effect on surface water flows; and
(d)    the cumulative impact of taking or interfering with subartesian water on surface water flows and groundwater flows.
(3)Subsection (2) does not limit the matters the chief executive may consider.
…
53 Restriction on annual volumetric limit
(1) In deciding the annual volumetric limit for a licence granted after the commencement of the plan, the chief executive -
(a)    must have regard to the results of a bore pumping test; and
(b)    must not decide a volume that is more than -
(i)   for a licence to take water for irrigation purposes -
(A) in the Atherton Subartesian Area - 5 ML for each hectare to be irrigated; and
(B)in the Cairns Northern Beaches Subartesian Area - 1.75 ML for each hectare to be irrigated; and
(ii)for a licence to take water for another purpose - the volume estimated by the chief executive to be required for the purpose.
(2)The chief executive must amend the licence to state the annual volumetric limit decided." (emphasis added)
Sections 51 and 53 are in Part 6 of the Barron Plan, which is headed "Strategies for achieving outcomes (subartesian water)".
Following the 2009 amendments, s 53 of the Barron Plan now provides -
"53 Applications for subartesian management area B
(1)This section applies if an application for or about a water licence to take subartesian water in subartesian management area B would increase the volume of subartesian water taken in the area.
(2)The chief executive must refuse the application.

(3)This section is subject to section 54." (emphasis added)

However, the application of s 53 to pre-existing appeals is qualified by s 66 of the Barron Plan[9] which provides that:
[9]Section 66 was inserted as a transitional provision by s 20 of Water Resources (Barron) Amendment Plan (No 1) 2009.
"66 Appeals against particular decisions
(1)Subsection (2) applies if -
(a) before the commencement, an interested person has appealed under chapter 6 of the Act against a review decision to grant in part an application for or about a water licence that had the effect of increasing the volume of water taken in subartesian management area B; and
(b) the appeal has not been decided before the commencement.
(2)For deciding the appeal, part 6 as in force immediately before the commencement continues to apply.
(3)In this section -

commencement means the day this section commences."

The law to be applied by an appeal court depends on the nature of the appeal proceedings, which in turn depends on the statutory provisions which establish the right of appeal.
The right to appeal to this Court is conferred by s 64 of the Land Court Act 2000 which provides that a party to a proceeding may appeal to the Land Appeal Court against all or part of the decision of the Land Court. Section 56 of the Land Court Act provides that an appeal to the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made, although the Land Appeal Court may admit new evidence in limited circumstances. Section 57 of the Land Court Act empowers the Land Appeal Court to do one more of the following:
"(a) suspend the operation of the Land Court's decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
(b) affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
(c) make an order the Land Appeal Court considers appropriate."
The effect of these provisions is that an appeal to this Court is by way of re-hearing which, as there was no application to adduce new evidence in this case, is to be decided on the record of the proceedings in the Land Court.[10]
[10]De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200 [20], 206 207 [22].
Although the Land Appeal Court may, by s 57(c) make an order it "considers appropriate", to succeed in an appeal of this nature, the appellants must ordinarily establish that the lower Court's decision resulted from factual, legal or discretionary error.[11] In Coal and Allied Operations Pty Limited v Australia Industrial Relations Commission[12], the majority said -
"Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error."
[11]De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200, 207 [22]; comp Re Coldham & Others; Ex Parte Brideson [No.2] (1990) 170 CLR 267 (where the Commission was empowered "to take further evidence" and had power to "make such order as it thinks fit") distinguished in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, 204 [16].
[12] (2000) 203 CLR 194, 203, 204 [14].
On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand. [13] However senior counsel for the appellants submitted that the appellants had a vested right, pursuant to s 20(2)(b), (c) or (e) of the Acts Interpretation Act 1954 to have their application for a water licence determined in accordance with the law as at the date their application was received (17 February 2005). Alternatively, it was submitted, the appellants had a right to have the application determined as at the date the notice of appeal to the Land Court was filed (23 March 2007).
[13] Allesch v Maunz [2000] 203 CLR 172, 180 [23].
Senior counsel for the respondent accepted that the effect of s 66 of the Barron Plan was that the prohibition in s 53(2) did not apply to these proceedings and the Land Court was required to decide the appeal under Part 6 of the Barron Plan as in force before 27 November 2009. Further, the present appeal to the Land Appeal Court was also caught by s 66, even though s 66 is not in terms addressed to this appeal. Counsel referred to McPherson J's judgment in Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd[14]:
"A right of appeal that exists when the proceedings are instituted is considered as inhering in the proceedings from commencement of the action, and so will not be affected by subsequent statutory restriction unless it is plain that the restriction is intended to have retrospective application."
Accordingly, counsel submitted, the facts and law at the date of decision (other than the current Part 6 of the Barron Plan) are to be applied and appellate intervention is only warranted if some error in the Land Court's decision is demonstrated.
[14] [1991] 2 QdR 210 at 218.
As counsel for the appellants conceded, the application of the Acts Interpretation Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.[15] We consider that s 66 of the Barron Plan evinces such an intention. Section 66 expressly preserves the right of the appellants to have their appeal decided in accordance with Part 6 of the Barron Plan as in force immediately before the commencement of the 2009 provisions and therefore this appeal is to be decided in accordance with Part 6 as it stood before the 2009 amendments.
[15] Section 4, Acts Interpretation Act 1954.

Grounds of appeal

The grounds of appeal were lengthy and are not set out in full here. As summarised by Senior counsel for the appellant, the four core grounds of appeal are that the Land Court:
1.Allowed extraneous and irrelevant matters to guide or affect the decision (Grounds 3, 5).
2.Did not take into account material considerations and failed to give any weight to relevant considerations (Grounds 4 and 7).
3.Thereby mistook the facts and concluded that the facts of the case were "in fact on all fours" with De Tournouer which was inconsistent with established facts or glaringly improbable (Ground 1).
4.Acted upon a wrong principle of law by applying De Tournouer's case when it was distinguishable and thereby misconstrued the requirements of ss 10, 205, 210 and 880 of the Water Act, the requirements of section 11 and 51 of the Barron Plan and the requirements of section 14 of the Barron Resource Operations Plan 2005 ("ROP") (grounds 1, 2 and 6).

Proposed Use of Water

Counsel for the appellants submitted that the Land Court had erred in law in determining, contrary to the unchallenged and uncontested evidence, that there was no statement or other indication by the appellants of the use which they proposed to make of any water granted as a result of the licence application. Further, it was submitted the Court had erroneously interpreted a component of Mr Sutherland's evidence in isolation and without context, and by comparing extraneous matters contained in the report relating to the Williams' appeal. The Court had allegedly placed unfair and unjustified emphasis on the application form and not given due regard to the supporting information as to the purpose for which the licence was sought and the proposed "efficient" use of the water.

Whether sufficient information supplied

Sections 206(1) and (5)[16] of the Act provide that:
[16]Section 206(6) of the Water Act 2000 was renumbered to become s 206(5) by virtue of s 256 of the Land, Water and Other Legislation Amendment Act 2013.
"Applying for a water licence
(1)An owner of a parcel of land, or the owners of contiguous parcels of land, may apply for a water licence for the parcel or parcels and any other land of the owner or owners contiguous to the parcel or parcels –
(a) for taking water and using the water on any of the land; or
(b)to interfere with the flow of water on, under or adjoining any of the land.
…
(5) The application must be -
(a) made to the chief executive in the approved form; and
(b)supported by sufficient information to enable the chief executive to decide the application; and
(c) accompanied by the fee prescribed under a regulation." (emphasis added)
Section 207(1) provides:
"207 Additional information may be required
(1) The chief executive may require -
(a) the applicant to give additional information about the application; or
(b) any information included in the application, or any additional information required under paragraph (a), to be verified by statutory declaration; or
(c) if notice of the application is published - any submitter to give additional information about the submission." (emphasis added)
Counsel for the respondent submitted that because s 51(2)(b) of the Barron Plan requires the chief executive to have regard to "the efficiency of the proposed water use practices" in deciding an application for a water licence to take subartesian water, there is a statutory onus on the applicant, in s 206(5), to support the application with sufficient information about “the efficiency of the proposed water use practices” to enable the chief executive to decide the application. It is not enough, it was submitted, to describe the crops the subject of the proposed use of the water applied for, as the appellants did in their application form (Exhibit 3), as "pasture, corn and potatoes". The appellants failed to complete the sections of the form requiring a description of the proposed area of land to be irrigated for each crop, the maximum weekly application of water per crop, the proposed maximum monthly volume and the time of year the water was required. Without such information it would be difficult to know what water use practices were proposed, let alone consider whether they were efficient.
Section 210(1)(a) of the Act provides that, in deciding an application, the chief executive must consider the "application and additional information given in relation to the application". Counsel for the appellants submitted that the evidence given in the Land Court was "additional information" which could properly be taken into account by the Land Court in determining the appeal.
We do not accept the respondent's submission that the phrase "additional information" as used in s 210 is to be construed as referring only to any additional information required by the chief executive under s 207(1)(a). The phrase "additional information" is not a technical phrase. The context in which the words are used does not suggest they should be given other than their ordinary meaning. The phrase is not limited in any way in s 210(1)(a)[17] and there is nothing in the Act as a whole to suggest that the phrase should be limited in the way contended for by the respondent.
[17]By contrast, we note that s 207(1)(b), when referring to the additional information required by the chief executive under s 207(1)(a), expressly uses the terms, "or any additional information required under paragraph (a)".
If an applicant for a water licence is to be confined to the information contained in the application form, we would expect the relevant legislation to so provide. It does not. Section 206(5)(b) of the Act does provide that the application must be "supported by sufficient information to enable the chief executive to decide the application" but the section does not say that that information must be supplied with or at the same time as the application. Obviously it behoves an applicant to supply the necessary information before the chief executive makes a decision so that it is available to the chief executive at that time.
We also consider that the nature of the appeal to the Land Court is relevant to this discussion. The Act provides that, following an internal review process, an interested person may appeal, in relevant cases, to the Land Court.[18] Section 880(2) of the Act provides that an appeal “is by way of rehearing, unaffected by the reviewer's decision”.
[18] Section 877, Water Act (2000).
Counsel for the respondent correctly accepted that the effect of s 880(2) of the Act is that the appeal to the Land Court in this case was an appeal de novo.[19] It is generally accepted that in an appeal de novo, the Court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.[20] Consistently with that approach, fresh evidence was admitted by the Land Court which in part supplemented the information included in the water licence application form by the appellants.
[19] Respondent's Supplementary Submission at [7].
[20] Lacey v Attorney-General for the State of Queensland [2011] 242 CLR 573 at 597 [57].
We also note that in De Tournouer, the Land Court[21] the Land Appeal Court[22] and the Court of Appeal[23] all took into account the additional evidence given on behalf of the appellant before the Land Court as to the proposed use of the water applied for. Admittedly, this particular submission does not appear to have been raised in that case, but, if it is correct, it is surprising that it was not raised before any of the Courts given the course of that litigation. In any event, it is clear that the Court of Appeal considered both the application and the evidence given before the Land Court. For example, Fraser JA said:[24]
"None of that justified an inference that the water allocation would be efficiently used. As I have mentioned, that topic was simply not addressed in any meaningful way in the application or in the evidence." (emphasis added)
[21]       De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 15.
[22]       De Tournouer v Department of Natural Resources and Water (2009) 30 QLCR 150.
[23]       De Tournouer v Department of Environment and Resource Management [2011] 1 QdR 200.
[24]       De Tournouer v Department of Environment and Resource Management [2011] 1 QdR 200 at 210 [26].
It follows that we consider that the whole of the evidence before the Land Court is available for consideration by this Court in this appeal.

Consideration of evidence and findings

In support of his submission that the Land Court had erred in law in determining that there was no statement by the appellants of the proposed use of any allocated water, counsel for the appellant submitted that:
·    Part E (not Part F) of the appellants' application form did identify the purpose for which the water is to be used. Part E had been completed by Mr Gallo by ticking the boxes, "domestic", "stock watering" and "irrigation" as proposed uses. The licence issued by the chief executive similarly identified the "authorised purpose" as irrigation, stock, domestic supply.
·    Further, Exhibit 21 (Mr Sutherland's report) provided comprehensive evidence, by way of additional information, as to the proposed use of the water. Counsel pointed to numerous examples, in Exhibit 21, of Mr Sutherland's use of the word "proposed" in relation to the use of the water. He also pointed to such examples in the joint experts’ statement (appended to the report) and in Appendix 4 to Mr Sutherland's report - Crop Water Resource Plan ("CWRP").
Counsel for the respondent submitted that:
· The information required by Part F of the application form, which had largely been left blank by the appellants, was connected with the requirement in s 57(2)(b) of the Barron Plan to address the efficiency of the proposed water use practices. Mr Sutherland's evidence did not assist because, as correctly characterised by the Land Court, Mr Sutherland's evidence was as to what could hypothetically or theoretically be produced. It did not show the appellants' proposals as to the efficient water use at the time they made the application.
·    The appellants' failure to give evidence before the Land Court, in the face of the Court of Appeal decision in De Tournouer, allowed an inference to be drawn that -
(a)the appellants had not developed proposed water use practices, as required by s 51(2)(b) of the Barron Plan; and/or
(b)the purpose of the application was to obtain close to the legally maximum use possible allocation of water, regardless of the efficiency of that use.
·    The appellants' focus on the "proposed" use of the water was incorrect. The statutory test includes and requires an assessment of the efficiency of the proposed water use practices.

In De Tournouer, as in the present case, s 52(2)(b) of the Barron Plan meant it was incumbent upon the chief executive and in turn the Member in making the decision about the application to have regard to “the efficiency of the proposed water use practices”. There are two elements to that consideration:
i. the proposed water use practice,
ii. the efficiency of that proposed water use practice.
Information about both was missing in De Tournouer. Here however there was evidence as to the efficiency of the water use practice.
In this case, as in De Tournouer, the appellants’ application form did not provide sufficient information about what water use practice was being proposed so as to allow regard to be had to its efficiency. However unlike in De Tournouer the appellant advanced evidence before the Land Court of a water use practice and its efficiency. That evidence consisted predominately of Mr Sutherland's report[25] and his oral testimony. His report appended a CWRP[26] as well as a joint expert report prepared by Mr Sutherland and the respondent's expert Dr Watts.[27] Mr Sutherland’s CWRP had been amended in consequence of his joint expert meeting with Dr Watts. Dr Watts also gave evidence and a report by him was tendered.[28] Setting to one side the question of whether the water use practice addressed by this body of evidence was “proposed” by the appellant, there is no doubt that there was comprehensive evidence before the Land Court of both a water use practice and its efficiency.
[25]       Ex 21.
[26]       R 827-866.
[27]       R 780-787.
[28]       Ex 29.
The problem perceived by the Member was that that water use practice was not the water use practice proposed by the application and that no water use practice had been proposed.
The learned Member appears to have perceived that without the requisite information being in the application form there needed at least to be direct evidence of a proposed water use practice given in the hearing before him. His Honour said:
"It would have been a simple matter for the Gallo applicants to have properly completed Part F of their application. They failed to do so. It would have been a simple matter for those applicants to have provided direct evidence to the court as to their proposed use of allocated water. They failed to do so. Following the clear authority of the decision of the Court of Appeal in De Tournouer in virtually identical circumstances, I am left with no option but to dismiss the appellant Gallo’s appeal."[29] (emphasis added)
[29]Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15, [84].
Once it is accepted, as we have and as the Member implicitly did, that the omissions in the form could be remedied by evidence at the hearing before the Member as to the applicants’ proposed water use practice there is no reason to limit the consideration of evidence relevant to that topic to “direct” evidence.
In De Tournouer there was no evidence of the efficiency of a particular water use practice. Nor could it be inferred that a particular water use practice was “proposed” by the applicant because the applicants had adduced inconsistent evidence as to what was proposed. The applicants in this case advanced evidence about the efficiency of a water use practice at the hearing before the Member. Why should it not be inferred as a fact from all of the circumstances that the appellants were proposing that water use practice for the application? Why would the appellants need to give direct evidence of what they were proposing for it to be regarded as their proposal, when the entire conduct of their case indicated, by implication, that that was the water use practice they were proposing? What relevance did the water use practice proposed by the expert evidence of Mr Sutherland have, if it were not the water use practice the appellants were advancing for the purposes of their application?
A consideration arguably detracting from the inference that the appellants were proposing the water use practice canvassed by the experts is that the appellants advanced their case in the alternative. On the one hand they continued to seek the maximum possible water allocation, essentially on equity grounds built on comparable past treatment of applicants. However their clear position remained that they ought, on any view, be granted a lesser allocation supported by the comprehensive evidence of the water use practice canvassed by the expert evidence. If the appellants were, as a matter of fact, proposing the water use practice canvassed at length in the expert evidence before the court, then it would be inconsistent with this court’s obligation to act according to equity, good conscience and the substantial merits of the case[30], to disregard it as constituting the proposal merely because the appellants also sought to maintain an alternative argument that would give them a greater allocation than that supported by the proposal.
[30] Land Court Act 2000, s 55(b).
A consideration the learned Member regarded as weighing significantly against the appellants was that in Mr Sutherland’s report, in referring to the irrigated cropping regime for the appellants’ property, he at one point spoke of it as being what was “anticipated.” He contrasted that with Mr Sutherland’s use of the word “proposed” in a similar context in respect of the Williams application. He regarded the use of the word “proposed” as distinct from merely “anticipated” as demonstrating a purposeful intent in respect of the Williams application.[31]
[31] Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15 [61].
The learned Member regarded the different choice of words as deliberate and significant but the broader content of Mr Sutherland’s report suggested to the contrary. In his report, Mr Sutherland used the word “proposed” on a variety of occasions in referring to the water use practice for the appellants. For instance, the passage emphasised by the learned Member where the word “anticipated” was used is itself found under a sub heading “4.2 Proposed land use” which is in turn under a major sub heading “4) Proposed farm program and layout”[32] (emphasis added). By way of further example he also said:
[32]       R 839.
·“For each appellant I prepared detailed CWRP's which entailed a thorough review of the proposed farm and irrigation practices, assessed the land form and soils, addressed water use efficiency, environmental risk and detailed monitoring and reporting programs to manage those risks.”[33]
[33]       R 769 [2.3].
·“...the CWRP assesses the merits of the proposed additional irrigation of farming land …”[34]
[34]       R 774 [3.1.5].

·“The plan demonstrates the proposed additional irrigation of the farming land described herein would not result in land or water quality degradation on or off farm”[35]
[35] R 828.

·“The objectives in preparing the following CWRP… were to:
· Review the proposed farming and irrigation practices.
· Outline the proposed uses for additional irrigation of water. …”[36]
[36] R 831 [1.1].

·“The proposed cropping cycle for the high production intensity irrigation area represents an allocation of 57ha to late potatoes, 26.6ha to maize for the dairy harvestor ® and 86ha to ryegrass/clover pastures.”[37]

·“The crop water resource plan prepared for the site demonstrates that the proposed irrigation regime and farm management practices will use any ground water allocation to increase agricultural production without impacting on the receiving environment. Further, this plan describes principles that will ensure that allocated ground water resource in an efficient and a sustainable manner in agricultural and environmental terms.”[38] (emphasis added).

[37] R 840 [4.2.2].
[38] R 848.

Read as a whole Mr Sutherland’s report carries the obvious implication that the water use practices outlined therein in respect of the Gallo property are the water use practices which were proposed in respect of the Gallo’s appeal before the Land Court. Further, as the above examples demonstrate, those water use practices were also expressly described as being “proposed”. On the face of it this was direct evidence as to what was proposed.
This evidence would arguably have been open to objection to receipt as hearsay evidence as to what was proposed by the appellants’ but no such objection was taken. Nor was it put to Mr Sutherland when he gave evidence that the water use practices canvassed by him as proposed were not proposed. That is unremarkable. The respondents plainly understood the water use practises canvassed by Mr Sutherland, as well as by their own witness Dr Watts, were the water use practices which were being proposed.
The joint expert report, to which Dr Watts was party, referred repeatedly to the "proposed irrigation area" and to the "land use proposals."[39] Further in Dr Watts own report he had been instructed by Crown Law (who acted for the respondents) "to evaluate, inter alia, the efficiency of the appellants proposed water use practices."[40] His report went on to indicate by way of background that he and Mr Sutherland were acting "as expert witness on the issue of the efficiency of the proposed water use practices associated with the licence applications as this is a criterion to be considered when deciding the licence."[41] His subsequent analysis of the Gallo crop water use plan was replete with references to what was "proposed."[42]
[39]       R 783-786.
[40]       R 875, 876.
[41]       R 877.
[42]       R 883, 884, 885, 887.
Against this background, the fact that the appellants did not give evidence from their own mouths as to what was proposed is of no material consequence. The position might arguably have been different had the respondents mounted a challenge at the hearing to the direct and indirect evidence of Mr Sutherland that the water use practice canvassed at length by him was the proposed water use practice for the purposes of the Gallo application. However, even if that had occurred, it is doubtful that the absence of any of the individual appellants from the witness box could have supported an inference that their uncalled evidence would not have assisted in indicating what water use practice they were proposing for the purpose of the application.[43] That is because the obvious inference arising from the fact that their own legal representatives had advanced Mr Sutherland’s evidence about a proposed water use practice at the hearing is that was the water use practice the appellants were proposing.
[43] A so-called Jones v Dunkel inference – see Jones v Dunkel (1959) 101 CLR 298.
In our view the nature of Mr Sutherland’s evidence about the proposed water use practice and the context in which it was advanced on the appellants’ case compels the conclusion that was the water use practice proposed by the appellants for the purpose of the application. The learned Member therefore erred in dismissing the appeal for want of evidence as to the appellants’ proposed water use practice. The appellants were entitled to a determination of their application and the making of an appropriate allocation with regard being had, inter alia, to the efficiency of their proposed water use practice.

Volume of water

Mr Sullivan and Dr Watts agreed that the available irrigable area of land was 276.6 ha and that the maximum peak irrigation rate would be 4.7 ML per hectare. This would equate to a total annual volume of 1300.02 ML which appears to have been rounded to 1303 ML.
However there are two existing licences benefiting the subject land, a 98 ha surface irrigation allocation and a groundwater licence 183639 (expired 31/7/12) authorising the taking of 61 ML/year.
The parties do not agree as to how those two licences should be taken into account in determining the current application.

Existing surface water entitlement

As set out above[44] the learned Member accepted the respondent's submission that, in accordance with s 45(2)(b)(ii) of the Barron Plan, the appellants' current surface water entitlement over 98 ha equated to a volumetric entitlement of 980 ML/year. Accordingly he deducted 980 ML from the notional allocation of 1303 ML/year.[45]
[44] At [14].
[45] RJ [55].
Mr Sutherland allowed for this entitlement by deducting 98 ha from the total irrigable area of 276.6 ha to leave a balance irrigation area of 178.6 ha. He applied the agreed rate of 4.7 ML to that area to determine the volume of water to be allocated : 178.6 x 4.7 = 839.42 ML, rounded to 813 ML.
The appellants submitted that the Court had erred in deducting 980 ML because, inconsistently with the practice and policy of the Department, the Court had converted and deducted a hectare based licence according to its maximum volume of water, rather than applying a conversion rate of 5 ML/ha or 490 ML.
The Barron Plan originally came into effect on 20 December 2002 and has been amended on three occasions since that date. Relevantly, as at the date of application for the water licence (17 February 2005) and the date the notice of appeal to the Land Court was filed (23 March 2007), s 45(2)(b)(ii) provided that the annual volumetric limit for a licence that states the area that may be irrigated was the volume decided by the chief executive having regard to the volume of water required to efficiently irrigate the area, but not more than the volume, expressed in megalitres, calculated by multiplying the area in hectares by 6.6 for subcatchment area C[46], where the appellants land is located.
[46] Water Resource (Barron) Plan 2002, Reprint 1.
As at the date of the Land Court hearing and decision the relevant conversion rate in s 45(2)(b)(ii) was 10.[47] The learned Member applied a conversion rate of 10.
[47] Water Resource (Barron) Plan 2002, Reprint 1B.
The provisions of the ROP are also relevant to this issue. The original ROP was approved on 16 June 2005. It was not, therefore, in force at the date of the water licence application. The 2005 ROP did not contain any provisions dealing with surface water entitlements in subcatchment area C.
As at the date of the Land Court hearing,[48] the 2005 ROP had not been amended. However, at the date the Land Court decision was handed down[49] the ROP had been amended, on 16 October 2011.[50] Relevantly, the effect of the amendments was that s 52, Part 1, Chapter 3 provided that:
"This part sets out the rules for converting existing water authorisations and the granting of unsupplemented water allocations in accordance with the schedule of water allocations in attachment 8."
[48]       Completed in March 2011.
[49]       5 April 2012.
[50]       The 2013 amendments to the ROP are not relevant to this appeal.
Attachment 8 identifies five water licences in the names of the appellants, being licence numbers 175046, 56790K, 175034, 03046K, 56792K. These are the five licences that together constitute the appellants surface water entitlement over 98 ha. The effect of the 2011 ROP is, therefore, that the appellants' surface water licences were converted to water allocations.
Section 53 of the 2011 ROP provides:
"The water authorisations must be converted to water allocations as follows -
(e)the annual volumetric limit for the water allocation must be in accordance with section 39 of the Water Resource (Barron) Plan 2002."
Section 39(b) of the Barron Plan[51] provides that:
"The annual volumetric limit for a water allocation to take unsupplemented water is -
(b) for an authorisation that states the area that may be irrigated - the volume, expressed in megalitres, calculated by multiplying the area, in hectares, by 10;"
[51]As in force at the date of the 2011 amendments to the Barron Resource Operations Plan. Section 39 of the Barron Plan had been amended in 2009.
Consistently with s 39(b), Attachment 8 to the 2011 ROP provides a volumetric limit for each of the converted surface water licences as follows -
Licence No.  Volumetric Limit
175046  Not greater than 120 ML/year
56790K  Not greater than 250 ML/year
175034  Not greater than 250 ML/year
03046K  Not greater than 80 ML/year
56792K  Not greater than 280 ML/year
The total volume available under the converted licences is 980 ML.
Counsel for the appellants submitted that instead of applying the maximum conversion rate, the Land Court should have applied a rate of 5 ML/ha consistently with departmental practice. However, the relevant conversion rate in the ROP and the Barron Plan cannot be ignored. This is because s 210 (1)(c) of the Act mandates that the chief executive “must” consider any water resource plan and resource operations plan in deciding whether to grant or refuse an application or in deciding any conditions for the licence.
It can be seen that the relevant conversion rate in s 39 of the Barron Plan has the potential to materially affect the volumetric conditions for the licence. The relevant conversion rate in s 45(2)(b)(ii) the Barron Plan as at the filing of the water licence applications and the notice of appeal to the Land Court was 6.6.[52] It was still 6.6 at the time of the hearing in the Land Court.[53] However it had increased to 10 at the date of the decision of the Land Court by operation of the 2011 ROP and s 39(b) of the Barron Plan as explained above.[54] It is still 10. Which rate should be applied for the purposed of determining the outcome of this appeal?
[52] Section 45(2)(b)(ii) Water Resource (Barron) Plan 2002, Reprint 1.
[53] Section 45(2)(b)(ii) Water Resource Barron Plan 2002, Reprint 1B.
[54]Section 53 Barron Resource Operations Plan 2005 (as amended in 2011) and s 39(b) of the Water Resource Barron Plan 2002, current as at 27 September 2013.
For reasons already explained, the usual approach in the case of a hearing de novo required the decision below to be based on the law as it stood at the time of the decision. That required the application of a conversion rate of 10 at the time of the learned Member's decision below. In the present context no issue arises as to the consequence of any variation between then and now because there has been no variation. The conversion rate remains 10. The issue is whether there should be a departure from the usual approach so as to apply the conversion rate of 6.6, or 5 as submitted by the appellants, which was the prevailing rate at the time of the application and hearing below but not at the time of the decision below.
The argument in support of such a departure is "rights" based. In effect it is that if an application for a water licence is successful the applicant has a right to a water licence conditioned according to the system in place at the time the licence was applied for. Such an argument relies upon the application of s 20 of the Acts Interpretation Act 1954 (Qld) which relevantly provides:
"20 Saving of operation of repealed Act etc.
     …
     (2) The repeal or amendment of an Act does not - …
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or …
(e) affect an investigation, proceeding or remedy in relation    to a right, privilege, liability or penalty mentioned in       paragraph (c) or (d).
(3) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened."
That provision applies to the ROP.[55] If an applicant for a licence has any arguable entitlement in the context of s 20 it would likely be characterised as a right rather than a privilege. What though is the “right” relied upon? It may be accepted for present purposes that an applicant for a licence has a right to a decision on the application, a right to review of it and a right to appeal to the Land Court about it.[56] These processes of decision, review and appeal are all accorded to applicants under the Act. But it does not follow that in the exercise of a "right" of appeal a disappointed applicant can be said to have a "right" to the continued application of the same procedural provisions that would or should have informed the calculation of volumetric conditions which could have been imposed as part of the making of the initial decision.
[55] Section 14(1) and Schedule 1, Statutory Instruments Act 1992.
[56] See Esber v The Commonwealth (1992) 174 CLR 430, 440.

The consideration of an application for a water licence involves the application of a variety of discretionary considerations pursuant to s 210 of the Act. However, an obligation upon the decision-maker to have regard to those considerations does not confer a right in the applicant to have those considerations remain static, to be assessed as they stood at the moment of the application. The fact that a decision maker is entitled to seek further information after the making of the application is inconsistent with the applicant having such a right.
The language of s 210 of the Act is also inconsistent with such a right. The change of conversion rate occurred between the hearing in the Land Court and the decision of the Land Court. The learned Member was in effect deciding the matter, for the purposes of s 210, as if he were the chief executive. Section 210 therefore required the Member, "in deciding" whether to grant or refuse the application and in deciding the conditions for the licence, to consider "any water resource plan, [and] resource operations plan that may apply to the licence". On the face of it the water resource plan, which "may apply to the licence" for the purposes of determining the volumetric conditions of the licence, would be that which applied at the time of the making of the decision as to the licence conditions. This is because the time of the decision is the point in time when the licence and the conditions therein would be directed to be granted. That is, it is the conversion rate in the ROP at the time of the making of the decision about the licence conditions rather than at the time of the hearing or earlier that is prima facie relevant.
The purposive approach to statutory construction, encapsulated by s 14 of the Acts Interpretation Act 1954, does not suggest a different conclusion. To the contrary, applying a past rather than current conversion rate in determining the conditions of a licence to be issued would be at odds with the purpose, identified at s 10 of the Act, of advancing sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water. It is in the nature of any system concerned with the sustainable management and efficient use of a natural resource that it may be modified from time to time to enhance sustainability and efficiency. Such a system is unlikely to be effective if variations that have been made to it are not implemented when licences relating to the future use of the resource are being issued. In short, the Act's systemic approach to sustainable management and efficient use of water is at odds with the existence of a right to a water licence conditioned upon superseded conversion rates.
For all of these reasons the appellants do not have a right to the application of the conversion rate of 6.6 (or 5) that was in existence as at the time of the application or hearing below. It is the current conversion rate of 10 that should be applied.

Existing groundwater entitlement

The evidence was that the water licence was to benefit the following lots -
Lot 1 RP 719534  26.128 ha
Lot 169 SP 124699  46.3372 ha
Lot 50 NR 800959   9.372 ha
Lot 210 NR 800958  20.871 ha
Lot 208 SP 116178  64.6585 ha
Lot 207 SP 116178  26.49 ha
Lot 215 RP 804847  44.991 ha
Lot 1 NR 804846  50.318 ha
Lot 219 N 157178  65.559 ha
Groundwater licence 183639 authorises the taking of 61ML/year. That licence is attached to Lot 3 on SP 177333, Lot 1 on RP 719534, Lot 169 on SP 124699, Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178, Lot 48 on SP 116178, Lot 48 on SP 188685, and Lot 1 on NR 804846. It is apparent that six of those lots (Lot 1 on RP 719534, Lot 169 on SP 124699. Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178 and Lot 1 on NR 804846 with a total area of 234.8027 ha) are also part of the land for which the subject water licence is sought.
The licensees named in licence 183639 are John Peter Gallo and Linda Cherie Gallo.
The activity authorised by licence 183639 is the taking of underground water from Atherton Basalt under land described as Lot 3 on SP 177333. Counsel for the appellants said that Lot 3 is owned by John Peter Gallo and Linda Cherie Gallo. John Peter Gallo is one of the appellants in this matter; Linda Cherie Gallo is not.
Counsel for the appellants submitted that it was inappropriate to count the allocation under the licence as available to the appellants' land when the licence is in different ownership and is applicable to a different area. To treat the allocation as a reason for reducing the allocation under the application before the Court is to give with one hand and take with the other, contrary to the decision in Heslin v Director-General, Department of Environment and Resource Management.[57]
[57] [2010] QCA 347.
Counsel for the respondent submitted that the proposed deduction recognized the 61 ML as something capable of applying to the appellants' land and recognized that the effect of the deduction would be to avoid doubling up or the over-allocation of water.
In a supplementary outline of submissions, counsel for the respondent advised that, after the hearing in the Land Court, licence 183639 was subdivided in 2011. The effect of the subdivision is that only 5 ML is allocated to land other than the subject. An amount of 56 ML is allocated to 7 lots, including lots which are included in the subject land. Accordingly, the respondent accepted that the appropriate deduction should be 56 ML not 61 ML.
Counsel for the appellants objected to this information, although he subsequently conceded that it was factually correct.
Section 56 of the Land Court Act provides:
"56 Evidence admissible on appeal
(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.
(2) However, the court may admit new evidence if
(a) the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
(b) the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
(c)application to have further evidence admitted is made before the hearing of the appeal."
The information about the subdivision of licence 183639 was not part of the evidence heard by the Land Court and no application was made to the Court under s 56(2) for the admission of new evidence.
We consider that it is appropriate to take account of this information in determining the allocation to be granted to the appellants.
Section 210(1)(c) of the Act requires the chief executive, in deciding whether to grant a water licence, to consider existing water entitlements and authorities to take or interfere with water. As Fraser JA noted, in De Tournouer v Chief Executive, Department of Environment and Resource Management,[58] it is mandatory that the chief executive consider all the specified criteria in s 210. Further, McMeekin J said, in the same case, that it is self evident that the legislature is concerned with the proper allocation of a scarce resource.[59]
[58] [2011] 1 QdR 200 at [24].
[59] At [42].
The new information does not affect the substance of the issue, that is, whether licence 183639 should be allowed for in determining the appropriate allocation to the appellants. Even in the absence of the new information, our conclusion is that the licence must be taken into account. As the new information goes only to the volume to be granted, we consider it should be taken into account in order to allocate a scarce resource appropriately.
Accordingly, the volume of water to be allocated is 267 ML calculated by deducting from 1303 ML, 980 ML for the surface water entitlement and 56 ML for groundwater licence 183639.

Conclusions

It follows from what has been said that the appeal should be allowed and the respondent be directed to issue a licence to the appellants to take 267 ML per annum.
The learned Member below considered the evidence before him concerning hydro-geological issues. His conclusions are set out at [41] to [50] of his reasons for judgment.[60] The learned Member discussed whether the impacts that would ensue if a bore and pump were placed into the aquifer as proposed by the appellants before him, Messrs Gallo and Williams, would be acceptable to the long term management of the water resources in Area B or whether the grant of either or both licence applications would put Area B under an [un]acceptable level of stress.[61] The learned Member was satisfied that there is some interconnection between the aquifers from which the water will be drawn and the surface waters in the immediate vicinity. However, he was not satisfied as to the extent of any such inter-connectivity which, he said, remained a matter of scientific doubt. However, he said, the scientific doubt was not such as to preclude the making of a decision favourable to the appellants.[62] The learned Member concluded that the doubts due to the scientific uncertainty as regards the hydro-geological evidence could be met by the institution of an appropriate groundwater and surface monitoring program as suggested by Mr Smith.[63]
[60]Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15.
[61] At [42].
[62] At [44].
[63] At [50].
Accordingly, the learned Member directed in the Williams appeal, that the licence to be issued was to be subject to appropriate conditions as to the monitoring and management of the licence. He ordered Williams and the respondent to meet and seek to negotiate agreed conditions of the licence within 28 days, and if they were unable to reach agreement the matter to be listed for further review and directions.
Consistently with the findings and orders of the learned Member, we consider that similar orders should be made in this appeal. However, if the parties are unable to reach agreement as to the appropriate conditions, we consider that it is appropriate to remit the matter to the Land Court to determine that issue. We also note that s 213(1)(a) of the Act requires that a water licence must state the term of the licence. Accordingly, our orders require that the term of the licence be agreed and, if the parties cannot reach agreement, that issue is also to be remitted to the Land Court.

Mr Evans:
Introduction

Filomena Gallo, Francesco Ralph Gallo and John Peter Gallo (the appellants) have appealed to this Court pursuant to s 64 of the Land Court Act2000 from a decision of the Land Court dismissing their appeal under s 877 of the Water Act 2000 ("the Act") against a "review decision" made by the respondent confirming an earlier decision of the respondent made on the appellants’ application for a water licence.
The appellants are the owners of certain rural land situated on the Atherton Tablelands. On 17 February 2005 they applied under s 206(1) of the Act to the respondent for a water licence to take 990 MLs of water per year for irrigation purposes (Ex 3 - Application 96533). This application superseded a previous application made on 11 January 1999. On 9 November 2006 the respondent, by its delegate, allowed the application to the extent of 130 MLs per water year. The authorised purpose was for “irrigation, stock, domestic supply.” Water licence 400431 was issued in accordance with that decision. It was stated to attach to Lot 1 on RP 719534, Lot 169 on SP 124699, Lot 50 on NR 800959, Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178, Lot 215 on RP 804847, Lot 1 on NR 804846, and Lot 219 on N157178. The decision granting the application, in part, was made under s 211 of the Act. By s 211(3) the respondent was obliged to give the appellants an “information notice”. That was done. By s 211(5) the licence had effect from the day the information notice was given to the appellants. The licence, as granted, was subject to certain conditions. The licence permitted the taking of underground water from Atherton Basalt under land described as Lot 1 on NR804846 and Lot 219 on N157178.
On 19 December 2006 the respondent received an application for internal review of the original decision made on 9 November 2006. The appellants, being persons who had been given an information notice by the respondent under s 211(3) were "interested persons" within the meaning of s 851(1) and accordingly could apply for internal review of the original decision by reason of s 862.
On 13 February 2007 the respondent, by its delegate (being a different delegate to the one who had dealt with the original application) decided under s 864(2) to confirm the original decision. This decision was notified to the appellants in a letter dated 14 February 2007.
By s 877, the appellants were given a right of appeal to the Land Court.
Section 877 relevantly provided:
"877 Who may appeal or apply for external review
(1) If an interested person has applied for an internal review of an original decision, any interested person for the original decision may appeal against or apply for a review of the review decision to—
…
(b) if the review decision was about an original decision or action mentioned in section 851(1), other than the giving of a compliance notice – the Land Court..”
The appellants exercised that right. Their appeal was dismissed. By s 880:
"880 Hearing procedures
(1) The procedure for an appeal must be in accordance with the rules of court applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with directions of the judge.
(2) An appeal is by way of rehearing, unaffected by the reviewer’s decision."
By s 881 the Land Court was given power to appoint an assessor or assessors as follows:
"881 Assessors
If the judge or member hearing an appeal is satisfied the appeal involves a question of special knowledge and skill, the judge or member may appoint 1 or more assessors to help the judge or member in deciding the appeal."
The learned Member who heard the appeal sat alone without any assessor.
By s 882 the Land Court was given powers as follows:
"882 Powers of court on appeal
(1) In deciding an appeal, the court may—
(a) confirm the review decision; or
(b) set aside the review decision; or
(c) amend the review decision in the way the court considers appropriate; or
(d) send the matter back to the reviewer and give the directions the court considers appropriate; or
(e) set aside the review decision and substitute it with a decision the court considers appropriate.
(2) If the court amends the review decision or substitutes another decision for the review decision, the amended or substituted decision is, for this Act (other than this part) taken to be the reviewer’s decision.
(3) Each party to the appeal must bear the party’s own costs for the appeal.
(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—
(a) the court considers the appeal was started merely to delay or obstruct;
(b) the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
(c) a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
(d) a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(e) a party has incurred costs because another party has defaulted in the court’s procedural requirements;
(f) without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(g) a party to the appeal does not properly discharge its responsibilities in the appeal.
(5) If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection (4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal if the court considers -
(a) the appeal was started merely to delay or obstruct; or
(b) the appeal, or part of the appeal, to have been frivolous or vexatious."
The only order made on the appeal concerning the appellants was that the appeal was dismissed. This was, in effect, an order confirming the review decision.
The appeal to this Court is not sourced in the Act but is conferred by s 54 and 64 of the Land Court Act 2000. Section 64 provides:
"64 Right of appeal to Land Appeal Court
A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court."
Sections 54 to 57 of the Land Court Act provide:
"54 Jurisdiction of Land Appeal Court
The Land Appeal Court has the jurisdiction given to it under this Act or another Act.
55 Land Appeal Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Appeal Court -
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
56 Evidence admissible on appeal
(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.
(2) However, the court may admit new evidence if—
(a) the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
(b) the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
(c) application to have further evidence admitted is made before the hearing of the appeal.
57 Powers of Land Appeal Court
The Land Appeal Court may do 1 or more of the following—
(a) suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
(b) affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
(c) make an order the Land Appeal Court considers appropriate."
Section 49A of the Acts Interpretation Act 1954 provides:
"49 A Jurisdiction of courts and tribunals
If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal."
Before the Court commenced hearing argument in the appeal, the Court pointed out the provisions of s 56 of the Land Court Act to the parties. The appellants had objected to certain matters referred in the written supplementary outline of argument of the respondent, which had been provided to the Court prior to the hearing of the appeal. No application to adduce further evidence was made prior to the Court embarking on the hearing of the appeal.[64] In their amended notice of appeal to this Court, the appellants have sought an increase in the allocation allowed by the respondent in the original decision from 130 ML per water year to 813 ML per water year.
[64] See T 1-2, 1-3, 21 March 2013.

The hearing of the Appeal in the Land Court and its nature

The appeal to the Land Court was heard jointly with another appeal by other landowners (“the Williams”) who were dissatisfied with a similar review decision of the respondent confirming the issue of a water licence to those applicants at a lower level than what they sought. Unlike the present appellants, the Williams applicants succeeded in their appeal to the Land Court in increasing the water allocation sought to 515ML per year from 80ML per year. The Williams original application had sought 750 ML per year.
The appeal below proceeded in accordance with s 880(2) of the Water Act with, inter alia, extensive expert evidence being led which had not been before the original decision-maker at the time the decision to issue the water licence was applied for, and made. The jointly-heard appeals occupied several sittings days with written submissions being made later at different times.

Generally speaking, an application under s 206(1)(a) may only be for taking water from an aquifer under any of the land or water flowing across any of the land or a watercourse, lake or spring on or adjoining any of the land (s 206(2)) unless the matter can be brought within the exceptions in s 206(2).
To emphasise the importance of ownership of the land s 211A provides:
"211A Effect of disposal of part of land to which application for water licence relates
(1) Subsection (2) applies if—
(a) an application for a water licence is made to the chief executive; and
(b) the applicant disposes of part of the land to which the application relates; and
(c) at the time the applicant disposes of the part, the chief executive has not decided the application under section 211.
(2) The application lapses on the day the applicant disposes of the part."
The provisions of s 213(1)(e), s 214 and s 215 also emphasise the importance of the licence attaching to the land. (There are exceptions as set out in s 213(1)(e)(i) to (ix) but none of these are relevant in this case).
From the map which is attached to Ex 45 each of the lots in respect of which application has been made might on one view be considered “contiguous”, notwithstanding the intervention of a road and creek[125]. That said, of the nine lots, eight are owned jointly by only two of the appellants and not by the third appellant, and one is owned solely by this third appellant and not by the other two – see Ex 3 and also paragraph [245] above. Also the aquifers sought to be used for the ground water are only under two of the lots which would seem to raise questions relevant to the applicability or otherwise of s 206(3).
[125]See North v South East Water Corp Ltd [2003] QSC 407; however cf Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463; Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 188 LGERA 193 and also the provisions of s 206(3) which would seem to indicate “contiguous” here probably means physically touching rather than neighbouring and see generally pt 4 Land Act 1994 .
This was not raised by the respondent in these proceedings as an issue in this appeal. Nor did the respondent raise any argument that this mix of ownership assisted it in relation to the appellants’ argument in relation to the groundwater licence for 61ML per water year, which was held by each of the appellants and one Linda Cherie Gallo, not a party to these proceedings or the application for the water licence[126].
[126]Although it would seem that even in relation to this licence the land was not owned by all of the holders of the licence but only by the appellant John Paul Gallo and the non-party Linda Cherie Gallo – see Appellants’ Outline filed 12 February 2013 at para [71] – “John Paul Gallo and Linda Cherie Gallo purchased Lot 3 with a licence for 61ML”. That said, as this was not in evidence, I ignore it.
This case is made more difficult because of the course adopted by the parties. In its supplementary outline of argument delivered 8 March 2013, before the hearing of the appeal commenced on 21 March 2013, the respondent stated:
“The Respondent instructs that after the hearing in the Land Court licence 183639 was subdivided in 2011. The effect of that is that now, only 5ML is allocated to land other than the subject land. An amount of 56ML is allocated to 7 lots, including lots which are included in the subject land.
Given those facts, the Respondent is prepared to accept that if the Land Appeal Court gets to the question of the appropriate amount of water that should be granted to the Appellants, then instead of the deduction being from 61ML, it should only be for 56ML. In other words, that would allow to the Appellants an extra 5ML of water. That would result in an increase to the findings of the Land Court in paragraph [55] from 262ML/year to 276ML/year.”
On 21 March 2013, before this Court proceeded to embark on hearing argument in the appeal, the provisions of s 56 of the Land Court Act 2000 were pointed out to the parties as well as this part of the respondent’s outline. The appellants declined to make any application under s 56(2) before this Court proceeded with the hearing of the appeal and indeed there seemed to be an objection to this part of the outline[127].
[127] T1-2 –T1-3 of transcript on 21 March 2013.
However, subsequently, in supplementary submissions delivered on 11 April 2013, in a paragraph headed “Concession of fact about the respondent supplementary outline” the appellants state:
“As a matter of fact, it is true that: “after the hearing in the Land Court licence 183639 was subdivided in 2011. The effect of that is that now, only 5ML is allocated to land other than the subject land. An amount of 56ML is allocated to 7 lots, including lots which are included in the subject land” (as per Para 10 of the Respondent’s Supplementary Outline of Submissions). …”

This squarely raises whether s 56 of the Land Court Act 2000 prohibits this court from taking notice of this.
Section 56 is an odd provision in the context of s 55 requiring the Land Appeal Court to “act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts” and providing that the Land Appeal Court “is not bound by the rules of evidence and may inform itself in the way it considers appropriate”.
That said, the function of this Court is to interpret and apply these provisions according to law.
Section 56(2), is a mandatory provision limiting when the Land Appeal Court may admit new evidence on appeal. The heading to s 56 is “Evidence admissible on appeal”. The three pre-conditions to new evidence being admitted are as set out in ss 56(2)(a), 56(2)(b) and 56(2)(c). To the extent that s 56(2) so prescribes it displaces the principles which other appellate courts dealing with an appeal by way of rehearing have applied where new evidence is sought to be adduced pursuant to a power to do so on special grounds[128]. Those principles, requiring the evidence to, inter alia, be such that if given it would probably have an important influence on the result, might be thought to be less onerous on one view than the requirement in s 56(2)(a) requiring satisfaction that the admission of further evidence is necessary to “avoid grave injustice”. Whether the adjective “grave” signifies a more restrictive approach or not, it is not necessary to determine. Conversely, whether the requirement in s 56(2)(b) is less restrictive than those principles, also need not be determined. It may not be. Certainly, though, s 56(2)(c) has the potential to be more restrictive, and the potential in certain cases to cause injustice: eg in a case where the fresh evidence only arises after the hearing of the appeal to the Land Appeal Court has commenced, or where, even with the exercise of reasonable diligence, the fresh evidence is only discovered after the hearing has commenced.
[128]See for instance Orr v Holmes (1948) 76 CLR 632 (on appeal from Queensland); Langdale v Danby [1982] WLR 1123, Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404, 408-409; Arrowsmith v Micallef [2013] QCA 142, [70] and see generally r 766 Uniform Civil Procedure Rules 1999.
However, if s 56(2) is taken as a code, then it is, on any view, more restrictive than the position that might otherwise obtain and this court is bound to apply it, regardless of any public interest exception that might have existed but for it.
For instance, in Totterdell v Nelson,[129] the Full Federal Court (Morling, Burchett and Lee JJ) adverted to the existence of a lower standard applying where the nature of the appeal engaged the public interest (such as here, where the Court is concerned with the allocation of a scarce resource). They said, at 529-530:
“This result makes it unnecessary to rule finally upon the appellant's application to adduce (pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth)) fresh evidence in the appeal. The principle laid down in Orr v Holmes (1948) 76 CLR 632, in Greater Wollongong City Council v Cowan (1955) 93 CLR 435 and in the authorities discussed in those cases (and more recently considered in McIntosh v Williams [1976] 2 NSWLR 237), which restricts the exercise of an appellate court's power to receive fresh evidence, was held in R v Watt; Ex parte Slade [1912] VLR 225 to be subject to an important exception. That was an appeal involving the performance by the Treasurer of Victoria of a statutory duty to issue a licence. At the hearing of an application for a mandamus, the evidence had disclosed no justification in law for its being withheld, and the order was made. On the appeal, fresh evidence was tendered before the Full Court, and received. Madden CJ (at 236) grounded the decision on the discretionary nature of the extraordinary remedy of mandamus. But both Hodge AJ and Cussen J put forward a wider principle. Cussen J (at 245) said:
The rule [as to the restriction upon the reception of fresh evidence]… should not necessarily extend to cases where the interests of others than the immediate parties are concerned, although it ought almost uniformly to be observed in connection with ordinary civil suits between ordinary parties. Illustrations may be given of cases of trustees, or guardians of infants, or the committees of lunatics, or, it may be the case of a person whose action is really in the interests of the public at large.
It needs no emphasis that the rights and duties in question in this appeal concern creditors who are not immediate parties and concern the wider public interest to which Fry LJ referred in Re Hester, ubi cit supra. Although counsel were unable to cite any reported case in which R v Watt was relied on for the proposition stated by Cussen J, it is to be observed that a similar view of the law was the ground of the ruling given by Toohey J in Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 where, in the context of a challenge to a union election, his Honour (at 494) said “there [were] wider interests involved than those of the applicant and the union”, and referred to the interest of the Members and “the wider public interest in the integrity of union elections”. He held that, in a case of that kind: “The conventional tests for the introduction of fresh evidence are too narrow. The prevailing consideration is that the court reaches a satisfactory conclusion in regard to those irregularities that have been mentioned and that appear to warrant consideration.” The existence of an exception of this kind is consonant with the statement in the joint judgment of the High Court in Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635 at 646 that the general rule is one “founded largely on policy”.
If the court is permitted to take account of the fresh evidence, there can be no question but that the bankrupt's activities and resources demand a full investigation; and further that the purposes of the Act would be ill served by a discharge except upon satisfactory evidence that the requirements of bankruptcy have been performed, and that the time for discharge has arrived. “
[129] (1990) 26 FCR 523.
Does then s 56 prevent this Court taking account of the concession made by the respondent before the hearing of the appeal commenced, which the appellants elected not to rely on before the start of the hearing of the appeal, but which they now seek to rely on?
Were it not for s 56, I would have little trouble in acting on the concession, even though the appellants did not first seek to rely on it. The reliance on the concession would not result in any prejudice and the respondent is happy to make the concession and the matter is one involving public interest considerations.
Does s 56 prevent the parties making concessions by consent inconsistent with the evidence below and the Court from acting on those concessions in determining the appeal? In a practical sense this might be thought to subvert the operation of ss 56(1) and 56(2) of the Land Court Act 2000. In my view, s 56 does not prevent the parties making concessions by consent of matters of fact not contained in the record below. That said, this does not mean that the Land Appeal Court is obliged to act on any such concessions. The parties cannot, by their own acts, bind the Court to act in any particular way and it may not be appropriate in a particular case to act on such a concession. It will be for the Land Appeal Court to determine for itself whether acting on the concession is appropriate in all the circumstances and whether it is in the interests of justice to do so. In doing so, it is appropriate to consider the fact that the concession is made by consent but it is also appropriate for the court to have regard to other considerations. Parties ought not expect that the court will act on any such concessions, as of course or at all, and if a party is in the position where an application under s 56(2) could be made, that party would be well advised to make it.
In this case, in exercising the discretion to act on the concession, account is taken of the public interest in the type of matter under consideration. Account is also taken of the course adopted by the appellants at the outset. Account is also taken of the purpose of s 56. The matter is finely balanced. The appellants’ position taken at the outset of the appeal is a significant factor militating against the exercise of the discretion.
I will act on the basis of the concession in this case for the special reason that the ground water licence which is in evidence as Ex 44, on its face, expired on 31 July 2012, after judgment was delivered below on 5 April 2012 but before the hearing of the appeal on 21 March 2013. Without the concession, this Court would have to proceed on the basis that the licence had expired with no evidence as to whether it had been renewed or not. The concession makes it clear to the Court that a current ground water licence subsists. Any order of this Court having the effect of allowing the grant of a water licence of more than 130ML per water year to these appellants would need to consider the present position as such a licence can only operate prospectively from the date of this Court’s judgment. Water being a scarce resource, it would not be in the public interest to proceed on the basis the licence had expired with no evidence as to the present position where to do so might result in an over-allocation of a precious resource contrary to the public interest were the appellants’ arguments to be accepted.
I return then to the question of what licence, if any, ought be granted to these appellants, or how ought this appeal be disposed of.
Ignoring for the moment questions of ownership, it is clear that the present licence of 130ML/yr is an insufficient allocation, given the evidence of the experts below.
Part of a consideration of the proper allocation of water involves a consideration of whether sufficient water to achieve the purpose found to be an efficient one in Appendix 4 of Ex 21 (which finding was not challenged on this appeal and which is consistent in any event with the expert evidence of Dr Watts and Mr Sutherland). An under-allocation of water which would prevent that purpose would be as detrimental as an over-allocation.
On first principles, in deciding what regard ought be had to existing allocations of water available to the appellants for that purpose, regard ought also be had to what other demands there are on those same allocations. In other words, if the existing allocation is already being used for a purpose and that purpose is to continue in whole or in part if an application is made for a different licence having a different purpose, is it appropriate to take into account any reduction of any allocation for the new licence and new purpose the existing allocation? This resolves itself into several factual enquiries and several different scenarios.
The simplest scenario is where there is an existing allocation and the new application will be to completely replace what has gone before with a new use and purpose and the existing allocation is attached to the same land for which the new allocation is made. In those circumstances, the existing allocation, provided the existing licence allows for the same type of use in the new application, ought simply be deducted in deciding on any fresh allocation. If the existing use is to be abandoned, but the existing licence permits water only to be used for the abandoned purpose and the new purpose would be unlawful under it, then it would be appropriate to deal with the new application by allowing the full allocation, but on the condition that the applicant surrender the existing licence.
The converse scenario is where the existing allocation is for a different use entirely and the new application will not replace it but the two uses will continue side by side. If the evidence shows that the water for the existing use is required to efficiently continue that use, and no further water from it could be spared without harming that existing use, then it may be wholly inappropriate to make any deduction at all for the existing allocation.
In between these two extremes will lie other cases of more complexity where the extent of any deduction will depend on detailed evidence and a detailed review of the facts in relation to the existing licences, their relation to existing uses, whether they are required for existing uses, whether there is any spare capacity which can be applied to the uses the subject of the new application and if so what, and in the case of an application relating to multiple lots with different existing allocations relating to different lots, the interrelation between those lots and the existing water use on them, and the ability to use that water lawfully consistently with the existing allocations and on the lots the subject of the new application where the evidence shows the capacity for use is not taken up by the existing allocations.
It is necessary to consider how this issue was dealt with by the evidence led in this case.
Mr Sutherland’s report in Appendix 4 to Ex 21, contained a series of diagrams in which he set out the existing use of the water (at least as concerns the lots the subject of the application) and the proposed use if the application were granted: see the diagrams between p 4-10 and p 5-1. Those diagrams distinguished between the different types of crops proposed to be planted and the positions of where the various crops were to be planted if the application succeeded. Some crops were more needful of water than others for their success as appears from the table extracted above at [254]. As the table at [253] shows, there was also a distinction between intensive pasture irrigation and high production intensity irrigation areas.
Taking Table 4.4.1.2 extracted above at [253] at face value, the existing surface water allocation for the intensive pasture irrigation was for an area of 45 ha and the existing surface water allocation for the high production intensive irrigation areas was for 53 ha out of a total proposed irrigable area of 276.6 ha. Ignoring for the moment the ground water licence in Ex 44 (to which Mr Sutherland’s report paid no regard) this left 178.6 ha. However, on any view the existing surface water licences were not taken into account by Mr Sutherland as a deduction in that table. Mr Sutherland, whilst mentioning them, has not done anything with them.
On p 4-7 of his report in Appendix 4 of Ex 21 Mr Sutherland said this:
"The irrigable land on the farm is 276.2 ha. The existing surface water allocation for the farm is 98 ha. This 98 ha surface allocation is made up of 45 ha within the land type pasture irrigation and 53 ha within the land type designated as high production intensive irrigation areas.
The crop water requirements for the remaining irrigable land within both irrigation land types on farm is 813MLyr¯¹. The water required from underground supplies is some 813 MLyr¯¹.
Alternatively, DNRW’s practice may have adopted an approach of subtracting the 98 hectares from the original application identifying 200 hectares of irrigation that would use the groundwater supply. This results in an estimate of 102 hectares (i.e. 200-98) and a 5ML ha¯¹ allocation. This approach indicates a total groundwater allocation of 510MLyr¯¹. "

It seems clear that Mr Sutherland did not take anything off for any existing water allocations in calculating the figure of 813ML.
In evidence Mr Sutherland proceeded on the basis that there ought to be a deduction made for the existing allocations. Mr Sutherland, though, attempted to mount an argument that surface water allocations were inferior to ground water allocations in terms of water security (the latter being what the appellants were applying for) and that this should figure into the equation when deciding on the quantum of deductions. That said, his evidence did not rise to the point of detail which would assist in the determination of that equation[130]. The appellants did not cross-examine Dr Watts on this point, so no assistance can be gained from his evidence as to whether deductions of surface water allocations ought be discounted when making deductions for existing allocations because of the potential for drought and evaporation loss[131].
[130]See at T4-74 lines 52-60 - T4-73 lines 1 -40; T 4-75 lines 30-60 - T4-78 lines 1-30, T5-27 lines 30-60 – T5-29 lines 1-34.
[131] See at T5-37 – T5-41 lines 1-10
On its face, the existing allocations of surface water on a volumetric basis of 980ML exceeded the requirements of the application of 813ML if they were going to replace the existing uses, even without having regard to the contentious ground water licence not held by all the appellants in Ex 44 and as morphed in time to the point referred to in the concessions. That said, the position was not straightforward because the existing surface water allocations were not uniform in the sense that different lots had different entitlements to the ground water from different sources and in the case of Lot 48 on SP188685 (description changed from Lot 215 on RP804847) and Lot 50 on NR 800959, these lots had no entitlement at all to the use of any existing surface water – See Ex 45.
One of the diagrams (GJ0686.1.5) in Mr Sutherland’s crop report referred to in para [302] above, shows that Lot 48 (there called Lot 215) is to be used for pasture, rye grass, maize and potatoes (which ties in with the “High production irrigation areas” referred to in Table 4.4.1.2 extracted above at para [253] and that Lot 50 is to be used for pasture and rye grass (which ties in with the “Intensive pasture irrigation” referred to in Table 4.4.1.2 extracted above at para [253]). Lot 48 (or Lot 215 as previously described) has an area of 45.93824 ha according to Ex 45 or 44.991ha according to Ex 4. Lot 50 has an area of 9.372 ha according to both Ex 45 and Ex 4. The existing irrigation is shown in diagram GJ0686.1.3. The proposed additional irrigation is shown in diagram GJ0686.1.4. For Lot 48 (shown as lot 215 as previously described) the proposed new irrigation is the addition to the existing irrigation, solid set irrigation and boom irrigation as marked. For Lot 50, which had no pre-existing entitlements at all, the diagram shows a proposal for boom irrigation.
Further, the report from Mr Sutherland, whilst providing details of existing irrigation, did not detail the existing uses of the existing water allocation on the lots the subject of the application. This was picked up on by Dr Watts in his report Ex 29 at para [35] on p 12 as follows:
“PW A plan showing all of the land uses on the farm (irrigation, farm roads, cattle lanes, creek buffers, dairy, café, buildings, vegetation, etc) with a table listing the area (ha) of each component has not been prepared. NS This is unnecessary at this stage, in my view. Comment: A plan that shows topography, cadastral details, farm features and actual irrigation areas has not been provided so it remains difficult to determine if any land use conflict is likely to occur.”
From the evidence presented below is it possible to tell what demands there were, and what demands will continue by reason of other uses in relation to the existing surface water licences? The evidence that there is on this issue really comes down to the diagrams in Mr Sutherland’s crop report referred to in para [302] above. Diagram GJ0686.1.4 does show the existing irrigation allocations and the proposals for the new ones, and diagram GJ0686.1.5 indicates the uses in each of these areas. It is clear, from a comparison of these diagrams, that existing irrigation was intended to be used for the proposals being made. The absence of any evidence from the appellants that deducting these existing surface allocations would prejudice existing uses or be inconsistent with the requirements of the existing surface water licences, coupled with the diagrams, demonstrates no factual basis shown that making a deduction for these licences would not be appropriate. The evidence of Mr Sutherland as to how to deal with these deductions in the alternative set out by him at p 4-7 of Appendix 4 of Ex 21 is unconvincing. It relies on choosing a completely different area to the irrigable area agreed upon between he and Dr Watts (200 ha instead of 276.6 ha), and relies on a figure of 5ML/ha, which is not indicated on any of the evidence of either Mr Sutherland or Dr Watts as appropriate, but instead relies on Mr Sutherland’s view of pre-existing departmental practice. On that basis the alternative method adopted by him at this part of his report (which is the only method involving any deduction in that report) is flawed. It is also inconsistent with the diagrams which indicate a full use of the existing surface water allocations as part of the irrigation required as well as the absence of any factual material put forward by the appellants below, either in the report or otherwise, that the existing surface water allocations would not be used as indicated in the diagrams. Mr Sutherland did make an argument in evidence that was inconsistent with what he had put in his report to the effect that he had taken into account the existing surface water allocations in a different way i.e. that he had deducted the 98 ha from the 276.6 ha of irrigable land and then multiplied that by Dr Watts’ rate of 4.7ML per ha and come to 839 ML which he had rounded down to 813 ML. That evidence is inconsistent with his report and smacks of having latched on to Dr Watts’ average of 4.7ML when Mr Sutherland had used a lower figure in his report of only 2.94ML/ha – see para [265] above.
The attempt by Mr Sutherland in oral evidence to limit the deduction on another basis by reference to the disadvantages inherent in surface water as opposed to ground water did not descend into any detail which would permit a finding that the deduction ought be limited. It is to be noted that rates of evaporation and the like are referred to in the RUSTIC modelling relied on by both experts and Mr Sutherland did not chose to make any such argument in Appendix 4 to Ex 21 about this or explain why he had not done so. In my view, the whole of the allocations under the surface water licences ought be taken into account and deducted. I, was at first, reluctant to adopt a global approach given the differing lots with differing existing allocations. The global approach taken by Dr Watts without reference to the different locations of the various lots and the different types of crop and intensity and different rights of water use from each of the existing licences at first blush appears overly-simplistic and fraught with the inherent danger of failing to properly take these various individual facts into account. However, given a close study of the diagrams in conjunction with Ex 45 and the set-out of the lots, the volumes of water in relation to the existing licences and the individual lots they benefit, and the concessions, a global approach in this case is appropriate. It is also consistent with how both Mr Sutherland and Dr Watts approached the issue. That is not to say that this would be the approach which ought be adopted in all such cases. The correct approach comes down to a close consideration of the particular facts in each case.
As to the ground water licence on Lot 3 on SP177333, there was no evidence led below by the appellants as to what the existing use of this licence was, and how taking into account that use might impact on it. There is no doubt that this licence attached not only to Lot 3 on SP177333 but also to seven of the lots the subject of the present application. Dr Watts had raised this as a live issue well before the hearing below. If the appellants wanted to attempt to limit any deduction being made in respect of this ground water licence it was open to them to have called evidence to establish a factual basis for doing so. Instead, no evidence was led below in this regard and no factual basis demonstrated. Indeed, Mr Sutherland’s evidence in chief accepted the licence should be taken into account and that he had not done so[132]. Under cross-examination, there is no real argument put by him as to why it ought not be[133]. It was submitted by the appellants, on appeal to this Court, that to take this licence into account would be tantamount to requiring the water from this licence to be used unlawfully because it was not being used for Lot 3. This is plainly not the case as the licence itself expressly permits the taking of ground water for seven of the lots the subject of the application and not only Lot 3.
[132]      See at T4-69 lines 22 - 42
[133]      See at T5-8 – T5-34 lines 1-32.
As noted earlier, that licence has expired and there has been a change to the licence in the way referred to above in the concessions. Given that the licence does benefit the lots and in the absence of any evidence and any application to adduce further evidence under s 56(2) of the Land Court Act 2000 to support any factual basis for contending that the use of the successor to that licence will prejudice in any way the holders of it in relation to any existing use of water exclusively on Lot 3 (one of whom is an appellant to this appeal and the other of whom is a female bearing the same surname), the licence ought be taken into account in whole in determining what allocation this court ought make if it allows the appeal. In the absence of any demonstrated factual basis, none of the arguments made by the appellants about taking into account the existing allocation under this licence can be accepted.
The duty of an appellate court dealing with a matter by way of rehearing has been referred to in a number of cases. This Court has a duty to come to its own view subject to the restrictions inherent from the nature of such an appeal[134]. A different principle applies if the matter being considered is the exercise of a discretion.[135] That does not mean the court approaches the matter as if the hearing were an appeal by way of rehearing de novo[136].
[134]Fox v Percy (2003) 214 CLR 118; 124 [20]- 129[31]; cf Dwyer v Calcol Timbers Pty Ltd (2008) 224 CLR 124; Rowe v Kemper [2009] 1 QdR 247, 253-254 [3]-[5]; Shambayati v Commissioner of Police [2013] QCA 57.
[135]House v The King (1936) 55 CLR 499, 500; Gronow v Gronow (1979) 144 CLR 513; Morrow v McMahon (1985) 3 NSWLR 700, 722
[136] Zuvela v Cosmaran Concrete Pty Ltd (1996) 71 ALJR 29.
In choosing between competing views of expert witnesses, a court is obliged to descend into the reasoning supporting why it prefers the approach of one expert over another.[137]
[137] Drew v Makita (Australia) Pty Ltd [2009] 2 QdR 219.
The learned Member below commenced his discussion of this matter[138], on the premise that there was “no dispute between the experts that the irrigation requirements for the respective properties at full agricultural production are 1,303 megalitres per year with respect to Gallo.” This was certainly the figure put forward by Dr Watts, but it is not referred to anywhere by Mr Sutherland in either his report Ex 21 or in the evidence he gave. It is true Mr Sutherland purports to adopt Dr Watts’ average figure of 4.7 ML but in the circumstances I have outlined above.
[138] Para [53] of the judgment below ; [2012] QLC 0015.
The way in which Dr Watts derived his figure of 1,303 megalitres per year is opaque. That said, he was called as an expert witness, and his approach seems otherwise sound. Whilst I have some misgivings as to how the figure was derived and whether it was overly- generous to the appellants, in the end this does not cause me to reject it. I think it highly unlikely that this expert would have made a gross error and whilst the figure is opaque at this distance, that does not mean that it is not sound nor that it ought not be relied upon.
In the result the appeal ought be allowed, and orders made to the effect that the appellants be granted a ground water licence to take up to 267ML per water year.
No evidence was given below as to what the term of the licence ought be: see s 213(1)(a) of the Water Act 2000. That said, I note the initial licence was granted on 9 November 2006 with an expiry date of 30 November 2008 and the surface water licence which is Ex 44 was issued on 12 December 2007 with an expiry date of 31 July 2012.

Disposition

I agree, for the reasons given above, with the conclusion at [99] of the majority judgment. I also agree with paragraphs [100] -[102] therein and the orders proposed.

ORDERS

1.The appeal is allowed.

2.   The respondent is ordered to grant a licence to take 267 megalitres of water per water year, such licence to be for a stated term and subject to the imposition of appropriate conditions as to the monitoring and management of the licence, the term and conditions to be agreed, or failing agreement to be determined by the Land Court.
3.   The parties are to meet and seek to negotiate an agreed term and conditions as to the monitoring and management of the licence, within 42 days of the date of this decision.
4.   The parties are to jointly advise this Court of the outcome of these negotiations by no later than 4.00 pm on Friday, 17 January 2014.
5.   In the event that the parties are not able to reach agreement as to the term of the licence and its conditions, the matter is remitted to the Land Court for determination of the term and conditions.
6.   Any submissions seeking costs are to be filed and served by 4.00pm on Friday, 20 December 2013.
7.   Any submissions in response to such application are to be filed and served by 4.00pm on Friday, 17 January 2014.
HENRY J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
MD EVANS
MEMBER OF THE LAND COURT

CITATION:	Gallo v Chief Executive, Department of Environment & Resource Management [2013] QLAC 6
PARTIES:	Filomena, Francesco Ralph and John Peter Gallo (appellants)
v.
Chief Executive, Department of Environment & Resource Management (respondent)
FILE NO:	Appeal No. LAC005-12 Land Court No. WAA021-07
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Appeal
ORIGINATING COURT:	Land Court of Queensland
DELIVERED ON:	6 December 2013
DELIVERED AT:	Cairns
HEARD AT: DATE OF HEARING:	Cairns 21 March 2013
THE COURT	Henry J CAC MacDonald, President of the Land Court MD Evans, Member of the Land Court Joint reasons for judgment of Henry J and MacDonald P. Separate reasons of Mr Evans, concurring as to the orders made.
ORDER:	1. The appeal is allowed. 2. The respondent is ordered to grant a licence to take 267 megalitres of water per water year, such licence to be for a stated term and subject to the imposition of appropriate conditions as to the monitoring and management of the licence, the term and conditions to be agreed, or failing agreement to be determined by the Land Court. 3. The parties are to meet and seek to negotiate an agreed term and conditions as to the monitoring and management of the licence, within 42 days of the date of this decision. 4. The parties are to jointly advise this Court of the outcome of these negotiations by no later than 4.00 pm on Friday, 17 January 2014. 5. In the event that the parties are not able to reach agreement as to the term of the licence and its conditions, the matter is remitted to the Land Court for determination of the term and conditions. 6. Any submissions seeking costs are to be filed and served by 4.00pm on Friday, 20 December 2013. 7. Any submissions in response to such application are to be filed and served by 4.00pm on Friday, 17 January 2014.
CATCHWORDS:	WATER - water licences - three-way regulatory scheme : Water Act 2000, Water Resources Plan, resources operations plan - statutory criteria for deciding applications - relevant date to apply criteria - need to consider existing entitlements. PRACTICE AND PROCEDURE - appeal to Land Appeal Court - nature of appeal, rehearing - need to prove factual, legal or discretionary error - decision governed by law and facts at date of decision. STATUTORY INTERPRETATION - Acts Interpretation Act s 20 - accrued rights - presumption displaced by contrary statutory intent - such present here - resources plan pre 2009 amendment to apply. WORDS AND PHRASES - "additional information" - not a technical phrase - context and Act as a whole suggests ordinary meaning to apply. PRACTICE AND PROCEDURE - appeal to Land Court (under Water Act) - nature of appeal - appeal de novo - to hear matter afresh - can admit fresh evidence. EVIDENCE - direct evidence - inferences - Court not limited to consider "direct" evidence only - inferences permissible from evidence of expert witness - equity and good conscience provisions. EVIDENCE - hearsay - evidence from expert as to what applicant landowner may have "proposed" arguably hearsay - no objection taken - properly admitted. EVIDENCE - Jones v Dunkel rule - no evidence from applicants personally on proposed use - but such a course does not sustain an inference against them as to proposed use - other expert evidence proved such use. PRACTICE AND PROCEDURE - de novo hearing - apply law at date of hearing - applicable conversion rate - no accrued right to procedural provision - discretionary considerations not static to date of application - "purposive" provisions of Acts Interpretation Act supports approach. PRACTICE AND PROCEDURE - Land Appeal Court - when fresh evidence allowable - limits under Land Court Act s 56 - displaces principles applicable in other appellate courts - but requirements of Water Act a relevant consideration. WORDS AND PHRASES - "it is anticipated", "it is proposed" terms used in expert report - not in a legal document where different expressions may suggest different meaning - terms not significantly different when taken in context of report. PRACTICE AND PROCEDURE - no general positive duty on litigant to alert opponent of gap in case or to cross-examine on evidence not led. Acts Interpretation Act 1954 Barron Resource Operations Plan 2005 Land Court Act 2000 Land, Water and Other Legislation Amendment Act 2013 Statutory Instruments Act 1992 Water Act 2000 Water Resource (Barron River Plan) 2002 Allesch v Maunz [2000] 203 CLR 172 Arrowsmith v Micallef [2013] QCA 142 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 347 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 Coal and Allied Operations Pty Limited v Australia Industrial Relations Commission (2000) 203 CLR 194 Clodumar v Nauru Lands Committee (2012) 245 CLR 561 De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 15. De Tournouer v Department of Natural Resources and Water (2009) 30 QLCR 150 De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200 Devries v Australian National Railways Commission (1993) 177 CLR 472 Drew v Makita (Australia) Pty Ltd [2009] 2 QdR 219 Dwyer v Calcol Timbers Pty Ltd (2008) 224 CLR 124 Eastman v The Queen (2000) 203 CLR 1 Esber v The Commonwealth (1992) 174 CLR 430 Fox v Percy (2003) 213 CLR 118 Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15 Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 188 LGERA 193 Gronow v Gronow (1979) 144 CLR 513 Heslin v Director-General, Department of Environment and Resource Management [2010] QCA 347 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 QdR 162 Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573 Langdale v Danby [1982] WLR 1123 Mickelberg v The Queen (1989) 167 CLR 259 Mooy v Williams [1992] QCA 114 Morrow v McMahon (1985) 167 CLR 259 North v South East Water Corp Ltd [2003] QSC 407 Orr v Holmes (1948) 76 CLR 632 Phillips v Commonwealth (1964) 110 CLR 347 Radioactive Substances Act 1958 Re Coldham : Ex parte Brideson [No. 2] (1990) 170 CLR 267
Re Schubert [1989] 2QdR 95 Rowe v Kemper [2009] 1 QdR 247 Shambayati v Commissioner of Police [2013] QCA 57 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Stockman v Chief Executive. Department of Natural Resources and Mines [2012] QLC 72 Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 QdR 210 Totterdell v Nelson (1990) 26 FCR 523 Victorian Stevedoring and General Contracting Co Pty Ltd and Dignan v Meakes (1931) 46 CLR 73 Zuvela v Cosmaran Concrete Pty Ltd (1996) 71 ALJR 29.
COUNSEL:	Mr DP Morzone QC for the appellants Mr MD Hinson QC with Dr G Sammon for the respondent
SOLICITORS:	p&e Law for the appellants Crown Solicitor for the respondent