Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) - [2019] NSWSC 1064

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) [2019] NSWSC 1064
Hearing dates: 24 June 2019 & 3 July 2019
Date of orders: 22 August 2019
Decision date: 22 August 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Latoka be set aside;

(2) I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Janbeth be set aside;
(3) The defendant is to pay the plaintiffs’ costs of the proceedings.
Catchwords: ADMINISTRATIVE LAW – ground of review other than procedural fairness – improper exercise of power – plaintiffs issued with notices from defendant on behalf of the National Resources Access Regulator – notices issued under s 338A Water Management Act 2000 (NSW) – notices required the provision of stipulated information and documents – notices said to be issued as part of an investigation by NRAR into the plaintiffs’ water access and use at their two farms – notices said to be issued for the purpose of determining whether there had been compliance with or contravention of identified conditions of the access licence for each of the properties – whether the defendant was entitled to require the plaintiffs to furnish the stipulated information/documents – whether the information/documents were required for the purpose of ascertaining whether the plaintiffs had contravened identified conditions of the respective access licences – notices set aside
Legislation Cited: Trade Practices Act 1974 (Cth) s 155
Uniform Civil Procedure Rules 2005 (NSW) r 59.4
Water Management Act 2000 (NSW) ss 53, 56, 60B, 60C, 66, 89, 90, 91I, 100, 101A, 337, 338A
Cases Cited: A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No.3) (1980) 31 ALR 519; 47 FLR 163
Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565; 57 FLR 368
SA Brewing Holdings Ltd v Baxt (1989) 89 ALR 105; 23 FCR 357
Texts Cited: Nil
Category: Principal judgment
Parties: Peter James Harris (First Plaintiff)
Jane Maree Harris (Second Plaintiff)
Scott Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) (Defendant)
Representation:
Counsel:
M Elliott SC & C Bannan (Plaintiffs)
C Lenehan & D Delany (Defendant)
Solicitors:
Horton Rhodes (Plaintiffs)
Crown Solicitor’s Office (Defendant)

File Number(s): 2019/59697
Publication restriction: Nil

Judgment

Peter Harris and Jane Harris (the plaintiffs) operate farms called 'Janbeth' and 'Latoka' in the general vicinity of Bourke in New South Wales. Mr and Mrs Harris hold water approvals for water supply works and water use at those properties.
On 2 January 2019 the defendant on behalf of the National Resources Access Regulator (“NRAR”) issued notices requiring Mr and Mrs Harris to provide information and records in relation to the two properties. The Notices were said to have been issued under s 338A(2) of the Water Management Act 2000 (NSW). The Notices stated that the express purpose for which the Notices were issued was to determine whether there had been compliance with or contravention of certain provisions of the Act.
On 1 February 2019 the solicitors for Mr and Mrs Harris wrote to NRAR alleging that the scope of the Notices went beyond the power conferred to NRAR under the Act. It was not asserted that the Notices were wholly misconceived but that certain identified paragraphs in the Notices were not relevant to any investigation of the identified potential offences. The solicitors proposed that NRAR re-issue notices which were confined to the matters properly within the scope of the investigation.
On 8 February 2019 NRAR rejected the proposal put on behalf of Mr and Mrs Harris. NRAR contended that all of the documents sought in the Notices were properly within the scope of the investigation. NRAR issued varied notices on that date but the only variation was to extend the deadline for compliance to 22 February 2019.
On 22 February 2019, Mr and Mrs Harris commenced proceedings by summons in the Administrative Law List of this Court. They sought the following orders:

1. A declaration that the Janbeth Notice is void and of no effect.

2. In the alternative to prayer 1 above, an order that the Janbeth Notice be set aside, or alternatively set aside in part

3. A declaration that the Latoka Notice is void and of no effect.

4. In the alternative to prayer 3 above, an order that the Latoka Notice be set aside, or alternatively set aside in part.

5. Costs.

In the statement pursuant to r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) the plaintiffs identified the paragraphs in each Notice in respect of which they said relief should be granted. They asserted that the request for information or records described in the impugned paragraphs of each of the Notices did not amount to a valid exercise of NRAR’s power pursuant to s 338A(2) to require information or records which were required for the purposes of the Act. The purposes were said to be identified in s 337 of the Act.
In his response to the summons, the defendant said that by reason of s 338A(2) of the Act it was a condition of the validity of each of the Notices that any information or records required by each Notice be required for the purposes of the Act. The defendant said that the information and records required were required for a purpose contained in s 337 of the Act. He said that a statement of reasons for the issue of the Notices was served by him on the plaintiffs with the response to the summons. That statement of reasons said that the Notices were issued in relation to water access and use at the premises and to determine if there had been compliance with or contravention of identified conditions of the access licence for each of the properties. The reasons also identified the purposes set out in s 337 of the Act.

Legislative provisions

The following provisions of the Act are relevant for the purposes of the present proceedings:

56 Access licences
(1) An access licence entitles its holder:
(a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and
(b) to take water:
(i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and
(ii) in specified areas or from specified locations,
(the extraction component).

…
60B Contravention of terms and conditions of access licence
(1) A person (other than the holder) who takes water pursuant to an access licence is guilty of an offence if the person contravenes any term or condition of the licence.
Tier 2 penalty.
(2) If any term or condition of an access licence is contravened by any person, each holder of the access licence is guilty of an offence.
Tier 2 penalty.
(3) It is a defence to a prosecution under subsection (2) if the accused person establishes:
(a) that the contravention of the term or condition was caused by another person, and
(b) that the other person was not associated with the holder at the time the term or condition was contravened, and
(c) that the holder took all reasonable steps to prevent the contravention of the term or condition.
A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

60C Taking water for which there is no, or insufficient, water allocation
(1) Offences involving allocations under a single access licence
A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and:
(a) who intentionally or negligently fails to ascertain whether the taking of water is in accordance with the water allocation, or
(b) who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation,
is guilty of an offence.
Tier 1 penalty.

…
66 Conditions of access licence generally
(1) An access licence is subject to such conditions as the Minister may from time to time impose:
(a) which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan, and
(b) which may include such other conditions, such as:
(i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and
(ii) conditions relating to the protection of the environment,
as the Minister thinks fit (discretionary conditions).

(1AA) An access licence is subject to any mandatory conditions imposed by this Act or the regulations.
(1A) Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an access licence unless they are included in the terms of the licence.
(2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.
Note. If a management plan or Minister’s plan is replaced or amended during the term of an access licence, the mandatory conditions applying to the access licence may vary.
…
89 Water use approvals
(1) A water use approval confers a right on its holder to use water for a particular purpose at a particular location.
(2) A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales.
90 Water management work approvals
(1) There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals.
(2) A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.
(3) A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location.
(4) A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location.
…
91I Taking water when metering equipment not working
(1) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating and:
(a) who intentionally or negligently fails to ascertain whether the metering equipment is not operating properly or is operating, or
(b) who knows or has reasonable cause to believe that the metering equipment is not operating properly or is not operating,
is guilty of an offence.
Tier 1 penalty.

(2) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence.
Tier 2 penalty.
(3) Subsections (1) (b) and (2) do not apply if the person who takes the water complies with any requirements set out in the regulations for the purposes of this subsection.
(4) In this section, metered work means a water management work in connection with which metering equipment has been installed.
Note. See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
…
100 Conditions of approvals generally
(1) An approval is subject to such conditions as the Minister may from time to time impose:
(a) which must include such conditions as are required to be imposed on the approval by this Act or by any relevant management plan, and
(b) which may include such other conditions, such as:
(i) conditions to give effect to any agreement between an applicant and objector under section 93 (5), and
(ii) conditions relating to the protection of the environment,
as the Minister thinks fit (discretionary conditions).

(1AA) An approval is subject to any mandatory conditions imposed by this Act or the regulations.
(1A) Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an approval unless they are included in the terms of the approval.
(2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.
…
(4) In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 101A.
Note. If a management plan or Minister’s plan is replaced or amended during the term of an approval, the mandatory conditions applying to the approval may vary.
…
101A Metering equipment condition
(1) It is a mandatory condition of a water supply work approval that metering equipment is installed, used and properly maintained in connection with the work.
(2) The holder of a water supply work approval is taken to have complied with a particular aspect of the condition imposed by this section if the holder has complied with the applicable requirements (if any) prescribed by the regulations.
(3) The regulations may provide that the condition does not apply to holders of approvals, or works, specified by the regulations, or in circumstances specified by the regulations.
…
337 Purposes for which powers under Part may be exercised
(1) Powers may be exercised under this Part for any of the following purposes:
(a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any access licence, approval, notice or requirement issued or made under this Act,
(b) for obtaining information or records for purposes connected with the administration of this Act,
(c) generally for administering this Act and protecting the environment.

(2) In this Part, a reference to this Act or the regulations extends to the Water Act 1912 and the regulations under that Act.
(3) For the purpose of applying this Part to the Water Act 1912 and the regulations under that Act, references to this Act in section 390 of this Act, and in the definition of authorised officer in the Dictionary to this Act, extend to the Water Act 1912 and the regulations under that Act.
…
338A Powers of authorised officers to require information and records
(1) The Minister may, by notice in writing given to a person, require the person to furnish to the Minister such information or records (or both) as he or she may require for the purposes of this Act.
(2) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for the purposes of this Act.
(3) A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.
(4) A notice under this Division may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(5) The person to whom any record is furnished under this Division may take copies of it.
(6) If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
Note. See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.

The words water allocation are defined in the Dictionary to the Act as meaning the water to which the holder of an access licence is entitled from time to time under the licence, as recorded in the water allocation account for the licence. The words water allocation account are defined in respect of an access licence as meaning the account for the licence referred to in s 85(1). Finally, the words water supply work are defined as meaning, inter alia, a work (such as a water pump or water bore) for the purpose of taking water from a water source or a work (such as tank or dam) for the purpose of capturing or storing water.
The issue in the present proceedings is whether the defendant is entitled to require the plaintiffs to furnish the information and records stipulated by reason of their being required for the purpose set out in s 337(1)(a), that is:

For determining whether there has been compliance with or a contravention of this Act or the regulations or any access licence, approval, notice or requirement issued or made under this Act.

The Notices

(a) The Latoka Notice

The relevant facts relating to the Latoka Notice are these:

E. The NRAR is investigating potential breaches of section 60B and 91I of the WM Act in relation to alleged contravention of conditions of an access licence and, taking water when metering equipment not working for the 2015/16 water year.
…
L. During February 2018 the NRAR received information associated with water access licence ("WAL") 85AL753202 alleging, contravention of terms and conditions of access licence and, taking water when metering equipment not working during the 2015/16 water year.
M. WAL 85AL753202 is a current unregulated river B Class WAL linked to four specified works referred to in paragraph H. It is alleged that during the 2015/16 water year, 290 megalitres ("ML") was extracted outside of the specified flow conditions from the 01/03/2016 - 02/03/2016 and, that a negative flow totalling 343 ML was recorded from a pump site over a 27 day period from 28/01/2016 - 27/02/2016.

The Notice then went on to provide as follows:

PURPOSE FOR WHICH THIS NOTICE IS ISSUED
This notice is issued for the purposes of determining whether in relation to water access and use at the premises, there has been compliance with or contravention of the following provisions of the WM Act.
(i) Section 60B - Contravention of terms and conditions of access licence;
Condition number MW2338-00001 of 85AL753202
Condition number MW0655-00001 of 85CA753203
Condition number MW0089-00008 of 85AL753202

(ii) Section 91I - Taking water when metering equipment not working.

REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS
In accordance with s.338A(2) of the WM Act, I, Scott Mathieson, an authorised officer under the WM Act, require you, Peter and Jane Harris to furnish to me the following information and records [varied to not later than close of business on Friday 22 February 2019].
Please provide your response electronically to [email address]. In the event that files are too large for an electronic transfer it is acceptable to provide files by post using a USB drive or similar, or using a recognized and secure electronic file transfer service.
1. Information
A.   For the 2015/16 water year, identify the property manager(s) for the Premises relevant to combined approvals 85CA753203.
B.   For the 2015/16 water year, identify all workers, employees, staff and contractors who carried out duties at the Premises.
C.   For the 2015/16 water year, explain the duties and roles of each of the employees, staff or contractors referred to in (1B).
Water access, use and records
D.   During the 2015/16 water year, were records made, kept and maintained at each of the pumps relevant to combined approvals 85CA753203 during water extraction events?
E.   If the answer to (1D) is yes, detail for each combined approval ESID and pump:
(i) Who made the records;
(ii) What manner and form they were recorded in;
(iii) What records were made;
(iv) What the dates and times of water extractions were;

F. Are the pumps referred to in (1D) fitted with any type of meter and/or data logger?
G. If the answer to (1D) is yes, explain:
(i) What were the dates of meter and/or logger installation at each pump;
(ii) Who installed the meter and/or logger at each pump;
(iii) What type of meter and/or logger is installed at each pump;
(iv) Were any repairs or maintenance carried out on any meter during the 2015/16 water year;

(v) Who maintains and services the meter and/or logger [at] each pump;
(vi) What data each meter and/or logger records at each pump.

H. If the answer to (1D) is no, explain:
(i) What the pump types area [scil. are] at each location including but not limited to make, model, pump method or mechanism, rating, capacity;
(ii) How pump usage and water extraction is recorded by the Holder for at each pump;
(iii) Who recorded pump usage during the 2015/16 water year; (iv) The pumping capacity or agreed pumping rate for each pump;
(v) How the pumping capacity or agreed pumping rate was identified, calculated, established or agreed for each pump.

I. Were the pumps or associated intake pipework at each of the pumps replaced, repaired or renewed before, during or after the 2015/16 water year?
J. If the answer to (1I) is yes, explain:
(i) What pumps were replaced, repaired or renewed;
(ii) Why they were replaced, repaired or renewed;
(iii) When they were replaced, repaired or renewed
(iv) Who carried out the work associated with pump replacement, repair or renewal;

K. Was any water taken for the purposes of the approvals in (1A) from a runoff harvesting dam during the 2015/16 water year?
L. If the answer to (1K) is yes, explain for each dam:
(i) Which dam was used;
(ii) The location of each dam;
(iii) How water was taken from the dam;
(iv) The capacity of each dam at the time water was taken;
(v) What land lot(s) the water was used on;
(vi) The date and duration of each water take from the dam; (vii) How the dates and volume of water use was recorded.

M. During the 2015/16 water year, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)?
N. If the answer to (1M) is yes, identify:
(i) Where each of the storages are [sic] located on the premises,
(ii) The maximum capacity of each storage;
(iii) When each storage was used for the purposes of receiving water;
(iv) When each storage was used for the purposes of using the stored water;
(v) The purposes for which the water in each storage was used;
(vi) How the water in each storage was transferred.
(vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done.

O. For WAL 85AL753203 explain how you checked that water could be taken in relation to conditions of WAL 85AL753203 prior to each water extraction event during the 2015/16 water year.
P. Did you become aware of a breach of any condition of an approval or WAL during the 2015/16 water year?
Q. If the answer to (1P) is yes, explain:
(i) What the breach was, including reference to the specific WAL or combined approval condition that was breached;
(ii) When the breach occurred;
(iii) Which persons were involved in the breach;
(iv) What actions were put in place to rectify the breach and prevent a recurrence of the breach;
(v) Whether any notifications of the breach were made to any party including a state government agency, and how such notifications were made.

Water accounting
R. During the 2015/16 water year did any trades or reallocations of water occur relevant to 85AL753203?
S. If the answer to (1R) is yes, provide details for each trade or reallocation event and WAL:
(i) Identify which WAL was involved;

(ii) What trades were made into or out of the WAL;
(iii) When the trade was completed;
(iv) The quantity of the trade;
(v) What the effects of the trade were on water entitlements for each affected WAL;
(vi) Who approved the trade(s);

T. During the 2015/16 water year did you enter any data into the WaterNSW Water Accounting System ("IWAS")?
U. If the answer to (1R) [scil. (1T)] is yes, detail:
(i) What data was submitted;
(ii) When data was submitted:
(iii) Who submitted the data;
(iv) What ESID, approval and WAL the data related to;
(v) What discrepancies, faults, problems or errors were encountered during data entry into IWAS, if any;
(vi) What communications were had with any individual, organisation or state government agency including WaterNSW to acknowledge, resolve or discuss any discrepancies, faults, problems or errors encountered with IWAS in relation to the 2015/16 water year or thereafter.

V. During the 2015/16 water year, did you have access to sufficient quantities of water available under other WALs or approvals at locations off the Premises, to use on the Premises for the purposes of the combined approvals in (1A)?
W. If the answer to (1V) is yes, identify as applicable;
(i) The nature and type of each of the water source;
(ii) The location of each of [sic] water source;
(iii) Whether water was used on the Premises from any of the water sources;
(iv) The purpose for which the water was used at the Premises;
(v) When any such water sources were used on the Premises;
(vi) How the water was transferred to the Premises;
(vii) How much water was transferred to and used at the Premises;
(viii) Which persons were involved with the transfer to the Premises;
(ix) How the use of the water on the Premises was authorised;

Other water use
X. During the 2015/16 water year, was any water extracted from the Darling River in accordance with basic landholder rights?
Y. If the answer to (1X) is yes, please identify:
(i) Each water source from which water was taken;
(ii) The purposes for which the water was used;
(iii) How the water was taken from each water source;
(iv) What dates the water was taken from each water source;
(v) Who managed or coordinated the taking of the water from each water source
(vi) How much water was taken from each water source;
(vii) In relation to the Premises, how many and what type of dwellings, sheds, structures, buildings were supplied with the water from each water source;
(viii) lf any of the water was mixed and stored in water storages or other water sources on the Premises used in connection with the combined approvals in (1A);
(ix) The amount of water that was mixed and stored with water storages or other water sources on the Premises.

Business activities at the Premises
Z. For the 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A).
AA. Identify what was grown and produced, and in what quantities, at the Premises during 2015/16 and 2016/17.
BB. Identify the size and location of the "areas of land at the Premises used for economic activity in the 2015/16 and 2016/17 water years.
CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during the 2015/16 and 2016/17 water years.
DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder for 2015/16 and 2016/17.
EE. Identify the amounts of water utilised for economic activities in relation to (1DD).
FF. How was the rate of water use in (1CC) derived, implemented and managed at the Premises during 2015/16 and 2016/17?
2. Records
A.   Any documents including but not limited to employment contracts, job descriptions, timesheets, emails, calendars, letters, invoices or written reports related to 1A, 1B, 1C.
B.   Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1D, 1E, 1F, 1G, 1H, 1I, 1J, 1K, 1L, 1M, 1N, 1O,1P, 1Q.
C.   Any documents including but not limited to invoices, logbooks, statements, receipts, emails, letters, certificates, computer or mobile device screenshots, data summaries, plans, maps, GPS records, diagrams, written reports, or photographs relevant to 1R, 1S, 1T, 1U, 1U [sic], 1V, 1W.
D.   Any documents including but not limited to photos, emails, logbooks, diaries, letters, notes, emails, written reports or related to 1X, 1Y.
E.   Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF.

Should you require any assistance understanding this Notice or you require further information, please contact Scott Mathieson on [telephone number] or [email address]

(b) The Janbeth Notice

The Notice first set out a series of facts under the heading “Background”. Relevant facts for present purposes are these:

E. The NRAR is investigating potential breaches of section 60B and 60C of the [Water Management Act 2000 (“WM Act)] in relation to alleged contravention of conditions of an access licence, and unlawful taking of water for which there is insufficient water allocation from the 2012/13 to 2017/18 water years.
…
M. During February 2018 the NRAR received information alleging a significant overuse of water allocations associated with water access licence ("WAL") 85AL753372 during the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years and, pumping outside of flow conditions in the 2016/17 water year.
N. WAL 85AL753372 is a current unregulated river C Class WAL linked to four nominated works. It is alleged that during 2012/13 its annual use limit of 3 megalitres ("ML") and account balance of 6517 ML was exceeded by 3660.0 ML, in 2013/14 its annual use limit of 3 ML and account balance of -3658.9 ML was exceeded by 5813.9 ML, in 2014/15 its annual use limit of 3.3 ML and account balance of -5812.8 ML was exceeded by 2354.7 ML until March 2015, in 2015/16 its annual use limit of 3.3 ML and account balance of 1104.5 ML was exceeded by 354.5 ML and, in 2016/17 its annual use limit of 3.3 ML and account balance of -354.5 was exceeded by 19617.4 ML. It is also alleged that 1011.25 ML was extracted outside of flow conditions between 28/07/2016 - 13/12/2016 and 03/05/2017 - 07/05/2017.

The Notice then went on to provide as follows:

PURPOSE FOR WHICH THIS NOTICE IS ISSUED
This notice is issued for the purposes of determining whether in relation to water access and use at the premises, there has been compliance with or contravention of the following provisions of the WM Act.
(i) Section 60B - Contravention of terms and conditions of access licence;
Condition number MWO605-00001 of 85AL753372
Condition number MW0915-00001 of 85AL753372
Condition number MW5946-00001 of 85CA753373

(ii) Section 60C - Taking water for which there is no, or insufficient, water allocation.

REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS
In accordance with s.338A(2) of the WM Act, I, Scott Mathieson, an authorised officer under the WM Act, require you, Peter and Jane Harris to furnish to me the following information and records [varied to not later than close of business on Friday 22 February 2019].
Please provide your response electronically to [email address]. In the event that files are too large for an electronic transfer it is acceptable to provide files by post using a USB drive or similar, or using a recognized and secure electronic file transfer service.
1. Information
A.   For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify the property manager(s) for the Premises relevant to combined approvals 85CA753160 and 85CA753373.
B.   For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify all workers, employees, staff and contractors who carried out duties at the Premises.
C.   For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, explain the duties and roles of each of the employees, staffer contractors referred to in (1B).
Water access, use and records
D.   During the 2012/13, 2013/14, 2015/16 and 2016/17 water years, were records made, kept and maintained at each of the pumps relevant to combined approvals 85CA753160 and 85CA753373 during water extraction events?
E.   If the answer to (1D) is yes, detail for each combined approval ESID and pump:
(i) Who made the records;
(ii) What manner and form they were recorded in;
(iii) What records were made;
(iv) What the dates and times of water extractions were;

F. Are the pumps referred to in (1D) fitted with any type of meter and/or data logger?
G. If the answer to (1D) is yes, explain:
(i) What were the dates of meter and/or logger installation at each pump;
(ii) Who installed the meter and/or logger at each pump;
(iii) What type of meter and/or logger is installed at each pump;
(iv) Who maintains and services the meter and/or logger each pump;
(v) What data each meter and/or logger records at each pump.

H. If the answer to (1D) is no, explain:
(i) What the pump types area [scil. are] at each location including but not limited to make, model, pump method or mechanism, rating, capacity;
(ii) How pump usage and water extraction is recorded by the Holder for at [sic] each pump;
(iii) Who recorded pump usage during 2012/13, 2013/14, 2015/16 and 2016/17 water years;
(iv) The pumping capacity or agreed pumping rate for each pump;
(v) How the pumping capacity or agreed pumping rate was identified, calculated, established or agreed for each pump

I. Were the pumps or associated intake pipework at each of the pumps replaced, repaired or renewed before, during or after the 2012/13 2017/18 water years?
J. If the answer to (1I) is yes, explain:
(i) What pumps were replaced, repaired or renewed;
(ii) Why they were replaced, repaired or renewed;
(iii) When they were replaced, repaired or renewed
(iv) Who carried out the work associated with pump replacement, repair or renewal;

K. Was any water taken for the purposes of the approvals in (1A) from a runoff harvesting dam during 2012/13, 2013/14, 2015/16 and 2016/17 water years?
L. If the answer to (1K) is yes, explain for each dam:
(i) Which dam was used;
(ii) The location of each dam;
(iii) How water was taken from the dam;
(iv) The capacity of each dam at the time water was taken;
(v) What land lot(s) the water was used on;
(vi) The date and duration of each water take from the dam;
(vii) How the dates and volume of water use was recorded.

M. During the 2012/13 - 2017/18 water years, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)?
N. If the answer to (1M) is yes, identify:
(i) Where each of the storages were [sic] located on the premises;
(ii) The maximum capacity of each storage;
(iii) When each storage was used for the purposes of receiving water;
(iv) When each storage was used for the purposes of using the stored water;
(v) The purposes for which the water in each storage was used;
(vi) How the water in each storage was transferred
(vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done.

O. For WAL 85AL753372 explain how you checked that water could be taken in relation to conditions of WAL 85AL753372 prior to each water extraction event during 2012/13, 2013/14, 2015/16 and 2016/17 water years.
P. Did you the Holder of WAL 85AL753372 become aware of a breach of any condition of an approval or WAL during 2012/13, 2013/14, 2015/16 and 2016/17 water years?
Q. If the answer to (1P) is yes, explain:
(i) What the breach was, including reference to the specific WAL or combined approval condition that was breached;
(ii) When the breach occurred;

(iii) Which persons were involved in the breach;
(iv) What actions were put in place to rectify the breach and prevent a recurrence of the breach;
(v) Whether any notifications of the breach were made to any party including a state government agency, and how such notifications were made.

Water accounting
R. During the four water years 2012/13, 2013/14, 2015/16 and 2016/17 did any trades or reallocations of water occur relevant to WAL 85AL753372?
S. If the answer to (1R) is yes, provide details for each trade or reallocation event and WAL:
(i) Identify which WAL was involved;
(ii) What trades were made into or out of the WAL;
(iii) When the trade was completed;
(iv) The quantity of the trade;
(v) What the effects of the trade were on water entitlements for each affected WAL;
(vi) Who approved the trade(s).

T. During the 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18, did you enter any data into the WaterNSW Water Accounting System ("IWAS")?
U. If the answer to (1R) [scil. (1T)] is yes, detail:
(i) What data was submitted;
(ii) When data was submitted;
(iii) Who submitted the data;
(iv) What ESID, approval and WAL the data related to;
(v) What discrepancies, faults, problems or errors were encountered during data entry into IWAS, if any;
(vi)What communications were had with any individual, organisation or state government agency including WaterNSW to acknowledge, resolve or discuss any discrepancies, faults, problems or errors encountered with IWAS from 2012/13 to or after 2017/18.

V. During the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water year, did you have access to sufficient quantities of water available under other WALs or approvals at locations off the Premises, to use on the Premises for the purposes of the combined approvals in (1A)?
W. If the answer to (1V) is yes, identify as applicable.
(i) The nature and type of each of the water source;
(ii) The location of each of water source;
(iii) Whether water was used on the Premises from any of the water sources;
(iv) The purpose for which the water was used at the Premises;
(v) When any such water sources were used on the Premises;
(vi) How the water was transferred to the Premises;
(vii) How much water was transferred to and used at the Premises;
(viii) Which persons were involved with the transfer to the Premises;
(ix) How the use of the water on the Premises was authorised;

Other water use
X. During the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years, was any water extracted from the Darling River in accordance with basic landholder rights?
Y. If the answer to (1X) is yes, please identify:
(i) Each water source from which water was taken;
(ii) The purposes for which the water was used;
(iii) How the water was taken from each water source;
(iv) What dates the water was taken from each water source;
(v) Who managed or coordinated the taking of the water from each water source
(vi) How much water was taken from each water source;
(vii) In relation to the Premises, how many and what type of dwellings, sheds, structures, buildings were supplied with the water from each water source;
(viii) lf any of the water was mixed and stored in water storages or other water sources on the Premises used in connection with the combined approvals in (1A);
(ix) The amount of water that was mixed and stored water storages or other water sources on the Premises.

Business activities at the Premises
Z. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A).
AA. Identify what was grown and produced, and in what quantities, at the Premises during 2012/13, 2013/14, 2015/16 and 2016/17.
BB. Identify the size and location of the areas of land at the Premises used for economic activity in the 2012/13, 2013/14, 2015/16 and 2016/17 water years.
CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during 2012/13, 2013/14, 2014/15, 2015/16,2016/17 and 2017/18 water years.
DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18.
EE. Identify the amounts of water utilised for economic activities in relation to (1DD).
FF. How was the rate of water use in (1CC) derived, implemented and managed at the Premises during 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18?
2. Records
A. Any documents including but not limited to employment contracts, job descriptions, timesheets, emails, calendars, letters, invoices or written reports related to (1A, 1B, 1C).

B.   Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1D, 1E, 1F, 1G, 1H, 1I, 1J, 1K, 1L, 1M, 1N, 1O, 1P, 1Q.
C.   Any documents including but not limited to invoices, logbooks, statements, receipts, emails, letters, certificates, computer or mobile device screenshots, data summaries, plans, maps, GPS records, diagrams, written reports, or photographs relevant to 1R, 1S, 1T, 1U, 1U [sic], 1V, 1W.
D.   Any documents including but not limited to photos, emails, logbooks, diaries, letters, notes, emails, written reports or related to 1X, 1Y.
E.   Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF.

Should you require any assistance understanding this Notice or you require further information, please contact Scott Mathieson on [telephone number] or [email address]

In the summons, the plaintiffs objected to a number of paragraphs in the Notices. At the hearing, the plaintiffs produced a schedule (marked MFI1) summarising their objections to the paragraphs objected to. However, some of the paragraphs identified in the schedule were additional to those identified in the summons. This took the defendant by surprise. The defendant had also prepared a schedule (marked MFI 2) summarising the reasons why the paragraphs objected to in the summons were said to be within the powers under the Act to issue notices.
I gave leave to the defendant to file a further schedule to deal with the added paragraphs. That was done. I marked that schedule as MFI 3. I thereafter relisted the proceedings to enable any further oral submissions to be made. In the result, the defendant indicated that it did not press certain specified paragraphs in the Notices.
The final position is, therefore, that the following paragraphs of the Notices are in dispute:

In relation to the Latoka Notice, paragraphs 1A, 1B, 1C, 1M, 1N, 1P, 1Q, 1Z, 1AA, 1BB, 1CC, 1DD, 1EE and 1FF and the documents requested in paragraphs 2A, 2B, and 2E.

In relation to the Janbeth Notice, paragraphs 1A, 1B, 1C, 1I, 1J, 1K, 1L, 1M, 1N, 1P, 1Q, 1Z, 1AA, 1BB, 1CC, 1DD, 1EE and 1FF and the documents requested in paragraphs 2A, 2B and 2E.

Legal principles

Both parties agreed that the relevant principles are to be found in a series of cases, principally in the Federal Court of Australia concerning notices under s 155 of the Trade Practices Act 1974 (Cth). It does not appear that there are any cases that directly concern notices such as the ones in dispute issued under the Water Management Act.
Section 155 of the Trade Practices Act provided:

155. (1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person –
(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents, or …

In Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No. 3) (1980) 31 ALR 519; 47 FLR 163, the Full Court of the Federal Court said (at 529-531; 172-175):

Only the last question falls for determination in these proceedings, namely whether the Chairman has required each of the applicant companies to furnish information or produce documents other than information or documents relating to a matter that constitutes or may constitute a contravention, the "matter" being, in each case, "that the company has given effect to a provision of an arrangement or understanding between the company and other corporations which has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining the prices for Ford spare parts supplied by those corporations, in competition with each other, to motor vehicle body repairers in Melbourne".
If the information to be furnished or the documents to be produced in accordance with the notice respectively answer the description of "information relating to" or "documents relating to" the matter specified in the notice, the Chairman's requirement lies within the power which s 155 confers upon him. Provided the necessary relationship exists between the matter and the information or documents required, the notice is not open to objection on the ground that it is burdensome to furnish the information or produce the documents. As Bowen CJ said in Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129 at 136; 15 ALR 561 at 567: "It is not, l think, a good ground of objection to a notice under s 155 that it is burdensome or oppressive. It is clear that when such a notice is given, the answering of it may involve the recipient in considerable work and expense. This, in itself, may constitute a kind of penalty whether or not there is ultimately found to have been a contravention. The legislation assumes that the public interest necessitates this. No doubt in practice, the Commission will administer the Act in such a way as not to impose upon a person or company a burden completely disproportionate to the value to the commission of the information sought."
In the case of a matter that may constitute a contravention, the Chairman may not know the constitutive facts of a contravention (if there has been one) and he may ultimately ascertain that there has been no contravention in the conduct or transaction which he is investigating. Because his attention has been drawn to a particular act or transaction which warrants investigation, and because he has reason to believe that the person to whom the notice is given is capable of furnishing information relating to the matter under investigation, he is engaged in a function of investigation, not in a task of proving an allegation. The power conferred by s 155(1) is in aid of that function and is a power which authorizes inquiries both wide in scope and indefinite in subject matter. It is an investigative power which is under consideration here and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined.
In the present case, the investigative power of the Chairman is being exercised in an investigation into a matter that may constitute a contravention of s 45. Proof of a contravention of that section often depends upon circumstantial evidence. Section 45 is itself expressed in general terms, and when an investigation into such a matter commences with little information, the range of inquiries may need to be broad rather than specific. There is no analogy to be made with interrogatories in litigation. Rules which are entirely appropriate to limit discovery with respect to issues defined by pleadings provide no sure guide to the manner of exercise of a power to ascertain facts which may or may not result in litigation. The investigative power may properly be exercised by inquiring into the existence of facts which do not themselves constitute a contravention or deny the possibility of a contravention. The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation.
…
The court cannot undertake the task of determining the way in which an investigation should be carried out, for that is a task which the legislature has confided to the Commission, the Chairman or the Deputy Chairman. The court's jurisdiction is not to set the course of an investigation but to call a halt if it is shown that the investigation exceeds the powers conferred. Short of that point, the protection of the corporate citizen from harassment rests in the good sense of the repository of the power. To say that an undue or oppressive burden is imposed by a notice is not legally significant unless what is meant is that the powers conferred by s 155 have been exceeded in the particular case.
An excess of power may appear if the requirement for information or documents is couched in such wide and general terms that a proper exercise of the investigatory power could not support the requirement in question. This is but a particular application of the general principle that the exercise of a discretionary power must be reasonably capable of being regarded as related to the purpose for which the power is conferred (see, eg Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490; [1971] ALR 201 ). If the requirement expressed in a particular notice is reasonably capable of being so regarded, that ground for alleging an excess of power fails.

In A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414 Basten JA (with whom Bathurst CJ agreed) said at [34]:

[I]t is well established that the possibility, even the certainty, that the summons will cover documents which are not relevant to the investigation is not a basis for setting aside the summons.

His Honour then went on to cite as authority for that proposition the passages from Melbourne Home of Ford which I have set out above. Bathurst CJ also said at [4] that,

Objection to production could include objections on the ground of relevance.

In Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565; 57 FLR 368, the Full Court of the Federal Court said (at 568-572; 371-377):

The suggested grounds of invalidity are, first, absence of an allegedly necessary degree of certainty in the terms of the notices and, second, absence of an allegedly necessary element of relatedness between the information or documents sought and “matters” that are identified by the notices as “constituting or possibly constituting, contraventions of section 45 of the Act”. The suggested general principle is that if a requirement in a s 155 notice is partly invalid by reason of uncertainty in terms or lack of a requisite element of relatedness, the recipient of the notice cannot properly be expected to reconstruct the requirement by severing what is valid from what is invalid. The remaining requirement to produce documents which is in question is submitted to be invalid for the reason that it is harsh, oppressive and unreasonable.
…
In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, there are, in our view, two further implicit conditions of validity of a notice purportedly given pursuant to s 155(1) of the Act. Those two further conditions of validity relate to the form or content of the notice. The first is that the notice must convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce. The second is that the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes.
…
The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see, Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519 at 531).
…
If, on examination, of the terms of the notices, it does not appear that the information or documents sought by a particular requirement are information or documents relating to one or other of the above "matters", the requirement will, at least to the extent to which it would require the furnishing of such information or the production of such documents, be beyond the power conferred by s 155(1) of the Act. In this regard, however, it should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified "matters" is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an over-technical or hypercritical way. As was pointed in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (31 ALR at 529-30), the power conferred by s 155(1) is an investigative power which authorizes questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s 155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to any one of the “matters" which the notice identifies.
…
We turn to consider the related principle for which the appellants contend, namely, that if a requirement to furnish information or to produce documents is partly invalid by reason of uncertainty of the requirement or lack of relatedness of the information or documents, the recipient of a notice cannot properly be expected to reconstruct the requirement by severing what is valid from what is invalid. In this regard, it is relevant to note that the appellants did not contend that the invalidity, in whole or in part, of one question or requirement to produce documents in a notice would lead to invalidity of other independent questions.
In Melbourne Steamship Co v Moorehead (1912) 15 CLR 333 at 334, Griffiths CJ, when referring to a notice under s 15B of the Australian Industries Preservation Act 1906-1909, commented: "... I am disposed to think that when a question demanding a categorical answer is put under s 15B, being so framed as to include matters concerning which the questioner is not entitled, as well as matters concerning which he is entitled, to ask, the person to whom the question is put may refuse to answer it in that form, and that it is for the questioner, and not for the person questioned, to modify it so as to confine it within permitted limits." Subject to one possible qualification, we consider the tentative views expressed by Griffiths CJ in the above passage to be correct and to be applicable to a question asked or a requirement to produce documents contained in a notice given pursuant to s 155(1) of the Act. The possible qualification is that we consider that the principle for which the appellants contend and which finds support in the comments of Griffiths CJ should be confined to a case where a blue pencil deletion of what is invalid is not practicable or where, if such deletion be practicable, it would result in what is substantially a different question.

In SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357; 89 ALR 105, the Full Court of the Federal Court said (at 369-370; 115-116):

The proposition that the specification of a relevant "matter" is a condition of the validity of a s 155 notice was made explicit by the Full Court in Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 at 570; 57 FLR 368 at 374: "... the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes."
And (ALR at 571: FLR at 375) their Honours said that the entitlement would not be shown "unless it appears from the notice that the information or documents sought are information or documents 'relating" to one or more 'matters' of a kind described in the sub-section". It is clear from what follows in
that judgment that the description of the relevant "matter" must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. The notice must disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the "matter" to enable the relationship to be discerned. We shall refer to this for convenience as the "entitlement disclosure condition".
As with the requirement that the notice be clear in its terms, this will not support an over-technical or hypercritical approach to its construction: Pyneboard Pty Ltd v Trade Practices Commission, supra (ALR at 572; FLR at 376). And it is fundamental that, given the investigative nature of the power under consideration, there is no requirement that the notice "plead" all the facts necessary to constitute a contravention or possible contravention. The words "may constitute" enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: Davenport v Trade Practices Commission (1983) 47 ALR 505 at 513; 70 FLR 123 at 130 per Northrop J. In doing so however, it is not necessary for the court to determine whether a contravention has occurred or will occur, nor will it idly speculate or draw on improbable circumstances to uphold the validity of a notice (FLR at 132).

The principles that I derive from these cases are these:

(a) The notice must convey with reasonable clarity to the recipient what information he/she is required to furnish or what documents are required to be produced: Pyneboard at 374;

(b) The documents sought must be capable of being properly regarded as related to the potential contravention: Pyneboard at 376;

(c) The notice must disclose the relationship between the information sought and the matter in respect of which the information is sought: Pyneboard at 375; SA Brewing Holdings at 370;

(d) These requirements (in (a), (b) and (c) above) are not to be applied in a precious, over-technical or hypercritical way: Pyneboard at 375 and 376;

(e) Provided the necessary relationship exists between the matter and the information and documents required, the notice is not open to objection on the ground that it is burdensome to furnish the information or to produce the documents: Melbourne Home of Ford at 173;

(f) The power conferred is in aid of a function of investigation, not of proof of an allegation, and it is not possible to define a priori the limits of an investigation which might properly be made. In that way the power should not be narrowly confined: Melbourne Home of Ford at 173;

(g) The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry: Melbourne Home of Ford at 174;

(h) The invalidity of one question or requirement to produce will not lead to the invalidity of other independent questions unless the blue pencil deletion of what is invalid is not practicable or, if it is, would result in a substantially different question: Pyneboard at 376-7;

(i) Objection may be taken to production on the ground of relevance: A v Independent Commission Against Corruption at [4] and [28]-[30];

(j) The possibility, even the certainty, that the notice will cover documents which are not relevant to the investigation is not a basis for setting aside the notice: A v Independent Commission Against Corruption at [34].

Submissions

I will first set out the general submissions that were made in relation to the Notices. I will then deal with the specific paragraphs in the Notices that are objected to. The schedules to which I have referred in each case set out the basis for the resistance to providing the stipulated information and producing the stipulated documents by the plaintiffs and why, on the defendant’s part, the requirement to provide the information and produce the documents is said to be appropriate. The plaintiff has helpfully linked the records which are sought to be produced to the information sought to be provided. I will summarise the competing contentions and then determine whether or not the information and documents are legitimately required.

The plaintiffs submitted that the Notices are beyond power because they fail to comply with principles derived from the cases, in particular, that for the Notices to be valid:

(a) the documents sought must be capable of being properly regarded as related to the potential contravention of the Act; and
(b) the notice must disclose the relationship between the information sought and the potential contravention.

The plaintiffs submitted that certain of the documents sought to be produced are not sought for the purposes stated in the Notices. By way of example, the plaintiffs submitted that the defendant seeks information or documents which relate to:

(a)   economic activities undertaken at Janbeth and Latoka for which water was used (paragraph 1Z of the Janbeth Notice and the Latoka Notice);
(b)   what was grown and produced at Janbeth and Latoka (paragraph 1AA of the Janbeth Notice and the Latoka Notice);
(c)   the size and location of the areas of land at Janbeth and Latoka used for economic activity (paragraph 1BB of the Janbeth Notice and the Latoka Notice); and
(d)   farm plans, property plans and business plans relating to the matters identified in paragraphs (a) to (c) above (paragraph 2E of the Janbeth Notice and the Latoka Notice).

The plaintiffs submitted that those documents are wholly unconnected with the identified potential contraventions of the Act, and that the Notices fail to disclose the relationship between those matters and the potential contraventions.
The defendant submitted that each of the matters about which information and documents are sought is capable of proving:

circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation. (Melbourne Home of Ford at FLR 174)

In that way, the defendant submitted that information as to the economic activities conducted at the properties over a period of time could shed light upon whether water was, in fact, taken in a manner which contravened the access licences over that time. If the economic activities conducted at the properties were such that they would necessarily have required water in excess of the entitlement under the access licenses, then this would tend to prove circumstances from which an inference can be drawn that the relevant access conditions were breached.
The defendant submitted that information as to the crops grown at the properties and the quantities of those crops could shed light upon whether water was taken in a manner which contravened the access licences. If the crops grown, and the quantities in which they were grown, were such that they would necessarily have required water in excess of the entitlement under the access licenses, then this would tend to prove circumstances from which an inference can be drawn that the relevant access conditions were breached.
The defendant submitted that the size and location of the land used for economic activity and farm, business, and property plans are capable of shedding light upon whether water was, in fact, taken in a manner which contravened the relevant access licences. The defendant submitted that information as to these matters could be used, either by itself, or in combination with other information sought (for example, the quantity of the crops grown, the economic activities conducted), to prove that it was not possible to conduct certain activities without taking water in excess of the entitlements provided for.
The defendant submitted that he is not to be confined to seeking information and documents concerning only the matters stipulated in the Latoka Notice at Background paragraphs L & M, and in the Janbeth Notice at Background paragraphs M & N. The defendant submitted in particular that he is entitled to information that may show further contraventions regarding Latoka during the 2015/2016 water year in addition to the contraventions identified in paragraph M.

The Latoka Notice

The Notice was issued for the purposes of determining whether, in relation to water access and use at the premises, there had been compliance with or contravention of identified provisions of the Act. The first matter concerned the alleged contravention of terms and conditions of the access licence, as governed by s 60B of the Act. The three conditions identified were as follows:

(a) Condition No. MW2338-00001 of 85AL753202. That condition was this:
The completed logbook must be retained for five (5) years from the last date recorded in the logbook.

(b) Condition No. MW0655-00001 of 85CA753203. That condition was this:
Any water supply work authorised by this approval must take water in compliance with the conditions of the access licence under which water is being taken.

(c)   Condition No. MW0089-00008 of 85AL753202. That condition provided:
A.   Water must only be taken from the Culgoa River Junction to Bourke Management Zone of the Barwon-Darling Unregulated River Water Source under this access licence when flows are in the B Class, which means that the flow is greater than:
i.   1330 ML/day at Darling River at the Warraweena gauge [No. 425029]; and
ii.   1250 ML/day at Darling River at the Bourke Town gauge [No. 425003].
This restriction does not apply if water is to be taken from a runoff harvesting dam.

The allegations are set out in Background paragraph M of the Notice. First, it was alleged that during the 2015/16 water year 290 mega litres was extracted outside of the specified flow conditions from 1-2 March 2016. Secondly, a negative flow totalling 343 mega litres was recorded from a pump site over a 27 day period from 28 January 2016 to 27 February 2016.
The second matter concerned taking water when metering equipment was not working during the 2015/2016 water year. This is referred to in Background paragraph L.

Paragraphs 1A & 2A

1A. For the 2015/16 water year, identify the property manager(s) for the Premises relevant to the approvals.
2A. Any documents including but not limited to employment contracts, job descriptions, time sheets, emails, calendars, letters, invoices or written reports related to 1A.

The plaintiffs submitted that the identity of the property manager for the premises relevant to the approvals at times other than the particular periods under investigation is irrelevant. In addition, the plaintiffs submitted that the documentary call is far too broad, and would capture a vast amount of unnecessary and utterly irrelevant materials. It would require the production of every email, letter or other document which identified who the property manager was from time to time. The plaintiffs submitted that there is no justification for this.
The defendant submitted that the facts sought can be used to ascertain another line of enquiry (see Melbourne Home of Ford at 174). It was submitted, in other words, that those persons can be questioned about what occurred at the property during that water year. This could conceivably shed light upon whether the offences under investigation indeed occurred (in particular, whether there was a significant overuse of water allocations associated with the relevant water access licence).
The defendant also submitted that what was contained in Background paragraph M might be an instance of a contravention that has occurred in the context of what the defendant knows as is set out in Background paragraph L. In that way, the defendant submitted that it ought not to be confined to the specific periods identified in paragraph M.

Determination

It is not made clear in the Notice whether the contraventions identified as (i) and (ii) under the heading “Purpose for which this Notice is Issued” (see at [12] above) are separate and distinct contraventions or related. Paragraphs L & M in the Background section do not resolve that matter. Nor does a reading of Background paragraph E clarify the matter. The defendant, in submissions, suggested that the various contraventions are part of the one contravention. However, the matter must be judged in terms of what the Notice says. In that regard, principles (a), (b) and (c) (at [24] above) are relevant.
It is not self-evident whether the alleged breach of condition number MW0089-00008 of 85AL753202, which concerns when water can be taken from the identified place in the river, has occurred because the meter was not working, or whether the wrongly taken water was taken (and is alleged by the defendant to have been taken) at a time when the meter was working. One available inference is that the meter registered the wrongful taking in the two specified periods. On that latter basis, the two contraventions would be unrelated.
If the two contraventions (the breaches of the conditions on the one hand and the breach of s 91I on the other) are related, in the sense that what is contained in Background paragraph M arose from the fact that the meter was not working, the defendant would be entitled to enquire about relevant matters throughout the 2015/16 water year. If there is no connection, requests for periods other than those identified (being 28 January 2016 to 27 February 2016 and 1 March 2016 to 3 March 2016) are not related to the alleged contraventions.
This lack of clarity flows through all aspects of the Latoka Notice. On that basis alone it should be set aside. However, I shall consider, as far as is possible, other issues which arise in subsequent paragraphs in an attempt to minimise further disputation.

Paragraphs 1B and 2A

1B. For the 2015/16 water year identify all workers, employees, staff and contractors who carried out duties at the Premises.
2A. Any documents including but not limited to employment contracts, job descriptions, time sheets, emails, calendars, letters, invoices or written reports related to 1B.

The plaintiffs submitted that the identity of every single person who carried out any duty at the premises at any time during the 2015/16 water year, regardless of whether the person was someone who had any involvement in the taking of the water, is irrelevant. The plaintiffs submitted that the category would include persons who might have carried out casual work or work quite unrelated to the water supply.
The defendant made the same submissions as were made in respect of paragraph 1A.

Determination

The extent of what can be sought here depends on the clarification of the matters discussed in the preceding paragraphs. However, the contraventions involve the taking of water when flows were insufficient and the taking of water when the meter was not working. The only relevant employees are those involved in activities related to the water supply including relevant supervisors and managers. Similarly, the only documents which can be required to be produced involve the employment contracts, job descriptions and time sheets of those persons, and any written reports relating to the matters alleged to be contraventions.

Paragraphs 1C and 2A

1C. For the 2015/16 water year explain the duties and roles of each of the employees, staff and contractors referred to in 1B.
2A. Any documents including but not limited to employment contracts, job descriptions, time sheets, emails, calendars, letters, invoices or written reports related to 1C.

The plaintiffs made similar submissions to those made in respect of paragraph 1B. The defendant made similar submissions as were made in relation to 1A whilst adding that it might be said that not all of the information sought would be relevant to the ultimate investigation. However, the defendant submitted that that was no basis for setting aside the Notice, citing the aforementioned passage from Basten JA’s judgment in A v Independent Commission Against Corruption at [34].

Determination

Again, what must be provided depends on the clarification of the relationship between the alleged contraventions. Even taking a wide view about any investigation of the alleged contraventions, it is only employees including supervisors and managers connected with water supply to the property that are relevant. Further, nothing has been put forward to show the relationship between the alleged contraventions and the requirement to produce emails, calendars, letters or invoices. This is not a conclusion based on the fact that it would be burdensome for the plaintiffs to produce the material, but because the necessary relationship of the material to the alleged contraventions has not been shown.

Paragraphs 1M, 1N and 2B

1M. During the 2015/16 water year, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)?
1N. If the answer to (1M) is yes, identify:
(i) Where each of the storages are [sic] located on the premises,
(ii) The maximum capacity of each storage;
(iii) When each storage was used for the purposes of receiving water;
(iv) When each storage was used for the purposes of using the stored water;
(v) The purposes for which the water in each storage was used;
(vi) How the water in each storage was transferred;
(vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done.

2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1M and 1N.

The plaintiffs submitted that the information and documentation required under paragraphs 1M and 1N are irrelevant to contraventions alleged in the Latoka Notice, namely that water was extracted outside of specified flow conditions for a 2 day period, and that a negative flow was recorded for a period of one month. The plaintiffs submitted that the Latoka Notice is not concerned with taking more water than the licence allows. The plaintiffs suggested that this requirement for production has arisen from an erroneous duplication of the Janbeth Notice where the contravention in that Notice is said to be taking more water than is allowed. Paragraph 1N is merely a subsidiary demand reliant on 1M being appropriate.
The defendant submitted that the contraventions being investigated were whether water was taken outside of flow conditions. The defendant submitted that whether the plaintiffs had other sources of water supply was relevant to an assessment of the likelihood of excess water being taken from the river system.

Determination

At the time of an investigation of a complaint of alleged contravention concerning excess water extraction, a relevant enquiry is what other sources of water supply the plaintiffs can draw upon. Section 53 of the Act contemplates that a holder may have such other supply. A licence holder who has abundant other sources of water is, on a common sense view, less likely to take water improperly from the regulated system than one who has little or no other supply. The information and documents should be provided.
However, I can see no basis for the plaintiffs to provide information or produce documents about repairs to any such facility, nor who carried out any work of renewing or expanding the facilities, nor why the work was carried out. Those matters do not relate to the alleged contraventions. Question 1G deals with repairs to the water meters.

Paragraph 1P, 1Q and 2B

1P. Did you become aware of a breach of any condition of an approval or WAL during the 2015/16 water year?
1Q. If the answer to (1P) is yes, explain:
(i) What the breach was, including reference to the specific WAL or combined approval condition that was breached;
(ii) When the breach occurred;
(iii) Which persons were involved in the breach;
(iv) What actions were put in place to rectify the breach and prevent a recurrence of the breach;
(v) Whether any notifications of the breach were made to any party including a state government agency, and how such notifications were made.

2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1P and 1Q.

The plaintiff submitted that this has no connection with the specific matters said to be the subject of the investigation. It also might require the plaintiffs to incriminate themselves.
The defendant pointed to s 60B of the Act and particularly to the defence in s 60B(3), and submitted that the documents were relevant to see whether the offence in that section had been committed and whether the holder could avail himself/herself of that defence. The defendant submitted that the contraventions included a breach of condition MW0655-00001 which required compliance with the conditions of the access licence. In that way, the defendant submitted that information could be sought about potential breaches of other conditions.

Determination

The demand reflects a very broad brush approach to ascertaining breaches of conditions generally. In my opinion, condition MW0655-00001 cannot be used to require admissions generally in that way. It offends the principles in the cases which require the existence of a necessary relationship between the alleged contraventions and the information sought. The alleged breach of that condition must be read against the background of what appears in Background paragraphs L and M.
Otherwise, the questions appear only to be an attempt to obtain an admission from the plaintiffs which might result in them incriminating themselves in relation to the alleged contraventions. Section 60B(2) creates an offence in respect of the holder of the licence. On any view, the defence provided in subs (3) would need to be proved by the holder of the licence. The defendant has no need to know the matters in subs (3) in order to prove the offence in subs (2).
I note that the defendant does not relate the request to s 60C and, subject to obtaining an admission which the privilege against self-incrimination is likely to protect, it is not clear what information will be obtained as a result of this question. However, the power in s 338A is a wide one, and the questions relate to the alleged contraventions.
Despite the width of the power in s 338A of the Act, there is nothing to suggest that it overrides the right of persons not to incriminate themselves. Nor did the defendant submit that s 338A has that effect. Subject to that right being preserved, the information and documents should be provided in relation to the alleged contraventions as detailed in Background paragraphs L and M in the Notice.

Paragraphs 1R, 1S, 1T, 1U, 1V, 1W and 2C

The defendant accepts that the information sought in these paragraphs is not relevant.

Paragraphs 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF and 2E

1Z. For the 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A).
1AA. Identify what was grown and produced, and in what quantities, at the Premises during 2015/16 and 2016/17.
1BB. Identify the size and location of the areas of land at the Premises used for economic activity in the 2015/16 and 2016/17 water years.
1CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during the 2015/16 and 2016/17 water years.
1DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder for 2015/16 and 2016/17.
1EE. Identify the amounts of water utilised for economic activities in relation to (1DD).
1FF. How was the rate of water use in (1CC) derived, implemented and managed at the Pre mises during 2015/16 and 2016/17?
2E. Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF.

I have earlier set out a number of general submissions made by the parties in relation to this aspect of the Notices. In addition, the plaintiffs submitted that there is no evidence to justify the defendant’s suggestion that knowing what the land was used for could assist in the determination of whether excess water was taken. There was no evidence to suggest that knowledge of what crops were grown on the property would enable an accurate calculation of water usage and, therefore, the likelihood of excess water being taken. The plaintiffs submitted that there were too many variables including rainfall during the periods. The plaintiffs submitted that, as the defendant accepts, the documents sought must be capable of being properly regarded as related to the alleged contravention, and the Notice must disclose the relationship between the information sought and the matter in respect of which the information is sought. The plaintiffs submitted that neither of these essential requirements has been satisfied.
The plaintiffs submitted that these demands appear to be the product of an erroneous duplication from the Janbeth Notice where the contraventions involved taking excess water over a number of years.
The defendant first pointed to what was said in Melbourne Home of Ford at 174 about ascertaining facts which may indicate another line of enquiry. The defendant submitted that the information sought, mediated through the opinion of an expert, would provide at least an approximation of how much water might have been applied to the property. Inferences could then be drawn about whether it was likely that water was wrongly taken. The defendant submitted that the nexus between the information sought and the matter under investigation was sufficiently demonstrated in the Notice.

Determination

I accept that the defendant can enquire about facts which, when ascertained, may indicate another line of enquiry. However, it is not apparent on the face of the Notice, what the relationship is between the matters being investigated and the information sought. Whilst the defendant through his counsel has asserted that an appropriate expert may be able to estimate how much water may have been applied to the land if she/he knew what crops were grown and for what periods, such expertise is not self-evident. The plaintiffs are correct to point to the issue of variables which would not only include rainfall, but also water from water storage facilities available to the plaintiffs and the quantities used from them.
I cannot accept a submission regarding an expert without some evidence that such expertise is available. Nothing in the Notice relates the information sought to the matters under investigation. The matters under investigation simply concern taking water when water meters were not working, and when flows were not at an appropriate rate in two narrow periods in the 2015/2016 water year. It is not shown how the following water year is relevant.
A connection between the matters under investigation and the information sought could only be made if there was evidence to show that an expert could make such a connection. Whilst the Notice itself would not need to set out the investigations that could be made, there would need to be some evidence from the defendant, or on his behalf, to show that the information sought could be relevantly used to pursue the line of enquiry indicated. Nothing was said by the defendant in his Statement of Reasons for the issue of the Notices. It otherwise appears to be a speculative basis for requiring the information and documents stipulated.

The Janbeth Notice

This Notice was issued for the purpose of determining whether in relation to water access and use at the premises there had been compliance with or contravention of identified provisions of the Act. This was on the basis that during February 2018 the NRAR had received information alleging a significant overuse of water allocations associated with water access licence 85AL753372 during the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years, and pumping outside of flow conditions between 28 July 2016 and 13 December 2016, and 3–7 May 2017. These were said to involve breaches of ss 60B and 60C of the Act.
In relation to s 60B there were said to be a contravention of three conditions of the access licence. The first was condition number MW0605-00001 of 85AL753372. That condition provided that water must be taken in compliance with the conditions of the approval for the nominated work on the access licence through which water is to be taken.
The second condition was condition number MW0915-00001 of 85AL753372. That condition provided:

The maximum volume of water taken under this access licence in any one water year must not exceed a volume equal to the sum of:
(A)   The ML/unit share of the licence multiplied by three (3), plus
(B)   The net amount of water assigned to or from the account under a water allocation assignment, plus
(C)   Any water re-credited by the Minister to the account.

The third condition was condition number MW5946-00001 of 85CA753373. That condition provided:

(1) Subject to subclause (2), water must not be taken under WAL number 33667 (85AL753372) when the flow in the Darling River at the Bourke gauge [No. 425003] is equal to or less than 1,610 ML/day.
(2) Notwithstanding subclause (1), when the flow in the Darling River at the Bourke Town gauge [No. 425003] is more than 1,250 ML/day and less than or equal to 1,610 ML/day, application may be made to the Department's Dubbo office at the address listed in Appendix 3 for permission to take water for the irrigation of an area equal to or less than 1,000 hectares on properties: Lot 4914 Plan 40034, Lot 5159 Plan 720987 (Western Land Lease 13652), and Lot 5183 Plan 720986 (Western Land Lease 13879) in Parish Paka and County Gunderbooka, Lot 6656 Plan 820416 (Western Land Lease 14082) in Parish Nulty and County Gunderbooka and/or Lot 7 Plan 815343 in Parish Boyong and County Gunderbooka. Permission to divert water, for limited periods, for the purpose of such irrigation shall only be granted by the Department when the quantity of water flowing in the Darling River exceeds the quantity considered by the Department to be required for all purposes. If any such application be granted in whole or in part by the Department, then the water may be taken for such period and under such conditions as may be specified by the Department in granting the application. The application and the granting thereof by the Department shall be in writing.

Paragraphs 1A and 2A

1A. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify the property manager(s) for the Premises relevant to combined approvals 85CA753160 and 85CA753373.
2A. Any documents including but not limited to employment contracts, job descriptions, timesheets, emails, calendars, letters, invoices or written reports related to 1A.

The plaintiffs accepted that the enquiry about the identity of the property manager(s) for the years concerned is relevant to the alleged contraventions. The plaintiffs submitted that the requirement for the stipulated documents constituted a significant overreach. The plaintiffs submitted that the requirement is burdensome.
The defendant made similar submissions to those made in respect of the Latoka Notice for similar paragraphs.

Determination

The identity of the property manager(s) should be disclosed. Documents relating to the employment contracts, job descriptions and time sheets concerning the property manager(s) should be disclosed. Written reports concerning water usage for the stipulated years should be disclosed. The defendant does not make clear the relationship between emails, calendars, letters or invoices on the one hand and the alleged contraventions on the other. The defendant cannot, in the circumstances, require production of these.

Paragraphs 1B, 1C and 2A

1B.   For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify all workers, employees, staff and contractors who carried out duties at the Premises.
1C.   For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, explain the duties and roles of each of the employees, staffer contractors referred to in 1B.
2A.   Any documents including but not limited to employment contracts, job descriptions, timesheets, emails, calendars, letters, invoices or written reports related to 1B and 1C.

The plaintiffs submitted that the requirement goes well beyond what could be relevant to the investigation of the alleged contraventions which involve excessive extraction of water. The defendant made similar submissions to those made for the corresponding paragraphs of the Latoka Notice.

Determination

The alleged contraventions concern taking water in excess of what the plaintiffs were entitled to. Information and documents that relate to water use or storage at the property relate to those alleged contraventions. The defendant does not demonstrate how information and documents which concern employees or workers not concerned with water matters relate to the alleged contraventions.
The authorities make clear that the fact that it would be burdensome to search for and produce documents or information is no answer to the demand. The alleged contraventions in relation to Janbeth are wide ranging in time and extent, and may be compared in that regard to the narrow contraventions in the case of Latoka. A more liberal approach to the requirements of the Notice is justified.

Paragraphs 1I, 1J and 2B

1I. Were the pumps or associated intake pipework at each of the pumps replaced, repaired or renewed before, during or after the 2012/13 2017/18 [sic] water years?
1J. If the answer to (11) is yes, explain:
(i) What pumps were replaced, repaired or renewed;
(ii) Why they were replaced, repaired or renewed;
(iii) When they were replaced, repaired or renewed
(iv) Who carried out the work associated with pump replacement, repair or renewal;

2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1I and 1J.

The plaintiffs submitted that the requirements in this paragraph demonstrate that the two Notices have simply been prepared on a cut-and-paste basis, because the two years identified are the years relevant to the Latoka breaches and not the Janbeth breaches. The plaintiffs submitted that this is also apparent from paragraph 16 of the defendant’s affidavit which refers to the taking of water when metering equipment was not working; that is an allegation which relates to Latoka and not to Janbeth.
The defendant submitted that the Janbeth approval (contained in Exhibit 1) enabled the construction of six pumps of 610mm in diameter. The defendant submitted that the request was directed at determining whether the pumps had been altered or enlarged to enable more water to be taken. The defendant submitted that such information could plainly throw light upon whether there had been an over-extraction of water during the relevant water years.

Determination

Question 1I is unusually expressed. The alleged contraventions relate to the 2012/2013, 2013/2014, 2014/2015, 2015/2016 and 2016/2017 water years. Some other questions (1A, 1B, 1C, 1D, 1H, 1K, 1O, 1P, 1R, 1Z, 1AA and 1BB) omit the 2014/2015 water year, although it is included in 1M, 1T, 1U, 1V, 1X, 1CC, 1DD and 1FF. I rather suspect that the Notice was not checked carefully enough before being sent out. Then, however, questions 1I, 1M, 1T, 1CC-1FF refer to the 2017/2018 water year, although it is not apparent why that year is relevant. I have interpreted question 1I as being a reference to the period commencing with the 2012/2013 water year and concluding with the 2017/2018 water year.
With the exception of the 2017/2018 water year, the defendant’s submissions should be accepted. A modification to the pumps, especially the size, could well impact on the likelihood of water being taken in excess of entitlements.

Paragraphs 1K, 1L and 2B

1K. Was any water taken for the purposes of the approvals in (1A) from a runoff harvesting dam during 2012/13, 2013/14, 2015/16 and 2016/17 water years?
1L. If the answer to (1K) is yes, explain for each dam:
(i) Which dam was used;
(ii) The location of each dam;
(iii) How water was taken from the dam;
(iv) The capacity of each dam at the time water was taken;
(v) What land lot(s) the water was used on;
(vi) The date and duration of each water take from the dam;
(vii) How the dates and volume of water use was recorded.

2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1K and 1L.

The plaintiffs submitted that this was another question which was related to the alleged Latoka contraventions. There is nothing in the Janbeth conditions in dispute which refers to a proviso relating to a runoff harvesting dam.
The defendant submitted that s 53 of the Act provides an exception for a landholder in relation to harvestable rights. In that way the question concerning whether water was taken from a runoff harvesting dam is relevant where the alleged contravention is the taking of water in excess of allowances.
In reply, the plaintiffs submitted that reliance on s 53 is inappropriate as a basis for requiring this information as s 53 concerns harvestable rights areas, and, the plaintiffs submitted, harvestable rights areas have no factual or apparent connection with the subject matter of question 1K which is concerned with a runoff harvesting dam.

Determination

I accept that s 53 is relevant to the position in relation to Janbeth. The terms of that section appear to make unnecessary the proviso to condition MW0089-00008 in the Latoka Licence. However, the fact that the Latoka licence contains such a provision does not derogate from the right of the defendant to rely on s 53 in relation to Janbeth where no such condition applies in the licence. The alleged contraventions being investigated concern taking water in excess of the allowed amount of water allocations. The existence or otherwise of a harvesting dam and water use from such a dam are obviously relevant to such an investigation. The definition of water supply work in the Dictionary to the Act includes a dam for the purpose of capturing or storing water. Even if, as the plaintiffs assert, the defendant has not, hitherto, relied on s 53 to justify this question, it is difficult to see why the defendant may not do so in circumstances that suggest that s 53 is a relevant matter to the alleged contraventions.

Paragraphs 1M, 1N and 2B

1M. During the 2012/13 - 2017/18 water years, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)?
1N. If the answer to (1M) is yes, identify:
(i) Where each of the storages were located on the premises;
(ii) The maximum capacity of each storage;
(iii) When each storage was used for the purposes of receiving water;
(iv) When each storage was used for the purposes of using the stored water;
(v) The purposes for which the water in each storage was used;
(vi) How the water in each storage was transferred
(vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done.

2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1M and 1N.

The plaintiffs submitted that there is no evidence to justify the suggestion by the defendant that knowledge of water surface storage would assist in determining whether the alleged contraventions had occurred. However, the plaintiff accepted that if they did not have such facilities, an inference was available that there would be a greater likelihood that excess water may have been taken. They submitted that if the answer was in the affirmative, no further information about the surface storage facilities would assist the defendant.
The defendant submitted that information about these matters was relevant in the same way that information about the harvesting dam was relevant.

Determination

For similar reasons to those in respect of paragraphs 1K and 1L, I consider that the information is relevant to the investigation. An affirmative answer to 1M does not end the enquiry. Size, storage and location are obviously relevant enquiries.

Paragraphs 1P, 1Q and 2B

1P. Did you the Holder of WAL 85AL753372 become aware of a breach of any condition of an approval or WAL during 2012/13, 2013/14, 2015/16 and 2016/17 water years?
1Q. If the answer to (1P) is yes, explain:
(i) What the breach was, including reference to the specific WAL or combined approval condition that was breached;
(ii) When the breach occurred;
(iii) Which persons were involved in the breach;
(iv) What actions were put in place to rectify the breach and prevent a recurrence of the breach;
(v) Whether any notifications of the breach were made to any party including a state government agency, and how such notifications were made.

2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1P and 1Q.

The plaintiffs and the defendant made similar submissions to those made in respect of the same questions in the Latoka Notice. Subject to the right of the plaintiffs not to incriminate themselves, the information and documents should be provided in relation to the alleged contraventions as detailed in Background paragraphs M and N in the Janbeth Notice.

Determination

The result is the same as for the Latoka Notice.

Paragraphs 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF and 2E

1Z. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A).
1AA. Identify what was grown and produced, and in what quantities, at the Premises during 2012/13, 2013/14, 2015/16 and 2016/17.
1BB. Identify the size and location of the areas of land at the Premises used for economic activity in the 2012/13, 2013/14, 2015/16 and 2016/17 water years.
1CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during 2012/13, 2013/14, 2014/15, 2015/16,2016/17 and 2017/18 water years.
1DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18.
1EE. Identify the amounts of water utilised for economic activities in relation to (1DD).
1FF. How was the rate of water use in (1CC) derived, implemented and managed at the Premises during 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18?
2E. Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF.

The parties relied on the submissions they made for the corresponding paragraphs in the Latoka Notice.

Determination

This matter has been determined in relation to the Latoka Notice. Although the contraventions in relation to Janbeth are alleged to be far more expansive than those concerning Latoka, the determining matter is the lack of evidence concerning how this information could relevantly be used.

Conclusion

The Latoka Notice must be set aside because the lack of clarity about the interrelationship of the contraventions is confusing and has an impact upon the appropriateness of what is required of the plaintiffs.
On one level, it would be possible to excise from the Janbeth Notice the questions I have deemed to be beyond power. However, the Notice would have to be re-issued to give a further period of time for compliance. Further, there are some unresolved issues about the appropriateness of referencing the 2017/2018 water year in some but not all of the questions. In addition, there is the question of the 2014/2015 water year that does not appear consistently. For those reasons, the better course is also to set aside the Janbeth Notice.
The Notices are not wholly void. The plaintiffs accepted that. On the other hand, the defendant accepted that he could not pursue a number of paragraphs in the Latoka Notice. The better course is to set them both aside on the basis that, as a whole, the information and documents sought are not sought for the purposes of the Act in accordance with the authorities. I have attempted to give some guidance for what any further Notices may require with a view to minimising further disputation.
The plaintiffs have been successful in challenging the Notices, albeit all of their arguments were not accepted. In the circumstances, the defendant should pay the plaintiffs’ costs of the proceedings.
I make the following orders:

I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Latoka be set aside;

I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Janbeth be set aside;

The defendant is to pay the plaintiffs’ costs of the proceedings.

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Decision last updated: 22 August 2019

Medium Neutral Citation:	Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) [2019] NSWSC 1064
Hearing dates:	24 June 2019 & 3 July 2019
Date of orders:	22 August 2019
Decision date:	22 August 2019
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Latoka be set aside; (2) I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Janbeth be set aside; (3) The defendant is to pay the plaintiffs’ costs of the proceedings.
Catchwords:	ADMINISTRATIVE LAW – ground of review other than procedural fairness – improper exercise of power – plaintiffs issued with notices from defendant on behalf of the National Resources Access Regulator – notices issued under s 338A Water Management Act 2000 (NSW) – notices required the provision of stipulated information and documents – notices said to be issued as part of an investigation by NRAR into the plaintiffs’ water access and use at their two farms – notices said to be issued for the purpose of determining whether there had been compliance with or contravention of identified conditions of the access licence for each of the properties – whether the defendant was entitled to require the plaintiffs to furnish the stipulated information/documents – whether the information/documents were required for the purpose of ascertaining whether the plaintiffs had contravened identified conditions of the respective access licences – notices set aside
Legislation Cited:	Trade Practices Act 1974 (Cth) s 155 Uniform Civil Procedure Rules 2005 (NSW) r 59.4 Water Management Act 2000 (NSW) ss 53, 56, 60B, 60C, 66, 89, 90, 91I, 100, 101A, 337, 338A
Cases Cited:	A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No.3) (1980) 31 ALR 519; 47 FLR 163 Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565; 57 FLR 368 SA Brewing Holdings Ltd v Baxt (1989) 89 ALR 105; 23 FCR 357
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Peter James Harris (First Plaintiff) Jane Maree Harris (Second Plaintiff) Scott Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) (Defendant)
Representation:	Counsel: M Elliott SC & C Bannan (Plaintiffs) C Lenehan & D Delany (Defendant) Solicitors: Horton Rhodes (Plaintiffs) Crown Solicitor’s Office (Defendant)
File Number(s):	2019/59697
Publication restriction:	Nil