Hutchins Pastoral Co Pty Limited v Minister Administering the Water Management Act 2000

[2008] NSWLEC 236

Land and Environment Court

of New South Wales

CITATION:

Hutchins Pastoral Co Pty Limited v Minister Administering the Water Management Act 2000 [2008] NSWLEC 236

PARTIES:

APPLICANTS:
Hutchins Pastoral Co Pty Limited and Others

FIRST RESPONDENT:
Minister Administering the Water Management Act 2000

SECOND RESPONDENT:
State of New South Wales

FILE NUMBER(S):

41292 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- whether hearing date should be vacated pending hearing of appeal in other test cases.

LEGISLATION CITED:

Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165

DATES OF HEARING:

25 July 2008

EX TEMPORE JUDGMENT DATE:

25 July 2008

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr P. T. Taylor SC
SOLICITORS:
Taylor & Whitty

RESPONDENTS:
Ms R. A. Pepper
SOLICITORS:
Crown Solicitor's Office (NSW)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

25 July 2008

41292 of 2006

HUTCHINS PASTORAL CO PTY LIMITED AND ORS v MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 AND ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: This matter has been set down for hearing for three weeks commencing on Monday 4 August 2008. Before me is a notice of motion by the applicants that the hearing dates be vacated.

2 The main issue in the substantive proceedings is the validity of amendments to a water sharing plan, the Lower Murrumbidgee Groundwater Source Plan 2003. That was also the issue in two cases decided together by Jagot J earlier this year: Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165. Her Honour’s decision is on appeal. The applicant challenges the validity of the plan as amended on many grounds. In addition, there is a reliance claim, called the tenth claim in the applicants’ Amended Points of Claim of 24 April 2008, where it is pleaded that (a) the first respondent, the Minister Administering the Water Management Act, and the second respondent, the State of New South Wales, were under a duty of care to prevent economic loss to the applicants; (b) that they by their servants or agents made a number of representations to the applicants that were false and/or erroneous; and (c) that by reason of those representations the respondents breached their duty whereby the applicants suffered loss and damage. There is a lively issue as to whether this Court has jurisdiction to determine that claim and there is a pending notice of motion by the respondents to strike it out. The representations which constitute part of that claim, as pleaded, overlap with other matters which are said to go to the validity of the water plan.

3 The applicants put forward two grounds for vacating the hearing date. The first ground is that the proceedings should be greatly truncated depending upon the outcome of the appeals in Harvey and Tubbo. The second ground is that the parties have not complied with directions of this Court concerning the filing and service of evidence and that the case is not prepared.

4 As to the first ground, the applicants submit that if the Harvey and Tubbo appeals were to be allowed, there is a very good prospect that the applicants would limit their challenges to the validity of the plan to the procedural fairness ground such that this case would become very much more confined than that which is presently pleaded. The applicants submit that Harvey and Tubbo were test cases; consequently, these proceedings were fixed for hearing after determination of those cases at first instance. I am told from the bar table that there is an unopposed application, which is being heard on Monday, to expedite the hearing of the Harvey and Tubbo appeals.

5 The respondents, on the other hand, point out that the Harvey and Tubbo challenges were limited to the procedural fairness ground whereas many grounds of invalidity are alleged by the applicants in the present proceedings. Therefore, they submit, the Harvey and Tubbo appeals will not resolve these proceedings. The respondents express concern at the prospect that at some indeterminate time in the future, after the Harvey and Tubbo appeals are determined, they may be faced with a trial which delay has done nothing to truncate. They are concerned also with delay in resolving uncertainty as to the validity of the water plan, which will continue until these proceedings are decided.

6 Turning to the second ground, I cannot entirely put to one side what has happened procedurally. Directions have not been complied with by both sides. The applicants communicated to the respondents quite some time ago that they proposed to put on additional evidence of an expert nature. The respondents pressed for all the applicants’ evidence to be put on before they put on their own evidence. In the result, the timetable for evidence fixed by the Court has not been complied with by either side. I do not think that either side was procedurally entitled to take the position that they did without approaching the Court for a variation of the timetable. The respondents say that by the middle of next week they will be in a position to serve their affidavit evidence, which they have indicated is in an advanced state of preparation. They suggest that the nature of that evidence is unlikely to cause the applicants any difficulty. The applicants express concern at seeing the respondents’ evidence for the first time only a few days before the hearing is due to start. However, as I have indicated, I think the applicants have not acquitted themselves well by failing to comply with the directions of the Court as to the balance of their evidence. They have given no indication of when they propose to serve that evidence.

7 There are competing considerations and it is a question of weighing them. As I have said, I have been told by the applicants that there is a very good prospect that if the Harvey and Tubbo appeals were to be allowed, these proceedings would become limited to the procedural fairness ground, thus shedding the numerous other grounds which are pleaded and greatly shortening the hearing. I think that that is a weighty consideration when coupled with the likely expedition of the Harvey and Tubbo appeals, and tends to outweigh the competing considerations which have been put forward by the respondents. On balance, and doing the best I can in weighing the competing considerations, I think that I should accede to this application to vacate the hearing dates.

8 I make the following orders:

1. The hearing dates are vacated.
2. The costs of the applicants’ notice of motion for vacation of the hearing dates are reserved.
3. The respondents’ notices of motion which were returnable today will be stood over for hearing on 4 August 2008.
4. Any other notices of motion are to be filed and served by 1pm on Monday 28 July 2008 and made returnable on 4 August 2008.
5. The subpoenas which have been issued at the instigation of the applicants and which were returnable today will be stood over until 4 August 2008.