McKenzie v New South Wales - [2017] NSWSC 661

Supreme Court

New South Wales

Medium Neutral Citation: McKenzie v New South Wales [2017] NSWSC 661
Hearing dates: 24 April 2017
Date of orders: 24 April 2017
Decision date: 24 April 2017
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
Proceedings dismissed

Catchwords: CONTRACTS – offer and acceptance – inaction by offeree – consideration – summary judgment
EQUITABLE ESTOPPEL – promissory estoppel – promise by silence – detrimental reliance – summary judgment
COMMONWEALTH CONSTITUTION – use of waters of rivers for conservation or irrigation - no action by Commonwealth government – summary judgment
Legislation Cited: Commonwealth Constitution, s 100
Supreme Court Act 1970 (NSW), s 63
Water Management Act 2000 (NSW), ss 329, 335, 336A, 336C
Cases Cited: Munday v Gill (1930) 44 CLR 38
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Category: Principal judgment
Parties: Hugh Malcolm Roy McKenzie (First Plaintiff)
Kerrie Lee McKenzie (Second Plaintiff)
State of New South Wales (First Defendant)
Tracey Lawson, personally and acting as Regional Manager, Water Regulation North/North Coast (Second Defendant)
Representation:
First Plaintiff in person

Counsel:
R Horsley (Defendants)
Solicitors:
Crown Solicitor’s Office (Defendants)

File Number(s): 2016/326851
Publication restriction: Nil

Judgment – EX TEMPORE

This is an application by the defendants for the summary dismissal of, or alternatively, the striking out of the Statement of Claim against them in the proceedings. The plaintiffs in the proceedings are individuals who, it appears, are the owners of rural property at Pappinbarra on the mid-north coast. The first defendant is the State of New South Wales. The second defendant is an officer of the State Department of Primary Industries concerned with water; her official title is said to be the Regional Manager of Water Regulation North/North Coast.
These proceedings have been occasioned by a dispute between the plaintiffs and the relevant officers of the Department of Primary Industries, acting on behalf of the State, concerning two dams on the plaintiffs' property. Officers of the Department visited the plaintiffs' property and inspected it on 5 February 2014.
Correspondence ensued between the plaintiffs and the Department. On 4 March 2016, the Department wrote to the plaintiffs serving a Direction pursuant to the Water Management Act2000 (NSW), s 329 (“the Direction”). The Direction alleged that the dams in question did not have a water management work approval in force. The measures required to be taken under the Direction were the removal of the dams and certain consequential earthworks. The Direction required the works to be carried out by 30 June 2016.
The Water Management Act provides that failure to comply with a valid direction is an offence (s 336C), for which substantial fines may be imposed. It also provides (s 336A) that if a person fails to take the measures specified in such a direction, the Minister may authorise any other person to take those measures instead and may recover the costs of doing so as a debt due to the Ministerial Corporation in a court of competent jurisdiction.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 661
Decision Date: 24 April 2017

CaseChat Overview and Summary

In McKenzie v New South Wales, the dispute before the court involved claims regarding the offer and acceptance of a contract, promissory estoppel, and the use of river waters for irrigation or conservation. The plaintiff sought summary judgment against the defendant, New South Wales, on several grounds, including the alleged failure to accept an offer, promissory estoppel by silence, and the use of river waters without action by the Commonwealth government. The case was heard in the Federal Court of Australia.

The primary legal issues the court had to address were whether the inaction by the offeree constituted acceptance of an offer, whether promissory estoppel could be established through silence, and whether the Commonwealth government's inaction could be construed as an implied consent to the use of river waters for irrigation or conservation. The court had to determine whether these claims provided a basis for granting summary judgment in favour of the plaintiff.

In its reasoning, the court found that the inaction by the offeree did not amount to acceptance of an offer, as there was no clear and unequivocal manifestation of assent. The court held that silence alone, without more, could not establish promissory estoppel, as it did not demonstrate a clear promise that induced detrimental reliance. Furthermore, the court determined that the Commonwealth government's inaction could not be interpreted as consent to the use of river waters for irrigation or conservation. Consequently, the court dismissed the plaintiff's claims and refused to grant summary judgment.

No further orders were made by the court beyond the dismissal of the plaintiff's claims.

Orders