Minister for Environment & Conservation v Jack Sims & Son P/L - [2007] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
MINISTER FOR ENVIRONMENT & CONSERVATION v JACK SIMS & SON P/L
[2007] SASC 88
Judgment of The Honourable Justice Debelle
9 March 2007
ENERGY AND RESOURCES - WATER - WATER MANAGEMENT - WATER USAGE RIGHTS - WATER ALLOCATION
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - PROCEDURE
Abuse of process – water licence – application to Minister to vary terms of licence – application refused – appeal to ERD Court – terms of licence had been subject of earlier appeal when consent order made – whether second appeal abuse of process - res judicata – issue estoppel - whether second appeal was frivolous or vexatious or was instituted for an improper purpose– appeal dismissed.
Development Act 1993 s 85; Environment Resources and Development Court Act 1993 s 16, s 17; Natural Resources Managment Act 2004 s 147; Water Resources Act 1997 s 141, referred to.
Bradford & Bingley Building Society v Seddon [1999] 4 All ER 217; Cook v Faithland Inc (1993) 79 LGERA 308; Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104; Harrow Trust v Adelaide Hebrew Congregation Inc (2003) 85 SASR 10; Henderson v Henderson (1843) 3 Hare 100; 67 ER 313; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Russo v Kogarah Municipal Council (1999) 105 LGERA 290; Thorpe v Corporation of the City of Charles Sturt (1999) 103 LGERA 395; Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273; Walton v Gardiner (1993) 177 CLR 378; Wiest v Director of Public Prosecutions (1988) 23 FCR 472, applied.
Blair v Curran (1939) 62 CLR 464; Chakravarti v Advertiser Newspaper Limited (1998) 72 SASR 361; Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2) [2000] SASC 140, considered.

MINISTER FOR ENVIRONMENT & CONSERVATION v JACK SIMS & SON P/L
[2007] SASC 88
Land and Valuation Division

DEBELLE J. This is an appeal from the decision of a judge of the Environment Resources and Development Court dismissing an application by the Minister for Environment and Conservation for an order dismissing an appeal on the grounds that the appeal was frivolous or vexatious or had been instituted for an improper purpose.
At the conclusion of the hearing, I dismissed the appeal for reasons to be given later. These are the reasons.
An Application for a Water Licence
In order to understand the grounds on which the Minister applied for an order dismissing the appeal, it is necessary to review the history of the matter.
Before 26 February 2004 Jack Sims & Son Pty Ltd (“Sims”) held a water licence under the terms of the Water Resources Act 1997. That licence authorised Sims to take an annual allocation of ground and surface water to irrigate 21.5 ha of vines.
For some time before 2004 officers of the Department of Water, Land and Biodiversity Conservation had been concerned that Sims was not complying with the terms of the Water Resources Act. They threatened legal proceedings. On 21 February 2004, the Minister issued an application out of the Environment Resources and Development Court (“the Environment Court”) seeking leave under s 141 of the Water Resources Act to serve civil enforcement proceedings on Sims.
That application spurred Sims to act. On 26 February 2004 Sims applied to increase the allocation to irrigate a total of 53 ha of vines and to have two additional parcels of land endorsed on the licence. In that application Sims also sought to increase its allocation, not of ground water, but of watercourse water to be held in two existing dams (in the proceedings called “dam 1” and “dam 2”) from 3.8 megalitres per annum to 19.4 megalitres, an increase of 15.6 megalitres. The effect of the application by Sims was to achieve an annual allocation of 37.1 megalitres to be used to irrigate vines. The proposal included modifying the existing dams by suitable construction to render them off-stream dams.
By letter dated 16 April 2004 the Minister refused the application to increase the allocation. The letter also stated the maximum allowable capacity for each of the dams if Sims applied to convert them to off-stream dams. It also stated that the maximum allowable average annual diversion under the Clare Water Allocation Plan, the water allocation plan for this area. In addition, the letter informed Sims that should it wish to proceed to convert the two dams to receive an increased volume of watercourse water, it should submit a new application to vary the water licence.
A Consent Order on Appeal
Sims decided not to make a fresh application. Instead, on 12 May 2004 it appealed to the Environment Court against the Minister’s decision. The Environment Court convened a conference of the parties pursuant to s 16 of the Environment Resources and Development Court Act 1993. The parties ultimately negotiated a compromise of their differences. On 16 August 2004 the Environment Court made an order by consent varying the terms of the water licence. The order varied the licence in a number of respects, namely,
1Two additional parcels of land were added to the water licence.
2The area to be irrigated was increased to 53 ha of vines.
3The annual allocation of water was to be increased after levee banks had been constructed to convert the dams to off-stream dams.
4The increased allocation was effected with respect to the two dams. For dam 1 the allocation was increased to 4.4 megalitres and for dam 2 to 5.1 megalitres.
5The annual allocation was in that way increased to a total of 27.2 megalitres.
Other orders were made relating to the diversion of watercourse water to each of the dams and the taking of water from the dams. Sims has constructed the levee banks as required. The two dams are what are commonly called “turkey nest dams”.
On 9 December 2004 orders were made in the civil enforcement proceedings. It is unnecessary to note those orders.
New Legislation
On 1 July 2005 the Natural Resources Management Act 2004 came into operation. It repealed and replaced the Water Resources Act1997. The Natural Resources Management Act requires an authority in the form of a water licence to take water from a prescribed watercourse. The transitional provisions in Schedule 4 of the Natural Resources Management Act provide that the water licence held by Sims under the Water Resources Act continues to have the same force and effect as if it had been issued under the Natural Resources Management Act.
A Second Application
Section 147(1)(a) of the Natural Resources Management Act authorises the Minister to vary a licence in prescribed areas at any time on the application or with the consent of the licensee. Section 147(1)(a) is in these terms:
147 (1) A water licence may be varied by the Minister –
(a) at any time on the application of, or with the consent of, the licensee.
Section 147(3) provides a right of appeal to the Environment Court from a decision refusing to grant an application to vary a licence.
On 22 February 2006 Sims applied for a variation of its water licence to increase the annual allocation of water. The application for the increase concerned the two dams, that is to say,
·for dam 1 the increase sought was from 4.4 megalitres to 6.6 megalitres, and
·for dam 2 the increase sought was from 5.1 megalitres to 13.8 megalitres.
If the increased allocation was allowed, each dam would be filled to capacity and the total allocation under the licence would be increased from 27.2 megalitres to 37.1 megalitres, the allocation which had been sought in the application in 2004. Sims also applied to be permitted to have on-stream flows into the two dams.
An Appeal
On 21 July 2006 the Minister refused the application. On 2 August 2006 Sims appealed to the Environment Court from the decision.
An Application to Dismiss Appeal Summarily
On 15 September 2006 the Minister applied for an order that the appeal be summarily dismissed and for an order that Sims pay the Minister’s costs. The application was made on the following grounds:
The grounds for the seeking of the orders are that the appellant wrongly seeks to reopen an appeal which has already been determined in this Honourable Court and wrongly seeks orders inconsistent with orders made previously by this Honourable Court. Its appeal is either frivolous, or vexatious, or instituted for an improper purpose, as those terms appear in s 17(4) of the Environment Resources and Development Court Act 1993. The order for costs which is sought is envisaged in s 17(4a) thereof.
On 20 December 2006 a judge of the Environment Court dismissed the Minister’s application. From that decision the Minister appeals to this court.
Relevant Principles
It is well settled that an issue between parties should, subject to appeal, be determined by a court once and for all. That precept underlies the doctrine of res judicata, a doctrine which rests on two principles expressed in the following Latin maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa.Those two maxims might be loosely translated that it is in the public interest that there should be an end to litigation and that no person should be twice vexed for one and the same cause. The same precept also finds expression in the extended principle of res judicata as explained in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 and in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 as well as in the doctrine of issue estoppel as enunciated by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-532.
In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 at 289, Lord Bridge, after referring to the two Latin maxims, went on to point out that these principles should not be confined to the field of private law. His Lordship said:
These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.
Although Lord Bridge stated that the question whether a decision determining the rights of parties is final will depend on the construction of the relevant legislation, the reasoning in Thrasyvoulou demonstrates that it also depends on the nature of the question which has been determined in the earlier proceedings. Lord Bridge said (at 290) that a distinction is to be drawn between a decision to grant a planning permission and a decision to withhold it:
A decision to grant planning permission creates, of course, the rights which such a grant confers. But a decision to withhold planning permission resolves no issue of legal right whatever. It is no more than a decision that in existing circumstances and in the light of existing planning policies the development in question is not one which it would be appropriate to permit. Consequently, in my view, such a decision cannot give rise to an estoppel per rem judicatam.
His Lordship then pointed out how decisions made to enforce the terms of a planning permission might give rise to an estoppel per rem judicatam while other decisions relating to planning legislation might not. So, in Thrasyvoulou, it was held that the principle of res judicata applied to decisions on enforcement notices that the use of land was lawful so that, where there had been no material change in the use of the land and the local authority had issued later enforcement notices, the determination in favour of the landowner gave rise to an estoppel per rem judicatam.
In Cook v Faithland Inc (1993) 79 LGERA 308, the Full Court of the Supreme Court of Victoria held that the principles of res judicata and of issue estoppel could not apply to a decision whether or not to grant planning permission, be the decision made by the relevant planning authority or by an appellate tribunal or court. That was a consequence of the fact that the grant or refusal of planning permission was an administrative act. At the same time it was acknowledged that those doctrines might apply to some decisions under the planning legislation in Victoria. The court did not have to consider in that case whether it would be an abuse of process if an applicant for planning permission who has failed in his first application makes an identical second application. That issue was considered by the Court of Appeal in New South Wales in Russo v Kogarah Municipal Council (1999) 105 LGERA 290. The court recognised that the principles of res judicata and the issue estoppel did not readily apply to applications for planning permission because there might be changes in circumstances between one application and the next. However, the court held that it might be an abuse of process for an applicant to make repeated applications to a court seeking to re-agitate issues which have as a matter of substance already been determined in earlier proceedings. As Davies AJA said at 293:
The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise, the application will appear to be a collateral attack upon the prior decision or decisions of the Court.
Davies AJA then identified circumstances which constitute an abuse of process adopting the remarks of Burchett J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 486-487.
In Walton v Gardiner (1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ noted that the inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. They identified the following as one instance of an abuse of process:
[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”. (Citations omitted).
In that same decision Brennan J with whom Toohey J agreed expressed the principle in these terms:
If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law. And equally, the institution of proceedings which will inevitably and manifestly fail or which unnecessarily duplicate proceedings already pending or determined are incapable of serving a legitimate purpose. They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that is to say, a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy. Therefore, in the context of abuse of judicial process, the concept of alien purpose is relevant to two questions: whether the party instituting the proceeding has done so for an alien purpose and whether the proceedings themselves are serving an alien purpose. (Citations omitted).
There is no difference in substance between the manner in which the principle was expressed. It is clear that proceedings in which a party seeks to re-litigate issues which have been already determined in earlier proceedings to which he was a party will be an abuse of process.
It is doubtful whether the Environment Court has inherent jurisdiction to stay proceedings on the ground of abuse of process. Even if it does not, it is invested by s 17(4) with jurisdiction to dismiss proceedings on the ground that they are frivolous or vexatious or have been instituted for an improper purpose. It may make orders as to costs if an appeal is dismissed on one of those grounds. Section 17(4) and (4a) provide:
(4)Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings –
(a)     dismiss or determine any proceedings that appear –
(i)to be frivolous of vexatious; or
(ii)to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;
(b)     after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;
(c)     give summary judgment against a party –
(i)who obstructs or unnecessarily delays the proceedings; or
(ii)who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or
(iii)who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court.
(4a)If the Court takes action under subsection (4), then the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case.
Abuse of process plainly falls under the rubric of vexatious proceedings or proceedings instituted for an improper purpose. The Environment Court therefore has power to dismiss proceedings which constitute an abuse of process. I expressed these views in Thorpev Corporation of the City of Charles Sturt (1999) 103 LGERA 395.
In Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104, a majority of the Full Court applied the reasoning of the High Court in Walton v Gardiner in the context of an application for leave to serve a summons pursuant to s 85 of the Development Act 1993 to restrain breaches of that Act. At paras [60], [61] and [63] Doyle CJ with whom Martin J agreed said:
60The fact that successive applications can be made under s 85 is a reason not to accept too readily that a further application is an abuse of process. So is the fact that anyone (with sufficient interest) can apply under s 85. If further material information has come to light, and if there is a reason for not putting it forward before, or if an alleged development has advanced to a new stage that might raise new issues, a further application should be allowed. It may be appropriate to permit a further application if a new point if law is to be argued, and there is a satisfactory explanation for the failure to advance it before. Some types of development involve an ongoing activity, and further steps in the one activity may raise new issues, or may themselves constitute development. For reasons like this the Court should not adopt an approach that would, in effect, contradict the principle that the refusal of leave to serve is not a final order.
61But there is a fundamental policy against relitigating the same issues of fact and law, whether the first decision on those issues is a final decision or not. There are reasons of justice, of economy and of fairness to a potential respondent to support this policy. Repeated applications in respect of the same matter could lead to “deep pocketing” of a potential respondent by a better resourced applicant. Allowing repeat applications raising the same issues of fact and law will encourage “judge shopping”. It could give rise to conflicting decisions on the one matter by judges of the same court…
63Having weighed these matters up, my conclusion is that it is likely to be an abuse of process to make a further application for leave to serve under s 85, when the issues of fact and law under each application are the same, that is, when there has been no relevant change of circumstances, when there is no satisfactory explanation for the making of a further application raising the same issues of fact and law (as there may be in some cases), and when there is no satisfactory explanation for the failure to appeal from the first decision. I express this conclusion in guarded terms, because each case requires a consideration of all relevant circumstances.
I respectfully agree that the conclusion should be expressed in guarded terms. The variety of circumstances in which an issue will be litigated are so varied that it would be quite imprudent to express a firm view.

Although these principles have in the main been developed in decisions relating to different aspects of planning legislation, applications under the Natural Resources Management Act including applications by the holder of the water licence to vary the terms of the licence involve the same kinds of issues. Although s 147(1)(a) permits the holder of the water licence to apply at any time to vary the licence and there is no qualification upon the right to appeal to the Environment Court from a refusal to vary, there is nothing in the terms in which the right of appeal is expressed that precludes the operation of these principles. The principles of res judicata and issue estoppel are capable of applying where orders have been made after a full hearing of an appeal in which evidence was led and the applicant later makes a fresh application which simply re-agitates the same issues when there has been no material change of circumstances. Whichever is the relevant principle will depend on how the issues were dealt with on the appeal. If it is not possible to rely on any of those principles, say, because a consent order was made, the appropriate relief might be to apply to strike out the proceedings as an abuse of process. In addition to the public interest in the finality of litigation, another policy reason why these principles should apply to applications under the Natural Resources Management Act is that the Minister will be loath to agree to a consent order on an appeal if there is a real likelihood that the issues might be re-litigated in a subsequent application to vary the terms of the licence. In any event, appeals under the Natural Resources Management Act are subject to s 17(4). The principles, therefore, apply with equal force to such applications.
At the same time, those considerations must be balanced against the fact that the holder of a water licence may apply at any time to vary the licence. The manifest purpose of permitting the holder of a water licence to apply to vary the terms of the licence at any time is to enable an application to be made to deal with changed circumstances such as an alteration in the volume of water available or an intention to irrigate larger areas. It was not intended that it should be a means by which repeated applications could be made where there was no material change in circumstances. Maintaining the proper balance between the public interest in the finality of litigation and the entitlement of the holder of the water licence to apply to vary the terms of the licence at any time would seem to be that repeated applications where there is no material change in circumstances constitute an abuse of process. Repeated applications would constitute harassment. Whether an appeal on a second application after an earlier appeal constitutes an abuse of process will require an examination of all the relevant circumstances. The court would not readily conclude that it is an abuse of process unless a separate application was in every respect identical to the first. As Auld LJ observed in Bradford & BingleyBuilding Society v Seddon [1999] 4 All ER 217 at 227, mere re-litigation in circumstances not giving rise to res judicata or issue estoppel does not necessarily give rise to abuse of process. He continued that the doctrine on abuse of process should not be circumscribed by unnecessarily restrictive rules since its purpose was the prevention of abuse and it should not endanger the maintenance of genuine claims. Thus, some additional element is required such as a collateral attack on a previous decision, some dishonesty, or successive actions amounting to unjust harassment.
Of particular relevance on this appeal is the observation in Macag at [60] that a fresh application might not constitute an abuse of process if material information has become available and there are reasons why it was not adduced before. That conclusion is tantamount to an application of the principles which prescribe the circumstances in which an appellate court will permit new or fresh evidence to be adduced. Those principles, like the principles of res judicata and issue estoppel, are grounded on the public interest in the finality of litigation. As a matter of practical justice as well as the public interest in the finality of litigation, it is necessary to put an end to the process of factual enquiry: Chakravarti v Advertiser Newspaper Limited (1998) 72 SASR 361 at 372. In my view, the principles relating to the reception of fresh evidence on an appeal, broadly speaking, apply when considering whether an appeal under the Natural Resources Management Act constitutes an abuse of process notwithstanding that the holder of the licence may apply at any time to vary the terms of the licence. The reason lies in the public interest in the finality of litigation and in the fact that it is not in the public interest that the holder of the licence should be able to seek to patch up defects in evidence on earlier appeals by bringing successive applications: cf Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2) [2000] SASC 140 at [27].
It is apparent, therefore, that the principles by which effect is given to the public interest in the finality of litigation will also apply to decisions in the field of public law unless an intention to exclude those principles can be inferred from the relevant legislation. When considering the kind of relief which will be appropriate, it will be necessary to have regard to the nature of the decision which has been made. While some kinds of decision will be amenable to the principles of res judicata or issue estoppel, others will not. In those cases, it might be possible for a party to demonstrate that the proceedings constitute an abuse of process.
The Judge’s Reasons
The judge in the Environment Court held that as the order had been made as a result of a compromise of an appeal against an administrative decision made by the Minister, neither the principles of res judicata, the extended principles of res judicata in Port of Melbourne Authority v Anshun, or issue estoppel were capable of applying. She said that that conclusion was reinforced by the fact that Sims was entitled by s 147 to apply to vary the licence at any time. The main reason why the principles of res judicata or issue estoppel do not apply is that the order was made by consent after a confidential hearing. The judge’s conclusion was correct. There is no appeal from that part of her decision.
The judge then refused the Minister’s application to dismiss the appeal as an abuse of process. She again referred to the fact that Sims had the right to apply to vary the licence at any time and to its right of appeal from the Minister decision. She said there could be no suggestion that Sims was seeking a more favourable decision from another judicial officer who might favour its application because the order made on 16 August 2004 had been made by consent. Sims did not, therefore, have an improper purpose of “judge shopping”. The judge then found that, while there had been no change in the legislation or any change in the Clare Water Allocation Plan, Sims was seeking to put forward new grounds in support of its application to vary the allocation. While, she said, this would infringe the principle of res judicata in the usual kind of civil claim where there was a lis inter partes, she held that it did not constitute an abuse of process because Sims had an alternative approach to calculating the volume of water available to be used. For those reasons, the judge held that Sims should be permitted to prosecute its appeal. I agree with that conclusion but for slightly different reasons.
An Abuse of Process?
Dr Manetta, who appeared for the Minister, contended that the judge had erred. He submitted that, unless there is a material change in circumstances, the appeal by Sims constituted an abuse of process. He said that the 2006 application seeks to re-agitate the issues in the 2004 application and in circumstances where there has been no material change in circumstances. He submitted that, to all intents and purposes, it is the same application made in respect of the same area of vines, the same topography, the same dams and the same water allocation plan.
All of that must be acknowledged. However, at least one feature of the application that is new is the fact that Sims has new evidence which was not available before. Sims has consistently maintained that the whole of the 105 ha which are planted to vines is within the Armagh Creek Catchment, the relevant catchment area under the Clare Water Allocation Plan. In a letter dated 26 February 2004 which was sent to the Minister with the 2004 application, the solicitors for Sims contended that all of the land owned by Sims (an area of approximately 105 ha) was within the Armagh Creek Catchment. On that footing, it was contended that Sims was entitled to an allocation of 21.5 megalitres of surface water. That assertion is grounded on Part 5.4 of the Clare Water Allocation Plan. However, in that same letter it was acknowledged that Sims did not have evidence to verify the assertion that all of its land is within the Armagh Creek Catchment area. The letter dated 26 February 2004 contained this statement in the penultimate paragraph:
Sims maintains that the relevant catchment area for calculating the volume of water for the purposes of this allocation should include all areas of the Sims land that contribute to the catchment for the Armagh Creek. Unfortunately Sims does not have access to the GIS data and software held by the Department to prepare maps to show this area.
By contrast, the 2006 application includes evidence which, it is said, demonstrates that the whole of the 105 ha owned by Sims is within the Armagh Creek Catchment area. A report prepared by Streamline Environmental Consultants was submitted with the application. It purports to contain technical and hydrological information in support of the application. Under the heading “Property Details” on page 8 of the report the following paragraph appears:
The sub-catchment areas contributing to each dam identified with the collective catchment have been calculated by GIS and are within an acceptable variance to those previously calculated by DWLBC. These details are set out in figure 1, table 1 described in the following sections.
In addition, the report contains on pages 12 and 13 under the heading of “Analysis of Rainfall and Run-off Data” an analysis of rainfall records over the years 2002, 2003 and 2004. It is put forward for the purpose of justifying the application for on-stream dams. Given the manner in which Sims has constructed its two dams, it is not readily apparent that there is any material difference between off-stream and on-stream dams. However, that is a matter to be examined at a hearing of the appeal.
For the purpose of determining whether the appeal constitutes an abuse of process, it must be assumed that this new evidence will support Sims’ case on its appeal. It will of course be a matter for the Environment Court to determine whether that evidence is of sufficient weight to allow the appeal.
One important fact to note is that the question whether the whole of the Sims land is within the Armagh Creek Catchment has not yet been determined in the Environment Court. By reason of the terms of the Clare Water Allocation Plan and in particular the terms of Part 5.4 of that plan, the determination of that issue is relevant to the question whether Sims is entitled to the increased allocation it seeks. Sims now has available evidence which supports its case that the whole of its land is within the catchment. Sims also has evidence as to rainfall and run-off which was not and (at least in relation to the rainfall in 2004) could not be available to it in 2004. It should be permitted to adduce that relevant evidence because it may be critical to the determination of the issues the subject of the appeal. I am also satisfied the evidence could not have been reasonably obtained before the hearing of the appeal in 2004.
Although Sims is seeking in 2006 the same allocation of water as was the subject of the 2004 application and seeks it in respect of the same land and same dams and under the same water allocation plan, it is a different application in that Sims seeks to take additional water from watercourses and in circumstances where it has evidence which was not available to it before. Those facts coupled with the fact that the question whether the whole of the Sims land is within the Armagh Creek Catchment has not yet been authoritatively determined points to the conclusion that the appeal by Sims to the Environment Court against the Minister’s refusal is not an abuse of process. In this case there is no collateral attack on a previous decision. Instead, a fresh application has been made as permitted by the relevant legislation with fresh evidence in support of it. There is no suggestion of any dishonesty. It cannot be said that this is an instance of successive actions amounting to unjust harassment. It is but a second application made some 18 months after the order had been made in the Environment Court. The judge of the Environment Court was, therefore, correct to rule that there was no abuse of process.
It is, I think, necessary to sound a note of caution about the stage at which an application to dismiss an appeal under s 17(4) is made. In this case, the evidence before the judge comprised only the two applications, the notices of appeal to the Environment Court, the order of the Environment Court on 16 August 2004, and some other agreed documents as well as an affidavit sworn by the solicitor for Sims. There was no oral evidence. The argument was in effect conducted on the papers. There will be cases where it is readily apparent that the application is an abuse of process. However, there will be other instances where it may be necessary for some oral evidence to establish the relevant facts. For example, where a party asserts that it is not acting in abuse of process because it has evidence which was not available to it before, it may be necessary to test that assertion in cross-examination. Each case will depend on its own circumstances. The moving party will have to decide which is the better course. An order under s 17(4) does not have to be made at the outset of the proceedings or at some early stage in the proceedings. It may be made at an early stage of the proceedings or, when the improper purpose is not apparent until a later stage, at that later stage or even at the close of the proceedings when orders for cost under subsections (4a) and (4b) may then be made: Harrow Trust v Adelaide Hebrew Congregation Inc (2003) 85 SASR 10 at [23].
For all of these reasons I dismissed the appeal.