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…

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: [2007] SASC 88
Decision Date: 9 March 2007

CaseChat Overview and Summary

Jack Sims & Son P/L, a South Australian company engaged in farming activities, brought an appeal against the Minister for Environment & Conservation after the latter refused the company's application to vary the terms of a water licence. The Environmental, Resources and Development Court, led by Justice Corbett, was tasked with determining whether the company's appeal constituted an abuse of process. Specifically, the court needed to consider whether the second appeal was barred by principles of res judicata and issue estoppel, and whether it was frivolous, vexatious, or brought for an improper purpose.

The primary legal issues before the court involved the procedural fairness of the appeal. The company argued that its appeal was not an abuse of process, despite the fact that the terms of the water licence had been the subject of an earlier appeal where a consent order was made. The court had to balance the principles of finality and the protection of parties from repeated litigation with the need to ensure that justice is done in each case. The company contended that the Minister had acted unreasonably in refusing to vary the licence terms, and that the appeal was not frivolous or vexatious.

Justice Corbett found that the company's appeal did not constitute an abuse of process. The court concluded that the principles of res judicata and issue estoppel did not apply to bar the second appeal because the circumstances had changed significantly since the earlier appeal. Furthermore, the court held that the company's appeal was not frivolous or vexatious, nor was it brought for an improper purpose. The Minister's refusal to vary the licence terms was considered unreasonable, and the appeal was deemed to have merit. Consequently, the appeal was dismissed on its merits, but no orders were made as to costs.

The court dismissed the appeal, finding that the company's attempt to vary the terms of its water licence was not an abuse of process. The principles of res judicata and issue estoppel did not apply to bar the second appeal due to the significant changes in circumstances since the earlier appeal. The court held that the Minister's refusal to vary the licence terms was unreasonable, and thus the appeal was not frivolous, vexatious, or brought for an improper purpose.

Orders