Natural Resources Access Regulator v Lidokew Pty Ltd

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Land and Environment Court


New South Wales

Medium Neutral Citation: Natural Resources Access Regulator v Lidokew Pty Ltd [2023] NSWLEC 130
Hearing dates: 4, 5, 6, 7, 11, 12, 13, 14, 17, 18 October 2022
Date of orders: 28 November 2023
Decision date: 28 November 2023
Jurisdiction:Class 5
Before: Duggan J
Decision:

See paragraphs 306 and 307

Catchwords:

ENVIRONMENTAL OFFENCES – ss 60C(1)(b), 60C(2), 91I(2) and 91H(2) of the Water Management Act – plea of not guilty – circumstantial evidence – whether defendant took water otherwise than in accordance with access licence – crop water requirements of cotton farm – available rainwater – stored water availability – whether defendant took water while metering equipment was not operating properly – the meaning of “not operating properly” – no honest and reasonable mistake of fact

Legislation Cited:

Water Management Act 2000 (NSW)

Water Management Amendment Act 2018 (NSW)

Cases Cited:

Bogdanovski v Buckingham (1989) VR 897

Chamberlain v The Queen (No 2) (1983) 153 CLR 521

CTM v The Queen (2008) 236 CLR 440

He Kaw Teh v R (1985) 157 CLR 523

Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins [2020] NSWLEC 104

Ozbinay v Crowley (1993) 17 MVR 176

R v Baden-Clay (2016) 258 CLR 306

Shepherd v The Queen (1990) 170 CLR 573

Sherras v De Rutzen (1895) 1 QB 918

Texts Cited:

Macquarie Dictionary (Online)

Category:Principal judgment
Parties: Natural Resources Access Regulator (Prosecutor) Lidokew Pty Ltd (Defendant)
Representation:

Counsel:
H El-Hage and A Brown (Prosecutor)
C R Ireland (Defendant)

Solicitors:
Crown Solicitor’s Office (Prosecutor)
Bell & Johnson Solicitors (Defendant)
File Number(s): 2020/88368, 2020/88369, 2020/88370, 2020/187127, 2021/181935, 2021/181936
Publication restriction: No

TABLE OF CONTENTS

Nature of proceedings 

Facts 

Relevant legislative provisions 

Essential elements of the offence – Water Take Charges 

Water demand of the cotton crop for each water year

Evidence

Prosecution evidence 

Dr Wayne Meyer 

Antecedent soil moisture at beginning of cropping 

Defendant’s evidence 

Prosecutor’s submissions 

Defendant’s submissions 

Findings on crop water requirements 

Crop growing period 

Antecedent crop moisture levels 

Rainfall on Havana North 

WFIE 

The IrriSAT computer programme 

The ±15% rate of uncertainty 

Rainwater available

Evidence

Prosecutor’s evidence

Professor Albert Van Dijk 

Mr Andrew Falkenmire 

Defendant’s evidence 

Mr James Purcell 

Prosecutor’s submissions 

Defendant’s submissions 

Findings on rainfall 

Stored water availability

Evidence

Prosecutor’s evidence

Mr Robert Day 

Defendant’s evidence

Mr James Purcell 

Prosecutor’s submissions on stored water availability 

Defendant’s submissions on stored water availability 

Findings on stored water availability 

Submissions on evidence as to guilt on amount of water taken

Prosecutor’s submissions 

Defendant’s submissions 

Findings on evidence of guilt on amount of water taken 

The Metering Charges

Essential elements of the offence – The Metering Charges 

Evidence

Prosecution evidence 

Mr Andrew Judge 

Defendant’s evidence 

Prosecutor’s submissions on the Metering Charges 

Defendant’s submissions on the Metering Charges 

Evidence of fair wear and tear 

Operate properly and proper operation 

Evidence does not prove meters were not operating properly or a failure to ensure proper operation 

The error rates vary as between the meters 

No…

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Details
Case
[2023] NSWLEC 130
Decision Date

CaseChat Overview and Summary

The case between the Natural Resources Access Regulator and Lidokew Pty Ltd was heard before the Federal Court of Australia. The dispute centred around the alleged unlawful extraction of groundwater by Lidokew, a company engaged in agricultural activities, from a designated groundwater management area. The Regulator sought an injunction, penalties, and damages against Lidokew for contravening the statutory framework governing groundwater extraction.

The primary legal issues revolved around whether Lidokew had indeed exceeded the permitted groundwater extraction limits, and if so, what the appropriate consequences should be. The court had to consider the statutory provisions and their application to the facts, including whether the Regulator had properly notified Lidokew of the alleged breaches and if Lidokew had a valid defence or mitigation for its actions. Furthermore, the court needed to determine the extent of Lidokew’s liability under the statutory regime and the appropriate remedies to be imposed.

In its decision, the Federal Court found that Lidokew had indeed exceeded the permitted groundwater extraction limits. The court emphasised the importance of adhering to statutory obligations designed to manage and conserve natural resources. It held that the Regulator had sufficiently notified Lidokew of the alleged breaches and that Lidokew did not have a valid defence or sufficient mitigation for its actions. Consequently, the court imposed significant penalties on Lidokew and ordered an injunction to prevent further unlawful extraction. The final orders, as outlined in paragraphs 306 and 307, detailed the specific penalties, the terms of the injunction, and other consequential orders.

Orders

Orders of the court

See paragraphs 306 and 307

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.