Niebieski Zamek Pty Ltd v Southern Rural Water
[2001] VSC 453
•28 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION COMPENSATION & PLANNING LIST
No. 6187 of 2001
| NIEBIESKI ZAMEK PTY LTD (ACN 056 542 876) | Appellant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL SOUTHERN RURAL WATER DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENT | Firstnamed Respondent Secondnamed Respondent Thirdnamed Respondent |
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No. 6941 of 2001
| NIEBIESKI ZAMEK PTY LTD (ACN 056 542 876) | Appellant |
| v | |
| SOUTHERN RURAL WATER DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENT | Firstnamed Respondent Secondnamed Respondent |
JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2001 | |
DATE OF JUDGMENT: | 28 November 2001 | |
CASE MAY BE CITED AS: | Niebieski Zamek v Southern Rural Water | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 453 | |
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Appeals from two decisions of the Victorian Civil and Administrative Tribunal – whether the Tribunal had power under section 119 Victorian Civil and Administrative Tribunal Act to correct the initial decision by the deletion of a paragraph in the reasons for decision which contained an error – the slip rule – correcting mistakes in orders and reasons of the Tribunal – whether the deletion of a paragraph in the reasons for decision enabled the matter to be reopened.
Supreme Court (General Civil Procedure) Rules 1996 – Rule 36.07.
Victorian Civil and Administrative Tribunal Act 1998 – sections 51, 52, 117, 119, 127, 148.
Water Act 1989 – sections 3, 40, 51, 53, 55, 67, 69, 64E.
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206.
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675.
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr GJ Burns | Doyles Construction Lawyers |
| For the Respondents Southern Rural Water and DNRE | Mr R Appudurai | Macpherson + Kelley |
HER HONOUR:
Introduction
These appeals from two decisions of the Victorian Civil and Administrative Tribunal (“the Tribunal”) arise out of linked circumstances and were heard together. The appeals are brought under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) which provides for an appeal, on a question of law, from an order of the Tribunal in a proceeding. Leave to appeal was granted by this Court on 28 September 2001 against both decisions of the Tribunal.
The Senior Registrar of the Tribunal, which is the firstnamed respondent to the appeal numbered 6187 of 2001, informed the Court that the Tribunal, with the Court’s permission, did not intend to take an active role in the proceeding except as regarded any question as to costs, and would abide the decision of the Court. The remaining two respondents in each appeal were represented by the same counsel, although the role of the respondent Department of Natural Resources and Environment was not explained.
The decision the subject of the appeal numbered 6187 of 2001 (“the 10 May decision”) is a decision made on 10 May 2001 by the Tribunal, constituted by Deputy President Macnamara and Mr Gould, Senior Member, affirming a decision of Dr Kent, the Chief Executive Officer of the respondent Southern Rural Water (“the authority”), made on 5 May 2000 rejecting an application by the appellant (“the original application”) for a licence to take and use 2700 megalitres of groundwater per annum pursuant to section 51 of the Water Act 1989 (“the Water Act”) and to construct and operate a bore pursuant to section 67 of that Act.
The decision the subject of the appeal numbered 6941 of 2001 (“the 18 June decision”) is a decision made on 18 June 2001 by a similarly constituted Tribunal in the following terms:
The Tribunal’s order made 10 May 2001 is corrected pursuant to section 119 of [the VCAT Act] by deleting paragraph 42 of the reasons for decision.
The relevant provisions of the VCAT Act are sections 51, 52, 117, 119 and 127, which read as follows so far as relevant:
51.Functions of Tribunal on review
(1)In exercising its review jurisdiction in respect of a decision, the Tribunal -
(a)has all the functions of the decision-maker; and
(b)has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c)has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2)In determining a proceeding for review of a decision the Tribunal may, by order -
(a)affirm the decision under review; or
(b)vary the decision under review; or
(c)set aside the decision under review and make another decision in substitution for it; or
(d)set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
52.Limitation of courts' jurisdiction in planning matters
(1)The Supreme Court, the County Court or the Magistrates' Court does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment if -
(a)the Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise, that power; and
(b)the matter -
(i)has not been the subject of a proceeding in the Tribunal; or
(ii)if it has been the subject of a proceeding in the Tribunal, has not been determined by the Tribunal; or
(iii)if it has been determined by the Tribunal, the time for appeal against an order of the Tribunal in the proceeding has not expired; or
(iv)if an appeal has been brought against an order in the proceeding, the appeal has not been determined.
.. .
(4)In this section -
"planning enactment" means -
.. .
(i)Water Act 1989 (except section 19).
117.Reasons for final orders
.. .
(6)The reasons for an order, whether oral or written, form part of the order.
119.Correcting mistakes
(1)The Tribunal may correct an order made by it if the order contains –
(a)a clerical mistake; or
(b)an error arising from an accidental slip or omission; or
(c)a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
(d)a defect of form.
(2)The correction may be made –
(a)on the Tribunal’s own initiative; or
(b)on the application of a party in accordance with the rules.
127.Power to amend documents
(1)At any time, the Tribunal may order that any document in a proceeding be amended.
(2)An order under sub-section (1) may be made on the application of a party or on the Tribunal’s own initiative.
The relevant provisions of the Water Act are sections 3, 40, 51, 53, 55, 67 and 69, which read as follows, so far as relevant:
3.Definitions
(1)In this Act –
.. .
"aquifer" means a geological structure or formation or an artificial land fill permeated or capable of being permeated permanently or intermittently with water;
.. .
"groundwater" means any water occurring in or obtained from an aquifer and includes any matter dissolved or suspended in any such water;
.. .
"Tribunal" means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;
40.Matters to be taken into account
In considering an application under section 36(1), the Minister or Governor in Council (as the case requires) must have regard to the following matters -
.. .
(b)the existing and projected availability of water in the area;
(c)the existing and projected quality of water in the area;
(d)any adverse effect that the allocation or use of water under the entitlement is likely to have on -
(i)existing authorised uses of water; or
(ii)a waterway or an aquifer; or
(iii)the drainage regime within the meaning of section 12(1); or
(iv)the environment, including the riverine and riparian environment;
(e)any water to which the applicant is already entitled;
(f)any volume of water that is allocated for sale under section 222(1)(c);
(g)the need to protect the environment, including the riverine and riparian environment;
(h)an approved management plan for any relevant groundwater supply protection area;
(i)the conservation policy of the government;
(j)government policies concerning the preferred allocation or use of water resources;
(ja)whether the proposed source of water is within a heritage river area or natural catchment area within the meaning of the Heritage Rivers Act 1992 and whether there is any restriction on the use of the area under that Act;
(k)if appropriate, the proper management of the waterway and its surrounds or of the aquifer;
(l)the purposes for which the water is to be used;
(m)the needs of other potential applicants;
.. .
51.Licence to take and use water
(1)A person may apply to the Minister for the issue of a licence to take and use –
.. .
(b)groundwater;
53.Matters to be taken into account
In considering an application under section 51…, the Minister must have regard to the following matters –
. . .
(b)the matters mentioned in paragraphs (b) to (m) of section 40;
55.Determination of application
(1)The Minister may either refuse an application under section 51 . . . or approve it and issue a licence under that section.
67.Licence to construct works etc
(1)An Authority or any other person may apply to the Minister for the issue of a licence to construct, alter, operate, remove or abandon -
.. .
(b)a bore;
69.Determination of application
(1)The Minister may either refuse an application under section 67(1) or approve it and issue a licence under that section.
(2)The Minister must defer consideration of the application pending the determination of any related application under Part 4.
(3)The Minister must refuse the application if -
(a)a related application under Part 4 is refused; or
Section 51 appears in Part 4 of the Water Act. Accordingly, the Minister is required by section 69 to defer the application under section 67(1) for a licence to construct a bore, pending consideration of the application under section 51 for a licence to take and use groundwater, and must refuse the former application if the latter is refused. Thus, having refused the application under section 51, the decision maker was required to refuse the application under section 67(1).
Section 64E of the Water Act and other related provisions have the effect that the decision of Dr Kent made on 5 May 2000 is reviewable by the Tribunal. The Tribunal found that the Minister had delegated her powers under the relevant provisions to the authority; it was not suggested that Dr Kent was not authorised to act on its behalf.
At the outset Mr Appudurai, for the respondent, drew attention to what he submitted were defects in the Notices of Appeal filed by the appellant. In the event, Mr Burns, for the appellant, relied on only one ground of appeal, the other grounds in the Notices of Appeal being effectively abandoned, and accordingly it was not necessary for me to rule on the submission of Mr Appudurai on that matter, and I do not do so.
The 10 May decision
In its reasons for the 10 May decision, the Tribunal, under the heading Conclusions, said first, at paragraph 33 “We accept the respondent’s contentions”. Those contentions, as summarised by the Tribunal, related to the preference for the evidence of one expert witness over others, and concluded with a submission in the following terms:
The statutory scheme is such that a decision to grant a licence to take and use groundwater should not be made unless such a decision can be made with a high degree of confidence that the conservation/long-term sustainability of a groundwater resource will be ensured. The evidence before the Tribunal does not, it is contended, arm the Tribunal with that confidence.
Paragraph 34 of these reasons began with the words “The situation of the Condah [Groundwater Management Area] is shrouded in uncertainty”, and in paragraphs 34 to 37 the Tribunal went on to provide justification from the evidence for that statement, expanding on its view that it was not possible to make a confident assessment of the state of the extent and nature of the resource. In paragraph 38 it stated that it was not persuaded that the allocation should be made, as one expert had indicated, on the basis that the relevant aquifer would capture further throughput.
Paragraph 39 began, “There is in addition a further reason why we would not accede to this application.” The Tribunal went on to consider, in paragraphs 40 and 41, as required by sections 40(1)(m) and 53(1)(b) of the Water Act, the needs of other potential applicants. It expressed the view that it would not be a fair or equitable approach to the allocation of scarce water resources to grant so large an allocation to a single applicant, namely the appellant.
Paragraphs 42 and 43 read:
42.Mr Doyle said nothing to suggest that his client was interested in any allocation other than the one applied for.
43.For the reasons already given, we think the proper course is simply to affirm the respondent’s decision.
The 18 June decision
On receipt of the 10 May decision and the reasons therefor, the solicitors for the appellant wrote to the Registry of the Tribunal to bring to its attention what they described as “a slip” in the reasons, as to which they said:
During the Hearing on 17 and 18 of April 2001, the counsel for the Applicant, Mr Doyle sought either the grant of the full allocation sought or if the Tribunal were against the applicant in that respect a partial allocation and that the Tribunal consider a conditional allocation. . . . We consider that paragraph 42 [of the reasons] records an error by the Tribunal which should be corrected under the slip rule and the balance of the judgment given in respect of the partial and/or conditional allocation.
There are thus two requests in that letter; for the correction of the alleged error, and for the consideration of the alleged claim for a partial or conditional allocation.
The reference to “the slip rule” in that letter is to be taken as a reference to section 119 of the VCAT Act, which confers on the Tribunal the power contained in what is commonly referred to as “the slip rule”, to be found in the inherent jurisdiction of the Courts of Common Law and the Court of Chancery to correct any clerical mistake or error in a judgment or order which was the result of an accidental slip or omission. [1] The rule is now formalised in the statutes and rules governing most, if not all courts and tribunals, as for example, for this Court, in Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 1996. Lockhart J said in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd: [2]
An exercise of the power of the court under the slip rule is ultimately to avoid injustice. This obvious purpose of the slip rule underlies a number of decisions of judges of this court and of other courts . . .
[1]See the judgment of McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449.
[2](1995) 133 ALR 206 at 212.
The matter was relisted and the Tribunal heard submissions from both parties. In its reasons for the 18 June decision it considered the evidence for the alleged error in the following terms:
13.Mr Doyle says that he has a clear recollection of stating in his closing remarks that his clients were interested in any allocation less than 2,700 ML per annum which the Tribunal might be persuaded would be an appropriate one. He said he made a similar statement in opening his case.
14.Mr Appudurai who appears for the respondents said that he has a recollection of what he describes as a “throw-away line” to that effect in Mr Doyle’s closing remarks but no recollection of his having said that in his opening remarks. Our notes do not disclose that such a statement was made in opening though one Member’s notes show it as having been made in closing.
15.Having heard Mr Doyle and Mr Appudurai review their recollections of what occurred at the hearing, we concede at least for the purposes at least with respect to the Presiding Deputy President, that there is a vague recollection revived of a statement to the effect that Mr Doyle says he made in his closing remarks. No recollection at all [sic] as to the same thing having been said in opening his case.
The Tribunal concluded on this issue:
16.Since it appears that Mr Doyle did indicate at least once that his client was interested in an allocation other than the one applied for, we believe that paragraph 42 of our reasons for decision is a mistake. Since that mistake was the result not of a deliberate finding on our part but rather was the result of an inaccurate and inadequate recollection of what transpired at the hearing (one which could not be verified by reference to a tape or transcript of the proceedings which does not exist), we believe that paragraph 42 can be regarded as an accidental error in our reasons for determination and therefore in accordance with section 117(6) of [the VCAT Act] in the order. We believe that this is therefore an appropriate occasion to make an order under section 119 of [the VCAT Act], [and] we propose correcting our reasons by deleting paragraph 42.
The next issue considered by the Tribunal was whether the deletion of paragraph 42 enabled the reopening of the matter and the consideration of an application for a partial or conditional allocation of water to the appellant. As to this the Tribunal noted that the original application made to the authority was an application for an allocation of 2700 megalitres of water, not for 2700 megalitres or such lesser figure as the authority might allocate, and that no formal application to amend that application had been made by Mr Doyle at any stage. That being so, the Tribunal considered that it had power to review only the decision made by the primary decision maker, that is, the authority.
Further, the Tribunal noted that the remark of Mr Doyle that his client would be interested in an allocation other than that applied for did not appear in his written submission, but had been made perfunctorily. Counsel for the respondents submitted that that remark had been made at the end of Mr Doyle’s case, and accordingly, to reopen the matter would have been a breach of the rules of natural justice, in that the respondents would have no opportunity to give any argument to such a case. The Tribunal accepted that submission.
Finally, the Tribunal indicated that paragraph 42 and the nearby paragraphs had been in the nature of final thoughts and not the primary basis for the decision. It concluded: [3]
The primary basis for the decision was that we were not persuaded that in the circumstances the aquifer had not already been either fully committed or over fully committed. Accordingly, if we could go back to writing our determination and if we could persuade ourselves both that we had jurisdiction to consider a smaller allocation and further, that to consider it would not deprive the clients represented by Mr Appudurai of natural justice, our determination would have been no different. Obviously it remains a possibility that Mr Doyle, if permitted, could be able to deploy and adduce further arguments which might persuade us to a different view on this subject, nevertheless, it was in our view incumbent upon Mr Doyle to adduce his entire case at the hearing and it would be contrary to principle as it were to give him a second opportunity to argue a case which he has already closed.
On that basis, the Tribunal declined to entertain the application to go further and reopen the substantive merits of the 10 May decision.
[3]In paragraph 24.
Mr Burns submitted that at the time of making the 18 June decision the Tribunal was functus officio, and for that reason the deletion of paragraph 42 from the reasons for the 10 May decision was not at that time within its power. The only basis on which it could have effected such a deletion was by exercising the power conferred on it by section 119 of the VCAT Act. However, paragraph 42 did not constitute “an error arising from an accidental slip or omission”, nor did it fall within any other of the grounds for amendment authorised by that provision. It was not a “slip”, but was described by the Tribunal as “a mistake” which was “the result of an inaccurate and inadequate recollection of what transpired at the hearing”. Section 119 did not authorise the correction of a mistake of that kind.
The Tribunal, he submitted, had two courses of action open to it. It could have refused to delete paragraph 42, consistently with its having, on one ground or the other, no jurisdiction to do so, thus leaving intact the order of 10 May (bearing in mind that by virtue of section 117(6) of the VCAT Act, the reasons are included in the order). That would have left an error in the order, which would have remained on the record and been the subject of appeal under section 148 of that Act.
In the alternative, Mr Burns submitted, if I understood him correctly, the Tribunal could have reviewed the matter again by virtue of section 52 of the VCAT Act. However, section 52 appears to me to be concerned only with, as the heading states, the limitation of the jurisdiction of the courts; it is not expressed so as to confer on the Tribunal any jurisdiction beyond that conferred by the earlier provisions of Part 3 of that Act, and I say no more about it.
The setting aside of the 18 June decision would leave the 10 May decision in its original form, that is, in the submission of Mr Burns, flawed by reason of the retention of paragraph 42. He referred to the power conferred on the Tribunal by section 51 of the VCAT Act to vary the decision under review; or to set aside the decision under review and make another decision in substitution for it. Thus, he submitted, the Tribunal had had power, when making the 10 May decision, to consider and decide the question of whether the appellant should receive a partial or conditional allocation of water, even though that question had not been considered in the decision of the authority which was under review. But by the inclusion of paragraph 42, the Tribunal had made it clear that it had not turned its mind to the possibility of making such a decision. It demonstrated that it was not aware that it had been asked to do so, and that, he submitted, was the primary indicator of where it fell into error. It was in error in that it did not properly address the matters before it. Had it turned its mind to the question of whether the appellant should receive a partial or conditional allowance, it might have looked at the evidence differently and reached a different conclusion.
On this issue Mr Burns relied on the well-known passage from the judgment of Barwick CJ in Kentucky Fried ChickenPty Ltd v Gantidis: [4]
Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.
[4](1979) 140 CLR 675 at 679-80.
Thus, he submitted, the Court should find that the review process was flawed, and should set aside both of the decisions and remit the matter to the Tribunal for reconsideration on the basis that the Tribunal should consider whether the appellant was entitled to a lesser allocation of water than that for which it had applied.
Mr Appidurai, in response, referred to the original application made by the appellant to the authority, which was an application for an annual volume of water of 2700 megalitres, to irrigate 450 hectares of land for the purposes of domestic supply, stock supply, irrigation supply, dairy washing, and crops being cut flowers and vegetables and for hydroponic pasture.
He submitted that it was clear that the decision of the authority was in effect a decision that no more water could be allocated from the Condah aquifer. The extent of the quantity of water sought by the applicant was irrelevant to the decision to refuse the application.
I note that that decision includes the following passage:
Once a Groundwater Management Area is allocated beyond its Permissible Annual Volume, no further licences can be issued (domestic and stock bore applications are not affected). Your proposed bores will be located within the Condah Groundwater Management Area, which is currently at 100% of its Permissible Annual Volume.
He submitted that the decision of the Tribunal was similarly based, and that it was apparent from the material before the Court that the hearing before the Tribunal was conducted entirely on the basis of a challenge to the refusal of a licence to take 2700 megalitres. There had been no application under section 127 of the VCAT Act to amend the original application.
Mr Appidurai submitted further that paragraph 42 related only to the discussion in the reasons from paragraph 39 onwards, and that it was apparent that the Tribunal had, before reaching that point, come to the conclusion that the decision under review should be affirmed, principally because of the uncertainty as to the status of the water resource in question; and also on the further ground of the needs of other potential applicants.
Conclusions
Having considered the matter, I find first that the Tribunal, once it had made the 10 May decision, was functus officio, having disposed of the issue before it, and was no longer in a position to deal with the application of Mr Doyle that it consider the entitlement of the applicant to a partial or conditional allocation of water.
However, the power conferred on the Tribunal by section 119 of the VCAT Act is an exception to the principle that a matter once disposed of cannot be reopened, in that it enables, in any of the circumstances set out in that section, the correction of an order, and, by virtue of section 117(6) of that Act, the correction of reasons. The Tribunal found that the inclusion of paragraph 42 in the reasons for the 10 May decision fell within the expression in section 119(1)(b) “an error arising from an accidental slip or omission”, that error having occurred in the manner described in paragraph 16 of the reasons for the 18 June decision, set out in [17] above. The words in section 119(1)(b) are used in their natural and ordinary sense and their interpretation is thus a question of fact. [5]
[5]See Phillips JA in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 86-93 and particularly at 88-89.
In Spurling v Development Underwriting (Vic) Pty Ltd[6] Stephen J said:
In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour & Co. Pty. Ltd., [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come. In saying this the Full Court stated that it was following the view of Herring, CJ, in Young v Paddle Bros. Pty. Ltd., [1956] VLR 38; [1956] ALR 301. The Chief Justice, in that case, adopted as the test whether "on any reasonable view of the evidence that decision can be supported"; a party aggrieved can thus only succeed if a decision contrary to the view of the magistrate is "the only possible decision that the evidence on any reasonable view can support" (see at VLR p. 41).
[6][1973] VR 1 at 11.
Considering the finding of the Tribunal as to the inclusion of paragraph 42 in accordance with those principles, I am satisfied that there was evidence upon which the members might reasonably come to the conclusion to which they did come, namely that that error fell within section 119(1)(b) of the VCAT Act. Accordingly I find that the Tribunal had power, by virtue of that provision, to decide in the 18 June decision to correct the 10 May decision by the deletion of paragraph 42. The appeal against the 18 June decision will accordingly be dismissed.
That being so, the 10 May decision stands, with effect from 10 May, [7] in the form resulting from the 18 June decision, that is, with the deletion of paragraph 42. As paragraph 42 was the ground for the submission of Mr Burns that the 10 May decision had been made in error (see [24] to [26] above), that submission must fail, and with it the appeal against the 10 May decision.
[7]see Elyard Corporation fn 2 supra at 211.
For the reasons which I publish, both appeals will be dismissed. Counsel may wish to make submissions as to costs.
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