O'Donnell v Environment Protection Authority - [2012] ACTSC 140

GARRY O’DONNELL v ENVIRONMENT PROTECTION AUTHORITY
[2012] ACTSC 140 (24 August 2012)

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – application for leave to appeal, and appeal, from decision of Appeal President of ACT Civil and Administrative Tribunal – Appeal President upheld direction by Environment Protection Agency for appellant to cap an unlicensed bore on urban residential land – no questions or issues that could be resolved in favour of appellant – leave to appeal refused.

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – appeal from decision of Appeal President of ACT Civil and Administrative Tribunal – relevance of appellant’s own actions – whether respondent had failed to provide natural justice – “natural justice” used by Appeal President not to mean “procedural fairness” but as alternative to “good administrative practice” or “common courtesy” – failure to advise appellant that licence application fee had not been received was not in the circumstances a failure to give procedural fairness – failure to advise appellant that licence application fee had not been received did not render unconscionable a decision nearly five years later to direct appellant to cap his unlicensed bore.

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – appeal from decision of Appeal President of ACT Civil and Administrative Tribunal – appeal available by leave, on a question of fact or law – question stated in affidavit accompanying application for leave to appeal and for leave to appeal out of time – question not relied on in Notice of Appeal – whether appeal on question of fact or law provides for error-based appeal.

STATUTES – ACTS OF PARLIAMENT – Interpretation – applications for bore licences required to be accompanied by fee as determined – whether obligation to provide service arises where determined fee not paid – no obligation on respondent to deal with licence application when appellant claimed he had sent a cheque but knew that cheque had never been cleared.

STATUTES – ACTS OF PARLIAMENT – Interpretation – preservation of rights, privileges and liabilities after repeal or amendment of legislative provision – preservation of rights, privileges and liabilities only displaced “expressly or by a manifest contrary intention” – “manifest contrary intention” requires express statement of intention that preservation provision does not apply, that is, an express contrary intention – provisions explicitly addressing the relevant rights and privileges affected by amendment amounted to an express or manifest contrary intention to the preservation of those rights and privileges except as explicitly provided.

Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Commonwealth Employees’ Compensation Act1930 (Cth), s 9(1)

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 82, 86
Land (Planning and Environment) Act 1991 (ACT), ss 171, 172B, 172C
Legislation Act 2001 (ACT), ss 5, 6, 47, 57, 79, 84, 88, 114, 116, 132
Water Resources Act 1998 (ACT), ss 13, 28, 35, 63A, 63B, 77
Water Resources Act 2007 (ACT), ss 30, 35, 76, 111, 202

Court Procedures Rules 2006 (ACT), r 5071
Water Resources (Fees) Revocation and Determination 2003 (ACT)
Explanatory Statement for the ACT Civil and Administrative Tribunal Bill
Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 8 May 2008, 1579

Interpretation Ordinance (Hong Kong), s 10

Comcare v Etheridge [2006] FCAFC 27
Creaser v Savannah AssociatesLtd & Ors [2003] ACTCA 26
David Harold Eastman v Commissioner for Social Housing [2011] ACTCA 12
David Harold Eastman v Commissioner For Social Housing [2010] ACTSC 71
Director of Public Works v Ho Po Sang [1961] AC 901
Environment Protection Authority v Scott Rashleigh [2005] ACTCA 42
Esberv The Commonwealth (1992) 174 CLR 430
Kioa v West (1985) 159 CLR 550
Lacey v Attorney-General of Queensland [2011] HCA 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Preston v Dukes [2012] ACTCA 29
Salemi v MacKellar (No 2) (1977) 137 CLR 396
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281

Butterworths Concise Australian Legal Dictionary (3rd ed, LexisNexis Butterworths, 2004) p 291

No. SCA 59 of 2010

Judge: Penfold J
Supreme Court of the ACT

Date: 24 August 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCA 59 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:GARRY O’DONNELL
Applicant

AND:ENVIRONMENT PROTECTION AUTHORITY
Respondent

ORDER

Judge:  Penfold J
Date:  24 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal from the decision of the Appeal President is refused.

The appellant pay the respondent’s costs on an ordinary basis as agreed or assessed.

Order 2 is suspended for 7 days to allow the parties to list the matter for argument as to costs.

Introduction

Gary O’Donnell owns a large residential block of land in the Canberra suburb of Red Hill. On the block are extensive gardens, which use a lot of water. For some years until 2008, Mr O’Donnell used a bore installed on the property to take ground water from the Lake Burley Griffin aquifer. On 10 November 2008 the ACT Environment Protection Authority (the EPA), acting under s 76 of the Water Resources Act 2007 (ACT) (WR Act 2007), directed him to cap his bore. That section applies if the EPA is satisfied, among other things, that “something done or not done in relation to a bore may result, directly or indirectly, in ... unlicensed taking of water” (s 76(1)), and the decision was said to have been made in accordance with a policy to “reduce or eliminate the possibility that water is taken from unlicensed bores in the future”.

Mr O’Donnell now seeks to appeal against a decision of the Appeal Division of the ACT Civil and Administrative Tribunal (ACAT) confirming the EPA’s direction to cap the bore. The respondent has filed a notice of contention.

Before considering whether leave to appeal should be granted, it is necessary to give a brief history of this matter.

The facts

The following narrative reflects either undisputed facts or facts the subject of ACAT findings that have not been challenged before me.

At some stage before 2003, a bore constructed on Mr O’Donnell’s property in Mugga Way was rendered functional and Mr O’Donnell began taking water to use on his gardens.

During 2003, it seems, the EPA became concerned about the amount of water being removed from the Lake Burley Griffin aquifer and began advising residents in affected parts of Canberra of the need for bore licences. As a result, many Red Hill residents who had bores applied for licences.

On 17 October 2003, Mr O’Donnell contacted the EPA, having returned home from overseas to find a letter telling him that he would need a licence for his bore. An EPA file note, apparently prepared by a Ms Lucy Wildman, records the conversation:

1. [Mr?] O’Donnell called (Bron transferred call to me) re licence for his bore. He indicated he had recently returned from Russia & his brother had been collecting his mail & there was a letter indicating he needed a licence for his bore. I said this was true but at present we could not issue any more licences as the subcatchment of LBG was fully allocated. He said this was stupid as it was his water. He then said that he had sent an application in on 26 June 2003 so why did we not provide a licence then. I indicated we had no record of receiving an application (or application fee) but we did have a record of receiving a telephone call from his brother. He then asked to speak to my manager. I have him Bob Neil’s name & telephone number. He also asked for my fax #.
I received a faxed licence to take water application form (17/10/03) after the phone call but it was dated as being sent 28/6/03. There was no fee attached.

Although during the conversation Mr O’Donnell said that he had sent an application on 26 June 2003, he gave evidence at the ACAT hearing that the application documents were sent in July, but that the cheque had been backdated for tax reasons. Later on the day of his conversation with Ms Wildman, Mr O’Donnell faxed to the EPA an application dated 28 June 2003, and a covering letter dated 17 October 2003 which was as follows:

I refer to our telephone conversation of even date and wish to confirm as follows:-
An application to register a Bore was made by mail to your office on 30-6-03 together with cheque number 890702 drawn on the Commonwealth Trading Bank of Australia, Fyshwick Branch.
As requested by you I tender bank statement pages 215, 216 & 217 and you can clearly see that cheque number 890702 was never ever presented so I presume it was lost in your office.

The box on the application form to be marked to indicate that the application fee was attached was not marked to that effect. Mr O’Donnell faxed copies of a cheque butt dated 30 June 2003 showing a cheque for $107.00 for “Environment ACT Bore Lic Application” and bank statements showing that the relevant cheque had not been presented.

ACAT at first instance found:

(a)that the application form signed by Mr O’Donnell was one sent to him by the EPA on 3 July 2003;
(b)that the application received by the EPA by fax on 17 October 2003 was sent for the first time on that day (at [59]); and
(c)at [65] that:
the applicant made an application to the respondent on 17 October 2003 to take water by means of the bore at the Property. The application was not processed by the respondent. The applicant continued to use the bore at the Property until he was issued with the Direction by the respondent dated 10 November 2008 to discontinue the use of the bore and to seal the bore in the manner disclosed in that Direction.

The EPA conceded for the purposes of the original ACAT review that, if Mr O’Donnell had applied for a bore licence on 26 June 2003, a licence would have been granted to him because “the groundwater extraction from the Lake Burley Griffin sub-catchment had not reached the limit set in accordance with the policy in place at that time”.

Whether because he accepted the EPA advice that no licence could at that time be issued, or because in any case he continued to take water from his bore, Mr O’Donnell took no further action in relation to his licence for some time. Nor did the EPA take any action, for instance to advise Mr O’Donnell that it had no record of receiving the cheque he claimed had been sent with the claimed June licence application or, alternatively, to give written advice refusing his application.

In September 2006, Mr O’Donnell surrendered his Crown lease, which had apparently been issued in 1997 (the old lease), and was granted a new lease under s 171 of the Land (Planning and Environment) Act 1991 (ACT) (the LPE Act), with a term commencing on 26 September 2006 (the new lease).

On 17 January 2007, the EPA wrote to Mr O’Donnell pointing out that his bore was unlicensed, that there was a moratorium on the issue of, among other things, new bore licences, and that:

Your application will remain unassessed until the moratorium period ceases. Please be aware that your application will be considered in light of the amended administration scheme that is developed during the moratorium period, thus there is no guarantee that you will receive a license at the end of the moratorium.

The letter went on to explain that this did not mean that Mr O’Donnell could take ground water during the moratorium period, and that taking such water without a licence might lead to prosecution.

Mr O’Donnell gave evidence in ACAT that he did not remember receiving this letter, and certainly he took no action in the subsequent months. Counsel for the EPA has said that this letter was sent by mistake.

In May 2008, EPA officers entered Mr O’Donnell’s property, with his consent, and took water samples from the bore. On 4 June, the EPA wrote to Mr O’Donnell requiring him to permanently disconnect the irrigation system from the ground water bore and to disable the bore so that water could not be drawn from it.

On 11 June 2008, Mr O’Donnell had a telephone conversation with EPA officers Robert Neil and Lucy Vincent. The EPA file note records Mr O’Donnell’s assertions that his failure to obtain a bore licence was due to EPA or government incompetence, but also his agreement to disconnect the power to the bore, and an arrangement to meet EPA officers on 20 June 2008.

On 20 June 2008, according to an EPA file note, Mr O’Donnell, accompanied by a John Buxton, attended the meeting with three EPA officers. Mr O’Donnell asked whether he could make an “ex-gratia application” to the Chief Minister. Mr Buxton put the proposition to the EPA officers that the EPA’s failure to respond to Mr O’Donnell’s application established an “implied acceptance that a licence was granted”, but took exception to the response from an EPA officer that the proposition would only be relevant if a complete application form had been received. At the end of the meeting, according to the file note, Mr Buxton indicated that they would “go straight to the Minister’s office”.

On 26 June 2008, Mr O’Donnell wrote to the EPA about the dispute over his use of ground water. He expressed the view that his breaches of the WR Act 2007 that had been raised by the EPA “occurred as a direct result of the unreasonable and unconscionable delays that occurred in your office in actioning the original application”, and pointed out that he and his companies owned numerous residential and commercial properties in Canberra, “at least one of which has been granted a license to take water”. Mr O’Donnell then went on:

I have difficulty therefore in believing that I am responsible for assuming the application remained unassessed for some three and a half years without official notification (as was received in 2007). In fact, any reasonable person would assume that the period was more than sufficient to allow the application to be assessed and that, in the absence of official notification to the contrary, it was most probably approved.

Mr O’Donnell also pointed out that his posting of a notice on his front gate identifying his use of bore water was:

hardly the action of a citizen who had been officially notified that approval of a licence to extract bore water had been denied in 2003.

In the next few months, there were telephone calls and further correspondence between Mr O’Donnell, Mr Buxton, EPA officers, and Jon Stanhope in his capacity as the Minister for the Environment, Water and Climate Change. The Minister’s letter to Mr O’Donnell recorded advice received by the Minister that there was no ability for him to give “ex gratia consideration” to Mr O’Donnell’s application for a bore licence, because the Minister was unable to grant a water access entitlement for urban residential property.

Mr O’Donnell also tried unsuccessfully to have the water entitlement held by another of his properties, the Statesman Hotel, transferred to the Mugga Way property.

Eventually, an EPA file note records, at a meeting on 10 November 2008 between Mr O’Donnell, Mr Buxton, and EPA officials, Mr O’Donnell was advised that the EPA say no option but to direct him to cap the bore. Mr O’Donnell said that the matter “will end up in the High Court because it is a reviewable decision and he has funds to take it there”. At the end of the meeting, EPA officer Robert Neil handed Mr O’Donnell a direction to discontinue the use of the bore to extract ground water at his home, and to “cap” the bore (by filling it with gravel and sealing it with concrete). Mr Neil noted that this was a reviewable decision, and Mr O’Donnell said he might go straight to the Supreme Court.

The legal framework

The Water Resources Act 1998 (ACT) (WR Act 1998) applied to applications for bore licences in 2003.

When enacted, that Act included s 13 as follows:

Subject to this Act, the right to the use, flow and control of all water of the Territory (other than ground water under land the subject of a lease of Territory land granted before [11 December 1998]) is vested in the Territory and, subject to any other Act, those rights are exercisable by the Minister in the name of and on behalf of the Territory.

The validity of that provision was upheld in Environment Protection Authority v Scott Rashleigh [2005] ACTCA 42 at [20].

When the WR Act 1998 was enacted, the LPE Act was amended to insert s 172C (originally numbered 172B but renumbered in 2001). That section excluded, from leases granted after 11 December 1998 (post-December 1998 leases), any right to the use, flow or control of ground water under the leased land.

Section 35 of the WR Act 1998 as in force on 17 October 2003 is set out in full in the Appendix to this judgment. Section 35(7) provided for applications for bore licences to be determined taking account of specified matters, as follows:

(7)In deciding whether or not to grant a licence to take water, the authority shall take into account—
(a)the applicant’s environmental record both in the Territory and elsewhere so far as it relates to water; and

(b) whether to grant the licence—
(i) would have an adverse effect on the environment; or
(ii)would adversely affect environmental flows of a particular waterway or aquifer or the rights of other water users; and

(c)whether the applicant has been convicted of an offence against this Act or a corresponding law of a State or another Territory; and
(d)in the case of an application for a licence to take ground water—
(i)whether the quantity of water available can meet the demand or there is a risk that the available water will not be sufficient to meet future demand; and
(ii)whether the taking of the water will or is likely to affect the quality of the water in the place to which the application relates.

With one minor exception (discussed at [159] to [162] below), none of Mr O’Donnell’s several appeals has challenged the legitimacy of the EPA’s view, conveyed to Mr O’Donnell as mentioned at [7] above, that in October 2003 the state of the relevant aquifer would have justified the EPA refusing a new bore licence having regard to the factors set out in s 35(7).

On 1 September 2005, the WR Act 1998 was amended by the insertion of ss 63A and 63B (the moratorium provisions), which are set out in the Appendix to this judgment. In relation to licences to take water (for present purposes, bore licences), s 63A:

(a) suspended the operation of ss 35(1) to (4) (Licence to take water) and of s 77(3) (Review of decisions) in relation to decisions under ss 35(1) to 35(4);
(b) provided that licence applications could not be made, and that decisions could not be made to grant or refuse licence applications;
(c) noted that s 63B created exceptions to the suspension provisions; and
(d) preserved the operation of licences granted before the commencement of s 63A (the commencement date), and licences granted after that commencement date because of s 63B (relevantly, under a court or tribunal order: s63B(8)).

Section 63B preserved a range of rights and entitlements existing before the commencement date.

As already noted, s 35 of the WR Act 1998 permitted the grant of bore licences to the holders of pre-December 1998 leases subject to consideration of the matters set out in s 35(7). However, s 35(8) of that Act prevented the grant of such licences to the holders of post-December 1998 leases unless, relevantly, there was a water allocation in existence on which to base the taking of water from the leased land (s 35(8)(a)).

Section 28 of the WR Act 1998 (set out in the Appendix to this judgment) provided that water allocations could only be granted by the EPA by public auction or public tender, or by private contract only if a public offering had been unsuccessful.

Thus, Mr O’Donnell’s claim in 2003 to obtain a bore licence without a water allocation depended on his holding of a pre-December 1998 Crown lease, and his surrender of that lease in September 2006 extinguished any opportunity for him to obtain a bore licence under the legislation.

On 1 August 2007, while ss 63A and 63B were still in force, the WR Act 1998 was repealed and replaced by the WR Act 2007. That Act further restricted the issue of licences to take water, by precluding the issue of a licence to take water to be used on “urban residential property” (s 30(2)(d)). The position of lessees of urban residential properties who had previously obtained bore licences was protected by s 30(4)(b), which permitted the issue of bore licences to lessees:

(a) who had held water allocations under the WR Act 1998 immediately before the commencement of the WR Act 2007 (s 111); or
(b) who were under s 202 of the WR Act 2007 entitled to a water access entitlement as an existing licence holder.

I note in passing that s 202, as a transitional provision, was expressed to “expire” one year after it commenced (1 August 2008), but remained in operation by virtue of s 88 of the Legislation Act 2001 (ACT). The expiry of the section seems to have meant that after the expiry date, although still in force and, indeed, referred to in continuing substantive provisions such as s 30(4), s 202 was excluded from subsequent consolidated versions of the Act in reliance on ss 114 and 116 of the Legislation Act. No doubt there is a purpose to be served by excluding, from a consolidated version of an Act, provisions that are still operative and that have an ongoing impact on the core provisions of the Act, but that purpose is not clear to me.

Because at the commencement of the WR Act 2007 Mr O’Donnell had a post-December 1998 lease but did not have a bore licence, there was after that commencement no scope for him to obtain a water allocation that would have permitted the grant of a bore licence.

Previous legal proceedings

On 13 November 2008, Mr O’Donnell sought review of the EPA direction by the ACT Administrative Appeals Tribunal (AAT). The AAT stayed that part of the EPA direction that required the bore to be sealed off, but the requirement to disconnect the electricity supply remained in force and was apparently complied with. Counsel for Mr O’Donnell noted that the bore is still in existence but is not currently usable.

Review by ACAT

Before Mr O’Donnell’s challenge to the EPA direction could be heard by the AAT, the relevant jurisdiction was conferred on ACAT by the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). At the ACAT hearing in August 2009, Mr O’Donnell sought a review of a deemed refusal of the application to the EPA for a licence to take water that, he said, was made in June (or July) 2003 and was not processed properly. Mr O’Donnell further said that if that application had been processed it would inevitably have been approved. He contended that, because of his 2003 application under the WR Act 1998, the EPA had acted incorrectly in purporting to issue the direction to cap the bore under the WR Act 2007.

On 4 February 2010, ACAT rejected Mr O’Donnell’s challenge and confirmed the EPA direction.

In evidence before ACAT, Mr O’Donnell acknowledged that he had been using the unlicensed bore, and had wanted to continue to use it “until all legal processes were exhausted”, but ACAT noted (at [64]) that he had not instituted any legal processes or even followed up the status of his application to the EPA.

As to the legal position, ACAT expressed the following views:

(a) that an application that is not accompanied by a fee is not a valid application (at [60]);
(b) that Mr O’Donnell’s application in October 2003, having been “begun” under the WR Act 1998 as it applied at that point, gave him “an existing right to water ... as if the amendment and repeal of the WRA 1998 had not happened” (at [76]), and (at [81]) that this was “a substantive right” that:
falls squarely within the category of rights protected by s 84 of the Legislation Act and the Esber principle. In the Tribunal’s view the applicant held a right that was preserved by s 84 of the Legislation Act, therefore the suspension of the power to grant licences imposed by s 63A of the WRA 1998 would not have applied to the 2003 application.

(c) at [83] that:
The essence of the applicant’s pre-existing right that attracted the operation of s 84 of the Legislation Act and the Esber principle was his status as a holder of the First Crown Lease, a pre-1998 Crown Lease. These rights were preserved by s 13 of the WRA 1998 Act and maintained by s 110 of the WRA 2007.

(d) that the pre-existing right so arising was surrendered by Mr O’Donnell when he surrendered his old lease and accepted the new lease (at [83]);
(e) that, having lost the protection of the old lease, and being subject to s 172C which meant that the new lease did not include the right to use ground water, Mr O’Donnell’s claim for a licence fell to be determined under the then operative WR Act 2007, and under s 35(8) of that Act no licence could be granted (at [85]–[87]).

ACAT concluded that since Mr O’Donnell had no prospect of obtaining a bore licence, and the requirements for a direction under s 76 of the WR Act 2007 had been satisfied (at [95]), the decision under review, to direct Mr O’Donnell to cap his bore, should be confirmed. ACAT’s implied conclusion, that the EPA’s decision to direct Mr O’Donnell to cap his bore was in the circumstances a proper exercise of its discretion, has not been challenged.

ACAT’s reasoning can be summarised as follows:

(a)   an application was made in October 2003, but no application fee was paid;
(b)     the application was therefore not valid;
(c)   the application nevertheless gave Mr O’Donnell a substantive right to water, arising from his status as the holder of a pre-1998 Crown lease;
(d) that right was protected, by section 84 of the Legislation Act, from the impact of s 63A of the WR Act 1998;
(e)   that right was lost when Mr O’Donnell received a new Crown lease without a ground water entitlement;
(f)   the loss of that right subjected Mr O’Donnell to the new WR Act 2007, under which there was no scope for him to obtain a bore licence;
(g) therefore, since the requirements under s 76 of the WR Act 2007 were satisfied, Mr O’Donnell could be directed to cap his bore;
(h)   by implication, there was no error in the exercise of the discretion to give such a direction, and, explicitly, the direction should be confirmed.

Appeal to ACAT Appeal Division

Mr O’Donnell appealed from ACAT’s decision. His appeal was heard by the Appeal President, and on 11 August 2010 the appeal was dismissed.

Under s 79(3) of the ACAT Act, the internal appeal from an ACAT decision is an appeal on a question of fact or law. Under s 82, an appeal tribunal may “deal with an appeal” as a new application or as a review of all or part of the original decision. It is hard to see what purpose is served by requiring the appeal to be “on a question of fact or law” if the appeal process may then be conducted, “as the tribunal considers appropriate”, as either a hearing de novo or a rehearing. The significance of these various forms of appeal was discussed in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (Turnbull) and approved in Lacey v Attorney-General of Queensland [2011] HCA 10 (Lacey) at [57]. Having regard to issues raised later in this judgment, it is useful to set out the explanations provided in those cases.

In Turnbull, Glass JA said at 297C to 298A:

Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below. Graded in ascending order, in accordance with the width of the corrective power exercised by the appeal court, they are as follows: (a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.
(b) Appeals on questions of law only, e.g. from the Workers’ Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.
(c) Appeals after a trial before judge and jury. The result below will be disturbed if the judge fell into error of law, or if the jury’s errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.
(d) Appeals from a judge in the strict sense, e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan.
(e) Appeals from a judge by way of rehearing, e.g. appeals under s. 75a of the Supreme Court Act1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey; Edwards v Noble.
(f) Appeals involving a hearing de novo, e.g. appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Sweeney v Fitzhardinge . (emphasis in original, citations omitted)

In Lacey, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [57] that “Appeals being creatures of statute, no taxonomy is likely to be exhaustive”, footnoting Glass JA’s remarks set out above as a “useful list of processes loosely designated ‘appeals’”. Their Honours went on:

Subject to that caveat, relevant classes of appeal for present purposes are:
1.Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2.Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3.Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance. (citations omitted)

The Appeal President does not appear to have required the appellant to identify any question of fact or law in the appeal papers.

Nor did he explicitly advert to the nature of the appeal. The transcript of the hearing before him suggests that the Appeal President conducted a rehearing, at which there were no challenges to the factual findings of ACAT at first instance and no discussion of questions of law, but a series of challenges based on what were said to be errors by ACAT in its approach to the matter. The Appeal President in his reasons for confirming the original ACAT decision seems to have accepted the factual findings made at first instance, but made a series of comments about the evidence and findings as dealt with in the original decision (some of which could suggest an appeal de novo process). For instance, he:

(a)    noted at [5] that the ACAT finding of an application made on 17 October 2003 was not disputed;
(b)   at [19], expressed “grave doubts” about whether Mr O’Donnell had sent a cheque, noting that, if he had, it had not been cashed, and that it could have been (but was not) cancelled and replaced;
(c)    at [11], noted Mr O’Donnell’s unexplained surrender of his old lease and the fact that his new lease, like other recent ones, did not include any right in respect of ground water available from the leased land and (at [19]) described the effect of the new lease as “effectively [cancelling] any rights [Mr O’Donnell] would have to extract ground water or to get a licence”;
(d)   at [12], found that, as at 17 October 2003, Mr O’Donnell had to have a licence and had “a legal entitlement to seek a licence”, and that, if he had applied for a licence in June 2003, would have been granted one;
(e)   at [13], said that there was no evidence before him as to why Drs Rashleigh and Cutter received bore licences after Mr O’Donnell’s application was made but not acted on, but that it was “as a result of the action they took”;
(f)   at [15], interpreted the sending of the January 2007 letter as showing that Mr O’Donnell’s application was still current and had not been dismissed out of hand, and mentioned that a failure to make a decision (as he found was the case) would have justified an AAT application for review;
(g)   at [20], noted that Mr O’Donnell took no action after the sending of the January 2007 letter;
(h)   commented on the failure of the EPA (referred to throughout the Appeal President’s reasons as “the Department”) to advise Mr O’Donnell that they had not received his cheque, saying at [21] and [22]:
21.       ... Common courtesy and good business practice, however, would indicate that a government department could at least indicate to an applicant that “you have not sent us any money, please send us the money so that we can process your application” and matters would go from there. This was not done.
22.       Perhaps it was not done because at the time Mr O’Donnell was adamant that he had sent a cheque, and when the Department could not find that for whatever reason they took no further action. May be it was because Mr O’Donnell himself was not pushing the issue any further. I simply do not know. I do think that the Department should have indicated to him that they did not have any cheque, and that he needed to send a new one for his application to proceed further. That was not done. On the view I have taken, the law entitled him at least to make an application and have it considered as at October 2003.

(i) referred to submissions about whether the EPA was obliged to act on an application lodged without the required payment, and said at [24]:
That certainly on a cold interpretation of the law was a justification for the Department doing nothing and would support an argument legally they did not have to do anything with an application that was not accompanied by a cheque or some money order. Natural justice may however indicate that the Department could at least have contacted someone who fails to send the required payment.

(j) found at [25] that, by his own inaction at various points, Mr O’Donnell “has brought the situation on himself”.
(k) noted at [28] that, since the EPA did not have a statutory responsibility to do anything more than it did, Mr O’Donnell could not rely on the fact that the EPA should have done something but didn’t, but then at [29] said:
Natural justice does indicate the government Department should have taken additional steps as I indicated above, but they did not.

(l) commented again at [30] on Mr O’Donnell’s inexplicable failure to provide a new cheque, but said at [31]:
Both parties could have done this better in the days after the 17^th of October 2003. Whilst the Department has some justification at law in not taking it further because there was no cheque, they should not be totally excused for doing so. Mr O’Donnell certainly should have taken further action as indicated above. The actions, or rather inactions, of both the Department and Mr O’Donnell tend to cancel themselves out. Had Mr O’Donnell done a little bit more, I would have great sympathy for his plight. However, him not doing so and then as a result of him in 2006 getting a new lease he killed off his right as of that date to access the water under his property.

(m) noted at [34] and [35] the reliance by counsel for Mr O’Donnell on the January 2007 letter and the fact that Mr O’Donnell was not put on a waiting list, allegedly unlike a number of others, but again (at [37] and [38]) referred to Mr O’Donnell’s responsibility for his own lack of action, concluding that:
[Mr O’Donnell’s] own inaction ... takes him out of the category of persons who could feel justifiably aggrieved as a result of an action, in this case inaction, by a government department to his detriment, and he has very much brought this situation on himself. The Department’s decision to cap the bore, I find in the circumstances to be a reasonable one.

(n) finally, at [41]:
(i)noted “the law as it now stands, public policy, the need to conserve water and the fact that we are going through, if not climate change, a very significant bad drought”;
(ii)said that accordingly, even if the original decision were to be overturned, Mr O’Donnell’s only remedy might be damages;
(iii)noted that any damages “would have to be weighed against the fact that he has enjoyed the benefits of the bore up until June 2008” and would need to be assessed on the basis that Mr O’Donnell did not properly prosecute his own rights; and
(iv)in those circumstances, concluded that “It is not something in my view that the Department alone should have to wear”.

The Appeal President’s reasoning process is not as easily identified as that of ACAT at first instance. However, he did focus on two matters in particular, being the events of 2003, and the lack of action on both sides from October 2003 until 2008, when the EPA again looked carefully at Mr O’Donnell’s use of his bore and eventually directed him to cap it. While suggesting that the EPA could appropriately have taken more action to advise Mr O’Donnell about its view of the status of his 2003 bore licence application and his failure to pay the application fee, the Appeal President concluded that Mr O’Donnell had brought the situation on himself by his inaction in pursuing the rights he had in 2003 until those rights were “killed off” by the acceptance of a new lease without ground water rights.

It is implicit in the Appeal President’s comments about the new lease that he accepted that s 172C of the LPE Act was effective to deprive Mr O’Donnell of any entitlement under the new lease to take ground water from the leased land. His comment that by not pursuing after 2003 the rights that the Appeal President considered Mr O’Donnell had retained from that point, and then by getting a new lease, Mr O’Donnell had “killed off his right as of that date to access the water under his property” seems to be a finding that the new lease not only came without ground water rights but was also effective to bring to an end whatever rights Mr O’Donnell had acquired in 2003.

It is not clear what the Appeal President considered was the source of the rights that, in his view, Mr O’Donnell had acquired in 2003 but lost in 2006. He found that in October 2003 Mr O’Donnell had “a legal entitlement to seek a licence”, and that his application was still current in January 2007 when the EPA sent the letter quoted from at [14] above. However, the Appeal President did not identify the nature of the right or entitlement. Nor did he address either the effect of the moratorium provisions enacted in September 2005 on that right or entitlement, or the effect on those provisions of the savings provision in s 84 of the Legislation Act.

The Appeal President’s reasoning, although expressed differently, appears to reflect that of ACAT at first instance. That is, he apparently assumed (rather than found) a right arising out of Mr O’Donnell’s 2003 application that survived the enactment of the moratorium provisions (presumably with the help of s 84 of the Legislation Act), but then found explicitly that the right was “killed off” by the acceptance of a new lease with no ground water rights.

Comment on ACAT decisions

There is a curious aspect to the approach taken in ACAT at both levels. There is no doubt that, under the legislation as in force in 2008, Mr O’Donnell could not have been issued a bore licence for the land subject to the Crown lease that he then held (at [25] to [38] above). However, if Mr O’Donnell had acquired any kind of substantive right from the events of 2003, and if that right had survived the moratorium provisions and could have survived the subsequent replacement of the WR Act 1998 by the WR Act 2007, then it is hard to see why as a matter of law the right should have been “killed off”, apparently inadvertently, by Mr O’Donnell’s own dealings with his Crown lease. The only aspect of the decisions that seems to make sense of this approach is the explicit finding by ACAT at first instance, and the apparent assumption by the Appeal President, that Mr O’Donnell’s rights came from his status as the holder of a pre-December 1998 Crown lease.

The nature of the right relied on by ACAT at both levels that flowed from Mr O’Donnell’s status as a lease holder was not explained by ACAT in either proceeding, and is not clear to me. In particular it is not clear how a right that was apparently an incident of a Crown lease can be described in this hearing, by Mr O’Donnell’s counsel, as a right that has survived the surrender of the relevant Crown lease and now entitles Mr O’Donnell to have the October 2003 licence application determined according to the law in force in October 2003 (but not, apparently, according to the circumstances affecting the Lake Burley Griffin aquifer at that point). In general terms, the appeal that is before me seems to rely on maintaining most of the ACAT findings (that Mr O’Donnell held rights that stemmed from his status as the holder of a pre-December 1998 lease and survived amendments of the WR Act 1998), but not the one finding that is unfavourable to Mr O’Donnell (that his voluntary surrender of the pre-December 1998 lease deprived him of the rights attached to that lease), despite the fact that the “favourable” ACAT findings, if accepted, seem to lead inexorably to the unfavourable finding.

Appeal to Supreme Court

The appellant’s appeal to the Supreme Court was brought under s 86 of the ACAT Act, which is set out in the Appendix to this judgment. An appeal in a case of this kind lies from the Appeal Division of ACAT to the Supreme Court “on a question of fact or law” (s 86(1)), but such an appeal can only be brought with leave (s 86(3)). There may be a view, not supported by the words of s 86 but implicit in the drafting of Forms 5.2 and 5.4 (at [67]-[68] below), that the identification of a question is only relevant to the application for leave but not to the conduct of the appeal once leave has been given. As discussed at [69] below, I consider that any such view would be wrong.

The initiation of the appeal

The steps in bringing this appeal were somewhat unorthodox.

The ACAT Appeal Division decision was given on 11 August 2010. A notice of appeal (setting out grounds that would have been appropriate for an error-based appeal) was filed on 3 September 2010.

As a result of an approach by the respondent, to Mr O’Donnell’s solicitor, the solicitor realised that leave to appeal was needed. On 21 September 2010 the solicitor, Rod Barnett, filed what was described as an application for “leave to seek leave to appeal out of time” but might more accurately have been described as an application for leave to apply out of time for leave to appeal. That application was accompanied by an affidavit from Mr Barnett which set out what were described as the questions “involved in this appeal” (at [80] below).

On 1 October 2010, the Master made consent orders that cleared the way for the appeal to proceed. The draft orders attached to the bench sheet and the sealed orders taken out by the appellant are inconsistent, and neither of the sets of orders makes much sense, in that neither document distinguishes properly between the quite separate requirements for leave to pursue the appeal out of time and for leave to appeal under the ACAT Act. The sealed orders give “leave to seek leave to appeal out of time” (which was presumably intended as “leave to seek, out of time, leave to appeal”) (Order 1) but then also order that the application “for leave to appeal out of time” be heard with the appeal (Order 3). If Order 1 was intended to permit the appeal to be pursued out of time, then the reference in Order 3 to leave to appeal out of time is incorrect.

Despite these problems, the later orders for preparation of the appeal book index were apparently complied with and in due course the appeal was listed for hearing.

Appeal on a question of fact or law

The effect of a provision permitting an appeal “on a question of fact or law”, by comparison with a provision providing an appeal as of right or a provision permitting only an appeal “on a question of law”, was not argued in any depth.

Counsel for the respondent referred me to Federal Court authority about appeals limited to “questions of law”, and noted in passing, in written submissions, that, since an appeal “on a question of law” requires a “pure” question of law (David Harold Eastman v Commissioner for Social Housing [2011] ACTCA 12 (Eastman v CSH) at [61]), an appeal on a question of fact presumably requires the identification of a “discrete question of fact”. He did not pursue this issue in argument, and nor was it taken up by the appellant, so I express no view about whether an appeal available on “a question of fact or law” requires the identification of a “pure” question (either of fact or law), or encompasses what is sometimes described as a “mixed question of fact and law”.

Counsel for the appellant expressed the view that an appeal on a question of law was effectively the same as an appeal based on an error of law. This does not seem to be correct as a matter of principle, nor in relation to the powers available to the appeal court on each kind of appeal (Turnbull; Lacey). Counsel’s view may reflect the practical position as to the circumstances that would found an appeal limited to a question of law, in that a question of law on which an appeal is based is unlikely to justify a grant of leave unless the appellant asserts that the primary decision-maker erred in his or her approach to a legal issue and, in general terms, that the error made a difference to the ultimate result (see Lander J’s comments quoted at [77] below).

The view of counsel for the appellant is also reflected in the forms approved under the Court Procedures Rules 2006 (ACT). Form 5.4, the form applying generally for giving notice of appeal to the Supreme Court, requires the appellant to:

state briefly, but specifically, the grounds relied on in support of the appeal, including, in particular, any grounds on which it is claimed that there is an error of law in the order appealed from

That is, there is no allusion to the various appeals, in particular from ACAT, that are specified to be on a question of law or on a question of fact or law. Form 5.2, which is the form for an application for leave to appeal, must be accompanied by an affidavit, and r 5071 requires the affidavit to set out, among other things, “the questions involved”; the implication seems to be that, once leave to appeal is dealt with (which may in some cases happen separately from the appeal hearing), there is no further significance in the questions of fact or law identified in connection with the application for leave to appeal.

It may be unfortunate that the generic forms that have so far been approved under the Court Procedures Rules do not distinguish among the various kinds of appeals that are created by ACT legislation and, that, as noted in general terms by the High Court in Lacey at [57], only exist as a result of legislation. However, I cannot see that an inappropriately generic approach to an approved form can turn an appeal on a question of fact or law into an error-based appeal, or indeed into an appeal de novo in which the appeal court effectively starts again and makes an entirely new decision irrespective of the evidence available to, or reasoning of, the original decision-maker.

Furthermore, it seems highly unlikely to me that the legislature, in enacting the ACAT Act, really intended to provide four levels of error-based review for an administrative decision of the kind reviewable by ACAT. That would be the effect if s 86 (at [58] above) is interpreted as requiring a question of fact or law to be identified only as part of the application for leave to appeal to the Supreme Court, and as permitting an appeal to the Supreme Court for which leave is granted to be heard as an error-based appeal. On that basis, the administrative decision could be reconsidered by ACAT at first instance, by ACAT in its appeal jurisdiction, by the Supreme Court, and then by the Court of Appeal, all on the basis of factual or legal error – three more substantive reconsiderations than are available to a person convicted of murder in the Supreme Court.

Indeed, the explanatory material provided when the ACAT Act was enacted indirectly confirms my view that the ACAT Act was not intended to provide a broad right of appeal to the Supreme Court. The Explanatory Statement for the ACT Civil and Administrative Tribunal Bill (at 2), and the Attorney-General in the Legislative Assembly (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 8 May 2008, 1579, Simon Corbell, Attorney-General), respectively emphasised the importance of the internal review structure included in the new tribunal as a contributor to “fast effective decision making” and to “reduc[ing] the incidence of appeals to the Supreme Court”..

For these reasons, I consider that an appeal on a question of law (or indeed on a question of fact) is properly pursued by identifying the question concerned rather than simply by pointing to errors made by the decision-maker.

In Eastman v CSH, the Court of Appeal (Gray P, Penfold and Katzmann JJ) described Mr Eastman’s application to the Master as follows:

40.At the time of the proceedings before the Master, s 125 of the Residential Tenancies Act then provided that appeals from the tribunal could only be brought by leave and were limited to questions of law.
41.On 4 June 2007 Mr Eastman applied for leave to appeal and filed a draft notice of appeal. In the draft notice of appeal he pleaded:
[T]he Tribunal erred in law in:
(a)holding that an undertaking given by the Respondent’s delegate on 5-9-00 did not give rise to an estoppel; and
(b)failing to exercise its discretion under sect. 47 of the Residential Tenancies Act 1997, either by dismissing the Respondent’s application, or by granting it subject to a refund of rent paid since 5-9-00.

42.Despite the way the grounds were formulated in the draft notice of appeal, in the application for leave the questions of law were put as follows:
1.Whether the respondent’s delegate created an estoppel on 5 September 2000.
2.Whether the Tribunal failed to exercise a discretion in the appellant’s favour in circumstances where no reasonable person could have failed to exercise it.

43.The Master observed that the Court would ordinarily expect the question of law to be clearly stated in the draft notice of appeal but acknowledged that, where the applicant is unrepresented, “a little more flexibility” was appropriate.

I agree with the Master’s view about the need to state the relevant questions of law in the draft notice of appeal, and note that expecting that to be done is more justified in a proceeding such as this one, conducted not by an unrepresented litigant but by experienced solicitors and counsel. However, given the deficiencies in the approved forms for this kind of appeal that I have already mentioned at [67] and [68] above, it may be unfair to be too critical even of legal practitioners.

The effect of Forms 5.2 and 5.4 is to separate the affidavit setting out the question of law or fact relied on in an application for leave to appeal from the notice of appeal itself. If leave to appeal is granted in advance, rather than being deferred to be dealt with at the same time as the appeal, the affidavit setting out the question of law or fact may be overlooked in preparation of the Appeal Book. In this case, which was further complicated by the need for leave to appeal out of time, the Appeal Book contained the original notice of appeal setting out error-based appeal grounds, and the application for “leave to seek leave to appeal out of time”, but not the accompanying affidavit which set out the only attempt to formulate the questions of law relied on to give jurisdiction for the appeal. The scope for the question set out in the application for leave to appeal to be seen as no longer relevant when the appeal itself is heard may explain the appellant’s failure in this case to focus on the two questions set out in his affidavit.

Whether leave to appeal should be given

Counsel referred me to the well-settled test for the giving of leave to appeal from an interlocutory decision, being a test involving sufficient doubt and possible injustice, as reflected, for instance, in the recent comments of the Court of Appeal in Preston v Dukes [2012] ACTCA 29 at [14], as follows:

The ordinary principles that govern a grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231[29], namely an applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from a refusal of leave to appeal.

However, in Eastman v CSH, the Court of Appeal had indicated agreement with the views of Lander J in the decision under appeal, David Harold Eastman v Commissioner For Social Housing [2010] ACTSC 71 that different criteria are applicable where leave is required not for an appeal from an interlocutory decision but as a pre-requisite to the exercise of a statutorily-limited appeal right, saying:

57.Here, taking up the Master’s inaccurate paraphrase of the principles in Niemann, [Lander J] said that whether a decision of the tribunal were attended by doubt or the applicant would suffer an injustice if the decision were allowed to stand were not relevant considerations on an application for leave to appeal under s 125 of the Residential Tenancies Act. His Honour stated (at [67]):
The statutory criterion for an application under s 125 which must be made out is whether the applicant can identify a question of law. To obtain leave the applicant also needs to show at least an arguable case that the Tribunal erred in its consideration of that question of law. Finally, an applicant needs to show that if the question of law were determined in the manner contended for by the applicant the decision of the Tribunal might have been different in the sense that it might have been more favourable to the applicant: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 353 and Toohey and Gaudron JJ at 384 in dealing with an “error of law”.
58.The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error [sic] would have been more favourable to him or her. Otherwise, it would be futile to grant leave. We are not convinced that whether the applicant would suffer a substantial injustice if the decision were allowed to stand is irrelevant but, absent an arguable case, it will certainly not justify a grant of leave. Nothing in Niemann suggests otherwise. We did not, however, hear full argument on this question and it is unnecessary to resolve it in this case. On either approach, for the reasons which follow, Mr Eastman must fail.

Relying on the Court of Appeal’s comments, the matters I need to consider in deciding whether to give leave to appeal as a pre-requisite to the exercise of a statutorily-limited appeal right are:

(a)   whether a question of fact or law has been identified;
(b)     whether there is at least an arguable case that the Appeal President erred in his resolution of that question; and
(c)   whether the correct resolution of that question would be more favourable to the appellant.

Was there a question of fact or law on which to appeal?

Questions of fact?

At no stage has there been any challenge to any finding of fact made by ACAT, and there was no question of fact raised before me.

Questions of law?

As mentioned at [61] above, Mr Barnett’s affidavit attached to his application encompassing both leave to appeal and leave to appeal out of time set out two “questions involved in this appeal”, as follows:

a.The proper construction of s 172C of the Land (Planning and Environment) Act1991 (ACT);
b.Whether the Appeals President otherwise erred in disallowing the appeal in accordance with the draft Notice of Appeal.

The first question framed on behalf of Mr O’Donnell, and also implicit in several of his “appeal grounds”, relates to the operation of s 172C of the LPE Act and its impact on Mr O’Donnell’s rights in relation to his bore and whether he should be required to cap it.

Construction of s 172C

The proper construction of s 172C may be a matter of law rather than a matter of fact, but, as explained in Comcare v Etheridge [2006] FCAFC 27 (Comcare), that does not necessarily render it a “question of law” for the purposes of a statutory provision in the nature of s 86. In Comcare, Branson J (with whom Spender and Nicholson JJ agreed) dealt with an appeal from a decision of the Commonwealth Administrative Appeals Tribunal, which was available “on a question of law” (s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). Her Honour considered a question framed as “The construction and operation of ... s 9 (1) of the Commonwealth Employees’ Compensation Act1930” and said at [19] that:

A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act.

Her Honour explained that constitutional limits on the Federal Court’s jurisdiction also required the scope of a “question of law” to be confined, but did not suggest that this was the central reason for requiring “questions of law” to be carefully defined.

Branson J then went on to identify questions of law which her Honour said could “be understood to be raised by” the notices of appeal in that case, and which, having been the subject of submissions, could appropriately be answered (at [31]). Similarly, it is appropriate in this case to address any question of law that can be extracted from a combination of the fairly confused Notice of Appeal and Mr Barnett’s affidavit, and that was in fact argued at the hearing.

The first “question” set out in Mr Barnett’s affidavit, relating to s 172C of the LPE Act, is fairly described as a “broad inquiry as to the construction and operation of” a statutory provision but, having regard also to the “grounds of appeal” stated in the Notice of Appeal, that question could be formulated as follows:

Under s 172C, what was the effect of the issue of a new Crown lease on rights, if any, held before the issue of that lease in respect of a pre-existing (2003) bore licence application?

What were Mr O’Donnell’s rights before he surrendered his old Crown lease?

Fundamental to this appeal are the claims that:

(a) at some point before the start of the moratorium implemented by ss 63A and 63B of the WR Act 1998, Mr O’Donnell had, or acquired, some kind of right;
(b) the right was in some way preserved despite subsequent changes to the law and the replacement of his lease; and
(c) the preserved right now entitles him not to a bore licence (which Mr O’Donnell seems to concede is not available) but to avoid complying with the EPA’s direction to cap his bore.

I have found it difficult to get a coherent description or explanation of that right; the logical connection between that right and the claimed right to resist the direction to cap the bore is also not easy to pin down.

As already noted at [43] above, ACAT focused on Mr O’Donnell’s status as “a holder of the [old] Crown Lease”, but without explaining what kind of right attached to that status, or to the lease, as a result of the application for the bore licence.

In written submissions, counsel for Mr O’Donnell described the right as “the right to a chance that upon proper consideration the Respondent would have granted a licence based upon the October 2003 application prior to September 2006”; at the hearing he said that Mr O’Donnell’s “accrued and preserved” right was a “bundle of substantive rights” to have his application for a licence “determined according to the law as it stood on 17 October 2003”, or a right “to have the 2003 application based on the pre-’98 lease determined according to the law that existed at the time it was made” .

As already mentioned, however, Mr O’Donnell does not now say that the appropriate remedy is for his 2003 application to be considered and determined according to the law in force at the relevant time in 2003. Rather, the expectation seems to be that a finding that Mr O’Donnell did once have such a right would provide a basis for precluding the EPA from exercising its discretionary power to direct Mr O’Donnell to cap the bore. The apparent basis for that expectation is discussed at [166] to [173] below.

Operation of s 172C

When Mr O’Donnell surrendered his old lease and accepted a new one in September 2006, s 172C of the LPE Act was as follows:

172C No right to use, flow and control of water
A lease or further lease of territory land granted under this division after the commencement of this section must not be taken to give a right to the use, flow and control of water (including water containing impurities) under the land the subject of the lease.

It is not disputed that s 172C applied to the lease granted to Mr O’Donnell in September 2006. Mr O’Donnell’s argument centres on the effect of s 172C on the right found by ACAT at first instance to have existed in Mr O’Donnell’s favour before the surrender of the lease; ACAT at first instance referred to Mr O’Donnell’s submission to ACAT that he had “an existing right to water”, but it is not clear whether that description was adopted by ACAT itself (at [76] to [77] of ACAT’s reasons).

Mr O’Donnell says that s 172C did not and does not have any impact on the right arising from the 2003 application. He further says that the Appeal President did not consider and interpret s 172C, and failed to address the significance of s 172C or to give reasons for whatever conclusion he reached on the issue.

The wording of the provision, that the leases in question “must not be taken to give” the relevant rights, rather than that they do not confer or carry those rights, is slightly curious, but it was not argued before me that the exact form of those words was significant. Apart from that, the effect of s 172C in excluding the possibility of a lease granted after the commencement of the section giving a right to extract ground water under the leased land is for present purposes clear. That effect is that holding the lease does not give the lessee a right to extract ground water from under the land.

Nor is there any basis in the words of s 172C for suggesting that it does not apply to lessees whose leases have been issued on surrender of earlier leases that did carry ground water rights, and that such surrendered rights endure in respect of the leased land. If there is a basis in the broader operation of the Act or elsewhere for finding such a meaning in s 172C, it has not been brought to my attention.

Section 172C does not as far as I can see make any positive statement about anything relevant; most significantly, it does not make any statement about what rights in relation to ground water might be held by a leaseholder (or indeed anyone else) under some completely separate scheme providing licences or another basis on which ground water could be extracted.

Thus, the answer to the question posed at [85] above, relating to whether s 172C had any impact on the effect of the new Crown lease on whatever rights Mr O’Donnell held as a result of his 2003 licence application, seems to be that s 172C as such had no impact on any rights arising from the 2003 licence application. It is apparent that, under s 172C, leases granted after the section commenced do not include a right in relation to ground water such as the right that attached to older leases, and that, because of other legislation in force, this excludes holders of new leases from certain water access arrangements in place in the ACT, but it cannot be said that the effect of s 172C was to deprive the holder of an old lease of any right in relation to water access; all it did was to exclude one particular kind of right from the rights attached to a new lease.

I cannot identify any genuinely arguable proposition about the effect of s 172C that would affect any of Mr O’Donnell’s possible rights in relation to water access, or that would make any difference to Mr O’Donnell’s prospects of success in his dispute with the EPA.

Other questions of law raised by appellant

The second “question” set out in Mr Barnett’s affidavit was expressed as:

Whether the Appeals President otherwise erred in disallowing the appeal in accordance with the draft Notice of Appeal.

The grounds on which the Appeal President was said to have fallen into error were set out in the Notice of Appeal, as follows:

i)Failed to consider or deal with the Appellant’s central argument to the effect that the Tribunal at first instance had misconstrued or misinterpreted the meaning and effect of s 172C of the Land (Planning and Environment) Act 1991;
ii)Alternatively, impermissibly failed to expose any or any adequate process of reasoning by which he could properly have found against the Appellant’s arguments to the effect that the Tribunal at first instance had misconstrued or misinterpreted the meaning and effect of s 172C of the Land (Planning and Environment) Act 1991;
iii)Alternatively, impermissibly placed weight upon the actions of the Appellant in the period between 17 October 2003 and June 2008 in circumstances in which the actions of the Appellant could not affect the legal disposition of the appeal;
iv)Having found that the Respondent denied the Appellant natural justice, failed to find that the decision of the Respondent under challenge ought to be set aside;
v)found that the substantive rights held by the appellant were lost by reason of the grant to the Appellant of a fresh Crown lease in September 2006, when at that time the application that had been made by the Appellant to the Respondent in October 2003 remained unassessed and/or the subject of no proper consideration by the Respondent.

At no stage, despite my invitation to do so, did counsel for Mr O’Donnell seek to frame any of these grounds as a question of law, or to identify any further questions of law.

Section 172C again

On analysis, most of the appeal grounds raise the operation of s 172C in relation to Mr O’Donnell’s bore (grounds (i), (ii) and (v)). As far as the question about s 172C is concerned, it is the answer itself that could have been significant, not (despite the framing of the appeal grounds) the circumstances or manner in which the Appeal President might have reached the wrong answer. For this reason, I do not propose to address the submissions made about the obligations of a tribunal member to give reasons for his or her decisions.

Appeal President’s conduct of the appeal

The other two grounds of appeal (grounds (iii) and (iv)) seem to relate directly to how the Appeal President exercised his discretion in dealing on appeal with Mr O’Donnell’s challenge to the original EPA direction.

Significance of Mr O’Donnell’s actions

Appeal ground (iii), that the Appeal President “impermissibly placed weight upon the actions of the Appellant in the period between 17 October 2003 and June 2008 in circumstances in which the actions of the Appellant could not affect the legal disposition of the appeal”, presumably reflects the Appeal President’s undoubted focus on Mr O’Donnell’s actions (or inactions, as the Appeal President noted) between 2003 and 2008. The questions emerging from this appeal ground are whether Mr O’Donnell’s actions during the specified period were irrelevant to the appeal, and whether, if so, the Appeal President’s focus on them made any difference to the outcome of the appeal. It may be true that, if Mr O’Donnell had in 2003 acquired a useful legal right, a failure to enforce that right over nearly five years, in the context of similar inaction by the EPA, would not necessarily have disentitled him from seeking to enforce that right at the end of the five years.

However, my reading of both the original ACAT decision and the Appeal President’s decision is that, in each case, the basis of the decision against Mr O’Donnell was that whatever rights he might have acquired in 2003 (as a result of lodging an application form with the EPA) were effectively abandoned when, during the period specified in this ground of appeal, he voluntarily surrendered his Crown lease in return for a new lease with no rights to ground water. I cannot see that the positive action of obtaining a replacement lease, a legal action with significant legal consequences, could or should have been disregarded in considering Mr O’Donnell’s legal position thereafter. In any case, to the extent that the matter came to ACAT as a challenge to the EPA’s exercise of a discretion, I cannot see that Mr O’Donnell’s general dealings with the EPA about a related matter in the previous few years were necessarily irrelevant.

The Appeal President may have placed undue emphasis in his reasons on the failures to act, by both Mr O’Donnell and the EPA, in the five years concerned, but I cannot see that this affected his decision or the legal grounds for it. Nor can I see what direction could properly be given to ACAT about the general significance of Mr O’Donnell’s actions that would be likely to produce a different result in a further ACAT hearing in respect of the EPA direction to cap the bore.

Breach of natural justice

Appeal ground (iv) is that the Appeal President, “[h]aving found that the Respondent denied the Appellant natural justice, failed to find that the decision of the Respondent under challenge ought to be set aside”.

The claim that the Appeal President found that the EPA denied Mr O’Donnell natural justice (a claim challenged in the EPA’s notice of contention in this appeal) is based on two references in the Appeal President’s reasons about the EPA’s failure to contact Mr O’Donnell to tell him that his cheque had not been received.

At [23] of his reasons, the Appeal President discussed the significance of Mr O’Donnell’s failure to pay his application fee, and went on:

24.That certainly on a cold interpretation of the law was a justification for the Department doing nothing and would support an argument legally they did not have to do anything with an application that was not accompanied by a cheque or some money order. Natural justice may however indicate that the Department could at least have contacted someone who fails to send the required payment. With the greatest respect to the appellant’s learned counsel’s Supplementary Submission of 16 July 2010, the letter of 17 January 2007 from the respondent certainly indicated that the matter was alive, and the appellant could, and indeed should, I feel, have taken some further action then, even if it was only to formally reply to that correspondence. He did not do so. One cannot get away from the fact that there was a series of things that the applicant could have done himself and should have done himself.
25.One has to wonder why he was inactive from the 17 ^th of October 2003 until June 2008. It would seem fairly clear to me that he was continuing to access the bore. Perhaps we can speculate that he did not take any further action because he was getting all the water he needed from the bore without a licence and that it was only when the Department got its act together and chased him up in June 2008 that he took action. In many ways, I find the appellant has brought the situation on himself.

...
28.Government departments are not 100% efficient. Government departments make errors. Government departments can get very slack at times. People lose files. It is common practice for citizens to have to chase up government departments which are less than totally competent in terms of processing matters before them. I feel Mr O Donnell has to take some responsibility for his lack of action here. He cannot rely on the fact that the Department should have done something and the Department did not, as the Department does not have a statutory duty to do anything more than it did because it could not find his application fee. It told him it did not have his application fee. There is no evidence that the application fee was ever received by the Department. The statute law is quite clear on that.
29.Natural justice does indicate the government Department should have taken additional steps as I indicated above, but they did not. Had Mr O Donnell chased this up and had the Department fobbed him off or been inactive after he made some further attempts to attend to this matter, then I think the Department would have a very real problem here. For example, had Mr O Donnell followed up his conversation of the 17^th of October insisting that he had paid his fee, insisting that the Department check this again, and insisting that they get back to him, and if the Department did not, then he would be on a lot stronger ground. (emphasis added)

“Natural justice” as a legal concept is often used interchangeably with “procedural fairness”, which is now generally the preferred term (Kioa v West (1985) 159 CLR 550 at 583, Mason J, 601, Wilson J). Salemi v MacKellar (No 2) (1977) 137 CLR 396 is often cited (eg Butt P (general ed), Butterworths Concise Australian Legal Dictionary (3rd ed, LexisNexis Butterworths, 2004) p 291) as the source for a description of natural justice as comprising:

The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision-maker, and the right to have that decision based on logically probative evidence.

The specific content of procedural fairness varies from case to case, “adapt[ing] to all of the circumstances of a particular case ... ‘chameleon-like’.” (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [190], Kirby J).

There is in my view no reason to believe that the Appeal President was using the phrase “natural justice” in any legally meaningful way. Each suggestion by the Appeal President that in accordance with natural justice the EPA should have done something more follows a statement that the EPA had no legal obligation to do anything more. I am satisfied that he used the expression “natural justice” in an entirely colloquial way to mean something like “good administrative practice” or “common courtesy”, and that he did not intend to, and did not, make a finding that Mr O’Donnell had been denied “procedural fairness” in relation to his application for a bore licence.

It is possible to imagine a case in which an agency might breach the requirements of procedural fairness by failing to advise an applicant for an official permission that the payment that constituted a necessary part of a valid application had not been received and then refusing the application because the payment had not been received. However, when the applicant is well aware that his payment has not been received and takes no steps to make a new payment, and when the applicant has already been informed that a favourable decision will not be able to be made even if the fee is paid, and, significantly, when the agency has not at any stage purported to make any decision, it is hard to see that there has been any breach of procedural fairness.

The Appeal President, like ACAT at first instance before him, assumed that Mr O’Donnell had some kind of right arising from his 2003 licence application and from his status as the holder of a pre-December 1998 Crown lease. Any “enhancement” of that right arising from whatever breach of procedural fairness could be identified would not, as far as I can see, have changed the view of the Appeal President about the effect of Mr O’Donnell’s surrender and replacement of his pre-December 1998 Crown lease.

Even if there is an arguable case that the Appeal President found that Mr O’Donnell had been denied natural justice, I am satisfied that there is no basis for finding that a denial of natural justice in the nature of that referred to by the Appeal President would, in the circumstances of this case, have affected his conclusion about the soundness of the EPA’s discretionary decision to direct Mr O’Donnell to cap his bore.

Other questions of law

Apart from the questions raised by or extractable from the appellant’s appeal papers, two other questions of law arising in this matter were argued before me. They were not raised by the appellant, presumably because in each case they were answered in his favour by ACAT at first instance and apparently by the Appeal President, but I consider it is appropriate to make some comments about them. Both are questions about what, if any, rights Mr O’Donnell had in relation to his bore before he surrendered his old lease and took up a new lease to which s 172C applied.

The two issues that could be framed as questions of law are:

(a) whether, under the relevant statutory scheme, the lodging of an application not accompanied by the prescribed fee could have given rise to any rights in the “applicant”; and
(b) whether, if any such rights did come into being, s 84 of the Legislation Act preserved them despite the imposition of the “moratorium” implemented by ss 63A and 63B of the WR Act 1998.

Effect of application without payment of fee

As noted, ACAT found at first instance that Mr O’Donnell’s application for a bore licence had been made on 17 October 2003, and that the application fee of $107 had never been paid. The questions are whether an application for which the fee has not been paid confers any kind of right on the applicant and, if it does create any kind of right, what is the nature of that right.

Both ACAT at first instance and the Appeals President found that, even in October 2003, Mr O’Donnell had not made a valid application because he had not paid the fee.

Mr O’Donnell’s claim that he had paid the fee relied on documents faxed to the EPA on 17 October 2003 that purported to show that a cheque had been written to the EPA and that it had never been cleared, leading Mr O’Donnell to claim in his covering letter of 17 October (at [7] above) that the cheque must have been lost by the EPA. ACAT at first instance declined to find that this cheque had been written, saying at [51] that:

It was submitted on behalf of the lessee that after the director had given notice (see section 3A(2)) of his intention to give a rebuilding certificate some kind of a right (even though one that might be defeated) to such certificate was then acquired by the lessee. Their Lordships cannot accept this view. After the director gave notice of his intention to issue a certificate there could have been no giving of it until certain conditions were satisfied. The lessee was under obligation to give notices as required by section 3B(1). Had there been no appeals by tenants and subtenants, and had the time for appeals expired, the director would then have been in a position to give a certificate. Had those been the circumstances then, inasmuch as the director had indicated what his intention was, doubtless he would in fact have given his certificate. But the Ordinance did not impose an obligation upon the director to give a certificate in accordance with his declared intention: it merely provided that he could not follow up his declared intention unless and until certain conditions were satisfied.

The relevant savings provision, s 10 of the Interpretation Ordinance (Hong Kong), said:

The repeal of any enactment shall not ... (c) affect any right, privilege ... acquired, accrued or incurred under any enactment so repealed; ... (e) affect any investigation ... in respect of any such right.

In considering whether the lessee had an accrued right, unaffected by the repeal, to have the petitions considered by the Governor in Council, their Lordships said at 921-922:

At the time of the repeal all the procedure under sections 3A and 3B had been followed and it can properly be said that the stage had been reached when the lessee could expect and was entitled to have the petitions and cross-petition considered in due course by the Governor in Council and to have a decision reached. Could such expectation or entitlement be regarded as a right or a privilege, either acquired or accrued, within the meaning and intendment of the Interpretation Ordinance? Or was such expectation or entitlement something that necessarily came to an end at the time of the repeal?
...
Was the lessee therefore possessed on April 9 of a “right” (or privilege) within the meaning of the Interpretation Ordinance? In their Lordships’ view the entitlement of the lessee in the period prior to April 9 to have the petitions and cross-petition considered was not such a “right”. On April 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects.

Having regard to the applicable saving provision, which their Lordships described at 922 as saying that a repeal is not to affect any investigation, legal proceeding or remedy in respect of an accrued right, their Lordships distinguished between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given, and at 922 agreed with the following observation of one of the judges constituting the intermediate appeal court, that:

It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.

Counsel for Mr O’Donnell relied on Esberv The Commonwealth (1992) 174 CLR 430 (Esber), a case involving a former defence force member who had applied to redeem his weekly compensation payments by receipt of a lump sum in lieu, but had been refused. He applied for review by the Commonwealth Administrative Appeals Tribunal, but before the review hearing took place the legislation was repealed and replaced by a new Act without the provision permitting payment of lump sums in lieu in the relevant circumstances. The new Act provided that unfinished proceedings under the repealed Act could be continued after the repeal of that Act. The High Court (Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting) held that the review should be determined in accordance with the repealed Act rather than the new Act. At 440-441 the majority said:

the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal.
...
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v The Minister [The Winbar Claim]:
“The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.”

Once the appellant lodges an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent”. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. (citations omitted)

The conclusions reached in Ho Po Sang and Esber are apposite in this case. The Ho Po Sang distinction, between the preservation of a law for the adjudication of accrued rights and the preservation of a procedure by which a person might in due course acquire a right, is echoed in the Esber distinction between a right to the correction of a decision made before the relevant repeal if the decision had been wrongly made, and the power to take advantage of an enactment.

If Mr O’Donnell had made an effective application, had had it refused or deemed to have been refused, and had applied for AAT review before s 63A was enacted, he would have had a right (expressly preserved by s 63B(8) irrespective of the operation of s 84) to have his application determined by the AAT and, if successful in the AAT, to have a licence issued. Instead, he had only, in the words of the majority in Esber, “a power to take advantage” of the WR Act 1998, or a procedure to invoke under that Act, by making an effective application under that Act. Before he did so, however, that power and that procedure were eliminated by s 63A(3)(a). There is no comfort for Mr O’Donnell in either the Ho Po Sang or the Esber decision.

Granting of licences to Drs Rashleigh and Cutter

One element of Mr O’Donnell’s argument about rights accrued and surviving is that two other applicants for licences who were initially refused licences because of problems with the aquifer (Dr Rashleigh and Dr Cutter) were subsequently granted licences. Dr Rashleigh’s application for a bore licence was made in November 2003, and the EPA refused the application on 1 December 2003 on the ground that granting the application would have an adverse effect on the environment. Dr Rashleigh applied for AAT review. That review was finalised on 7 September 2004. Dr Rashleigh then appealed to the Supreme Court, and Crispin J’s decision was handed down on 18 March 2005. That decision was appealed to the ACT Court of Appeal, and that Court handed down its decision on 18 November 2005. That is, when ss 63A and 63B of the WR Act 1998 came into effect on 1 September 2005, Dr Rashleigh’s rights were protected by s 63B(8). Although the Court of Appeal upheld the EPA’s appeal, the EPA subsequently granted Dr Rashleigh a bore licence.

Dr Cutter’s licence was granted by a consent decision of the AAT made on 2 May 2006; counsel for Mr O’Donnell noted that his AAT application had also been made before 1 September 2005 and was therefore covered by s 63B of the WR Act 1998.

These grants were mentioned on behalf of Mr O’Donnell as suggesting that the claimed problems with the ground water supply were not as serious as the EPA had suggested in 2003, but there was no argument made before me, nor any application to produce evidence, in an attempt to establish that, apart from issues related to Mr O’Donnell’s 2003 application, the EPA had incorrectly exercised its discretion to direct him to cap his bore under s 76 of the WR Act 2007. The grants to Drs Rashleigh and Cutter might have indicated that there was more water available than the EPA had claimed, or they might simply have reflected an EPA decision to take an easy way out of the two disputes (especially since, if the aquifer was in fact “fully allocated”, granting two more licences may have meant only that there was less water available for existing licence holders). On the other hand, the history of these other two applications is equally a demonstration that, at the point at which Mr O’Donnell was told that an application would not be granted, the EPA was applying its view of the law and the environmental position consistently, and that s 63B would have protected Mr O’Donnell’s interests if he had made a proper application and pursued a decision on that application, instead of assuming, as he claimed “any reasonable person would”, that “in the absence of official notification to the contrary, [his application] was most probably approved” (see Mr O’Donnell’s letter quoted at [20] above).

Furthermore, the cases of Drs Rashleigh and Cutter do not lend any support to Mr O’Donnell’s claim of preserved rights. It is not disputed that, in the absence of some kind of preserved right held by Mr O’Donnell, the EPA would not have had the power to grant him a bore licence under the WR Act 2007. If the allegedly preserved right is a right to have the October 2003 application determined by reference to the WR Act 1998 as in effect at that point, then as far as I can see it amounted to a right to have the application refused; Mr O’Donnell cannot be heard to say that the application preserved the law in his favour, but not the climatic conditions, so that he retained not a right to have the application determined in a reasonable time and therefore, in the circumstances, refused (or deemed to have been refused under s 77 of the WR Act 1998) but a right to have the application, in effect, suspended until conditions changed so as to permit the EPA to grant the bore licence that they could not have granted in October 2003. The asserted right might have been a right to have had his application refused in a reasonable time so as to enable Mr O’Donnell to appeal (a right that he could have pursued, but did not pursue, under s 77 of the WR Act 1998), but the cases of Drs Rashleigh and Cutter do not suggest that, if Mr O’Donnell had sought review of a deemed refusal of his application, his appeal would have been successful. Those cases might suggest that the active pursuit of their appeal rights by Drs Rashleigh and Cutter ultimately induced the EPA to compromise its position to their benefit, but I cannot see that the law protects a mere hope or expectation of being able to negotiate a different exercise of a properly-exercised discretion by evincing a willingness and a capacity to pursue one’s appeal rights to the maximum extent.

Effect of repeal of WR Act 1998

The WR Act 1998 was repealed in 2007; immediately before that repeal, ss 63A and 63B were still in force. It is unnecessary to decide on the effect of the 2007 replacement of the WR Act 1998 by the WR Act 2007, given the other conclusions I have reached.

However, counsel for the EPA in written submissions said that “In any event, [Mr O’Donnell] had no rights which continued after the repeal of the [WR Act 1998]”. In case counsel’s submission was intended to assert that, whatever had happened previously, that legislative change would have finally terminated any rights acquired by Mr O’Donnell as a result of his 2003 licence application, I make the following comment.

If Mr O’Donnell had made an effective application in October 2003, and if the moratorium provisions had not applied to suspend any rights arising as a result of that application, and if Mr O’Donnell had retained his pre-December 1998 Crown lease, then I would hesitate to say, simply because the effect of the enactment of the WR Act 2007 was to establish a new scheme under which no licence could be granted to Mr O’Donnell for the Mugga Way property, that those rights could not also have survived the 2007 repeal. The whole point of provisions like s 84 of the Legislation Act and decisions like Esber is to protect previously-accruing rights that could not come into existence or be enforced under new legislation.

Other matters

Finally, it is necessary to mention the concession made by counsel for Mr O’Donnell at several points during argument about the real basis for this appeal.

Counsel said that Mr O’Donnell does not seek:

(a)to treat the EPA’s failure to grant a licence as a “deemed refusal” and to challenge that refusal; or
(b)to have the EPA give effect to the claimed survival of a “right” created by the 2003 application, by granting a bore licence on the basis of the 2003 application.

Rather, Mr O’Donnell says that the EPA’s inappropriate failure to process Mr O’Donnell’s original application for a bore licence (for which, I note, he has still not paid the application fee) makes it manifestly unreasonable, impermissible, a denial of natural justice or procedural fairness, or unconscionable for the EPA now to insist that the bore be capped.

There are several things to be said about this concession.

First, it may explain Mr O’Donnell’s failure to run this appeal in the way required by s 86 of the ACAT Act, that is, as an appeal on a question of fact or law the answer to which could usefully be referred back to ACAT with a direction to reconsider the matter in the light of that answer.

Secondly, it suggests that Mr O’Donnell, in effect, agrees with the general conclusions flowing from my discussion of the legal issues, specifically that he does not have a legal leg to stand on in attempting to resist the EPA’s direction to cap his bore. That in turn raises questions about the decision to pursue the matter to the Supreme Court. Perhaps, in the absence of a belief in the soundness of his legal arguments, this appeal was based on sheer blind optimism, or alternatively Mr O’Donnell might have hoped either to induce the EPA to back down and withdraw its direction rather than to incur further costs in defending the direction or, at the very least, to delay further the point at which he would be obliged to comply with the direction.

Mr O’Donnell’s claim to resist the direction to cap his bore seems to rely on little more than an attempt to claim occupation of the moral high ground that would be laughable if it had not wasted so much court and tribunal time. Mr O’Donnell comes before the Court as a man whose claim to have lodged a licence application in June or July 2003 was rejected by ACAT on the basis that the evidence he tendered in support of his claim was unreliable, and who admits to having continued to use his unlicensed bore for some years:

(a)knowing that it should not be used if unlicensed;
(b)knowing that the EPA had not received his licence application fee (even if he believed that his cheque had been lost in the EPA office);
(c)knowing that the EPA had stopped issuing the relevant licences; and
(d)without himself having made any further approaches to the EPA about regularising his position.

Despite that, he seeks to overturn a decision of the EPA that appears to have been unimpeachable from a legal perspective, including as to the discretionary aspects (at [44] above) and he seeks to do so based on the alleged “unconscionability” of EPA staff in failing to inform him that his licence application fee had not been paid by a cheque that, as he had already demonstrated to them, had not been cashed.

It is apparent that there is nothing in my conclusions about the question of law identified (albeit in a broader form) by the appellant, or about any of the other questions that I have identified as relevant to Mr O’Donnell’s matter, that, if referred back to ACAT in the form of directions of law, would require or even permit ACAT to set aside the EPA direction to Mr O’Donnell to cap his bore.

Orders

If there is any outstanding question as to the giving of leave to pursue this appeal out of time (at [62] above), then in the absence of any objection from the respondent, leave is given to the appellant to seek, out of time, leave to appeal as required by s 86(3) of the ACAT Act.

As to whether that leave to appeal should be given, I note first that the appellant identified no questions of fact, and only one question that was able to be re-framed as a question of law. Several other legal issues (not necessarily amounting to questions of law properly so called) were canvassed at the hearing and I have expressed views on them.

Secondly, to the extent that the Appeal President resolved any of the questions or issues referred to at [176] above, either:

(a)there was no arguable case that he erred in that resolution; or
(b)the correct resolution of the question or issue would not have been more favourable to the appellant.

Finally, to the extent that the questions or issues referred to at [176] above were not addressed by the Appeal President, the resolution of the questions or issues as found by me would not have been more favourable to the appellant than the legal position assumed by the Appeal President.

Accordingly, the appeal would be futile, and I refuse the appellant leave to appeal from the decision of the Appeal President.

The appellant will pay the respondent’s costs as agreed or assessed. That order will, however, be suspended for 7 days to allow the parties to list the matter for argument as to costs.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 24 August 2012

Counsel for the appellant: Mr CS Ward

Solicitor for the appellant: Rod J Barnett & Associates

Counsel for the respondent: Mr DJC Mossop

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 4 March 2011

Date of judgment: 24 August 2012

Appendix – Legislation

ACT Civil and Administrative Tribunal Act 2008 (ACT)

86 Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from—
(a)a decision of the appeal tribunal; or
(b) if the appeal president dismissed the appeal under section 80—the original decision of the tribunal; or
(c) if the appeal president decides not to deal with the appeal under section 85—the original decision of the tribunal.

(2) A party to an application in relation to a review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005 may appeal to the Supreme Court on a question of law from the original decision of the tribunal.
(3) However, the appeal may be brought only with the Supreme Court’s leave.

Water Resources Act 1998 (ACT)

28 Allocation of water
(1)       A person may obtain a water allocation from—
(a)       the authority; or
(b)       another person who holds a water allocation.
(2)Subject to section 29, the authority may, grant a water allocation—
(a)by specifying the volume or rate of flow of water that may be taken under the allocation; or

(b) in any other manner.
(3)Without limiting subsection (2), the authority may fix a different measure of water allocation for different days of a year.
(4)Subject to section 81, after the commencement of this section, the power of the authority to allocate water shall be exercised by public auction or public tender or, if either method is unsuccessful, by private contract.

(5) The authority may grant a water allocation subject to conditions.
(6)Notwithstanding subsection (4) and subject to section 29, the Minister may, in writing, grant a water allocation to a person specified in the instrument, subject to such conditions (if any) as are specified in the instrument.
Note A fee may be determined under s 78 (Determination of fees) for this section.
(7)The Minister or the authority, as the case requires, shall not grant an allocation under this section unless provision is made for the allocation in the management plan.
(8)The Minister must prepare a written notice of the making of the grant.

(9) The notice is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act 2001.
(10)The notice must be notified under the Legislation Act 2001 no later than 14 days after the making of the grant.
(11)An allocation made under subsection (6) shall for this Act, other than section 77, be taken to have been granted by the authority.
(12) Where a water allocation on which a licence to take water is based is granted subject to conditions, those conditions shall, for this Act, be taken to be conditions of the licence.

35 Licence to take water
(1)Subject to this section, the authority may, on application, grant to a person a licence to take water from a specified waterway or location.
Note 1A fee may be determined under s 78 (Determination of fees) for this section.
Note 2If a form is approved under s 78A (Approved forms) for an application or licence to take water, the form must be used.

(2)A licence to take water may be granted subject to such conditions as are specified in the licence.
(3)For subsection (2), the authority may fix a different rate for different days of the year.
(4)Without limiting subsection (2), the conditions to which a licence to take water may be subject may include a condition—
(a) to keep and maintain records; or
(b)to install, operate and maintain equipment, including a water meter; or
(c)to provide information in relation to compliance with the licence or the conditions (if any) to which it is subject; or
(d)to conduct specified monitoring and testing consequent on the taking of the water; or
(e)to mark, in a specified manner, places from which water is taken under the licence; or
(f)specifying the rate at which, or the maximum amount of, water that may be taken, or both.

(5)A person shall not, without reasonable excuse, contravene a condition of a licence to take water.
Maximum penalty: 50 penalty units.
(6)A licence to take water remains in force for such period as is specified in the licence unless it is sooner surrendered or cancelled.
(7)In deciding whether or not to grant a licence to take water, the authority shall take into account—
(a)the applicant’s environmental record both in the Territory and elsewhere so far as it relates to water; and

(b) whether to grant the licence—
(i) would have an adverse effect on the environment; or
(ii)would adversely affect environmental flows of a particular waterway or aquifer or the rights of other water users; and

(c)whether the applicant has been convicted of an offence against this Act or a corresponding law of a State or another Territory; and
(d)in the case of an application for a licence to take ground water—
(i)whether the quantity of water available can meet the demand or there is a risk that the available water will not be sufficient to meet future demand; and
(ii)whether the taking of the water will or is likely to affect the quality of the water in the place to which the application relates.

(8) The authority shall not grant a licence to take water—
(a)subject to subsection (9), if a water allocation or interstate water allocation on which to base the taking of water from the place to which the application relates does not exist; or
(b)unless satisfied that the applicant has lawful authority to obtain access to the place from which the water is to be taken under the licence or to divert the water from that place to where it is to be used, or both, as the case requires; or
(c)in respect of a development before an application to conduct the development has been approved under the Land Act, part 6.

(9) Subsection (8) (a) applies to—
(a)ground water under land the subject of a lease of Territory land granted after the commencement of section 13; and

(b) ground water under unleased Territory land; and
(c) surface water.

(10) In this section:
development—see the Land Act, part 6.
Land Act means the Land (Planning and Environment) Act 1991.

63A     Moratorium on granting licences etc
(1)       The operation of the following provisions is suspended:
(a) section 28 (1) to (10) (Allocation of water);
(b)       section 35 (1) to (4) (Licence to take water);
(c)       section 44 (1) and (2) (Bore construction permit);
(d) section 47 (2), (3) and (6) (Unlicensed recharge).
(2)The operation of section 77 (3) (Review of decisions) is suspended in relation to decisions under the suspended provisions.

(3) Without limiting subsection (1)—
(a)an application cannot be made for an allocation, licence or permit mentioned in the suspended provisions; and
(b)a decision cannot be made to grant or refuse to grant an allocation, licence or permit mentioned in the suspended provisions.

(4)Subsections (1) and (2) have effect subject to section 63B (Exceptions to moratorium).
(5)However, subsection (1) does not affect the operation of any allocation, licence or permit (including the conditions to which it is subject) if—
(a) it was granted before the commencement of this section; or
(b)it is granted after the commencement of this section because of section 63B.

63B Exceptions to moratorium
(1)The operation of section 28 (1) to (10) is not suspended in relation to a grant of a water allocation to a person if—
(a)the grant is for an allocation of ground water under particular land; and
(b)the person holds or held a licence under section 35 to take ground water under the land; and
(c)the land is the subject of a further lease of territory land granted after the commencement of section 13.

(2)The operation of section 28 (1) to (10) is not suspended in relation to a grant of a water allocation to a water supply utility.
(3)The operation of section 28 (1) to (10) is not suspended in relation to a grant of a water allocation if the allocation is granted under a court or tribunal order made in a proceeding started before the commencement of this section.
(4)The operation of section 35 (1) to (4) is not suspended in relation to an application for a licence to take ground water under particular land (a new licence) if—
(a)the applicant holds or held a licence under section 35 to take ground water under the land; and
(b)the land is the subject of a further lease of territory land granted after the commencement of section 13.

(5)The operation of section 35 (1) to (4) is not suspended in relation to an application for a licence to take ground water under particular land if—
(a)the applicant holds a licence under section 35 to take ground water under the land (the existing licence); and
(b)the application is for a new licence to take a volume of ground water under the land that is not more than the volume of water stated in the existing licence; and
(c)the new licence would have effect after the end of the term of the existing licence.

(6)The operation of section 35 (1) to (4) is not suspended in relation to an application for a licence to take surface water from a particular place (a new licence) if—
(a)the applicant holds a licence under section 35 to take surface water from the place (the existing licence); and
(b)the application is for a new licence to take a volume of surface water from the place that is not more than the volume of water stated in the existing licence; and
(c)the new licence would have effect after the end of the term of the existing licence.

(7)The operation of section 35 (1) to (4) is not suspended in relation to an application by a water supply utility for a licence to take water.
(8)The operation of section 35 (1) to (4) is not suspended in relation to an application for a licence to take water if the licence is granted under a court or tribunal order made in a proceeding started before the commencement of this section.
(9)The operation of section 44 (1) and (2) is not suspended in relation to an application for a bore construction permit by an applicant who—
(a) holds a licence to take water from an existing bore; and
(b)is applying for a permit for works on that bore or construction of a replacement bore.

(10)The operation of section 44 (1) and (2) is not suspended in relation to an application for a bore construction permit if the permit is granted under a court or tribunal order made in a proceeding started before the commencement of this section.
(11)The operation of section 47 (2), (3) and (6) is not suspended in relation to an application for a recharge licence if the licence is granted under a court or tribunal order made in a proceeding started before the commencement of this section.
(12)A regulation may prescribe other exceptions for section 63A (1).

Legislation Act 2001 (ACT)

5 Determinative and non-determinative provisions
(1) This Act consists of determinative and non-determinative provisions.
(2)A determinative provision is a provision of this Act that is declared to be a determinative provision.
Example
Section 4 (3) provides that s 4 is a determinative provision.

(3) A non-determinative provision is any other provision of this Act.
Example

Section 3 does not contain a provision corresponding to s 4 (3). Therefore, s 3 is not a determinative provision.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

6 Legislation Act provisions must be applied
(1) A provision of this Act must be applied to an Act or statutory instrument, in accordance with the terms of the provision, except so far as it is displaced.
(2) A determinative provision may be displaced expressly or by a manifest contrary intention.
(3) A non-determinative provision may be displaced expressly or by a contrary intention.
Note For the distinction between a ‘manifest contrary intention’ (see s (2)) and ‘contrary intention’ (see s (3)), see the examples in this section.
(4) The declaration of a provision as ‘determinative’ indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision.
(5) This section applies despite any presumption or rule of interpretation.
(6) A provision of this Act must not be taken to be displaced by a provision of an Act or statutory instrument so far as the provisions can operate concurrently.
(7) In particular and without limiting subsection (5), a provision of this Act is not displaced by a provision of an Act or statutory instrument because the provisions deal with the same or a similar subject matter.
(8) This section is a determinative provision.
Examples—different kinds of displacement
1 Determinative provision—express displacement
The Collections Regulation Act 1999 (hypothetical), s 83 contains the following provision:
(2) The Legislation Act, section 47 (3) does not apply to a regulation under this Act.

Section 83 (2) illustrates a provision expressly displacing this Act, s 47 (3), a determinative provision.
2 Determinative provision—manifest contrary intention
The Motor Repairers Act 2001 (hypothetical) does not contain a provision like the Collections Regulation Act 1999, s 83, but s 79 contains the following provision:
(3) A regulation may apply, adopt or incorporate an instrument or provision of an instrument as in force from time to time.

Section 79 (3) illustrates a provision displacing this Act, s 47 (3), a determinative provision, by a manifest contrary intention because s 79 (3) clearly contradicts s 47 (3).
84 Saving of operation of repealed and amended laws

(1) The repeal or amendment of a law does not—
(a) revive anything not in force or existing when the repeal or amendment takes effect; or
(b) affect the previous operation of the law or anything done, begun or suffered under the law; or
(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

(2) An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.
(3) Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect—
(a) the proof of anything that has happened; or
(b) any right, privilege or liability saved by the law.

(4) This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made.
(5) This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.

(6) In this section:
liability includes liability to penalty for an offence against the law.
penalty includes punishment and forfeiture.
privilege includes immunity.
right includes capacity, interest, status and title.