Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4)

[2019] NSWLEC 5

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5
Hearing dates:	2-6 July 2018; 9-10 July 2018; 30-31 July 2018; 2 August 2018; 28 September 2018
Date of orders:	15 February 2019
Decision date:	15 February 2019
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	See orders at [603]
Catchwords:	JUDICIAL REVIEW - licence under the Water Act 1912 and subsequently the Water Management Act 2000 - whether making of the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 and thereafter the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 were invalid for failing to consider particular water body on applicants’ property - whether Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 invalid due to failure to consider impacts on a particular water body on the first applicant’s property - examination of application of water management principles - whether classification of water sources at ‘high level’ permissible - whether mandatory to classify all water sources in NSW - whether consent orders made in 2012 required allocation to be in regulated or unregulated system - whether applicants required leave under r 59.10 of the Uniform Civil Procedure Rules 2005, and if so whether discretion to extend time ought to be exercised - whether proceedings are time-barred by s 47 of the Water Management Act 2000 - whether damage to the applicants’ property is evidence of decisions affected by legal error - insufficient evidence that certain of the impugned decisions were in fact made - condition of first applicant’s licence was to construct a regulator, which was intended to prevent inundation of the applicants’ land - first applicant’s failure to construct regulator relevant to the Court’s exercise of its discretion - applicants could not demonstrate how the licence being within the unregulated system rather than the regulated system would have a negative environmental impact - claim with respect to s 100 of the Australian Constitution not made out as the Commonwealth did not make the impugned decisions
Legislation Cited:	Land and Environment Court Act 1979, s 34 The Commonwealth Constitution s 100 Uniform Civil Procedure Rules 2005, Pt 59 (rr 59.1, 59.10) Water Act 1912 Water Act 2007 (Cth) Water Management Act 2000, ss 5, 9, 50, 372 Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; [2010] HCA 3 Bryan v Lane Cove Council and Anor (2007) 158 LGERA 390; [2007] NSWLEC 586 Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning [2011] NSWLEC 22 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) (2011) 210 LGERA 247; [2011] NSWLEC 83 Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 Dietrich v The Crown (1992) 177 CLR 292; [1992] HCA 57 Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27 Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited (2007) 158 LGERA 1; [2007] NSWLEC 681 Hanna v Commonwealth Director of Public Prosecutions [2016] NSWSC 325 Harvey and Tubbo v Minister Administering the Water Management Act 2000 (2008) 160 LGERA 50; [2008] NSWLEC 165 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 John Young and Company v The Bankier Distillery Company [1893] AC 691 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 713 Lee v Commonwealth (2014) 229 FCR 431; [2014] FCAFC 174 Manly Council v Byrne [2004] NSWCA 123 Mason v Hill (1833) 110 ER 692 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 Minister Administering the Water Management Act 2000 v Sharkey (2017) 226 LGERA 322; [2017] NSWCA 319 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZJSS (2010) CLR 164; [2010] HCA 48 Minister for Local Government v Blue Mountains City Council (2018) 229 LGERA 197; [2018] NSWCA 133 Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212; [2003] NSWCA 151 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97 Morgan v Commonwealth (1947) 74 CLR 421; [1947] HCA 6 Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 MSPR Pty Ltd v Advanced Breaking Technology [2013] NSWCA 416 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 NA&J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51 Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 O’Connor v New South Wales [2017] NSWSC 598 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Patsalis v Attorney General of NSW [2013] NSWCA 98 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Randren House Pty Ltd v Water Administration Corporation (No 3) [2018] NSWLEC 106 Randren House Pty Ltd v Water Administration Ministerial Corporation [2017] NSWLEC 151 Randren House Pty Ltd v Water Administration Ministerial Corporation (No 2) (2017) 228 LGERA 354; [2017] NSWLEC 185 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 3) [2018] NSWCA 326 Royal Insurance Co Ltd v Myelius (1926) 38 CLR 477; [1926] HCA 49 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; [1981] FCA 191 Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 3 Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 47 Swift v SAS Trustee Corporation [2010] NSWCA 182 Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 171 FCR 174; [2008] FCA 1436 The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317; [1955] HCA 10 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6 Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Yirrell v Yirrell [1939] HCA 33; (1939) 62 CLR 287 Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228; [1971] HCA 29
Texts Cited:	A B Paterson, The Man From Snowy River and Other Verses (1st ed, 1895, Angus & Robertson)
Category:	Principal judgment
Parties:	Randren House Pty Ltd (First Applicant) Mr Paul Andrew Andrews (Second Applicant) Water Administration Ministerial Corporation (First Respondent) State of New South Wales (Second Respondent) Minister Administering the Water Management Act 2000 (Third Respondent)
Representation:	Counsel: Mr P E King and Ms F Sinclair (Applicants) Ms Z Heger (Respondents)   Solicitors: Andrews & Associates (Applicants) Crown Solicitor’s Office (Respondents)
File Number(s):	2016/161999
Publication restriction:	No

TABLE OF CONTENTS

Preamble

Background

The 1986 Licence

Communications between the First Applicant and the Department

The 2012 proceedings

The 2012 Unregulated WSP

The 2016 Regulated WSP

Procedural history

The recusal application

The request for making further submissions after close of hearing

Are the further submissions admissible?

Applicants’ submissions

Respondents’ submissions

Decision on leave to file supplementary submissions

The September 2018 Notice of Motion

Decision on the September Notice of Motion

Relevant legislative provisions

Claims/impugned decisions

Relief sought

Evidence

Applicants’ evidentiary material

Respondents’ evidentiary material

Applicants’ submissions on “factual matters”

“Fact 1” - The Lake Paddock

“Fact 2” - Flows

“Fact 3” - Damage

“Fact 4” - Proposed ‘solution’

“Fact 5” - The 1986 Licence

“Fact 6” - Condition 7 of the 1986 Licence

“Fact 7” - the Applicants “prioritisation of environment over extraction”

“Fact 8” - the cause of the alleged “exclusion” of the 1986 Licence

“Fact 9” - the 2012 Court Orders “and their performance”

“Fact 10” - the “orphaned” 1986 Licence

General Duties

Applicants’ submissions on obligations under the Water Management Act

The Water Administration Ministerial Corporation (First Respondent)

Section 7 of the Water Management Act

Section 9 of the Water Management Act

Section 20 of the Water Management Act

Section 50 of the Water Management Act

Water sharing plans

Common law analogies

Respondents’ submissions on obligations under the Water Management Act

Alleged damage to the Applicants’ land

Applicants’ submissions on the alleged damage to “Somerset Park”

Respondents’ submissions on the alleged damage to “Somerset Park”

Is an extension of time required?

Respondents’ submissions on r 59.10

Applicants’ submissions on r 59.10

Decision on the time limitation issues based on r 59.10

Decision 1 - The Yanco Creek works decision (8A and 8C of the Second Further amended Points of Claim)

Applicants’ submissions on Decision 1

Respondents’ submissions on Decision 1

Was there a “decision”?

No errors of law

Failure to take into account relevant considerations

Taking into account irrelevant considerations

Relief sought

Leave is required

No relief ought to be granted

The 1986 Licence required the construction of a regulator

Consideration of validity of Decision 1

Decision 2 - 8B and 8D of the Second Further Amended Points of Claim - The Yanco Creek water usage decision

Applicants’ submissions on Decision 2

Respondents’ submissions on Decision 2

No proof the decision was made, or by whom

Consideration of validity of Decision 2

Decision 3 - 9A of the Second Further Amended Points of Claim - The 2012 licence decision - Alleged variation of the terms and conditions of the 1986 Licence in September 2012.

Applicants’ submissions on Decision 3

Respondents’ submissions on Decision 3

The First Applicant was put on notice

The licence has only ever allowed access to unregulated flows

No extension of time should be granted

Consideration of validity of Decision 3

Decision 4 - 9B of the Second Further Amended Points of Claim - The water source decision - Alleged decision between August and October 2012 to place the water body in the Lake Paddock into the proposed Murrumbidgee Western Water Source

Applicants’ submissions on Decision 4

Respondents’ submissions on Decision 4

Consideration of validity of Decision 4

Challenge out of time - s 47 Water Management Act

Consideration of Decision 4 in the context of s 47

Respondents’ submissions on s 47

Applicants’ submissions on s 47

Decision 5 - 9C of the Second Further Amended Points of Claim - The 2012 Plan Decision - Making of the 2012 Unregulated WSP

Applicants’ submissions on Decision 5

Respondents’ submissions on Decision 5

Allegations with respect to relevant considerations

Particulars (iii) and (v)

Particular (vi)

The claim is time-barred

Consideration of validity of Decision 5

Decision 6 - The 2015 Licence Decision (9D of the Second Further Amended Points of Claim) - Decision to impose mandatory conditions on the WAL and the Approval

Applicants’ submissions on Decision 6

Respondents’ submissions on Decision 6

Consideration of validity of Decision 6

Decision 7 - The 2015 Water Plan Decision (9E of the Second Further Amended Points of Claim) - Decision to extend the 2003 Regulated WSP

Applicants’ submissions on Decision 7

Respondents’ submissions on Decision 7

No relief sought

No decision to exclude the water body in the Lake Paddock

Particulars (v)-(x)

Particular (xi)

The claim is time-barred

Consideration of validity of Decision 7

Decision 8 - The 2016 replacement plan decision (9F of the Second Further Amended Points of Claim) - Decision to replace the 2003 Regulated WSP with the 2016 Regulated WSP

Applicants’ submissions on Decision 8

Particulars (iii) and (iv) to Decision 8

Particulars (v) and (vi) to Decision 8

The Minister failed to take all reasonable steps to promote and act in accordance with water management principle 5(2)(a)

Particulars (i) and (ii) to Decision 8

Particular (vii) to Decision 8

Particular (viii) to decision 8

Respondents’ submissions on Decision 8

Particular (xi) of Decision 8

Consideration of validity of Decision 8

Was the challenge to Decision 8 made within time?

The relevance of environmental damage

Was Decision 8 subject to legal error?

The constitutional claim

Applicants’ submissions on constitutional claim

Respondents’ submissions on constitutional claim

Consideration of the constitutional claim

Discretionary factors

Applicants’ submissions on discretionary factors

Delay

Compliance with conditions of 1986 Licence

Respondents’ submissions on discretionary factors

Delay

Compliance with conditions of 1986 Licence

Change in flows

Consideration of discretionary factors

Delay

Condition 7

Orders

JUDGMENT

Preamble

1. The Murrumbidgee River and its tributaries such as Yanco Creek, which is a key focus of these proceedings have been, from the earliest European colonial days in this State, emblematic of rural Australia, giving rise to stories poems and song which have, in picturesque bucolic images of pastoralism amidst a landscape of sweeping plains graced with majestic River Red Gums along meandering watercourses colourfully portrayed a pastoral life. This rural life, whether real or surreal, has been far removed, indeed detached, from the hustle and bustle of urban life in cities like Sydney. From time immemorial (prior to colonial days), the Dreamtime of the First Australians depicted the life-force of these rivers and creeks reinforcing the interrelationship and interdependency of all elements of Country. Natural cycles were expected and, to a degree, understood. As Banjo Paterson in “A Mountain Station” penned:

And sometimes under sunny skies,

Without an explanation,

The Murrumbidgee used to rise

And overflow the station.

But this was caused (as now I know)

When summer sunshine glowing,

Had melted all Kiandra’s snow

And set the river going.

2. As the decades passed and competing interests put pressure on the State’s natural water sources they increasingly and inexorably became resources simply for exploitation. The Legislature responded and regulatory regimes grew and evolved. At first, the focus was all on regulating competing exploitative extraction. So we see, in the Water Act 1912 (1912 Act), legislation relating to water rights water and drainage, drainage promotion and artesian wells. There was scant mention in those early days of the natural environment, let alone seeking its sustainable protection for its inherent values as we would understand concepts of environmental management today.

3. Biscoe J, in the opening paragraph of his judgment in Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 (Arnold No 6) highlights the issue for all Australians with respect to water:

In Australia, water is a valuable, finite and fluctuating resource. Rights to use water are of critical importance not just to those who are interested in particular water entitlements but to society as a whole. Access to water requires sustainable and efficient management that balances environmental, economic and social considerations.

4. The enactment of the Water Management Act 2000 (Water Management Act), starting with its long title: “An Act to provide for the protection, conservation and ecologically sustainable development of the water sources of the State and for other purposes”, is legislative confirmation of a shift in emphasis in what is now the State’s primary instrument of water regulation. The objects of that Act (s 3) take this focus one step further, being to: "provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations”. With such concepts now to the fore, particularly the intergenerational equity principle setting the context, the decision-making with respect to water now requires a holistic approach.

5. In Arnold No 6, at [18] and following, Biscoe J provides a comprehensive and useful overview of the history of water regulation in New South Wales, albeit with a primary focus on groundwater management. His Honour commenced his history as follows at [18]:

18.   The history of restriction of access to and use of water in New South Wales was addressed in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51, (2009) 240 CLR 140. French CJ, Gummow and Crennan JJ said at [3]:

Successive governments of the State of New South Wales (the State) have long monitored, regulated and restricted access to and use of both groundwater and surface water. Policies have been formulated and pursued so as to achieve equitable access among water users to mitigate adverse effects on the environment, and to ensure that water, as a finite and fluctuating natural resource, is able to be replenished for future use. The extraction and use of water has been regulated by statute since 1896, and, in particular, from 1912 principally by the Water Act 1912 (NSW) (the 1912 Act or the Water Act). The Water Management Act 2000 (NSW) (the 2000 Act) provided (s 401 and Sch 7) for the repeal of the 1912 Act. This litigation follows upon the replacement of the one statutory regime with the other.

6. This matter relates to an application for judicial review made by the First Applicant, Randren House Pty Ltd, and the Second Applicant, Mr Paul Andrews (together, the Applicants) against the Water Administration Ministerial Corporation, the State of New South Wales and the Minister Administering the Water Management Act 2000 (together, the Respondents) in relation to decisions made under the Water Management Act. The proceedings commenced by Summons dated 22 June 2015, with the pleadings subsequently undergoing numerous changes.

7. As in Arnold No 6 and ICM AgriculturePty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51, these proceedings raise issues which cross over the transition from the 1912 Act to the Water Management Act, as decisions both before and after the repeal of the 1912 Act are sought to be reviewed.

8. By their Second Further Amended Summons (SFAS), filed 23 July 2018, the Applicants set out a number of purported decisions of one or more of the Respondents that the Applicants sought to challenge. In brief, these were decisions:

• to amend a water sharing plan (WSP);

• not to provide regulated water access on a number of occasions;

• to “notify plan conditions” with respect to a licence and an approval under the Water Management Act;

• refusing to amend (or refusing to consider to amend) WSPs;

• to change operational levels of the Yanco Creek, causing ”significant environmental damage” at the First Applicant’s property; and

• to prevent the Applicants from accessing (or having an entitlement to) regulated waters.

9. The Applicants’ Second Further Amended Points of Claim (SFAPOC) particularised these impugned decisions (eight in total), together with a pleaded constitutional claim, and pleaded a multitude of grounds upon which each decision was said to be invalid. Cognizant of the danger of over‑simplifying the Applicants’ case, in essence, the Applicants assert that over many years a number of decisions were made by the Respondents regarding the waters from Yanco Creek which, it is said, resulted in unnatural inundation of the Lake Paddock, being a part of the Applicants’ property, “Somerset Park”, to such an extent that it caused environmental damage, including the death of large numbers of River Red Gum trees growing in the Lake Paddock. The inundation cannot be considered to be akin to a natural “overflow of the station”, as Paterson so poetically described in “The Mountain Station”, rather, it is said, it was a consequence of legally flawed decisions made contrary to the legislative regime at each point in time. It is asserted that if the complained-of decisions had not been made and, in lieu thereof, other decisions had been made, including the bringing of the water body within the Lake Paddock into the regulated licensing system rather than leaving it within the unregulated licensing system, then the alleged environmental harm from the inundating waters would not have occurred.

9. Bearing in mind that these proceedings have not been brought in tort alleging a claim based on nuisance or negligence, at all times the Court has found it necessary to restrict its examination of the decisions to the strict parameters of judicial review proceedings, despite a tendency on the part of the Applicants to stray into arguments more characteristic of proceedings of another kind.

Background

11. The First Applicant is the owner of a property known as “Somerset Park”, in the Murrumbidgee Irrigation Area in southern New South Wales. The Second Applicant is the occupier and manager of “Somerset Park”. The property had been held by the Andrews family since 1974, when the Second Applicant’s father, Mr Andrew Andrews, moved his olive oil enterprise from the Liverpool district to “Somerset Park”.

12. It is the paddock known as the Lake Paddock on “Somerset Park” that takes ‘centre stage’ with respect to all the issues arising in these proceedings. Within the Lake Paddock, there had evidently been, from what might have been ‘time immemorial’ (certainly to the Andrews family), an ephemeral water body which had recurrently, in normal conditions been filled, flushed and then receded as the seasons and conditions changed. Variously referred to as the ‘lagoon’ or ‘billabong’, most probably it would be correctly defined as ‘flood-out land’. Entering the Lake Paddock from its junction with Yanco Creek is a diversion channel referred to throughout the proceedings as the “unnamed watercourse”.

13. The plan at Annexure A, which was Exhibit C tendered during the hearing, shows the location of Yanco Creek as it traverses “Somerset Park”. The areas of inundation on Lake Paddock can be identified on the plan as generally comprising Lots 40, 41, 42, 50, 58 and 91 and portions of abutting lots. Importantly, the blue arrow points to the ‘unnamed watercourse’ entering Lake Paddock from its junction with Yanco Creek.

14. The factual history of the issues in these proceedings are complex in the extreme, extending back almost 40 years (a chronology of key events is at Annexure B to this judgment) with some of the material proving to be somewhat opaque. Given the complexity, and the reality that in this case “the devil is in the detail”, rather than burdening the primary text of the judgment with a multiplicity of cross-referencing to the source of my summaries of the evidence and submissions analysing the material, I have adopted the course of placing much material in endnotes to the judgment. Although these endnotes provide sufficient reference to the key material I have relied upon in this judgment, they do not represent the complete body of material examined. It follows that all material exhibited during the proceedings and referenced in the course of submissions has been examined and thereby considered.

The 1986 Licence

15. On 23 April 1986, The First Applicant was granted licence number L45398 pursuant to the 1912 Act for “a diversion channel” for “water supply for irrigation” (1986 Licence). [1] The 1986 Licence was subject to 12 conditions including (relevantly):

    1. Exhibit O, pp 150-151

1. Condition 7: “The licensee shall construct in the diversion channel near its point of offtake a timber or concrete regulator with a sill level fixed at not lower than 1.11 metres below the level of a benchmark established on a gum tree on the left bank of Yanco Creek near the works and particulars of which are retained in the office of the Water Resources Commission.”

2. Condition 8: “Drop boards or some similar form of effective control maybe [sic] used over the sill of the regulator referred to in condition 7 to a height of not less than 0.6 metres below the bench mark referred to in condition 7 and shall be operated in accordance with conditions 9 and 10."

3. Condition 9: “Subject to condition 10 the drop boards or control device may only be operated to provide flows in the diversion channel with the permission of the Manager Murrumbidgee Division of the Water Resource Commission at Leeton - such permission could be expected to coincide during periods when surplus flows have been declared as being available in Yanco Creek from its offtake from the Murrumbidgee River to Morundah.”

4. Condition 10: “Notwithstanding condition 9 the control device shall be operated so as to not cause any inundation by floodwaters.”

16. The 1986 Licence has been renewed on a number of occasions in the intervening years namely, on 22 October 1991, 24 April 1996, 6 September 2002, 16 June 2008, and 24 August 2012. At some point between 22 October 2001 and 24 April 1996, the 1986 Licence was renumbered 40SL45398.

17. The Respondents asserted that: “A condition in substantially the same terms has attached to the first applicant’s licence ever since [it was granted]”. [2]

    2. See conditions 7, 8 and 9 of licence L45398 as renewed on 22 October 1991 (Exhibit O, p 146); condition 7 of renumbered licence 40SL45398, as renewed on 24 April 1996 (Exhibit O, p 126), 6 September 2002 (Exhibit O, p 97), 16 June 2008 (Exhibit O, p 79) and 24 August 2012 (Exhibit O, p 54D(4)); Statement of Approval no 40CA412879, additional conditions NS18574 and NS18589 (Exhibit O, p 26)

18. The parties agree that the regulator referred to in the aforementioned conditions was not built, and that the First Applicant has never used the water in the diversion channel or the Lake Paddock for irrigation. [3]

    3. Transcript 166.29-30, 151.48-49, 173.8-11

Communications between the First Applicant and the Department

19. Over the period since the granting of the 1986 Licence, there has been much correspondence between the First Applicant and the Department. This correspondence sequentially dealt with issues as they arose over the years particularly with respect to the 1986 Licence, and so has had to be examined in these proceedings being very material to the Court’s determination of the issues.

20. By letter dated 15 December 1995, Mr Andrew Andrews (a director of the First Applicant, and Mr Paul Andrews’ father) wrote to Mr Steve Webb of the (then) Department of Water Resources (Department, which will be used henceforth to refer to the department responsible for the administration of the Water Management Act, regardless of subsequent changes of name), and raised concerns with increased water levels in Yanco Creek:

As you are aware, the Department has substantially increased the level of water in the Yanco Creek. This was done without any prior consultation or advice to us.

This part of our property was an oasis which nurtured native flora and fauna. Where seasonal flood waters before were beneficial to grazing, the environment and ecology, these areas have now turned into permanent lakes.

Dead and dying trees large and small are the result of the department’s policy.

Urgent action by the department is needed to remedy the situation. [4]

4. Exhibit O, p 138

21. In a letter dated 8 January 1996, Mr Webb replied to Mr Andrews stating:

In 1986 the Department issued you with a license [sic] for a diversion channel and regulator specifically designed to preclude the regulated flows at that time but enabling storage of flood waters in the lagoon for irrigation purposes.

In recognition that flows have increased in the period 1986-1995 and following an inspection in February 1995, the conditions attaching to the licence relating to the height of the regulator were amended such that when the regulator is constructed current regulated flows would be precluded.

If the regulator subject to the license [sic] application were to be constructed as per the conditions specified, the concerns outlined in the letter would not exist.

The license [sic] was originally issued to allow storage of flood flows for irrigation. If this is no longer the case, then the licence would no longer be required.

If this is so and, given that the authorised works have not been installed in almost 10 years the Department is in a position to revoke the license [sic] or allow it to lapse as of 23rd April, 1996 when it is due for renewal.

If the license [sic] were to lapse then it may be prudent for the Department to block off the diversion to preclude regulated flows and halt the flooding related by you. The lapsed license [sic] would also exclude you from pumping from the lagoon for irrigation purposes. [5]

5. Exhibit O, p 133

22. In a letter dated 5 February 1996, following an inspection of “Somerset Park” on 30 January 1996, Mr Webb again wrote to Mr Andrew Andrews and presented him with two options:

1. Maintain the 1986 Licence and comply with the conditions: Mr Webb noted that the conditions of the licence required the installation of a regulator in the diversion channel with a crest at such a height that would “preclude normal regulated flows that “the license was issued such that only flood flows could be stored and used for irrigation”, and that if Mr Andrew Andrews desired “the lagoon to drain periodically, which is environmentally prudent, then you should install an outlet at bed level …”; or

2. Allow the 1986 Licence to lapse: Mr Webb noted that “if you are to derive a benefit via the license [sic] you are to bare [sic] the cost of installing the regulator. If no benefit is to be derived and the license [sic] is allowed to lapse, the Department will construct the works.” [6]

   6. Exhibit O, p 130

23. By letter dated 29 April 1996, Mr John Andrews, the son of Mr Andrew Andrews, brother of Mr Paul Andrews and director of the First Applicant, (who is also the solicitor on the record acting for the Applicants in these proceedings), requested the Department provide “a schematic diagram or plan of construction” for the First Applicant to “advise our engineers of what is needed to comply with the department’s requirements in relation to the regulator.” [7]

    7. Exhibit O, p 124

24. On 29 May 1996, Mr Webb responded to this letter, enclosing “a schematic of what a regulator could look like”, but noting that “it is up to you as to how the works are constituted … and the valves installed will be dependent on whether you wish to store water or ensure that high flows find their way back to Yanco Creek.” [8]

    8. Exhibit O, pp121-122

25. On 24 April 2001, Mr Webb wrote to the First Applicant with respect to an application to renew the 1986 Licence to advise of “impending action proposed by the [D]epartment regarding the prevention of inundation from regulated supplies in Yanco Creek” and seeking to confirm, as the First Applicant had “not used the licence since it was issued and the renewal fee is $1473”, that it still wished to maintain the licence. [9] A letter from the Department dated 3 July 2001 again requested clarification as to whether the First Applicant wished to maintain the 1986 Licence. [10]

    9. Exhibit O, p 112

    10. Exhibit O, p 111

26. On 22 August 2001, Mr Webb wrote to Mr A Andrews stating:

As mentioned in my previous letter dated 24/4/01, the department, through State Water, is endeavouring to ensure no regulated water is lost from the Yanco Creek system.

You have indicated that you do not wish tree destruction within the lagoon that is flooded via the unnamed watercourse, upon which your licence exists.

It is the department’s intention to construct works to prevent regulated flows from flooding the lagoon as you suggested might be the case previously.

This being the case, your licence 40SL45398 would no longer be required.

There are three options available to discontinue the licence:

1.   You formally request your renewal application be withdrawn. Your renewal fee of $1476 will be refunded. This is the quickest and least officious method.

2.   The department formally refuses your application and returns your renewal fee. Any such refusal is subject to appeal to the Land and Environment Court.

3. The department cancels the licence. Under Section 13F of the Water Act, any licence may be cancelled if it has not been used for a period of three years. The privileges of this licence have never been used. The licence would need to be current prior to this action; hence you would not be entitled to any refund of the renewal fee.

I trust you can see the advantages of Option 1 and look forward to hearing from you.” [11]

11. Exhibit O, p 109

27. On 6 September 2001, the First Applicant replied to the 22 August 2001 letter, stating that it was considering the matter and would “advise the Department of its reply shortly”. [12]

    12. Exhibit O, p 108

28. On 12 October 2001, the Department wrote to the First Applicant noting that “[i]f a formal request for withdrawal of the renewal is not received by 30 October 2001, the Department will, depending on legal advice, proceed with either Option 2 or Option 3” of the 22 August 2001 letter. [13] The First Applicant, through its solicitors acknowledged receipt of that letter on 30 October 2001.

    13. Exhibit O, p 107

29. On 9 November 2001, solicitors for the First Applicant wrote to the Department, and advised that the First Applicant did not agree to the cancellation of the 1986 Licence, and requested that the then extant application for renewal of that licence “be completed”. [14]

    14. Exhibit O, p 105

30. Despite internal departmental advice to the contrary, [15] the 1986 Licence was again renewed on 6 September 2002.

    15. Exhibit O, pp 101-103

31. In 2002 (by letter dated 26 July 2002) and 2007 (by letters dated 3 April and 5 July 2007), Mr Webb notified the First Applicant that the 1986 Licence was to be converted under the Water Management Act (which had come into force in 2001) and would receive an allocation based on “a history of use”. [16] The First Applicant had never used the allocation in the 1986 Licence, and therefore the proposed allocation for the converted licence was zero.

    16. Exhibit O p 100, 85, 84.

32. On 16 June 2008, the 1986 Licence was again renewed, and the conditions were amended to provide for a zero allocation (condition 13). [17]

    17. Exhibit O p 80

33. On a number of occasions in 2011 (both by letter and by telephone), when the 1986 Licence was due for renewal, the Department asked the First Applicant whether, in circumstances where it had a zero allocation, it wished to maintain the 1986 Licence. [18] There was no “substantive” response from the First Applicant to these repeated inquiries. [19]

    18. Exhibit O pp 67C, 67D 67E, 68, 69 70(1) 70(2), 70A, 70B, 70C, 71

    19. Respondents’ closing submissions (RCS), [16]

The 2012 proceedings

34. On 6 February 2012, the Department gave notice to the First Applicant of the proposed refusal of the application to renew the 1986 Licence. [20]

    20. Exhibit O, p 69

35. On 12 April 2012, the application was refused. [21] The First Applicant subsequently commenced proceedings in this Court to challenge that refusal. [22]

    21. Exhibit O, p 67A(1)

    22. File no 12/30440

36. On 23 August 2012, the proceedings were settled, prior to a full hearing, with the Court making orders by consent allowing the First Applicant’s appeal and requiring the First Respondent to renew the 1986 Licence (2012 Court Orders). [23] The Court also noted the parties’ agreement that:

(a)   Within fourteen … days the Applicant will apply and the Respondent will receive an application from the Applicant to vary the renewed licence by amending condition 13 and providing for a term containing a volumetric allocation of 1,000 megalitres,

(b)   Within twenty eight … days of receipt of the Application the Respondent will grant the application including any linked modification,

(c)   The parties agree that within three…months of granting the variation the Applicant will, after informing the Respondent, install the meter referred to in condition (1) and on any pump, and the regulator and sill referred to in condition (7).

23. Exhibit O, p 55

37. On 24 August 2012, in accordance with the Court’s orders the First Respondent renewed the 1986 Licence on its existing terms (including the zero allocation). [24]

    24. Exhibit O, p 54D(3)-(5)

38. By letter dated 28 August 2012, and received by the First Applicant on 3 September 2012, [25] Mr Webb of the Department set out his understanding that, within 14 days the First Applicant would make an application to modify the licence such that it:

1.   authorises a pump on the lagoon/swamp in addition to the works currently authorised on Lots 40 and 42 in DP754548 and

2.   provides for an unregulated volumetric allocation of 1000 ML.

Pursuant to that request, it is further understood that within 28 days the Water Administration Ministerial Corporation will make the appropriate modifications as agreed, by serving a notice under s 17A(2) of the Water Act 1912. [26]

25. Affidavit of Paul Andrews 28 January 2016, Transcript 185.1

26. Exhibit O, p 54D(1)

39. On 29 August 2012, in accordance with notation (a) on the 2012 Court Orders the First Applicant applied to vary condition 13 “to reflect an allocation of 1,000 megalitres”, [27] and, on 3 September 2012, the First Applicant applied for a modification of the licence, “to reflect that the licence authorizes a pump on the lagoon in addition to the works currently authorized …”. [28]

    27. Exhibit O, p 54C

    28. Exhibit O, p 54B

40. On 28 September 2012, condition 13 of the 1986 Licence (renumbered, as of that date, as condition 10) was amended to provide for a “volume of 1000 megalitres of unregulated water for irrigation use”. [29] This is one of the decisions under review in this matter (see [105] below) (the “linked modification” was also granted so that the 1986 Licence authorised a pump). [30]

    29. Exhibit O, pp 48-54.

    30. Exhibit O, p 50

41. On 3 July 2013, the Department sought to confirm the construction of the regulator and pump, as set out in notation (c) on the 2012 Court Orders. [31] It is not in dispute between the parties to these proceedings that the regulator was never constructed.

    31. Exhibit O, p 32

42. On 30 September 2013, the First Applicant, by its solicitors wrote to the Department, noting that it was consulting an irrigation consultant for the purposes of the installation of a meter, regulator, and sill, and sought to confirm “that upon meeting these requirements our client is entitled to both take water under the licence and to trade water including in relation to the regulated system comprising the Yanco Creek Lower Murrumbidgee in accordance with usual water entitlements”. [32] The Court notes that the letter from the solicitor for the First Applicant was marked “without prejudice”, but that in being produced by the First Applicant, as part of its Evidence Book (Exhibit O), the First Applicant has waived its privilege with respect to that piece of correspondence.

    32. Exhibit O, p 31

The 2012 Unregulated WSP

43. On 3 October 2012, the Lieutenant-Governor of New South Wales made the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (the Proclamation) under the Water Management Act.

44. On 4 October 2012, the Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (2012 Unregulated WSP), made under s 50 of the Water Management Act, commenced operation. Impugned Decisions 4 and 5 (as set out at [9B] and [9C] of the SFAPOC) concern the making of the 2012 Unregulated WSP.

45. The making of the Proclamation resulted in Pts 2 and 3 of the Water Management Act being applied to the water sources to which the 2012 Unregulated WSP (purportedly, for the purposes of these proceedings with respect to the water body in the Lake Paddock) applied; and that pre‑existing licences held under the 1912 Act in respect of those water sources were converted into entitlements under the Water Management Act, by the operation of Schs 10 and 11 to the Water Management Act.

46. The Respondents explained the purported application of the 2012 Unregulated WSP to the water body in the Lake Paddock thusly:

The first applicant’s [1986 Licence] was in respect of a water source (the “Murrumbidgee Western Water Source” or MWWS) to which the 2012 Unregulated WSP applied: see cl 4(1)(a)(xxvii) of the 2012 Unregulated WSP. The MWWS is a large geographic area set out on the Plan Map referred to in cl 4(2) - see the area shaded in light green on Exhibit 2. The MWWS includes all water “occurring naturally on the surface of the ground” within that geographic area (cl 4(3)(a)) as well as “rivers lakes and wetlands within that geographic area (cl 4(3)(b)). The water in the Lake Paddock is a “wetland” and thus the MWWS includes that water. [33]

33. RCS, [22]

47. The 2012 Unregulated WSP, having been purportedly made (noting that this is Decision 5 under review in these proceedings), and the water body within the Lake Paddock purportedly falling within it (Decision 4 under review in these proceedings), by operation of cl 3 of Sch 10 to the Water Management Act, the 1986 Licence was converted into two new instruments under the Water Management Act: [34]

1. Approval 40CA412879 (the Approval); [35] and

2. WAL 33313 (the WAL). [36]

   34. RCS, [23]

   35. Exhibit 6(b), p 698

   36. Exhibit 6(b), p 693

48. With similar caveats as set out at [47] above, upon commencement of the 2012 Unregulated WSP, by the operation of cl 3 of Sch 10 to the Water Management Act, certain conditions of the 1986 Licence were converted into conditions of the Approval and the WAL. [37]

    37. RCS, [24]

49. On 14 July 2014, the delegate of the Minister administering the Water Management Act determined to impose mandatory conditions (Plan Conditions) on the WAL and Approval, pursuant to ss 66, 67, and 100 of the Water Management Act. [38]

    38. Exhibit 6(b), p 304

50. On 25 February 2015 (although not received, according to the Applicants until 30 March 2015), the Minister, by his delegate, wrote to the First Applicant notifying it of the imposition of the Plan Conditions. [39] The Plan Conditions came into effect upon the receipt of this notice, which was 30 March 2015. The Applicants in their SFAPOC at [9D] (hereafter referred to as Decision 6), challenge the imposition of these Plan Conditions.

    39. Exhibit O, p 11

The 2016 Regulated WSP

51. On 19 May 2015, the Minister extended the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (2003 Regulated WSP), which had been made under s 50 of the Water Management Act, until the earlier of the commencement of a replacement management plan or 1 July 2016. [40] Notification of this decision was published in the Government Gazette on 29 May 2015. [41] SFAPOC [9E] (hereafter referred to as Decision 7) relates to this decision.

    40. Exhibit 6(b), pp 404, 406

    41. Exhibit O, pp 8B(2)-(3)

52. On 1 July 2016, the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (2016 Regulated WSP) replaced the 2003 Regulated WSP. SFAPOC [9F] (hereafter referred to as Decision 8) relates to this decision.

Procedural history

53. This matter has a somewhat tortured procedural history, including numerous amendments to the pleadings.

54. In the period spanning from 22 June 2015 (the commencement of the proceedings) to 4 August 2017, the final hearing of these proceedings has been delayed by a succession of procedural disputes between the parties. In this period, the matter came before the Court on no fewer than 15 occasions.

55. On 4 August 2017, more than two years after the commencement of the proceedings, the Court made orders fixing the matter for hearing on 27‑30 November 2017 and established an appropriate case management timetable leading up to that hearing. Orders for the filing and serving of all evidentiary material were made, with the final step to be concluded by 13 October 2017.

56. On 20 October 2017, in response to a request from the then single Applicant, the matter was listed for a directions hearing on 3 November 2017. A Notice of Motion filed by the Respondents to set aside, in part, a Notice to Produce from the First Applicant was concurrently listed on 3 November 2017. The Applicant sought leave to file in Court a Notice of Motion seeking to join WaterNSW as a party to the proceedings. Moreover, the Applicant sought to file in Court an (undated) affidavit of Mr John Andrews foreshadowing a request to file a “draft proposed Further Amended Summons.” That proposed revised summons contained the following material proposed amendments:

1. the joinder of Mr Paul Andrew Andrews as an applicant in the proceedings;

2. the joinder of the Minister administering the Water Management Act as a respondent in the proceedings;

3. the joinder of WaterNSW as a respondent in the proceedings; and

4. the addition of a sought order, namely, an “[o]rder in the nature of a writ of prohibition and/or injunctive relief preventing the Respondents from directing high regulated flows into Yanco Creek contrary to its natural usage and so as to cause environmental and other damage to Yanco Creek and its dependent ecosystem in the Lake Paddock and its environs at ‘Somerset Park’ or alternatively by preventing the unreasonable use of the waters of Yanco Creek by the Respondents and each of them.”

57. All these matters were heard on 8 November 2017 and determined in Randren House Pty Ltd v Water Administration Ministerial Corporation [2017] NSWLEC 151 (Randren House No 1).

58. In Randren House No 1, the Court observed at [18]:

Given the history and nature of these proceedings it could be said that there has already been a significant failure to realise the just, quick and cheap resolution of the real issues in the proceedings contrary to Div 1 of Pt 6 of the Civil Procedure Act 2005.

59. The judgment of the Court:

1. granted the Respondents’ Notice of Motion to set aside, in part, the First Applicant’s Notice to Produce to Court of 23 October 2017;

2. granted the First Applicant’s informal applications of 3 November 2017 to join Mr Paul Andrew Andrews and the Minister Administering the Water Management Act 2000 as parties to the proceedings; and

3. dismissed the First Applicant’s informal application of 3 November 2017 to amend the extant summons so as to include a proposed order in the nature of a writ of prohibition and/or injunctive relief.

The proposed joinder of WaterNSW was withdrawn, resolved with consent orders.

60. Relevantly, as it will be seen later in this judgment, with respect to the request to amend the then Summons so as allow the seeking of an order in the nature of a writ of prohibition and/or injunctive relief, the Court, at [63]-[66] in Randren House No 1, determined as follows:

63.   The Applicant clearly proposes to make a significant amendment to the extant Summons. It seeks to include a sought order in the nature of a writ of prohibition and/or injunctive relief to prevent the Respondents from directing particular water flows into Yanco Creek or, alternatively, prevent unreasonable use of the waters of Yanco Creek. The Applicant’s position is that this amendment is necessary and appropriate because it would protect against the alleged ongoing environmental damage to Yanco Creek.

64.   However, these judicial review proceedings do not centrally concern whether or not the Respondents have caused environmental damage and, if so, how they should be restrained. Rather, these judicial review proceedings concern whether or not the Respondents have made particular decisions (which, to be sure, may affect Yanco Creek and its surrounding environment) unlawfully by, for example, failing to have regard to mandatory relevant matters for consideration. The proposed amendment, therefore, does not pertain to a real question raised or otherwise depending on the proceedings. Additionally, a decision not to permit the amendment would not result in any lack of finality to the ultimate resolution of the proceedings or a realistic risk of a multiplicity of proceedings. The critical questions of whether or not the challenged decisions are lawful cannot be dependent on what happens after the proceedings are resolved.

65.   Moreover, the risk that separate proceedings may be commenced to address any ongoing environmental damage to Yanco Creek cannot be appropriately addressed by amending the Summons in the manner proposed by the Applicant. The question is whether or not the proceedings will result in finality as to the legality of the relevant decisions of the Respondents. The question is not whether the proceedings will result in finality as to the dispute between the Applicant and the Respondents as to the environmental condition of the Yanco Creek.

66.   Additionally, it is of some significance that the application to amend was made informally by way of an attachment to a letter annexed to an undated affidavit on 4 August 2017 (or 8 August 2017). In circumstances where the initiating Summons was filed on 22 June 2015, this request for amendment 25 months later and after no less than 15 earlier interlocutory hearings in the matter, is (without a compelling explanation) entirely unacceptable and even more inappropriate just 12 working days from the commencement of the trial. In all of the circumstances I find that the Respondents would likely suffer prejudice if the amendment were to be allowed and that so to do would not be consistent with the overriding purpose of civil litigation: Aon Risk Services Australia Ltd v Australian National University.

61. On 13 November 2017, the Applicants filed an updated Further Amended Summons (Judicial Review) and a Further Amended Points of Claim.

62. In conformity with the Court orders of 4 August 2017, the first day of the substantive hearing in these proceedings commenced at 10.00 am on 27 November 2017. However, before the hearing commenced in the normal course, counsel for the Applicants informed the Court that the Applicants intended to make a recusal application.

The recusal application

63. The Applicants’ recusal application was not commenced by way of a notice of motion (or any other document), so neither the Court nor the Respondents had prior knowledge that such an application would be made. Notwithstanding this irregularity, the Court heard, by consent, the Applicants’ application that day (with some flexibility in the hearing schedule to ensure procedural fairness to the Respondents). The Applicants eventually filed a Notice of Motion seeking an “[o]rder recusing Molesworth AJ from the trial of the matter” later on 27 November 2017.

64. Putting to one side the first two arguments submitted as grounds for recusal (both related to my appointment as an Acting Justice of the Court), the Applicants’ third ground was that my reasoning in Randren House No 1 (in particular, my reasoning dismissing the First Applicant’s application to amend the extant Summons) might lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the substantive proceedings.

65. The judgment in the recusal proceedings is Randren House Pty Ltd v Water Administration Ministerial Corporation (No 2) (2017) 228 LGERA 354; [2017] NSWLEC 185 (Randren House No 2). The Court dismissed the Applicants’ recusal Notice of Motion and did so on the basis that the Applicants had not established that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions in these proceedings. Of significance to the determination of the primary issues in these principal proceedings, I determined the pre-judging argument in the recusal proceedings at [85]-[90], as follows:

85.   Thirdly, I consider that the alleged prejudgment matter raised by the Applicants could not lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings. I will first consider the critical issue of prejudgment with respect to my reasoning at [64] of the interlocutory decision (which appeared to be the Applicants’ focus).

86.   The Applicants are correct that this impugned paragraph concerning the application to amend the extant Summons reveals a view of the Court as to the nature and ambit of the proceedings. However, the Applicants are not correct that the view of the Court revealed is essentially, a pronouncement from the Court that (in the Applicants’ words) “we’re only concerned with the legality of decisions”. What is said is that “these judicial review proceedings do not centrally concern whether or not the Respondents have caused environmental damage and, if so, how they should be restrained” (emphasis added). This is then immediately followed by the statements that “[r]ather, these judicial review proceedings concern whether or not the Respondents have made particular decisions (which to be sure, may affect Yanco Creek and its surrounding environment) unlawfully by, for example, failing to have regard to mandatory relevant matters for consideration” and “[t]he proposed amendment, therefore, does not pertain to a real question raised or otherwise depending on the proceedings (emphasis added).

87.   The question is not whether the impugned paragraph discloses a predisposition of the Court or view of the Court (capable of being changed). Instead, the question is does this paragraph rise so high such that it could indicate to a fair-minded lay person that my mind might not be open to being persuaded that these judicial review proceedings actually centrally concern something other than the legality of the particularised decisions or conduct et cetera? I am of the view that the answer to that question must be no.

88.   Whilst these sentences speak for themselves, a conclusion cannot properly be drawn that the Court has prejudged the proceedings by confining the parameters of its future consideration of the issues in the proceedings to the legality of decisions. At most, the Court has expressed its “tendency of mind” or “predisposition” that these judicial review proceedings - as is traditionally the case with judicial review proceedings - centrally (but not exclusively) concern the legality of particular decisions. (I interpose here to note that the Applicants may well be correct that judicial review is not limited to decisions per se, however, the extant Summons in this case lists seven categories of “decisions” rather than, for example, conduct).

89   Nevertheless, the Applicants may persuade the Court during the substantive hearing that these judicial review proceedings (in this respect, the extant Summons is titled “Further Amended Summons (Judicial Review)” and describes the type of claim as “JUDICIAL REVIEW and ancillary relief”) are actually not centrally about the legality of decisions but, in fact, proceedings which, for example, centrally concern whether or not the Respondents have caused, contrary to law, ongoing environmental damage to Yanco Creek or heritage impacts. Although the Court has not suggested that environmental damage is a “vestigial issue”, even if that were so, it is not apparent from the interlocutory decision that I have any such crystallised, permanent view of this nature.

90   Critically, it cannot be correct that (acting) judges must decide interlocutory applications and proceed to trials with their minds as a blank slate as to the nature and ambit of the proceedings. However, what the Court cannot do is close its mind: Hills Shire Council v Mouawad (2014) 203 LGERA 233; [2014] NSWLEC 59 at [27]. For example, it could have been improper if I had said words to the effect of “environmental damage is not and will not be relevant at all [or must only be of peripheral/secondary relevance] to the determination of these judicial review proceedings because the Minister did not have an obligation to consider this matter in making any of the challenged decisions. On a fair and reasonable reading, that is not at all what is conveyed in the interlocutory decision and is certainly not what I intended to convey.

The request for making further submissions after close of hearing

66. On 21 August 2018, 19 days after the conclusion of the primary hearing, the Court was informed by the solicitor for the Respondents that they understood that the Applicants sought to put further written submissions before the Court. The Respondents noted that they did not consent to such submissions being placed before the Court, and that the parties proposed to exchange submissions as to admissibility, and provide me with submissions on that point to determine whether or not the Court would then receive the further, substantive, submissions.

67. The Court, by return e-mail that day, noted that it was not on notice of any proposal by the Applicants to put further submissions to the Court; that such submissions proposed after the conclusion of the hearing would not ordinarily be received, but that given the parties had devised a course of action to debate the issue between themselves they should exchange submissions and come to a conclusion between themselves. If a consent position was arrived at, the Court would then consider it.

68. By e-mailed letter of 5 September 2018, the solicitor for the Applicants, mischaracterising the Court’s e-mail of 21 August 2018 as “consent directions for [sic] exchange submissions on the supplementary point regarding the construction of clause 4(1)(a) Schedule 10 Water Management Act 2000”, attached a copy of a document entitled “Applicants’ Reply” and “a fresh copy of the Applicants’ Submission dated 9 August 2018 to which [the Respondents’] Submission responds”.

69. By e-mail of 6 September 2018, the Respondents’ solicitors then forwarded their Submissions in Reply, noting that those submissions dealt with the Respondents’ objection to the receipt of further submissions as well as why the Applicants’ submissions, even if received, should be rejected.

70. The Court was therefore in possession of:

1. a “Supplementary Submission in Reply” of the Applicants, dated 9 August 2018;

2. the Respondents’ “Response to Applicants’ Application for Leave to File Supplementary Submissions” dated 27 August 2018; and

3. a document titled “Applicants’ Reply”, dated 3 September 2018.

71. The Court noted that, given the Applicants’ solicitor had taken the liberty of forwarding the submissions in issue to the Court on 5 September 2018, a step they should not have taken, and the Respondents’ unsurprising response of providing submissions both as to admissibility and on the substantive point, it would reserve its decision on whether to admit the further submissions to be determined in the course of this judgment.

72. It is therefore necessary for the Court to determine whether such post-hearing submissions, inappropriately placed before the Court before their admissibility was determined, should be read.

Are the further submissions admissible?

Applicants’ submissions

73. Leave was sought by the Applicants to make a supplementary submission “on a point of construction” in relation to the meaning of the phrase “an entitlement with respect to a regulated river” in Sch 10, cl 4(1)(a) of the Water Management Act which, the Applicants submitted, arose from an argument raised in closing submissions regarding the application of the decision in Minister Administering the Water Management Act 2000 v Sharkey (2017) 226 LGERA 322; [2017] NSWCA 319 (Sharkey No 3); Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 3 (Sharkey No 1) (deciding whether the issue should be a separate question for determination); and Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 47 (Sharkey No 2) (being the decision on the separate question).

74. As recounted above, the Applicants, improperly, did not make submissions to the Court as to why supplementary submissions ought to be received by the Court nearly three weeks after the conclusion of the hearing, but rather simply provided those supplementary submissions to the Court. As such, the Court did not receive argument from the Applicants as to why supplementary submissions should be received after the close of the hearing.

Respondents’ submissions

75. The Respondents submitted that leave to make the supplementary submissions should be refused, on a number of bases.

1. First, that the Applicants had already addressed the application of the relevant clause in oral submissions in reply, to which the Respondents made short oral submissions (to the effect that the matter had never been pleaded and in any event was wrong because the licence in question in these proceedings was an “entitlement with respect to an unregulated river”, the diversion channel, within cl 4(1)(b)), to which the Applicants then made further oral submissions. The Respondents also noted that the Applicants had already mentioned cl 4 of Sch 10 of the Water Management Act in writing and had therefore had ample opportunity to address the issue.

1. Secondly, the Respondents argued, the Applicants’ supplementary submissions are not only on “a point of construction”, because their argument that theirs was an “entitlement with respect to a regulated river” depended upon factual matters such as the flows into the Lake Paddock, and whether it was a ‘dependent ecosystem’ of Yanco Creek, upon which, if the argument had been properly pleaded, the Respondents might have led further evidence.

2. Thirdly, the Respondents argued that it could not be said that the question of the application of cl 4 arose out of the Respondents’ closing submissions about Sharkey No 3, which was raised simply to demonstrate that the Court of Appeal held that the source of the Minister’s power to declare a regulated river was the definition of “regulated river”. It was not raised, the Respondents said, with respect to cl 4. The cl 4 argument is, according to the Respondents, “part of the Applicants’ positive case and it should have been pleaded, and addressed by the Applicants’ submission-in-chief, not dressed up as a submission ‘in reply’”.

3. Finally, the Respondents submitted that the Applicants never pleaded that the 1986 Licence was by virtue of cl 4, converted to a “Regulated river (general security)” licence, from what is accurately defined as an “entitlement with respect to an irrigated river”.

Decision on leave to file supplementary submissions

76. The Court has decided that leave will not be granted for the Applicants to file, and then rely upon, the supplementary submissions headed “Supplementary Submissions in Reply” dated 9 August 2018, nor the associated ‘Reply’ dated 3 September 2018. The Court found the Respondents’ submissions summarised at [75] above were both persuasive and correct.

77. There can be no doubt that, in the course of the proceedings the distinction between regulated and unregulated rivers under the Water Management Act was examined, including the differential rights with respect thereto. The statutory regime was required to be examined, including the provisions in Sch 10 dealing with the conversion of former entitlements to access licences and approvals. Amongst the case law drawn to the Court’s attention, albeit briefly, were the three Sharkey cases. There had been ample opportunity for the Applicants to address the issues that they sought to elaborate upon in the supplementary submissions and they had in fact done so in the course of the hearing, both in writing and orally, albeit with differing emphasis.

78. The Respondents’ submissions in closing, submissions which were properly responding to aspects of the Applicants’ arguments whilst addressing issues regarding regulated rivers and briefly mentioning the Sharkey decisions, did not trigger a justifiable basis for the Applicants to reagitate or add to aspects of their interpretation of the legislative regime. In circumstances where the hearing had finished, it was inappropriate for the Applicants’ counsel to further reflect on how the Applicants’ case had been argued and to then seek to expand upon, or nuance, what appeared to be an ‘evolving argument’.

79. A further strong reason for disallowing the Applicants from reagitating and then extending the propositions they had earlier canvassed with respect to cl 4 of Sch 10 was the fact that their arguments in the supplementary submissions were now straying from and extending an argument they had not actually pleaded, despite the successive iterations of those pleadings. This was a case where there had already been tolerated multiple variations of key documents with the pleadings evolving to the SFAPOC which, on the second-last day of the hearing, had to be again edited throughout so as to properly identify the correct section and paragraph numbers in the legislation therein cited and relied upon. In this context, the core and critical objection of the Respondents to the Applicants being allowed to rely upon their proposed post-hearing submissions was that they, in effect, put forward a proposition that had never been pleaded: that the 1986 Licence was by virtue of cl 4, converted to a ‘Regulated river (general security)’ licence. Whether that proposition has any substance or not, such matters being raised so late in the proceedings is contrary to proper principles applicable to the management of proceedings.

The September 2018 Notice of Motion

80. Some six weeks following the close of the primary hearing and the reserving of judgment, by Notice of Motion filed on 14 September 2018, the Applicants sought to reopen the proceedings for the Court to receive further supplementary evidence from Mr Paul Andrews set out in a new affidavit sworn 3 September 2018, and a new affidavit of Mr James Purcell sworn 5 September 2018. The Respondents filed an answering affidavit of Mr Patrick Mullane, the solicitor having the carriage of the matter for the Respondents affirmed 27 September 2018. The Court heard the Motion on 28 September 2018, and reserved its decision.

81. In short, the affidavit of Mr Andrews recounted his attendance at a meeting on 8 August 2018, 16 days after the close of the primary hearing, arranged by the Yanco Creek and Tributaries Advisory Council. He had received word of the meeting from one of his neighbours during a telephone conversation four days earlier on 4 August 2018. He stated that at the meeting a proposal for Yanco Creek was discussed by a representative from the Murray Darling Basin Authority and officers of various State authorities. He reported that it was proposed that a regulator was to be built at the Yanco Creek offtake from the Murrumbidgee River to block or restrict flows down the Yanco Creek over the winter months which would provide more water to be sent down the Murrumbidgee for environmental flows. Mr Andrews went on to state at [9] that:

I say, as a result of hearing the proposal and the reasons given at the meeting referred to above, that the Respondents and the Commonwealth are proposing Yanco Creek water conservation measures which have the result of giving effect to the proposals of Mr Jim Purcell put to this Honourable Court to prevent inundation damage from high regulated flows at Somerset Park as set out in his reports lodged with the Court.

82. Mr Andrews confirmed that he was unaware of the Yanco Creek proposals before the meeting he attended on 8 August 2018. He requested the Court to consider this new material and Mr Purcell’s analysis of it, concluding at [13]:

I respectfully say that the further evidence could not reasonably have been foreseen by the Applicants is relevant, and that it is not unfair to the Respondents for the Court to receive the evidence because, having regard to their position and responsibilities under Water Management Act 2000 they have at all material times since 2013 the date of the Alluvium Report referred to in evidence in this Court, have been aware of circumstances giving rise to the alleged duty to redress inundation damage by reason of high regulated flows along Yanco Creek, and the Applicants’ claims in that regard.

83. Mr Purcell in his 5 September 2018 affidavit exhibited a supplementary expert report dated 3 September 2018, in which at [1] he confirmed that his instructions were to review the proposal by “WaterNSW” and “DPI Water” titled “Improved Flow Management Works at the Murrumbidgee River - Yanco Creek Offtake” (Yanco Creek Offtake Proposal) which he had annexed to a further report annexed to his affidavit. He confirmed that he had been asked to provide his opinion regarding the potential effects of the proposal on the water body in the Lake Paddock at “Somerset Park”. He then expressed the opinion that the Yanco Creek Offtake Proposal would “provide significant positive impacts on the inundation damage done at the lagoon/wetland at Lake Paddock”. Quoting from the this further report, Mr Purcell opined as follows:

1. At page 1, paragraph 5:

I also reviewed the August 2015 Business Case for the proposed project (Attachment 4) prepared by the then NSW DPI Water. As detailed in Section 3.2 below, NSW DPI Water recognised in 2015 that the Yanco Creek system had "a number of significant wetland assets as well as a large number of smaller floodplain depressions and billabongs. NSW DPI Water also recognised in 2015 that the current flow regime of Yanco Creek has been significantly modified from pre-development and that this change has impacted the environmental assets of the system.

2. At page 2, paragraph 1:

This proposal, in my opinion, indicates that WaterNSW and DPI Water recognises that better control and management of flows down Yanco Creek is required for better environmental outcomes for Yanco Creek and its dependent wetlands/lagoons like Lake Paddock at Somerset Park.

3. At page 2, paragraph 2:

The proposal also allows for more efficient delivery of environmental flows along the Murrumbidgee River to the Mid-Murrumbidgee River Wetlands as uncontrolled flows down Yanco Creek during delivery of environmental flows could be prevented with the proposed Regulator Structure at the start of Yanco Creek.

4. At page 6, paragraph 3:

This proposal would allow, in my opinion, much better management of the Yanco Creek flows to better reflect the pre-development wetting/drying patterns. Such management flexibility would have significantly reduced the damage done to the lagoon/wetland in Lake Paddock at Somerset Park.

5. At page 8, paragraph 1:

In my opinion most, if not all, of the inundation damage done to the lagoon/wetland in Lake Paddock on Somerset Park could have been mitigated by better management of flows down Yanco Creek. The Regulator Structure at the start of Yanco Creek as currently proposed by WaterNSW would provide the infrastructure to allow such better management of flows in Yanco Creek.

6. At page 8, paragraph 2:

The Regulator Structure as proposed could have allowed Yanco Creek Flows to be stopped or at least reduced to sufficiently low flows and water levels at critical times to allow dependent lagoons/wetlands like Lake Paddock to drain. This would have reduced or prevented the damage done to the Lake Paddock lagoon due to the very long periods of inundation.

84. In response to the foregoing material, Mr Mullane, in his affidavit, set out a series of internet searches he had carried out to establish the commencement of the period that information was publicly available about the documents referred to by Mr Purcell in his 5 September 2018 affidavit and annexed report.

1. With respect to "WaterNSW Summary Document - Improved Flow Management Works at the Murrumbidgee River - Yanco Creek Offtake", which was Attachment 2 to Mr Purcell’s affidavit, Mr Mullane’s searches revealed that the earliest result for a document matching the description of Attachment 2 was 16 March 2017.

2. With respect to the “Murray Darling Basin Authority Register of Measures” being Attachment 3 to the affidavit of Mr Purcell, Mr Mullane’s searches indicated that the document was current as at 17 November 2017.

3. Finally, with respect to the “NSW DPI Water Business Case for Project”, being Attachment 4 to Mr Purcell’s affidavit, Mr Mullane’s searches revealed that the document had been tabled in the Senate on 27 June 2018.

4. It is to be noted that all the dates of these three documents preceded the commencement of the primary hearing on 2 July 2018.

85. Whilst examining the “Murray Darling Basin Authority Register of Measures” a document in table format, the Court noted, at p 7 of the table at item 24, that there was reference to the Yanco Creek Offtake Proposal. As the Court noted during an exchange with counsel during the hearing, this passage in the document states:

This proposal aims to return the Yanco Creek system closer to a pre‑development wetting/drying regime, while improving infrastructure that supplies irrigation and stock and domestic water. Upgrades to Yanco Weir on the Murrumbidgee River would result in more control over flows through the proposed Yanco Creek regulator. This may provide the Commonwealth Environmental Water Holder and the Office of Environment and Heritage with more flexibility in managing flows within the Murrumbidgee River system.

(Transcript 28.09.18, 2.20-31)

86. There are also important case management considerations that weigh against the Applicants on their Motion. Counsel for the Respondents took the Court to The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 (Movie Network Channels).

87. In the Movie Network Channels decision, the Supreme Court usefully set out a comprehensive overview of the principles which have been established in many cases over the years.

4.    In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application to reopen [Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478]. An application to reopen is subject to various degrees of scrutiny depending on the stage of the proceedings when the application is made. The test of what is 'just' at this stage of the proceedings is akin to the considerations applicable where leave to rely on fresh evidence is sought on appeal. That is the evidence must be credible, highly probative and not previously obtainable by reasonable diligence [Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717 at 719 per Young J; Ritchies at [51.51.50]; Australasian Meat Industry Employees Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 at 493 - 494 per Toohey J; Murray v Figge (1974) 4 ALR 612; Betts v Whittingslowe (No 1) [1944] SASR 163; Hughes v Hill [1937] SASR 285; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88].

5.    Naturally the principles which inform the exercise of the discretion to reopen are to be read against the general background of the obvious public interest in the finality of litigation: cf Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 per Mason CJ at 302-303.

6.    In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Kenny J identified at [24] certain recognised classes of cases in which a court may grant leave to reopen as including where:

(a)   Fresh evidence becomes available [Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) [2009] FCA 82 (evidence from a 'whistle blower' became available after the conclusion of the hearing)];

(b)   There is inadvertent error; [Telecom Vanuatu Ltd v Optus Networks Pty Ltd (No 2) [2009] NSWSC 33];

(c)   There is a mistaken apprehension of the facts [Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Autodesk Inc]; or

(d)   There is a mistaken apprehension of the law [Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471].

7    In Smith v NSW Bar Association (1992) 176 CLR 256 at 266 a majority of the High Court found that:

"If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application." [See also: Barker v Furlong [1891] 2 Ch 172 at 184; Hughes v Hill [1937] SASR 285 at 287; Multicon Engineering Pty Ltd v Federal Airports Corporation (NSWSC, Cole J, 10 December 1993, unreported)].

8   In ASIC v Rich (2006) 235 ALR 587 at [18] per Austin J listed the factors that he agreed were relevant to the exercise of the discretion as follows:

i.   The nature of the proceeding [See also Woolworth Ltd v Olson [2004] NSWSC 871];

ii.   Whether the occasion for calling the further evidence ought reasonably to have been foreseen;

iii.   The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; 

iv.   The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;

v.   The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;

vi.   The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

vii.   The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;

viii.   The public interest in the conclusion of litigation [See also Hawthorn Glen Pty Ltd v Aconex Pty Limited (No 1) [2007] FCA 2010 at [48]]; and

ix.   What explanation is offered by the plaintiff for not having called the evidence in chief.

88. On the basis of the foregoing principles set out in the many authorities referred to and embraced in Movie Network Channels, counsel for the Respondents made the following submissions:

1. At Transcript 28.09.18, 16.16-19:

… the onus is very much on the Applicant[s], and as the authorities that I'll take you to demonstrate, the question is not could this material be relevant? The question is: Is it credible, highly probative and not previously obtainable by reasonable diligence?

2. At Transcript 28.09.18, 16.29-37:

… there's a reference to "the interests of justice subject to various degrees of scrutiny, depending upon the stage of the proceedings when the application is made". Of course, here it [is] being made after the conclusion of evidence, submissions and your Honour reserving judgment, so, that is at a very late stage. "The test of what is just is akin to considerations applicable where leave to rely on fresh evidence is sought on appeal. The evidence must be credible, highly probative and not previously obtainable by reasonable diligence," and, of course, the Applicants bear the onus in respect of each of those limbs.

3. At Transcript 28.09.18, 17.3-6:

The question is not was it a discoverable by reasonable diligence by the Respondents. It's not the Respondents’ case that was being advanced in the Second Further Amended Points of Claim. It was the Applicants’ [case].

4. At Transcript 28.09.18, 17.13-18.21:

In my submission, for reasons I've already given, these aren't pertinent documents. I don't think I will [be] repeating myself if I try to elaborate upon that. The question is not … ‘were these documents obtainable by the Respondents by reasonable diligence?’ because, as I have already said, the documents are not relevant, weren't relevant to the pleaded case and, in any event, it's the Applicants’ onus to prove their case.

Here I'm dealing with the motion to reopen and the authorities say that the applicant has to demonstrate [that] the material is highly probative and not previously obtainable by the applicant by reasonable diligence … [I]t's looking at, well: Why didn't the applicant adduce this earlier? That's the question that these authorities address. Why didn't the applicant adduce this … in circumstances where it's the applicant that wants to adduce it now? The question is: ‘could the applicant have obtained the material by reasonable diligence in advance of the hearing?’ Paragraph 5 [in Movie Network Channels], read against the background in the obvious public interest to the finality of litigation; [sets out] certain categories of case where leave to reopen may be granted. In my submission, none of those categories apply here. (A) the reference to fresh evidence, the authorities establish fresh evidence is evidence that is generated after the hearing, not evidence discovered after the hearing, but new evidence, so some event happens …

…

It's fresh in the sense that it didn't exist at the time, that evidence didn't exist at the time of the litigation.

…

There are authorities to that effect …. I'm not suggesting that you can only grant leave if it's fresh. I'm just saying that para (a) here [in Movie Network Channels] is addressed to that circumstance. (b) doesn't apply. There has not been any evidence of inadvertent error. (c) doesn't apply. (d) doesn't apply. [In paragraph] (7) "an application is made to reopen on the basis that new or additional evidence is available. It will be relevant to inquire why it was not called, if there was a deliberate decision not to call it,” and I'm not suggesting that there was. There's no evidence about that.

549. With respect to the assertion that the Minister must have been aware of the past impacts on the Lake Paddock of inundation at the time of Decision 8 and so made the decision in the knowledge of the environmental and ‘farm asset damage’, the Court accepts that material in the possession of the Department (including, for instance, the departmental file) must be treated as being in the possession of the Minister (per Peko-Wallsend at 31). However, with that file ‘in front’ of the Minister, he would have then known that the Applicants had failed since 1986 to construct the control measure, the regulator, which, without being at least tested, could be taken by the Minister to be an appropriate inundation control measure. Further, it is conceivable that the Minister, even if informed of a likely environmental impact on Lake Paddock, made a decision in the greater good - that is ensuring that for the majority of the WSP area, the wider area would be benefiting from an adherence to the water management principles. The Act does not speak of 100% successful management over 100% of the WSP area. The duty is to “take all reasonable steps” to exercise functions in accordance with the principles" (per s 9(1)(a)). Although risks may have been identified, through constructive knowledge of the Department file, the Minister is not compelled to classify the extent to which each and every water body is at risk - he ‘may’ classify water sources according to their risk (s 7(1)).

550. In view of the decisions I have reached with respect to the arguments I have addressed thusfar, with respect to Decision 8 it is unnecessary for me to examine further matters raised by the parties with respect to Decision 8.

The constitutional claim

561. Section 100 of the Commonwealth Constitution provides:

100   Nor abridge right to use water

The Commonwealth shall not, by any law or regulation of trade or commerce abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

562. The Applicants alleged that the Respondents “impaired the constitutional guarantee of the Applicants contained in s 100 of the Commonwealth Constitution”. This guarantee, the Applicants said:

applies to state laws and measures and the implementation thereof as alleged herein and have thereby abridge the right of the Applicants and each of them and all farmers holding land adjacent to Yanco Creek to the reasonable use of the waters of Yanco Creek for conservation or irrigation.

Applicants’ submissions on constitutional claim

563. This was particularised as follows:

(i)   In the premises in implementing the decisions complained of in paragraphs 8A and 8B the Respondents have unreasonably abridged the right of the Applicants to the use of Yanco Creek for conservation and for irrigation and to maintain its natural heritage values.

(ii)   Each of the water works and water usage decisions and their adverse consequences and effect on “Somerset Park” in the implementation thereof as alleged herein failed to have regard to the obligation on the Respondents as owners of the water resources of NSW including in Yanco Creek not to abridge the reasonable use by the residents of the waters of rivers for irrigation and conservation and in not so doing each such decision is void and of no effect.

(iii)   The Applicants will seek injunctive relief to prevent further impairment of their and the local environment at “Somerset Park” by reason of the decision or decisions complained of herein.

564. In their “summary of argument”, filed before the commencement of the hearing, the Applicants argued that there had been:

an impairment by the unauthorised acts and decisions of the Applicants’ rights as residents of the State of NSW to the reasonable use of the waters of Yanco Creek for conservation by adopting the high usage and flows in that Creek inundating the Applicants’ land, which leads to the invalidity of any law that in its terms operation or effect impairs that right as has happened here. [295]

295. ASA [89]

565. However, when questioned during the hearing as to whether the constitutional claim would be withdrawn, or whether it would be continued to be pressed, counsel for the Applicants reiterated that the constitutional claim was pressed, but declined to make submissions thereon (Transcript 554.42).

566. With counsel for the Applicants adopting this course, the Court’s understanding of the Applicants’ claim with respect to s 100 of the Constitution was not assisted. The Court was thereby limited to examining the pleadings and the “Notice of a Constitutional Matter” under s 78B of the Judiciary Act 1903, dated 19 December 2016. The s 78B Notice was Annexure A to the affidavit of John Andrew Andrews sworn 13 March 2017.

567. In the course of the hearing the Court expressed a tentative view that the constitutional claim of the Applicants was if not devoid of substance, weak, and invited the Applicants’ counsel to withdraw their claim, or at least clarify their position, for example (at Transcript 207.33-34), “I really need to understand how you put that constitutional case, because I do see fundamental problems with it”.

568. In particular, on the fourth day of the primary hearing, the Court delivered an interlocutory judgment on the admissibility of expert evidence in Randren House No 3. At [16] the Court observed:

I have chosen to put to one side and not address the third basis upon which the Applicants say the expert evidence is necessary, that being to assist the Court to understand how it might interpret, or perhaps apply, the words “reasonable use of rivers for conservation or irrigation” in s 100 of the Commonwealth Constitution. Although I am yet to hear full argument from either party regarding that aspect of the Applicants’ case, at this point in the proceedings I remain at a loss to understand how there is any basis for the s 100 case to be put. I sought an explanation from counsel for the Applicants as to how the decisions in question in this case could give rise to the alleged constitutional infringement, specifically, how the decisions in question might be interpreted as actions (or perhaps inactions) of the Commonwealth. Counsel for the Applicants did not provide me with a sufficient answer to enlighten me. Considering Ground 7 of the Further Amended Summons and paragraph 12 in the Further Amended Points of Claim, in the context of the Respondents’ brief response being paragraph 12 in their Points of Defence, I am presently of the view that this alleged Constitutional breach component of the Applicants’ case is vulnerable to being justifiably struck out.

569. Endeavouring to understand the basis of the Applicants’ case on the s 100 constitutional argument, the Court has endeavoured to piece together snippets of propositions scattered throughout other submissions, a highly undesirable, but unavoidable, approach made necessary in this case given the approach adopted by the Applicants’ counsel.

1. At Transcript 19.19-21 it was said:

as the common law points out, and we say ultimately s 100 of the Constitution observes there needs to be a reasonable use, a reasonable sharing of water so that damage doesn't occur, particularly to the environment.

2. At Transcript 32.14-18:

…we've raised the question of a fallback case under s 100 of the Constitution … which guarantees the right to the reasonable use of the waters and rivers for conservation and irrigation …

3. Then at Transcript 32.33-37:

Any State law which reaches a different result … we say is invalid to the extent that it prevents us recovering, us claiming that a law of the State prevents us from exercising, or prevents us from preventing them from exercising the use of waters in an unreasonable way.

4. Then, at Transcript 195.9-15, the argument is fleshed out:

The word[s] “reasonable use of [the] waters [of] and [sic] rivers appears as a constitutional guarantee. We say it binds both Federal and State authorities. It’s a constitutional guarantee of the conservation rights and irrigation rights of Australian farmers. Your Honour might think that’s an unusual guarantee, but then again if one thinks about the freedom of political communication which the High Court has inferred from the constitution, that is a freedom which limits both State and Federal laws.

5. Further, commencing at Transcript 195.36-196.4:

Ms Heger says ‘well we don’t have to worry about s 100 because it doesn’t apply’. … My answer to that, it does apply, and in order to ascertain how it applies your Honour need[s] to look at the facts as to whether or not the reasonable use of the waters of rivers is occurring or endorsed by State laws in this case - and that can only be done on evidence. The whole purpose of s 100 … Even if my friend's absolutely right about everything, I'm still entitled to get this evidence in because it goes to reasonable use. What is the reasonable use of Yanco Creek? Our case is not to run it as an irrigation canal. Instead of building one, as the State could have, resuming land, incurring the expense, all they did was they turned Yanco Creek from about 1996 into a massive irrigation canal.

570. Perhaps the most colourfully expressed contention from the Applicants’ counsel appears at Transcript 651.23-31:

Can I just say this about s 100? It's the only section in the Constitution which actually refers to a right of the residents of the state to the reasonable use of waters for irrigation, a pretty specific right. Mr Deakin, the leaders of the early Australian communities, the yeomen farmers down at Mildura, they wanted that provision in the Constitution because they didn't want other people taking their water, [whether] they were down or higher up, they wanted a reasonable flow of water. It's a fundamental right, we say, it's one reflected at Common Law in the judgment of Lord Watson that I handed up. It's reflected in s 100.

571. The case and passage to which counsel referred was John Young and Company v The Bankier Distillery Company [1893] AC 691 (John Young) at 696 per Lord Watson, wherein his Lordship held:

The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water, whether flowing in a definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in æmulationem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbour's property by artificial means and I can see no distinction in principle between water raised from a mine below the level of the surface of either property, which is the case here, and water artificially conveyed from a distant stream.

The law of Scotland upon this point is the same with that of England. In Blair v. Hunter, Finlay & Co, Lord Gifford said: “Although there is a natural servitude on lower heritors to receive the natural or surface water from higher grounds the flow must not be increased by artificial means although reasonable drainage operations are permissible.” The rule that the upper heritor cannot interfere with the gravitation of the water so as to make it more injurious to the land below is clearly stated by Erle, C.J., in Baird v. Williamson, which was rightly accepted by the First Division as establishing a principle conclusive of the present case.

[citations omitted]

Respondents’ submissions on constitutional claim

572. The Respondents denied that s 100 of the Constitution imposes a limitation on the legislative powers of the States. [296] Rather, the Respondents submitted, it is well established that s 100 relates to conduct by the Commonwealth (citing Morgan v Commonwealth (1947) 74 CLR 421; [1947] HCA 6 (Morgan) at 455, 458-459; passages in Arnold Appeal at [23], [53], [76], and [83], wherein it was decided that it was unnecessary to reconsider the correctness of Morgan; and Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21).

     296. PoD [12]

573. The Respondents cited the decision of the Full Federal Court in Lee v Commonwealth (2014) 229 FCR 431; [2014] FCAFC 174 (Lee) at [87], [107]-[110], wherein that Court applied Morgan in holding that the primary judge was correct in summarily dismissing the appellant’s case relying on s 100 of the Constitution and, further, held that s 100 did not create a private right, enforceable in an action for damages (at [185]).

574. Therefore, the Respondents submitted, the constitutional claim alleged in paragraph 12 of the SFAPOC should be dismissed.

575. Further, the Respondents argued that paragraph 12 of the SFAPOC should also be dismissed because:

a.   s 100 is a restriction on legislative power, and the applicants have not identified any “law or regulation” which has restricted their reasonable use of waters and

b.   there is no evidence that any law or regulation has restricted the applicants reasonable use of the waters of Yanco Creek. Under cross-examination Mr Paul Andrews was not able to explain [32] of his affidavit of 28 January 2016 (which alleges inter alia a loss of capability to irrigate). He accepted there was nothing stopping him from using the water in the Lake Paddock for irrigation, aside from financial reasons Mr Purcell purported to opine about the applicants reasonable use of waters but was in reality opining about the reasonable use of their land. [297]

[references omitted]

297. RCS [121]

Consideration of the constitutional claim

576. The Court is satisfied that the Respondents have placed before it cogent reasons why the Applicants’ s 100 constitutional contentions should be dismissed. The starting point is what I consider to be trite law that s 100 relates to Commonwealth decisions and actions and does not impose a limitation on the legislative powers of the States. As counsel for the Respondents submitted: “… the cases establish that (s 100 of the Constitution) only applies to restrict Commonwealth power, not State power” (Transcript 90.36-40). I consider that proposition to be patently clear on the face of s 100 and it is apparent that is how the provision was intended to operate. As held by the High Court in Morgan, at 455, s 100 is one of a group of sections that “should be read as applying only to laws which can be made under the power conferred upon the Commonwealth Parliament by s 51(i)”.

577. Before leaving s 100, I should also note that, in addition to s 100 being focused on Commonwealth laws and regulations, those laws and regulations are to be in relation to trade or commerce. Although my finding that the absence of a requisite Commonwealth law in this case is fatal to the Applicants’ case, the additional prerequisite that the law or regulation in question is to be with respect to trade or commerce, reinforces the rationale for dismissing the Applicants’ s 100 constitutional claim. In this regard, I follow the judgment of the Full Court of the Federal Court in Lee wherein they dismissed a not dissimilar claim with respect to s 100, albeit the primary focus of that case was the operation of the Water Act 2007 (Cth). However, the conclusions of the Federal Court, as are apparent from the following passage, are nevertheless pertinent to the determination of similar arguments raised before me:

110   Consequently, we do not consider it can be said the primary judge erred in concluding that the s 100 case argued by the appellants on the basis of Morgan, had no reasonable prospects of success. No error is shown. If a different approach to the construction of s 100 is to be taken, it must be as a result of a considered re-opening of Morgan by the High Court, not by this Court.

111   In those circumstances the appellants press their alternative argument that the relevant parts of the Water Act that they impugn, can be characterised as a law relating to trade and commerce for the purposes of s 51(i), and so for the purposes of ss 99 and 100.

…

118   The appellants emphasise that it is the operation and effect of the relevant provisions of the water market created by the Water Act that must be focused on in determining the true nature and character of the impugned provisions. They contend that when that is done appropriately, and at least arguably for the purposes of a summary dismissal application, it can be seen that, while many of the provisions of the Water Act are, as the primary judge found, designed to protect the environment, they are also about interstate trade or commerce.

…

122   There are a number of stumbling blocks recognised by the primary judge, which, in our view, make the propositions pressed as a whole, untenable. In particular, the proposition, or assertion, that commercial irrigation is an activity in interstate trade and commerce, is put at a very high level of generality. It very much was put on the basis that water flowing down the river, which is diverted into commercial horticultural farms provided the interstate character of the law. The argument, put in this way, fails to appropriately engage with the machinery provisions of the Water Act and what they say and do.

123   The second proposition put, again at a high level of generality, was that because the Water Act had the effect, or potential effect, of reducing the quantity of water in the River Murray for irrigation or conservation purposes it therefore “cut” the appellants rights of commercial irrigation and conservation, so that the Water Act and its relevant parts was in substance or effect a law about trade and commerce among the States In so stating, the submission fails to explain how the law thereby becomes one of trade and commerce among the States.

578. The Court also agrees with the Respondents’ contentions, summarised earlier at [575], that the Applicants’ reasonable use of waters for either irrigation or conservation has not been “abridged”.

579. With respect to the Applicants’ reference to the Scottish common law principles explained in John Young, set out earlier at [571], which, it was asserted, were reflected in s 100 of the Australian Constitution, it is pertinent to note that in New South Wales common law riparian rights have been abolished. Section 393 of the Water Management Act provides:

393   Abolition of common law riparian rights

Any right that the owner of riparian land would, but for this section, have at common law with respect to the flow of any river, estuary or lake through or past the land, or to the taking or using of water from any such river, estuary or lake, is hereby abolished.

580. For all the reasons set out above, the Court has concluded that the constitutional claim set out in [12] of the SFAPOC should be dismissed.

Discretionary factors

Applicants’ submissions on discretionary factors

581. The Applicants argued that the Respondents’ submission, that the Court ought to decline to grant relief to the Applicants on the basis of delay and the Applicants’ non-compliance with condition 7 (later condition 10) of the 1986 Licence, ought to be rejected because “the environmental damage is ongoing and can only be resolved by decisions and actions of the Respondents”. [298]

Delay

298. ASA [90]

582. The Applicants acknowledged that delay in commencing proceedings is a discretionary reason for a court to refuse relief, however pointed to Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, Yirrell vYirrell [1939] HCA 33; (1939) 62 CLR 287, and Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213, in which, the Applicants said, the relevant court granted relief notwithstanding a delay in the commencement of the proceedings. [299]

     299. ASA [91]

583. The Applicants argued that they commenced proceedings “within time after the mandatory conditions were imposed completing the relevant decision‑making process and finally settling the question as to what licence [the First Applicant] was entitled to under the proclamation commencing the Water Management Act 2000 section 55A and 88A with respect to the [1986 Licence]”. [300]

     300. ASA [92]

582. Further, they submitted, “[i]f anyone should be criticised for delay it is the State, which knowing of the environmental damage being caused by its ongoing river operations simply ignored the problem”. [301]

Compliance with conditions of 1986 Licence

301. ASA [92]

585. With respect to the Respondents’ submissions regarding condition 7 (later condition 10) of the 1986 Licence, the Applicants said:

We dispute any breach of condition 7. Indeed, we point out that the licence didn't even permit us to build a sill until 1996 and, after 2012, the Act simply says you can only be in breach if you fail to use a licence. But our second point is that the whole sill was ineffective by reason of the high regulated flows and the pressure on Yanco Creek and its dependent ecosystem, the Lake Paddock at “Somerset Park”. And, of course, it's not just the Lake Paddock, it's the Yanco Creek itself and the banks of water which pass through them on my client's property. (Transcript 547.45-47)

Respondents’ submissions on discretionary factors

Delay

586. The Respondents submitted that the Applicants’ delay in commencing the proceedings, noting that the impugned decisions were allegedly made from 1990 onwards, was highly material to the Court’s exercise of its discretion.

587. This delay, the Respondents submitted, was “a powerful factor weighing against the grant of relief sought in the present proceedings” in relation to Decisions 1 and 2 (to the extent those decisions were alleged to have been made between 1990 and 22 March 2015) and Decisions 3, 4 and 5. The Applicants, the Respondents said, have provided no real explanation for the delay in commencing proceedings. With respect to Decisions 1 and 2, the Respondents argued that the delay had resulted in prejudice to the Respondents because “the passage of time makes it difficult to answer allegations about what was and was not taken into account”. [302]

     302. RCS [130]

588. With respect to the authorities relied upon by the Applicants’, the Respondents contrasted the “25 year lapse of time between 1990 and the commencement of the present proceedings” and the “little more than 14 months in Katter v Melham”. [303]

Compliance with conditions of 1986 Licence

303. RCS [129]

589. The Respondents argued that the First Applicant’s non-compliance with the conditions of its licence requiring the construction of a regulator also weighs against the grant of any relief against Decision 1 (noting, however, that no relief was sought). [304]

Change in flows

304. RCS [131]

590. The Respondents further submitted that, to the extent the Applicants seek relief by way of a change to the flows in Yanco Creek, a further reason for the refusal of that relief was that it could have serious adverse impacts upon third parties and the environment (relying on the evidence of Mr Maini at Transcript 399.18-22 and the Alluvium Report at page 3). [305]

     305. RCS [132]

Consideration of discretionary factors

591. If the Court is incorrect with respect to any of its conclusions in relation to its review of the various decisions the subject of these proceedings and therefore has residual discretion to exercise with respect to the grant of relief, then the Court has concluded that, in any event, there are sound reasons why the Court should not exercise its discretion in favour of the Applicants and so not grant any of the relief sought.

592. The Court has decided that, with respect to the Respondents’ arguments regarding discretion, being: (i) the Applicants delay in seeking relief; (ii) the Applicants non-compliance with licence conditions; and (iii) the implications for an unknown number of, but obviously numerous, landowners and water users downstream from “Somerset Park” of any orders made in these proceedings, in all three respects the arguments have merit.

593. Earlier in this judgment at [209]-[225], the Court examined the implications of the proceedings being out of time for the purposes of r 59.10 of the UCPR. In that discussion, the Court concluded that there remained a discretion within the hands of the Court whether or not to allow aspects of the Applicants’ claim to proceed to determination. There is a distinction between the exercise of discretion to allow a claim to proceed, that is, to allow it to be argued and considered, and the exercise of discretion, after argument from both parties have been ventilated, whether to grant the relief sought in relation to any particular ‘surviving’ head of claim. Having allowed a number of the claims of the Applicants to proceed to argument, it is the implications of delay with respect to the latter aspect of discretion, that is, relief, which I am now considering.

Delay

594. Although modern society, characterised by information overload, can swamp the capacity of the ordinary citizen to deal with the many manifestations of bureaucracy of government and obfuscate an understanding of decision‑making, there are nevertheless many avenues available to verify the rights a citizen might have, and to ascertain whether those rights might have been infringed. These avenues include the proper application of diligence, savvy internet searching and, where necessary, early investigation via the assistance of freedom of information legislation to delve into the processes of decision-making. In this case, the Court considers there were many instances where the Applicants’ concerns could have been pressed years earlier and maintained with greater diligence.

595. There were lapses of attention by the Applicants The Court heard, during the oral evidence of Mr Paul Andrews, that the 10-or-so years of the decline in health of his father, Mr Andrew Andrews, led to the family, effectively, withdrawing to the city, with “Somerset Park” being placed in caretaker mode. The cross-examination of Mr Paul Andrews (at Transcript 147-149) revealed that there hadn’t been a full-time manager since about 1993, that cattle belonging to a neighbour have been agisted on the property for the last 15 to 20 years and that even the olive grove has not been harvested in recent years. In all respects Mr Andrews was vague on details. It seems that the family eye “was taken off the ball” after the earlier years of Mr Andrew Andrews pressing his concerns with respect to the inundation of the Lake Paddock. However, having “dropped the ball”, the Court is of the opinion that the Applicants cannot complain that water management decision‑making by government proceeded (not unreasonably, given the catchment-wide responsibilities affecting hundreds, probably thousands, of other water users).

596. With the 1986 Licence being granted in 1986, it was not until December 1995 that there was correspondence between the First Applicant and the Department regarding the regulator. Five years passed with no regulator built, until mid-2001 when the Department pressed the issue of whether a licence renewal was required, in the context of the licence allocation not being used, and “losses of regulated water from the Yanco Creek system”, and Mr Andrews stated concerns regarding inundation. Following the 2002 renewal, six years then passed before, in 2008, another renewal of the 1986 Licence occurred, with the conditions amended to provide for a zero allocation, in line with usage. Then in April 2012, after another four years, a refusal to renew the licence prompted the Applicants to commence proceedings before this Court. There followed, in  August 2012, a ‘resolution’ achieved through negotiation resulting in the 2012 Court Orders. Three further years then passed before these proceedings were commenced by summons on 22 June 2015. With a multiplicity of directions hearings and numerous changes to the Applicants’ pleadings, the primary hearing finally commenced over three years later, in July 2018. The Court concludes that, taken together, the many delays in this sorry saga weigh against the exercise of discretion in favour of the grant of relief.

Condition 7

597. A persuasive argument against the exercise of discretion in favour of the Applicants was their failure to comply with condition 7 of the 1986 Licence (which was subsequently renumbered condition 10). This was the condition which required the Applicants to construct a regulator on the diversion channel from Yanco Creek into the Lake Paddock. Read together, conditions 7-12 were clearly designed to, materially and critically, provide for the construction of a control device to be operated so as not to cause any inundation of land by floodwaters. The Court does not accept that there was any justification at any stage to delay the construction of the regulator, such as to ‘seek more detail’ of the design at the time of the April 1996 licence renewal (notably, 10 years after the initial requirement was breached and thereafter never complied with). Five years later in August 2001, in an exchange of correspondence between the First Applicant and the Department regarding concerns about tree deaths due to inundation, it is to be noted that the regulator was still not constructed.

598. The Court takes the view that the regulator should have been built, in compliance with the initial licence conditions and as subsequently required to be in compliance with each successive licence renewal. It does not matter that the Applicants may have had questions or even doubts about the practical value or function of the regulator as, once tried and tested, it could have been modified. However, with the regulator never having been built, there was never an opportunity to determine whether it would work or might require refinement. If, for instance, the initial design of the regulator failed to prevent inundation of Lake Paddock by floodwater, it would be at that stage appropriate to question its design and perhaps its sill level. The Court mentions the sill level as being rather quaintly described as “a sill level fixed at not more than 1.11 metres below the level of a bench mark established on a gum tree on the left bank of Yanco Creek near the work”, it is conceivable that the height so specified might have been inadequate as waters in Yanco Creek rose, or, given the frequent mention of gum-tree death in the evidence, the specified gum tree might have toppled over. The point is this: whatever the questions there might have been about the functionality of the regulator in the face of inundating high creek flows, unless built and tested, the Applicants would never know. On this basis the Applicants’ counsel’s submission that “the whole sill was ineffective by reason of the high regulated flows and the pressure on Yanco Creek” is an entirely unsustainable proposition.

599. It is also irrelevant to that conclusion that the Applicants did not want to avail themselves of irrigation waters. If it argued that the extent of inundation has rendered their use of waters nugatory, it must follow that any contributory circumstances must be brought into focus. Whereas the Court accepts that the apparent inundation of Lake Paddock has altered the Applicants’ capacity to manage that area for its environmental values, it nevertheless considers that conclusion can never be divorced from the concurrent failure of the Applicants to take the measures available to them, indeed legally required of them, to regulate periods of high flow by constructing and managing the regulator that was required by condition 7 (later condition 10) of the 1986 Licence (which was carried forward and maintained as a condition for many, many years). Although the statutory regime in New South Wales renders the application of the Scottish common law, as examined in the John Young case, inapposite, nevertheless the vitiating conduct of “unduly and unreasonably increased [flow of water] by operations which are in aemulationem vicini”, identified in that case, could not legitimately give grounds to a claim in this case in circumstances where the very mode of control of flow to be implemented has been ignored by the Applicants themselves. In this context, for the Applicants to complain about inundation over the many years of their dealing with the Department, whilst they never implemented the recommended measures, the Applicants’ failure seriously undermines any claim they might have for relief, whatever the basis of their challenge to the decision-making under review. Such conduct certainly provides a strong basis against exercising the Court’s discretion in favour of the Applicants on any of the grounds upon which their case was founded.

600. The Applicants did float an argument that the 1986 Licence, and its subsequent iterations, were for the purposes of enabling them to access waters for irrigation, presumably from an impounded water body on Lake Paddock the volume of which was to be controlled by the regulator, and because they didn’t need irrigation waters the Licence (and so its conditions) was never ‘activated’. Therefore, it was argued, because the irrigation licence was not activated, the obligations within it, including the construction of the regulator, did not crystalise. The Court considers this argument to be a furphy.

601. The Applicants pressed for the Licence and argued for its renewal. When faced with the prospect of the Licence being terminated, such as queried in the Department’s letters in April and July 2001, they requested the Licence be maintained, such as on 9 November 2001. Subsequently, when faced with a refusal of a renewal of the Licence in February 2012, the Applicants then fought for its renewal before this Court, resulting in the 2012 Court Orders. In the context of a case based on a concern regarding the inundation of the Lake Paddock, it is quite irrelevant that the irrigation option was not taken up by the Applicants if the primary inundation control measures proposed - specifically proposed to protect Lake Paddock - came via an ‘irrigation’ licence - a licence which the Applicants fought for.

602. With respect to the Respondents third argument against the exercise of discretion in favour of the Respondents, being the consideration of the impacts on other water users in the Murrumbidgee Irrigation Area, specifically those downstream from “Somerset Park”, although this argument has some merit, the Court would not base is refusal to exercise discretion in favour of the Applicants on this ground without further evidence of the foreshadowed impacts. If the Court had seen fit to grant any of the relief sought by the Applicants, it is conceivable that an outcome might have been a compromise recommendation of appropriate bypass or protection works such as some device akin to the original regulator required of the Applicants specifically directed at preventing the further inundation of Lake Paddock, without a broader ‘upset’ of the decision-making of wider compass affecting all or even many users in the irrigation area. The Court surmises that it is conceivable that the Applicants’ primary complaint might have been capable of being addressed, focusing purely on Lake Paddock. If this is so, given the smallness of Lake Paddock, it must be probable that wider impacts downstream in the irrigation area could be avoided. In these circumstances, as said earlier, the Court would not rely on this third ground of the Respondents to prevent the exercise of discretion in favour of the Applicants.

Orders

603. The Court orders:

Application regarding Supplementary Submissions in Reply

1. The Applicants’ application for leave to file and rely upon ‘Supplementary Submissions in Reply’ dated 9 August 2018 and their associated ‘Reply’ dated 3 September 2018 is dismissed.

2. The Applicants’ shall pay the Respondents’ costs incurred as a consequence of the application for leave to file Supplementary Submissions in Reply.

Notice of Motion to reopen case to receive further evidence

3. The Applicants’ Notice of Motion filed 14 September 2018 is dismissed, and so leave is not granted to the Applicants to reopen their case in order to rely upon supplementary evidence from Mr Paul Andrews via a further affidavit sworn 3 September 2018 and supplementary evidence from Mr James Purcell via a further affidavit sworn 5 September 2018.

4. The Applicants shall pay the Respondents’ costs incurred on the Motion on the ordinary basis as agreed or assessed.

Notice of Motion seeking extension of time under r 59.10(2)

5. The Applicants’ Notice of Motion filed 1 December 2017, seeking leave pursuant to r 59.10(2), is dismissed save for Decision 6 and so leave is not granted to the Applicants to seek judicial review of the other Decisions to which s 47 of the Water Management Act does not apply.

Dismissal of Applicants’ case

6. The Applicants’ claims with respect to all the impugned Decisions the subject of these proceedings are dismissed.

Constitutional claim

7. The Applicants’ claim pursuant to [12] of the Second Further Amended Points of Claim and, to the extent necessary  the related Ground 7 in the Second Further Amended Summons (Judicial Review), being the claim based on s 100 of the Commonwealth of Australia Constitution is dismissed.

Costs

8. Costs are reserved, with the parties having leave to confer for the purpose of proposing appropriate orders with respect to the making of submissions on the question of costs, including timing thereof.

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Annexure A- Map of Yanco Ck (303 KB, pdf) Randren House

Annexure B - List of defined terms (52.7 KB, doc)

Randren House Annexure C- Chronology (19.3 KB, docx)

Endnotes

Amendments

26 February 2019 - Annexures A, B and C were omitted to be uploaded at the time of publishing. Those annexures have been uploaded on 26 February 2019.

Decision last updated: 26 February 2019