Rural Funds Management Limited v The Minister Administering the Water Management Act 2000

[2016] NSWLEC 19

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19
Hearing dates:	3, 17, 18 December 2015; written submissions 29 January 2016; 2 and 9 March 2016
Date of orders:	18 March 2016
Decision date:	18 March 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	At [57]
Catchwords:	INTERPRETATION – separate question - time for commencement of appeal
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005 Water Management Act 2000
Cases Cited:	Birdon Contracting Pty ltd v Hawkesbury City Council [2009] NSWLEC 85
Category:	Procedural and other rulings
Parties:	Rural Funds Management Limited (Applicant) The Minister Administering the Water Management Act 2000 (First Respondent) Rosella Sub TC Pty Limited (Second Respondent)
Representation:	Counsel: Mr R Beasley SC/Ms A Knox (Appellant) Mr J Hutton/Ms R Mansted (First Respondent) Mr A Leopold SC/Mr C Colquhoun (Second Respondent)   Solicitors: Sparke Helmore (Appellant) Office of Water (First Respondent) Johnston Winter & Slattery (Second Respondent)
File Number(s):	11114 of 2015
Publication restriction:	No.

TABLE OF CONTENTS

Judgment

Introduction

The competing positions of the parties

The statutory framework

The Department’s process for approval

Notifying objections

The right of objection appeal

Matters potentially arising from the approval process

The running of time – the facts

Is the appeal in time?

No express power to extend time

Running of time – commencement

Conclusion

Orders

Judgment

Introduction

1. In these Class 1 proceedings, on 3 December 2015, Preston CJ set down a separate question for determination. That question is in the following terms:

Whether the appeal under s 368(1)(h) of the Water Management Act 2000 filed December 2015 has been brought within time.

2. If the answer to this separate question confirms that the appeal is in time, substantive merit review proceedings commenced by Rural Funds Management Limited (Rural Funds) concerning water supply work approvals granted by the Minister Administering the Water Management Act 2000 (the Minister) will proceed to hearing.

The competing positions of the parties

3. Any path to resolve the above question requires consideration of a series of sequentially related provisions of the Water Management Act 2000 (the Water Management Act) and the competing statutory constructions of them advanced, on one hand, by Rural Funds and the Minister (as supporting the proposition that the appeal by Rural Funds was commenced whilst the relevant statutory window available pursuant to s 368(3) of the Water Management Act was open), whilst the alternative construction path pressed by Rosella Sub TC Pty Ltd (Rosella) is that the opportunity to appeal had expired prior to the date upon which Rural Funds commenced these proceedings and thus, as a consequence, the appeal was incompetent.

The statutory framework

4. To commence my consideration of the separate question, it is appropriate to set out the relevant elements of the statutory framework under the Water Management Act that require consideration and then, to follow these, to set out some initial comments on how the proceedings unfolded concerning the process that had been undertaken concerning Rosella's applications giving rise to these proceedings being commenced by Rural Funds. Whilst some elements of the statutory provisions will need to be set out, others can simply be described so that the various steps in the process are shown.

5. First, s 90(2) of the Water Management Act sets out a range of activities for which approval is capable of being given under the legislation. Each of the activities nominated in the subsections of this provision is defined in the dictionary at the conclusion of the legislation. The relevant element of s 90 for the purposes of these proceedings is s 90(2) that calls up water supply works as a class of activity capable of being given approval.

6. The next relevant provision is s 92, a provision that permits applications to be made to the Minister for approval to carry out activities such as the two bores (water supply works) for which approval was sought by Rosella. Importantly, s 92(7) provides:

The regulations may require any application, or any specified class of applications, to be advertised.

7. That, in this instance, the regulations so required and an advertisement in compliance with this requirement was published is not in dispute in these proceedings. A copy of the advertisement was in evidence behind Tab 2 of the annexure to the first affidavit of Mr Andrew Glasson, the departmental officer who had assessed the application and recommended its approval to the Minister’s delegate. This affidavit was dated 10 December 2012.

8. After Rural Funds lodged an objection, pursuant to s 93(1) of the Water Management Act, the statutory process of endeavouring to mediate to resolve the objection was conducted (as permitted by s 93(6) of the Water Management Act). The mediation between Rural Funds and Rosella was unsuccessful and, as a consequence, the assessment and determination process proceeded.

9. This process resulted in a recommendation being made by Mr Glasson, as assessing officer, to his superior, Ms Chatfield, who acted as the Minister’s delegate for the purposes of approval of Rosella's application.

10. Determination of an application (whether by approval or refusal) by the Minister’s delegate on behalf of the Minister is authorised by s 95 of the Water Management Act. This provision is in the following terms:

Determination of applications

(1)   After considering an application and all matters relevant to the application, the Minister is to determine the application:

(a) by granting the approval to which the application relates, or

(b) by refusing the application.

Note : Section 99A enables the Minister to grant combined approvals at the time an application is granted for one or more of the approvals concerned or subsequently.

(1A)   An approval may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3.

(2)   Repealed

(3)   An approval may not be granted in contravention of the provisions of any relevant management plan.

(4)   An approval is to be in such form as the Minister may determine.

(5)   An approval takes effect on the day on which notice of the decision to grant the approval has been given to the applicant.

11. Particular focus arises in these proceedings from the terms of s 95(5), a provision to which it will be necessary to return in consideration of whether the approval has taken effect and the time under s 98 had commenced to run as discussed below.

12. As the application made by Rosella was for approval of water supply works being added to an approval already held by Rosella, rather than being an entirely first instance application, the approval process pursuant to s 95 was engaged in these circumstances by virtue of s 99A of the Water Management Act. Nothing arises from the utilisation of this provision to engage the terms of s 95(5).

The Department’s process for approval

13. With respect to Rosella’s application, Mr Glasson made a recommendation to Ms Chatfield that the application be approved subject to conditions that Mr Glasson had drafted but which were required to be checked by one of his departmental colleagues located in Sydney (Mr Glasson being located in Dubbo at that time). This was required prior to the conditions being uploaded into the departmental electronic records-keeping system (the Water Licensing System or WLS). Nothing in these proceedings now turns on that element of the process.

14. On 23 October 2015, Ms Chatfield accepted Mr Glasson's recommendation and determined Rosella's application by the granting of approval. Mr Glasson then went through the process with his colleague to endorse conditions on the licence. Having done so, he generated, using WLS, a document to be transmitted to Rosella.

15. Having generated that document, Mr Glasson caused a PDF copy of it to be transmitted by e-mail to Mr Sam Mitchell, the representative of Rosella with whom the Department had been dealing. Mr Glasson's e-mail was in the following terms:

Sam,

Please see attached for the Statement of Approval showing the 2 new bores and also the Turkey’s nest Storage.

Note that the conditions outline the extraction limit of 2,500ML for each of the 2 new bores as per the hydro assessment and numerous discussions.

I am unable to complete a Notice of Determination Letter from here, but will send that on Monday. Also as discussed previously the Objectors will also be notified as per required process and they will have 28 days to appeal from the date of the letter sent to them, being Monday.

I will call shortly on leaving the Dubbo Office, if you could await any further communication until then.

Regards,

Andrew Glasson

16. The e-mail received by Mr Mitchell, and the document attached to it, were in evidence as annexures to Mr Mitchell's affidavit affirmed 15 December 2015 and read on the separate question.

Notifying objections

17. The next step in the statutory process that was engaged was the requirement for all objectors to Rosella’s application (there being four such objectors, but only Rural Funds’ objection is here relevant) to be notified of the fact that the application had been approved. The requirement for this notification is contained in s 98 of the Water Management Act and is in the following terms:

98 Notice of decision

After determining an application under this Division, the Minister must cause notice of the determination to be given to the applicant and, if the application relates to an approval that has been advertised pursuant to section 92, to each person who has made an objection to the Minister in connection with the application.

18. Mr Glasson did not undertake the second of these mandated activities in a timely fashion, to put it mildly. For reasons set out in his first affidavit, Mr Glasson did not forward notification to Rural Funds until he posted a letter dated 24 November 2015 giving the necessary notice of the determination by the Minister’s delegate to approve Rosella's application.

The right of objection appeal

19. The Water Management Act provides that an objector to an approval of the nature here being dealt with has a right of appeal against that approval. That right of appeal, a merits’ review to be undertaken by this Court, is provided by s 368(1)(h) of the Water Management Act. Critically (and giving rise to this separate question), s 368(3) provides a mandated period within which such an appeal to the Court must be commenced. This limiting provision is in the following terms:

An appeal is to be made in accordance with rules of court, but may not be made more than 28 days after the date on which the decision was made.

Matters potentially arising from the approval process

20. During the first phase of the hearings, as part of my initial examination of the documents attached to Mr Glasson’s first affidavit, I noticed that the document (Affidavit of Andrew James Glasson, 10 December 2015, tab 22, folio 1) that had been transmitted to Rosella (see [14] and [15]) headed “Statement of Approval” differed as to its stated effective date compared to a second version of the document with the same title that was described as the “file copy” of the document (in Mr Glasson’s 14 December affidavit at AJG-B).

21. It seemed to me that that might give rise to the question of whether or not s 95(5) had been satisfied by the transmission to Rosella. I invited the parties to make written submissions to me on this point. Those written submissions were provided by the end of January.

22. For the reasons set out below, it is now unnecessary to discuss them in detail, merely to note that, in those submissions, the parties also adhered to their primary positions concerning the running of time within which a merit appeal needed to be commenced

23. After receipt of the written submissions, and during the course of my analysis of them for the purposes of preparing this judgment, I examined, in detail, those elements of Mr Glasson's evidence that set out the processes undertaken within the Department on 22 and 23 October 2015 - processes that culminated in the communication to Rosella that is said to satisfy s 95(5) of the Water Management Act. Relevant to an understanding of these processes were a number of documents that had been exhibited to Mr Glasson's affidavits (primarily the document submitted to Ms Chatfield, as the Minister’s delegate, which, by her adoption of the recommendation contained in it, was said to satisfy s 95(1) of the Water Management Act).

24. A detailed comparison of the timing of the various steps in the departmental processes, when coupled with an examination of all the relevant exhibited documents, disclosed what appeared to be potential anomalies in the process.

25. Being mindful of the need to provide the parties with procedural fairness, a mention of the matter was arranged on 2 March 2016 at which the parties’ representatives were provided with a table setting out what I understood were the steps in the departmental process on 22 and 23 October 2015, together with references to the source in either Mr Glasson's affidavit evidence or exhibited documents relating to each of the steps set out. The parties were given a week within which to consider the document and, at the expiry of that time, make such submissions as they might wish concerning matters potentially arising from it.

26. On that subsequent occasion, on 9 March 2016, the parties put the agreed position to me that they did not consider that any of the matters concerning the departmental processes on 22 and 23 October 2015 required consideration by me as a consequence of the precise and confined terms of the separate question that had been referred for determination by Preston CJ.

27. If this position is correct, the necessary inference is also that any concerns that I might have as to the validity of the transmission of the document entitled “Statement of Approval” to Rosella by Mr Glasson on 25 October 2015 would also not arise for consideration through the vehicle of the separate question posed by his Honour.

28. On reflection (and, as a consequence, with me not to be taken to be expressing any views on the validity of the s 95(5) satisfying transmission), I have concluded that it would be inappropriate for me to explore these matters further. I have reached that conclusion because I am to determine, in these proceedings, only the posed separate question in Class 1 of the Court's jurisdiction. It is well settled that such proceedings provide no scope for what would amount to a declaratory result of the nature that would properly require Class 4 proceedings as a vehicle for such an outcome (see Birdon Contracting Pty ltd v Hawkesbury City Council [2009] NSWLEC 85 at [16]).

29. Upon further reflection, I have also concluded that it is inappropriate to publish any analysis of those matters and to confine myself to the strict terms of the construction point that had been the subject of argument by counsel during the initial hearing.

30. Whether or not there is any Class 4 judicial review basis for Rural Funds to challenge the validity of the approval must, at least initially, remain a matter for consideration by Rural Funds and its legal advisers alone.

The running of time – the facts

31. As can clearly be seen from the earlier description of Mr Glasson's activities, the notice required to be sent to Rural Funds pursuant to s 98(3) of the Water Management Act was not despatched by Mr Glasson until 32 days after:

• Ms Chatfield's determination pursuant to s 95(1) of Rosella's application; and

• Mr Glasson’s transmission of the document earlier described to Mr Mitchell purporting to engage to fruition the terms of s 95(5) and thus give effect to the approval.

32. The letter to Rural Funds was received by Mr Edwards on 27 November 2015 (Exhibit AJG1, tab 26, folio 1) and Rural Funds responded promptly, both to the Department and by the commencement of these proceedings. No complaint is made suggesting that there was anything other than a timely response by Rural Funds to the notification received by it.

33. It is to be observed that the receipt by Rural Funds of the s 98(3) notification occurred 35 days after the activities that took place on 23 October 2015. Amongst other matters deposed by Mr Glasson in explanation (but certainly not exculpation) of his dilatory notification to Rural Funds was that he believed that the 28-day limitation period on Rural Funds’ right of appeal pursuant to s 368(3) did not commence to run until the s 98(3) notification had been provided to Rural Funds (and that, as a general proposition, this applied to the notification to any objector to any application approved pursuant to s 95(1) of the Water Management Act).

Is the appeal in time?

34. As a consequence, the fundamental question arises as to whether or not these proceedings have been commenced within the time permitted by s 368(3). The position contended for by Mr Beasley, senior counsel for Rural Funds, and supported by Mr Hutton, counsel for the Minister, is that a proper and purposive interpretation of s 368(3) must lead to the conclusion that the 28-day limitation period did not commence to run either until Mr Glasson despatched the letter (24 November 2015) or Rural Funds received it (27 November 2015).

35. If the interpretation pressed on behalf of Rural Funds is generally correct, it is unnecessary to choose between these dates. Whichever date might be correct is immaterial as Rural Funds commenced these proceedings within the relevant time period however measured.

36. Unsurprisingly, Mr Leopold, senior counsel for Rosella, submits that the clear, ordinary effect of s 368(3) has the 28-day period commencing to run on 23 October 2015 (whether triggered on that date by Ms Chatfield's determination or by the transmission to Mr Mitchell of Mr Glasson's e-mail and its attachment being immaterial as both occurred on that date).

No express power to extend time

37. It is common ground that there is nothing in the Civil Procedure Act 2005, the Uniform Civil Procedure Rules 2005, the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007 that engages any potential discretion to extend the 28-day period set by s 368(3) and that the reference in that provision to “rules of court” are directed to matters of process rather than to matters of timing.

Running of time – commencement

38. In his closing oral submissions, Mr Hutton, counsel for the Minister, summarised (Transcript 17 December 2015, page 36, lines 3 to 23) the three options potentially available to be determined as the date from which the 28-day period for lodgement of an appeal would commence to run. These options are:

1. the date on which the Minister’s delegate made the decision to grant approval (s 95(1)(a));

2. if different, the date that the terms of the Minister’s delegate's decision (including any conditions attaching thereto) were communicated to the Applicant for the approval (s 95(5)); or

3. if different again, the date upon which the fact that the application had been approved by the Minister’s delegate was conveyed to the objector who wished to contemplate lodging an appeal (the implied statutory interpretation approach proposed by Mr Beasley SC, counsel for Rural Funds, and supported by Mr Hutton for the Minister).

39. None of the parties to these proceedings support adoption of the proposition that time commences to run when the Minister’s delegate makes the decision pursuant to s 95(1)(a).

40. Mr Leopold SC, counsel for Rosella, adopts the second option (s 95(5)) and says, as a consequence, that the time for lodgement of an appeal had expired on 24 November 2015. The necessary consequence of this was, he submitted, that the appeal lodged by Rural Funds after its receipt on 27 November 2015 of the letter advising it of the determination, as the statutory time for lodging an appeal had expired, the appeal was out of time.

39. The consequence of this, Mr Leopold further submitted, is that these proceedings must necessarily be dismissed (this being reflective of the agreed position of the parties that there is no statutory power to extend the 28-day period specified in the Water Management Act). The relevant portion of his written submissions was in the following terms:.

16   Accordingly, the Determination took effect on 23 October 2015. For the following reasons, that is the date on which “the decision was made” within the meaning of section 368(3). It follows that the appeal purportedly brought by RFM on 2 December 2015 (under section 368(1)(h) of the Act) was well out of time and incompetent.

17   There is no provision permitting extension of the time for appeal and none is sought.

Rosella’s argument

18   Rosella does not contend that the Determination (the decision to approve the Application) was “made” within the meaning of section 368(3) when Ms Chatfield completed the relevant section of the Assessment Summary Sheet. Nor was the Determination “made” when Mr Glasson recorded the Determination when preparing the Statement of Approval. Until notification of the Determination under section 95(5) to Rosella, it was not cast in stone. There was nothing to prevent Ms Chatfield, as the Minister’s delegated officer, from revisiting the terms of the Determination. For example, if Mr Glasson, upon leaving Ms Chatfield’s office carrying the Assessment Summary Sheet with him, had had an afterthought and returned to her office and raised it with her, causing her to change the ticked box on page 17 of the Assessment Summary Sheet from “Approved” to “Rejected”, it could not seriously be suggested that that was too late, nothing having yet been done to implement (let alone notify) the Determination.

19   The same applies to the preparation by Mr Glasson of the Statement of Approval, which was merely, in effect, a transposition of Ms Chatfield’s Determination (in her capacity as delegate of the Minister) into another form.

20   However, once the Statement of Approval, recording the Determination, was notified by email to Rosella on 23 October 2015, it took effect under section 95(5). It was then too late for Ms Chatfield as delegate to cancel or revoke the Determination, other than in very narrowly prescribed circumstances which it could not be suggested are applicable here (see section 109).

21   To construe “made” in section 368(3) (understood in the light of the words “takes effect” in section 95(5)) as meaning the point when the application has been determined and then notified to the applicant is consistent with the ordinary and natural meaning of the word “made” and the way in which that word has been construed by relevant authorities.

22   All standard dictionary meanings of the past participle “made” include, as does (for example) the Oxford English Dictionary, relevantly: “cause to exist; create; bring about”.

42. However, Mr Beasley’s initial written submissions summarise the contrary position as follows:

15   It is trite that “the task of statutory construction must begin with a consideration of the text itself”, and that “[t]he meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ. As French CJ and Hayne J explained in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at 389 [24] (by reference, at 388 [23], to the passage just cited from Alcan):

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

16   To the extent the construction contended for by Rural Funds can be seen as requiring the reading in of words, the High Court of Australia in Taylor v The Owners—Strata Plan 11564 [2014] HCA 9; 253 CLR 531 at 548 [37] per French CJ, Crennan and Bell JJ has observed that:

Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation.

17 The High Court referred in Taylor to the three conditions Lord Diplock set out in Wentworth Securities Ltd v Jones [1980] AC 74 at 105 as prerequisite to reading a provision as if it contained additional or different words. Those conditions are, in summary:

a.   identification of the precise purpose of the provision: Taylor at 544 [22];

b.   satisfaction that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose: Taylor at 544 [23]; and

c.   a requirement that the court be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted: Taylor at 548-9 [39], fn 84 (describing this as the third of Lord Diplock’s conditions as reformulated in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115 per Lord Nicholls of Birkenhead).

18   As their Honours observed (at 548-549 [39]), Lord Diplock’s three conditions accord with statements of principle in the High Court. In Taylor, it was unnecessary for the High Court to inquire into those existing statements of principle or to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient.

19   Of course, as the High Court emphasised at 549 [39] “the task remains the construction of the words the legislature has enacted” and “any modified meaning must be consistent with the language in fact used by the legislature”. Gageler and Keane JJ made observations to similar effect at 556-557 [65]-[66], including the observation in the latter paragraph that:

Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

20   Rosella places reliance (Rosella’s submissions dated 15 December 2015 [RS] at [31]-[32]) on Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318 at 329 [39]. In that case, the Court of Appeal rejected a construction of a provision imposing a time limit that where the purported construction created, without any textual basis, a power in the body appealed to extend time (324-327 [24], 331-332 [46]-[49], 333 [58]). Rural Funds does not contend that this Court should confer upon itself such a power.

21   Moreover, in Rail Corporation v Brown, there was no dispute that the appellant was aware of the existence of the decision upon which the right to appeal operated, and was capable (had he not received incorrect information from his union) of exercising the right to appeal within time (see 320 [3]-[4]). Here, Rosella’s construction of the Water Management Act would allow an appeal right to expire in circumstances where the person having the right to appeal was incapable of exercising that right.

22   Finally, as to matters of general principle, it should be observed that provisions such as s 368 conferring rights of administrative review are regarded as beneficial provisions, and accordingly a construction favourable to the beneficiary of the right is to be preferred: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-336 per Mason CJ.

43. Mr Hutton supported Mr Beasley’s submissions in his own document. He did so in the following terms:

24 The law relating to the “reading in” of additional words into a statute is set out in RFML’s submissions at [15]-[22]. The Minister notes that the statement from Taylor set out in RFML’s submissions at [19] that “the task remains the construction of the words the legislature has enacted” needs to be understood in context. The High Court majority expressly rejected the statement of Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 688 that the authorities “do not warrant the court supplying words in a statute that have been ‘omitted’ by inadvertence per se” (Taylor, at [35]). The majority preferred the approach of the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96 at 124 that “the process requires the court to determine whether the modified construction is reasonably open in light of the statutory scheme and against a background of the satisfaction of Lord Diplock’s three conditions” (Taylor, at [36]). The majority concluded that “it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation” and referred in support of that proposition to the decision in Leys (Taylor, at [37]).

25   Accordingly, while the task “remains one of construction”, it is now established that, contrary to the statement of Spigelman CJ in R v Young and consistently with the decision of the Victorian Court of Appeal in Leys, it may be permissible, in attempting to give effect to the statutory objects and policies and to give a coherent operation to the statute, to “read in” additional words.

44. The oral submissions expanded upon and supplemented these positions but, in the final analysis, do not need to be traversed as the above comprise adequate and concise summaries of the parties’ positions.

45. For the reasons set out in the written submissions of Mr Beasley and Mr Hutton, there clearly is, as a matter of general principle, available to me a discretion to interpret a statutory provision with a degree of flexibility (including the implied inclusion of additional or different words), provided that this is necessary and appropriate in the relevant contextual circumstances.

46. However, it seems to me that, if I were to consider doing so as I am here asked, the incorporation of additional words by necessary implication must produce an outcome that is, in itself, clear and certain. I have always understood that a basic tenet of statutory construction is that, where there is potential ambiguity or uncertainty, the interpretation to be preferred is that which resolves such potential ambiguity and/or potential uncertainty.

47. In this instance, taking the position on importing implied terms at its widest, as advocated by Mr Beasley and Mr Hutton, I cannot be satisfied, on the facts in these proceedings or as a matter of general principle, that adopting the approach proposed by Rural Funds and the Minister would provide certainty within the statutory framework otherwise set by the Water Management Act

48. Indeed, on the facts in these proceedings I am satisfied that what would be imposed by such an approach would create significant potential for uncertainty. As a general proposition, the proposed approach might, likely inevitably, provide uncertainty as discussed below.

49. This conclusion when applied to the present facts arises because there were four objections lodged to Rosella’s applications for approval for the works proposed under the Water Management Act.

50. Whilst, if there were to have been a competent administrative regime, one would expect that the required steps summarised by Mr Hutton (as earlier referenced from the transcript of 17 December 2015) would either be coincidental or in a close following sequence, it is clear that, in this instance, that did not occur.

51. Although there is evidence that there were three objectors in addition to Rural Funds, there is no evidence as to when those objectors were forwarded notification that Rosella’s applications had been approved, nor is there any evidence as to the fact that, if such notifications were also sent to those objectors, when those notifications were received.

52. To what would have been the potential for a confused outcome in these proceedings, reading the provision in the fashion proposed by Mr Beasley and Mr Hutton would inevitably lead to uncertainty in any general circumstances where there had been objection to an application (whether that was a single objection or by multiple objectors). Although it would be uncharitable, in the extreme, to assume that in such circumstances there might be a repetition of departmental failures of the nature here evidenced, there can be no guarantee that notification would be sent promptly by the relevant departmental officer. Thus, there would always be the potential for an element of uncertainty, for an applicant, in such circumstances. Such uncertainty is inconsistent with a purposive interpretation of the statutory provisions.

53. Whilst a degree of pragmatic sympathy might be appropriate for Rural Funds in the circumstances in which it now finds itself, pragmatic sympathy is certainly no basis upon which to import uncertainty into a statutory regime in circumstances where adopting the approach advocated by Mr Beasley and Mr Hutton would always create the potential for such uncertainty.

Conclusion

54. I have concluded that the statutory period set by s 368(3) of the Water Management Act, within which Rural Funds needed to commence Class 1 proceedings pursuant to s 368(1)(h) of the Act, commenced on 23 October 2015 when the departmental officer (Mr Glasson) notified Rosella of the decision made by the Minister’s delegate.

55. There is no appropriate alternative basis that would permit the time for commencing proceedings to run from any date later than that of departmental communication to Rosella pursuant to s 95(5) of the Water Management Act.

56. The consequence of this finding is that the proceedings must be dismissed.

Orders

57. The orders of the Court, therefore, are:

1. The proceedings are dismissed; and

2. Costs are reserved.

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Decision last updated: 23 March 2016