Shepherdson v The Chief Executive, Primary Industries Corporation
[1993] QLC 18
•6 July 1993
|
LAND COURT
BRISBANE
6 July 1993
Re: An Appeal against decision of the
Chief Executive, Primary Industries Corporation
to amend Waterworks Licences
A93-21
(Hearing at Biloela)
A H Shepherdson
v
The Chief Executive, Primary Industries Corporation
D E C I S I O N
This case is an appeal against the decision of the Chief Executive, Primary Industries Corporation to amend certain waterworks licences granted to the appellant, Mr AH Shepherdson, under the Water Resources Act 1989 (the "Act"). The Chief Executive reduced the nominal allocation of water for irrigation from the amount allocated under previous licences. The appeal is made pursuant to section 4.26(1)(c) of the Act, which provides that a person aggrieved by a decision of the Chief Executive with respect to any amendment of a licence may appeal to the Land Court.
At the hearing of the appeal, Mr D Grealy for the Chief Executive raised as a preliminary issue whether the Court had jurisdiction to hear and determine the appeal. In his submission, the licences which were the subject of the appeal were no longer in existence and, consequently, Mr Shepherdson was no longer "a person aggrieved" by the Chief Executive's decision. To understand and resolve the issue it is necessary to set out a chronology of events.
At all relevant dates before April 1993 Mr Shepherdson owned Lot 42 and Lot 43 RN 357 in the Parish of Spier. The Lots are located beside Callide Creek in the Callide Valley downstream from the Callide Dam. Three waterworks licences were issued for sub-artesian bores. The purpose of each was to provide water for irrigation of both Lot 42 and Lot 43.
(a)On 18 December 1969 waterworks licence B32770 was issued for a sub-artesian bore on Lot 42.
(b)On 1 September 1974 a waterworks licence B44650 was issued for a sub-artesian bore on Lot 43.
(c)On 6 November 1990 waterworks licence B68478 was issued for a sub-artesian bore on Lot 43.
Amended waterworks licences B32770, B44650 and B68478 were issued to Mr Shepherdson for and on behalf of the Chief Executive, Primary Industries Corporation on 16 February 1993. Each licence contained the following provision:
"Nominal Allocation 171 megalitres (see Term 4.051)."
Term 4.051 of each licence provided:
"The aggregate nominal allocation of this and all other bores supplying the same associated real property shall be 171 megalitres per water year and the proportion of the nominal allocation which may be used in any water year (announced allocation) shall be as approved by the Commissioner."
I note that, although the Act was amended in 1992 to substitute the Chief Executive, Primary Industries Corporation for the Commissioner of Water Resources, that change was not reflected in the terms of the licences.
By a Notice of Appeal dated 15 March 1993, Mr Shepherdson appealed to the Land Court against the decision to reduce the nominal allocation for the land from 190 megalitres to 171 megalitres. The Notice of Appeal was received by the Land Court on 17 March 1993 (see Exhibit 1).
By letter dated 19 March 1993, Mr Shepherdson wrote to the District Manager, Water Resources, Biloela applying to "split my nominal allocation" so that Lot 42 would be allocated 86 megalitres and Lot 43 would be allocated 85 megalitres. It will be noted that the total allocation would be 171 megalitres, the amount allocated in the amended 1993 licences and subject of the appeal lodged with the Land Court a few days earlier. Mr Shepherdson wrote "Please also amend bore licence no's 32770, 44650 & 68478 accordingly".
It is apparent that Mr Shepherdson's letter was dealt with as an application under section 4.27 of the Act. That section provides:
"Application for reduction in water entitlement or area of land.
(1)A licensee, at any time during the currency of his licence, may make application in writing signed by him to the chief executive for a reduction of -
(a)the quantity of water he is entitled to take and use under the licence;
(b)the area of land the subject of the licence at the material time.
The application must specify details of the reduction sought.
(2)The chief executive must notify the licensee of his decision on the application and where he grants it must forward to the licensee an amended licence."
It is clear that Mr Shepherdson was entitled to make the application but was not entitled to the grant of an amended licence as of right. The Chief Executive had a discretion whether to grant an amended licence on the terms sought by Mr Shepherdson. If the Chief Executive had decided not to grant an amended licence, Mr Shepherdson could have appealed to the Land Court from that decision (section 4.26).
Apparently in exercise of the power under section 4.27(2), the three waterworks licences were amended. Each licence was dated 29 March 1993. The relevant provisions of the licences were as follows.
(a)In the case of waterworks licence B32770, the works are located on Lot 42 to supply Lot 42 and the nominal allocation is "86 megalitres (see Term 4.051)". Term 4.051 provides:
"The aggregate nominal application of this and all other bores supplying the same associated real property shall be 86 megalitres per water year and the proportion of the nominal allocation which may be used in any water year (announced allocation) shall be as approved by the Commissioner."
(b)In the cases of waterworks licences B44650 and B68478, the works are located on Lot 43 to supply Lot 43 and the nominal allocation is "85 megalitres (see Term 4.051)". In each case, Term 4.051 provides:
"The aggregate nominal allocation of this and all other bores supplying the same associated real property shall be 85 megalitres per water year and the proportion of the nominal allocation which may be used in any water year (announced allocation) shall be as approved by the Commissioner."
The letter advising Mr Shepherdson of the amended licences was also dated 29 March 1993. It commenced "Attached please find Licence No's 32770,44650 and 68478 amended as per your application."
Section 4.29 of the Act provides that where the chief executive amends a licence under section 4.27, "the amended ... licence is in substitution for the licence" in respect of which the application under section 4.27 is made.
There was some indirect evidence that Mr Shepherdson sought the amendment of the licences as part of the process of selling Lot 42. On 13 April 1993, DG and IM Horton purchased Lot 42 from the appellant. An Application for Transfer of Licences dated 13 April 1993 was signed by DG Horton and IM Horton as the registered owners of Lot 42. They sought the transfer of waterworks licence 32770. Section 4.22 of the Act provides:
"The Commissioner, upon application in writing duly made in that behalf and payment of the prescribed fee, if any, may transfer a licence.
A transfer under this section is, where the Commissioner requires, subject to the prior acceptance in writing by the transferee of the terms to which the licence is subject at the date of the application or amendments, modifications or variations thereof and is subject to such other terms as the Commissioner in a particular case determines."
It is clear that there is no right to a transfer. The Chief Executive has a discretion whether to transfer a licence and whether to vary the terms of a licence to be transferred. Section 4.26 provides that a person aggrieved by a decision of the Chief Executive with respect to an application for the transfer of a licence may appeal therefrom to the Land Court.
On 21 May 1993, the District Manager, Department of Primary Industries, Central Region wrote to DG and IM Horton advising, among other things, that Licence 32770 had been transferred and enclosing that licence. Licence B32770 is dated 21 May 1993 and is for a sub-artesian bore located on Lot 42 RN357 to supply Lot 42. The nominal allocation is described as "86 megalitres (see Term 4.051)". Term 4.051 is the same as in licence B32770 previously held by Mr Shepherdson. The present licence is in the name of DG and IM Horton.
Section 4.29 of the Act provides that where the chief executive transfers a licence under section 4.22, the "transferred licence is in substitution for the licence" in respect of which the application under section 4.22 is made.
Mr Grealy submitted that, in light of events since the issue of the licences (as amended) dated 16 February 1993 and the relevant provisions of the Act, this Court could not deal with the appeal. In effect, he submitted, the subject matter of the appeal (the amended licences) no longer exists and hence Mr Shepherdson is not "a person aggrieved by a decision of the chief executive" with respect to the amendment of those licences. Furthermore, as the licences dated 29 March 1993 were amended to give Mr Shepherdson exactly what he had requested, and he had not appealed against those licences, he could not say that he was aggrieved by the decision to amend the licences in those ways. Finally, the transfer of licence B32770 to DG and IM Horton on 21 May 1993, which was an indirect consequence of the sale by Mr Shepherdson of Lot 42, meant that Mr Shepherdson had no interest in that licence or in the land with respect to which the licence applied.
There is considerable force in those submissions and they must be correct if the effect of the issue of an amended licence under section 4.27 or the transfer of a licence under section 4.22 operates to extinguish both the previous licence and any appeal rights related to the previous licence. As noted earlier in these reasons, section 4.29 of the Act provides that where the chief executive amends a licence under section 4.27 or transfers a licence under section 4.22 the amended or transferred licence is "in substitution for the licence" in respect of which the application for an amendment or transfer is made.
The only decision to which Mr Grealy referred was the reported decision of the Land Court in EJ and JB Timm v The Commissioner of Water Resources (1989) 12 QLCR 318. In that case the appellants as objectors appealed against decisions of the Commissioner of Water Resources to grant certain licences. The two licences were issued in March 1985 and were to expire in July 1987 and February 1988 respectively. By consent the appeals were adjourned. Later, at the request of the appellants, the adjournment was continued well beyond the expiry dates of the licences. When the matter came on for hearing there was evidence that the licences had been renewed from the respective expiry dates. The Land Court struck out the appeals on the basis that the original licences ceased to exist when the decision on renewal was made and that any rights in respect of an earlier decision terminated with them. The Court held that, although the licensee had a right to apply for a renewal, the Commissioner had to make a decision about the application in accordance with the procedures set out in the Act. The Commissioner could refuse to renew the licence. That case turned on the effect of the renewal of a licence in accordance with particular provisions of the Water Act 1926. The facts and statutory provisions in the present case are different (though analogous) to those in Timm.
The Acts Interpretation Act 1954 provides that, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation (section 14A(1)) and refers to "the desirability of a provision being interpreted as having its ordinary meaning", that is, the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act (section 14B).
According to the Macquarie Dictionary, the ordinary English meaning of "substitute" includes (as a noun) a "thing acting or serving in place of another", (as a transitive verb) "to put (one person or thing) in the place of another", "to take the place of; replace" and (as an intransitive verb) "to act a substitute". The Shorter Oxford Dictionary includes in its definitions of "substitution" "The putting of one person or thing in place of another". An application of those meanings to section 4.29 of the Act means that any previously existing licence would be wholly replaced by one issued in substitution for it and that any rights under the previous licence would expire on the issue of the licence in substitution for it.
Support for that view is found in the decision the New Zealand Court of Appeal in Re Eskay Metalware Ltd (in liquidation) [1978] 2 NZLR 46. The case involved consideration of section 21(1) of the Acts Interpretation Act 1924 of New Zealand which provides that:
"In every unrepealed Act in which reference is made to any repealed Act such reference shall be construed as referring to any subsequent enactment passed in substitution for such repealed Act, unless it is otherwise manifested by the context".
According to the Court of Appeal:
"To be 'in substitution for' means to be put in the place or stand in the stead of the repealed provision. It follows that the new enactment must be of the same character as its predecessor: it must have the same kind of function and the subject-matter must be essentially the same without necessarily being identical in its scope. But, provided the new provision is directed to the same end, there need not be precise correspondence in the manner of dealing with the subject-matter." (at 49)
Although the matter in issue in Re Eskay Metalware Ltd was quite different from the issue in the present case, the passage just quoted supports the view that, when the licences described earlier were issued in an amended form or were transferred, the previous licences ceased to exist and any rights in respect of an earlier decision of the Chief Executive lapsed.
In a recent decision concerning the interpretation of an insurance policy, Gaudron J expressed the view that:
"The word 'substitute' ordinarily signifies the putting of one thing in the place of another, with the former performing the function properly or normally performed by the latter. However, it can also signify replacement, in the sense of taking the place of something that no longer performs or is no longer able to perform its ordinary function." (CE Heath Underwriting & Insurance (Aust) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 67 ALJR 395 at 402)
In my view, an amended licence granted by the Chief Executive or a licence transferred by the Chief Executive (whether or not the terms of the licence are varied) replaces the previous licence, so that once the amended or transferred licence takes effect it takes the place of the previous licence and the previous licence is no longer of any effect. Consequently any rights in respect of a decision of the Chief Executive concerning the previous licence also lapsed.
The appeal should be struck out for want of jurisdiction.
That conclusion as a matter of law is also a practical result on the facts of this case. If the matter had to be resolved on the facts, it is not clear what relief could be granted to the appellant. He now holds licences for Lot 43 only. A decision, for example, that the nominal allocation for Lots 42 and 43 should be higher than 171 megalitres (and perhaps as much as 190 megalitres) would not necessarily have led to an increase in the nominal allocation for Lot 43, as there was no apportionment of allocations between the three licences under appeal.
For completeness I note that this case was heard in Biloela. After I had heard submissions on the preliminary jurisdictional issue, the parties agreed that I also should hear evidence and submissions about the substantive appeal. The parties understood that if I were to rule in favour of the Chief Executive on the preliminary point there would be no need to deal with the substantive issues. In light of my decision about the preliminary point it is neither necessary nor of any use to any party for me to express a view about whether the appellant might otherwise have succeeded or failed on his appeal.
Order
The appeal is struck out for want of jurisdiction.
GJ Neate
Member of the Land Court.
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