Sinclair v Chief Executive, Department of Natural Resources and Mines
[2006] QLC 6
•6 February 2006
LAND COURT OF QUEENSLAND
CITATION: Sinclair & Anor v Chief Executive, Department of Natural Resources and Mines [2006] QLC 6
PARTIES:Steven Mark Sinclair and Heather Joy Sinclair
(Appellants)
v.
Chief Executive, Department of Natural Resources and Mines
(Respondent)
FILE NO: A2005/0009
PROCEEDING: Appeal against review decision on application for a licence under the Water Act 2000
DELIVERED ON: 6 February 2006
DELIVERED AT: Brisbane
HEARING DATE: 7 December 2005; written submissions finalised on 16 January 2006
MEMBER:Ms F.Y. Kingham
ORDER:1. The court declares that, while the Moratorium Notice has effect, it precludes the Court from setting aside the review decision and substituting a decision to grant the licence applied for by the Appellants. (at [22])
2. Orders 1 and 9 made on 22 September 2005 are confirmed, otherwise the orders made on that date are vacated. (at [22])
3. Upon the Moratorium Notice no longer having effect, each party has liberty to apply for further directions by making a written request to the Court that the Appeal is listed for directions and by giving at least 3 working days notice to the other party. (at [22])
CATCHWORDS: APPLICATION FOR WATER LICENCE – MORATORIUM NOTICE – DEALING WITH APPLICATION PROHIBITED DURING MORATORIUM – POWERS OF LAND COURT – SAVING PROIVSIONS – RIGHT ACQUIRED OR ACCRUED – ADJOURNMENT OF APPEAL
Act Interpretation Act 1954 ss 4, 20(2)(c),
Water Act 2000 ss 26, 210, 211, 882
Administrative Appeals Tribunal Act 1975 Cwth, s. 43
Fuller v Department of Natural Resources and Mines [2005] QLC 0041, referred to
Phillips and Secretary, Department of Family and Community Services [2003] AATA 800, followed
Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 317, followed
Re Smith and Defence Force Retirement and Death Benefit Authority (1978) 1 ALD 374, followed
Esber v the Commonwealth (1992) 174 CLR 430, distinguished
Director of Public Works v Ho Po Sang (1961) AC 901 at 922, applied
Kentlee Pty Ltd v Prince Consort Pty Ltd [1981] 1 QdR 162, applied
COUNSEL: Mr J. Haydon for the Appellants
Mr M. Plunkett for the Respondent
SOLICITORS: Mullins Lawyers for the Appellants
C.W. Lohe, Crown Solicitor for the Respondent
Background
On 11 July 2003, the Appellants applied for a water licence under the Water Act 2000 (Water Act) to take water from the Brisbane River between the Wivenhoe Dam and the Mt Crosby Weir. The Respondent issued an Information Notice under cover of letter dated 23 November 2004 determining that application (the original decision). An application for internal review of the decision dated 14 December 2004 was received by the Respondent on 15 December 2004. The Respondent made a decision on the application by a Review Notice dated 22 December 2004 (the review decision). The review decision confirmed the original decision to refuse the application. The Appellants filed a Notice of Appeal against the review decision on or about 2 February 2005. A Moratorium Notice was published by the Minister for Natural Resources, Mines and Water on 24 March 2005. The Minister published an amending Moratorium Notice on 21 May 2005. From that date, the moratorium notice, as amended by the amending moratorium notice, was the Moratorium Notice. The parties agreed that there was no material difference between the two notices. In these reasons, the amended Moratorium Notice is referred to as the Moratorium Notice.
The Respondent filed an application seeking the following orders:
1.A declaration that although the Court has jurisdiction under the combined effect of the Water Act 2000 and the Land Court Act 2000, the Moratorium Notice as amended precludes the Applicant/Respondent from granting, and therefore the Court from granting the licence as applied for until the lifting of the Moratorium Notice (as amended).
2.An order that the hearing of the appeal be adjourned sine die (order 8 made on 22 September 2005 to be confirmed).
3. An order vacating orders 3 to 7 made on 22 September 2005.
Those orders were opposed by the Appellants. The Application was heard in Brisbane on 7 December 2005. I subsequently requested written submissions on the application of section 20(2)(c) of the Acts Interpretation Act 1954 (AIA) to the circumstances of this case. I have now considered those submissions.
Is the Moratorium Notice valid?
Mr Haydon, Counsel for the Appellants, submitted that, to the extent the Moratorium Notice purports to prevent the assessment of applications accepted by the Respondent before the Notice was published, it is invalid. That submission was based on the proposition that paragraph 6(a) exceeds the power conferred on the Minister by section 26 of the Water Act. That paragraph provides that applications of the type referred to in paragraph 5 which are made before the Notice was published will not be dealt with. The parties agreed the application the subject of this appeal is of a type referred to in paragraph 5 and was made before the first Notice was published.
I do not accept Mr Haydon’s submission. Section 26(2) relevantly provides
“The Notice may state than an Application under this Act …
… will not be accepted, or will be accepted but not dealt with, while the moratorium notice has effect if granting the application would have 1 or more of the following effects on the water to which the application relates. …”
The parties agreed that granting the subject application would have one or more of the effects specified in s. 26(2). Section 26(3) provides that
“Subsection (2) applies even if the application was made before the notice was published”.
The Notice does not purport to have effect beyond the authorisation provided by section 26.
Does the Moratorium Notice apply to applications that have been accepted before the Notice was published?
Mr Haydon submitted the Notice could not apply to an application that was accepted prior to the Notice being published. He conceded that this required me to read section 26(3) as if the following words were added “but not if the application was made and accepted before the notice was published”. I am not persuaded there is any basis for departing from interpreting section 26 in accordance with the plain and ordinary meaning of its clear and unambiguous language.
Does the Court have the power to grant the relief sought?
The parties agreed the Court’s jurisdiction in relation to the appeal is unaffected by the Notice. They did not agree what impact the Notice has on the powers of the Court in relation to the appeal.
Mr Plunkett, Counsel for the Respondent, submitted the Court does not have power to grant the relief sought by the Appellants; that is, that the Respondent grants the Appellants the water licence applied for. This would require an order pursuant to section 882(1)(e) of the Water Act to set aside the review decision (which confirmed the original decision to refuse the application) and substitute it with a decision to grant the licence. In exercising this power, he submitted, the Court is standing in the shoes of the original decision maker, in this case the chief executive of the Department of Natural Resources, Mines & Water pursuant to section 211 of the Water Act. Accordingly, the Court can only do what the chief executive may do. Further, he submitted, any constraints that apply to the chief executive at the time the Court exercises this power apply also to the exercise of power by the Court. While the moratorium is in force, the chief executive cannot “deal with” the application, including grant the licence sought. Nor can the Court.
Mr Haydon submitted the Court’s power is unaffected because an order of the Court to substitute a decision to grant the licence is not dealing with the application but determining the appeal. He argued the application was dealt with, at the very latest, when the internal review decision was made. The application is no longer in existence and what is before the Court is an appeal which is unaffected by the Notice.
He relied, in part, on a decision by the Land Court in Fuller v Department of Natural Resources and Mines [2005] QLC 0041. In that case, Mrs MacDonald substituted the review decision with a decision to grant a water licence. Her decision was made after the moratorium notice had effect. However, before the notice was published, the chief executive had decided to grant a water licence on terms which had been accepted by the Applicant. The only step which had not been taken when the notice was published was the formal issue of the licence. Mrs MacDonald found the chief executive was, before the moratorium notice took effect, subject to a binding obligation under s. 211 of the Water Act to grant the licence. There was no further room for the exercise of administrative power and the issue of the licence was not dealing with the application. The Court merely gave effect to a decision made by the chief executive who was, before the moratorium commenced, subject to a binding obligation to issue the licence. The facts of that case are different to the facts of the case now before the Court.
In any case, the distinction drawn by Mr Haydon between the application and the appeal, even were I to accept it, does not address the argument made by Mr Plunkett that the Court’s power under s. 882(1)(e) is circumscribed by the constraints imposed on the chief executive by the moratorium.
It is uncontroversial that the Administrative Appeals Tribunal (AAT) is constrained in the same manner as is the original decision maker, whether or not the provision vesting the reviewing power expressly imposes that constraint. (Phillips and Secretary, Department of Family and Community Services [2003] AATA 800; Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCAFC 317). The wording of s. 43 of the Administrative Appeals Tribunal Act 1975 Cwth (AAT Act) and that of s. 882 of the Water Act are substantially similar, although they are not identical. Their substantial similarities persuade me that the function of the Court under the Water Act is analogous with the function of the AAT under the AAT Act. There is no relevant dissimilarity to persuade me to interpret s. 882 differently. Accordingly, I accept the Court cannot make a decision under s. 882(1)(e) that the chief executive cannot make under s. 211.
At the time the application was made, accepted, originally decided and reviewed, the chief executive could make a decision to grant the licence. Now the moratorium is in force, the chief executive cannot make that decision. As a general proposition, I accept Mr Plunkett’s submission that any constraints that apply to the original decision maker at the time the Court makes an order under s. 882, also apply to the Court’s exercise of that power. (Re Smith and Defence Force Retirement and Death Benefit Authority (1978) 1 ALD 374)
After the hearing, I requested further written submissions from Counsel for both parties on the relevance and application of s. 20(2)(c) of the AIA to the facts of this case. That section relevantly provides that the amendment of an Act does not affect a right acquired or accrued under the Act. In Esber v the Commonwealth (1992) 174 CLR 430, the High Court decided s. 8 of the Acts Interpretation Act (a substantially similar provision to s. 20(2)(c) of the AIA) protected the right of the applicant in that case to have his application to review a decision under compensation legislation determined according to the law in force at the time the application was made not when it was determined by the AAT. Under the repealed Act, the applicant was entitled to lump sum compensation upon meeting certain criteria.
Mr Haydon submitted s. 20(2)(c) of the AIA had no application. The Water Act is not and could not be amended by the Moratorium Notice because, to the extent it sought to prevent the assessment of applications accepted before the Moratorium Notice was published, it was invalid. I have already dealt with that submission in these reasons.
Mr Plunkett made detailed submissions to the effect that s. 20(2)(c) had no application in the circumstances of this case. It is unnecessary for me to deal with each of Mr Plunkett’s submissions. I am satisfied that the section does not apply because the Appellants had not acquired a relevant right when the moratorium came into effect. They had not acquired the right to the grant of a licence. Nor had they acquired a conditional or inchoate right to the grant of a licence, in the sense that, upon the establishment of certain facts, they were entitled to the grant of a licence. To that extent the Esber’s case is distinguishable, on the facts.
In this case the Appellants have a mere hope or expectation of a favourable decision on their application. Whilst the matters specified in s. 210 of the Water Act must be considered, the chief executive has a wide discretion as to whether the licence should be granted. Section 210 does not prescribe a set of threshold criteria, the demonstration of which would entitle the Appellants to a favourable decision. The chief executive’s discretion is, in my view, determinative of the point.
In Director of Public Works v Ho Po Sang (1961) AC 901 at 922 the Privy Council drew a “manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be granted”. In Kentlee Pty Ltd v Prince Consort Pty Ltd [1981] 1 QdR 162, the Queensland Court of Appeal applied that “manifest distinction”. President Fitzgerald closely examined Esber’s case, Ho Po Sang’s case and other Australian authorities and concluded:
“Neither a right to make an application under a statute nor an application made under a statute for a wholly discretionary benefit gives a right to have the application continued and completed under the statute in its original form, notwithstanding its amendment or repeal.” (at p. 12)
At the time the Application was made, the chief executive had a discretion to grant the licence, albeit after taking into account specified matters. The Appellants had not, by making an application, accrued a right that could be protected by s. 20(2)(c) AIA. If my conclusion on that point is wrong, I accept Mr Plunkett’s submission that s. 26(3) expresses a contrary intention which in any case, displaces the operation of s. 20(2)(c). (s. 4 AIA)
Whilst the moratorium notice has effect, it is my view that the Court does not have the power under s. 882(1)(e) to substitute the review decision with a decision to grant the licence sought by the Appellants.
Should the hearing by adjourned?
Mr Plunkett submitted that a hearing whilst the moratorium notice has effect would be an exercise in futility as the relief sought cannot be granted. Mr Haydon noted that the Court could potentially decide to make other orders pursuant to s. 882. Nevertheless, he agreed during argument that, if I decided the Court could not grant the relief sought the better course is to adjourn the proceedings until the moratorium notice no longer has effect.
Orders
1. The court declares that, while the Moratorium Notice has effect, it precludes the Court from setting aside the review decision and substituting a decision to grant the licence applied for by the Appellants.
2.Orders 1 and 9 made on 22 September 2005 are confirmed, otherwise the orders made on that date are vacated.
3. Upon the Moratorium Notice no longer having effect, each party has liberty to apply for further directions by making a written request to the Court that the Appeal is listed for directions and by giving at least 3 working days notice to the other party.
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