Stevenson v The Commissioner of Water Resources
[1990] QLC 8
•6 April 1990
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BRISBANE
6th April, 1990
Re: Application to set aside subpoenas -
Appeals under the Water Act -
A89-42 et seq.
H.I.D. Stevenson and Another
v.
The Commissioner of Water ResourcesD E C I S I O N
There are ten (10) appeals in Court against decisions of the Commissioner of Water Resources in respect of licence applications relating to irrigation development on Cubbie Station and associated properties which are in the ownership of either H.I.D. Stevenson or Stevenson Finance Corporation Pty. Ltd. Two of the appeals relate to the height of weirs proposed on the Culgoa River; seven relate to the refusal of the Commissioner to grant irrigation allocations and the remaining appeal relates to the reduction in the combined diversion rates for water harvesting purposes below the sum of individual diversion rates authorised by some 34 licences.
The appeals were filed in Court on 30th June, 1989, which, insofar as the appeals (7) against irrigation allocations are concerned, are on common grounds; namely-
1.The Commissioner's decision is not a proper exercise of the powers vested in him.
2.No inquiry or no sufficient inquiry has been made by the Commissioner as required by statute.
3.There is and was at all material times water available and sufficient to satisfy the requirements of riparian owners existing licensees and the applicant.
4.The application could be or have been granted with due regard for the entitlements of riparian owners and licensees under existing licences.
5."That the proposed works are not within a section of Regulated Stream which is supplemented with supplies for irrigation allocations" is not a proper ground for refusal of the application.
6.By reason of the existence and operation of Beardmore Dam and the St George Irrigation Project upstream, the subject property is deprived of the natural irrigation from which it would otherwise benefit and this is aggravated in dry times.
7.The refusal of the application does not accord with the Commissioner's acknowledged responsibility to manage publicly funded projects in the best interests of the community as a whole.
On 28th January, 1990, the respondent in reply to a requisition from the Registrar furnished the Court with details in respect of each application, being a copy of
(a)the application;
(b)plan showing location of property and proposed works in respect of the application;
(c)a copy of the objections lodged in respect of the application;
(d)a copy of the notification of the Commissioner's decision with respect to the application and the objections; and
(e)a copy of the licences granted.
An application for discovery was made under some fifteen (15) headings and dealt with by the Court. The learned President of the Court in reasons handed down on 19th February, 1990, finding that the Court had no power to order discovery and in refusing the application referred therein to re Mount Abundance (Freehold) Claim for Compensation (1926-27) 11 C.L.L.R. 11 and to the statement of the Land Appeal Court that -
"We do not think that the Act or the Rules of the Court or the Land Appeal Court provide any machinery for ordering discovery of documents. We think, however, that under Section 32 of the Land Act we can order the attendance of any witness having the custody of documents which we think should be produced. "
In referring to s. 32, the Court was referring to the power in the Court to summon any person as a witness and to produce in evidence all documents and writings in his possession. Such power is now contained in s. 41 of the Land Act 1962-1989. The practical difficulties in proceeding by way of subpoena to obtain the relevant material as opposed to discovery was foreshadowed in the hearing before the learned President. Nevertheless a date for hearing was set, the machinery was put in motion and subpoenas were issued on the Commissioner of Water Resources and the Chief Executive Officer, Water Resources Commission, to attend the Court on the appointed day and to produce the material previously sought by way of discovery. It is accepted that the learned President was correct in refusing discovery and I agree with his reasons. The question which now arises is whether the subpoenas should be set aside in whole or in part. The material sought to be obtained as will appear is copious. The reason why it is sought is to allow the appellant to have it examined by an expert and to have an assessment made by him of the relevant rivers system and to advise the appellant in relation to matters in issue in the proceedings. It is submitted that the documents and the particulars requested are necessary to enable him to give such advice. Subpoenas were issued in each appeal calling for the same material. Objection was taken to the subpoenas by counsel for the respondent on grounds that certain material was available in registers and open to the public, of confidentiality and oppressiveness, and in some areas that documents or writings on the subject called for did not exist. The subpoenas require the following -
(i)Particulars of all water right, agreement and sales water details pertaining to the St. George Irrigation Area, including the property description to which each associates and the name in which held, also the maximum announced allocation for each property and relevant dates of commencement.
(ii)Particulars of all irrigation allocations for the following stream reaches, including name of applicant, property description, volume granted, date applied for, date issued, renewal date and licence conditions for each licence:
Balonne and Maranoa Rivers upstream of the Beardmore Dam
Balonne River from Beardmore Dam to Jack Taylor Weir
Thuraggi Watercourse between Beardmore Dam and St. George Irrigation Area
Balonne River downstream of the Jack Taylor Weir, but upstream Culgoa/Balonne Minor River bifurcation
Culgoa River
Balonne Minor River
Donnegri Creek & Narran River
Ballandool River
Bokhara River
(iii)Particulars of all waterharvesting, irrigation and weir licences for the same reaches as in (ii), including name of applicant, property description, conditions pertaining to licence, date applied for, date issued and renewal date.
(iv)Particulars of schedule of volumes of water pumped or diverted each year since 1970 for the same reaches as (ii) in respect of each irrigation allocation, waterharvesting and irrigation licence.
(v)Particulars of annual use figures since 1970 for each irrigator within the St. George Irrigation Area categorized between irrigation supply and waterharvested volumes.
(vi)Particulars of all unprocessed waterworks licence applications for irrigation allocations not included in (ii) above, showing name of applicant, property description, application details, and date applied for.
(vii)Particulars of all unprocessed waterworks licence applications for waterharvesting, irrigation or weir storage development not included in (iii) above, showing name of applicant, property description, application details, and date applied for.
(viii)Particulars of the volume of allocation which "will be distributed by way of a ballot tender or auction system" as stated in the Commission's letter dated 24th July, 1989.
(ix)Particulars of the grand total allocation, including all existing maximum announced allocations to existing channel supplied farms in order to "bring the total draft from the Beardmore Dam System basically in line with Case 3" as stated in the Commission's Discussion Paper, St. George Irrigation Project Proposal for Additional Water Allocation and Development, October 1987.
(x)Particulars of the inquiry the Commissioner of Water Resources carried out in respect of the applications pursuant to section 12(4)(a)(i) and (ii) and (b) of the Water Act 1926;
(xi)Particulars of the objections if any to the licence application;
(xii)Particulars of the effect the granting of licence would have on -
(a) the stream; and
(b) downstream users.
(xiii)Particulars of the concerns as to the granting of the licence and objections if any expressed to the granting of the licence by neighbouring landholders and interstate users.
(xiv)Particulars of any concerns as to the granting of the licence expressed by the relevant New South Wales authorities and the Border Rivers Commission.
(xv)Particulars of the flow frequency data for the Balonne River at St. George Gauging Station No. 422201 to show days per month for each year from 1922 when flow levels exceeded the following discharge levels (ml/day) 1200, 2000, 3000, 4000, 5000, 6000, 7000, 8000, 9000, 10,000, 11,000, 12,000, 13,000, 14,000, 15,000, 16,000, 17,000, 18,000, 19,000, 20,000, 22,000, 24,000, 26,000, 28,000, 30,000, 32,000, 34,000, 36,000, 38,000, 40,000, 42,000, 44,000, 46,000, 48,000, 50,000, 52,000, 54,000, 56,000, 58,000 and 60,000 for;
(a)the historical occurrence
and
(b)simulated historic flow conditions relating to two different scenarios:
1.Assuming Beardmore Dam was operated to sustain an annual yield of 66,562 ml (referred to in Commission discussion papers: St. George Irrigation Project proposal for additional water allocations and development as Case 1).
2.Assuming Beardmore Dam was operated to sustain an annual yield of 83,000 ml (referred to in Commission discussion papers: St. George Irrigation Project proposal for additional water allocations and development as Case 3).
(xvi)Particulars of the operating rules for overdraw of announced allocations.
Before dealing with the matter of each heading in the subpoenas it is necessary to set out some principles and examples which I have found helpful in determining the issue. The question of confidentiality is one which in these matters goes to the question of public interest. In Sanky v. Whitlam (1979-80) 142 C.L.R. 1, Gibbs A.C. J. sets out a number of matters commencing at p. 39 of the report dealing with this question. Among other things he said -
"An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular documents. "
He then goes on to itemise documents which the courts have held should not be produced. He recognised that government at high level cannot function without some degree of secrecy and at p. 43 said -
"If a strong case has been made out for the production of the documents, and the Court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. "
In the Commissioner for Railways v. Small (1938) 38 State Reports (N.S.W.) 564, Jordan C. J. at p. 574 said -
"Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced. "
and at p. 575 -
"Even if the documents are specified, a subpoena will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v. Savory (1891) W.N. 195. "
Where objection is raised by the owner of the documents, the function of the Court is to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings in which event the Court will permit inspection by one or both parties at an appropriate time (Moffat P. in Waind's case (1978) 1 N.S.W. L.R. 372). Among the conclusions reached by Lord Wilburforce in Science Research Council v. Nasse (1979) 3 All.E.R. 673, there is at p. 680 -
"The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence. "
Scarman L.J. in Senior v. Holdsworth (1975) 2 All E.R. 1009 at p. 1022 said -
"The remedy available to the person served is to move to set the summons aside. On such an application the court will set it aside if what is sought is irrelevant, oppressive, an abuse of the process of the court or recognised by the law as being privileged from production."
A subpoena may be set aside on grounds that it was information and not documents which is being sought - Barnes Milling Ltd v. Brisbane City Council (1979) 6 Q.L.C.R. 217 (L.C.). These precedents may be read in the light of the procedures which must be undertaken under the Water Act in dealing with an application for a waterworks licence and in respect of the nature of an appeal against a decision of the Commissioner.
Under the Act every application for a licence shall be in the prescribed form and whenever the works for which a licence is applied for affects or is deemed to affect the interests of persons other than the applicant, certain material or information as the Commissioner deems to be necessary must be furnished by the applicant before the application is dealt with. Notice of the application is required to be published in the Gazette and in a newspaper circulating generally in the neighbourhood of the land and the Commissioner shall appoint a time within which objections may be received. An owner of land "situated as prescribed" may object to the granting of the application and if he does so object he shall submit to the Commissioner the grounds of his objection. In relation to the application and any objections thereto, the Commissioner or a person appointed in writing by him for the purpose shall, inter alia, inquire into
"(i)the availability and sufficiency of water to satisfy the requirements of riparian owners, existing licensees and the applicant;
(ii)the effect that the granting of the application is likely to have on entitlements of riparian owners and licensees under existing licences;....."
Upon completion of the inquiry he may grant or refuse the application and, if he grants it, cause to be issued to the applicant a licence.
There is nothing in the Act which requires the Commissioner to record the process or proceedings he takes in making the inquiry in respect of an application and he is not required to give reasons for his decision. On the other hand, he has the function of controlling the distribution of water and one can readily appreciate that if a landholder who wishes to pursue his rights does not gain access to certain relevant material held by the Commissioner he could not form an opinion whether he was or was not entitled to water. But in saying that I think all that he would be entitled to receive by way of subpoena are documents relevant to the issue and that the Commissioner should not be called upon to search for and collate material and form conclusions which have not been already collected and collated and published in some official report or other document. It is with these factors and principles in mind that I turn to each matter sought under the subpoenas.
(i)This material is contained in a register which is open to the public at all reasonable times during office hours. It would be unreasonable to require the Commissioner to produce the Register. This part of the subpoena is set aside.
(ii)&(iii)I find that it would be unreasonable and oppressive to expect the Commissioner to furnish anything other than what is contained in the particular licences for the stream reaches mentioned. (ii) and (iii) are not set aside but they are amended to require the Commissioner to produce all licences for the works mentioned and for the streams mentioned therein.
(iv) & (v)Paragraph (iv) calls for "particulars of schedule of volumes" and paragraph (v) speaks of "particulars of annual use figures ... for each irrigator". In order to satisfy the request the Commissioner would be required to search and to collate information which he may possess on the various files. These paragraphs are set aside on grounds that they are oppressive.
(vi)&(vii)Under the Act, particulars of all applications for Waterworks Licences have to be advertised. I can see no objection to all unprocessed applications for the areas required being produced. (vi) and (vii) are not set aside but are amended to the extent that the Commissioner produce the relevant applications.
(viii)&(ix)I understand the particulars sought are contained in a discussion paper, a copy of which has been supplied to appellants' solicitors. Production does not appear to be necessary. These parts of the subpoena are set aside.
(x)I find that this request is oppressive. This part of the subpoena is set aside.
(xi)The only objections which have any legal standing are those recognised by statute. Copies of these objections have been forwarded to the Court and have been admitted as Exhibit 2 in the proceedings. This paragraph is set aside.
(xii)I find that this request is oppressive. The request is set aside.
(xiii)I find that this request is oppressive. The request is set aside.
(xiv)I find that this request is oppressive and may touch on the question of confidentiality. The request is set aside.
(xv)Some particulars here have been provided by the Commissioner. Counsel for the Commissioner argues that the balance cannot be provided as no documents exist. The submission of counsel for the appellant is that the conclusion reached in the material which is available could not have been reached but for the other information having been obtained and examined. Notwithstanding, I am of the opinion that it would be oppressive to allow this part of the subpoena. The request is accordingly set aside.
(xvi)I am given to understand that the particulars sought are contained in the discussion paper referred to in paras. (viii) and (ix). The request to produce to the Court is set aside.
Member of the Land Court
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