Tubbo Pty Ltd v Minister Administering the Water Management Act 2000

The appellants, Tubbo Pty Ltd and others, appealed to the New South Wales Court of Appeal against a decision concerning the validity of amendments made to groundwater management plans under the *Water Management Act 2000* (NSW). The dispute arose from the appellants' exclusion from Schedule 5 of the *Water Management (General) Regulation 2004* (NSW) (as amended in 2006), which significantly reduced their groundwater extraction entitlements. The appellants contended that they were denied procedural fairness in relation to both the determination of the criterion for inclusion or exclusion from Schedule 5 and the subsequent decision on whether they met that criterion.

The primary legal issues before the Court of Appeal were whether the Minister administering the *Water Management Act 2000* owed a duty to accord procedural fairness to the appellants in the process of amending the relevant management plan, and if so, what the content of that duty was. Specifically, the court had to determine whether the duty of procedural fairness applied to the adoption of the "criterion" for inclusion in Schedule 5, or alternatively, to the decision of whether the appellants satisfied that criterion. A further question concerned the interpretation of section 47 of the *Water Management Act 2000*, which imposes limitations on the jurisdiction of courts to challenge management plans outside of a specified judicial review period.

The Court of Appeal, affirming the decision of the primary judge, held that the existence of a duty to accord procedural fairness is determined by statutory construction and does not vary depending on the manner of exercise of a power. The court found that the appellants' submissions, which suggested a flexible application of the duty of procedural fairness, were not supported by authority and conflated the existence of the duty with its content. While the content of the duty can vary, its existence in relation to a particular statutory power is a matter of legislative intention. The court also noted the effect of section 47 of the *Water Management Act 2000*, which restricts judicial review of management plans to a specific period, reinforcing the finality of such decisions.

The appeals were dismissed, and the appellants were ordered to pay the costs of the respondent.