Upper Namoi Water Users Association Inc v Minister for Natural Resources
[2003] NSWLEC 175
•07/24/2003
>
Land and Environment Court
of New South Wales
CITATION: Upper Namoi Water Users Association Inc & Ors v Minister for Natural Resources [2003] NSWLEC 175 PARTIES: APPLICANTS:
RESPONDENT:
Upper Namoi Water Users Association Inc & Ors (3)
Minister for Natural ResourcesFILE NUMBER(S): 40334 of 2003 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Preliminary determinations LEGISLATION CITED: Water Management Act 2000, Pt 2, 3, s50
Land and Environment Court Rules 1996, Pt 6 r 1(2)
Supreme Court Rules, Pt 31 r 2CASES CITED: Bass v Permanent Trustees Company Ltd (1999) 198 CLR 334;
Tepko Pty Ltd & Ors v Water Board (2001) 106 CLR 1;
Transport Action Group Against Motorways v RTA (1999) 46 NSWLR 598DATES OF HEARING: 16/07/2003 DATE OF JUDGMENT:
07/24/2003LEGAL REPRESENTATIVES: RESPONDENT (Applicant on motion):
APPLICANT (Respondent to motion):
Dr J Griffiths SC
SOLICITORS:
Kemp Strang
N Perram, Barrister
SOLICITORS:
Crown Solicitors
JUDGMENT:
IN THE LAND AND 40334 of 2003
ENVIRONMENT COURT Bignold J
OF NEW SOUTH WALES 24 July 2003
- First Applicant
- Second Applicant
- Third Applicant
- Fourth Applicant
- Respondent
A. INTRODUCTION
1 By Notice of Motion filed 2 July 2003 the Respondent seeks an order for separate decision prior to the trial of the proceedings on questions of law. The Applicants oppose the Motion.
2 By class 4 application filed on 26 March 2003 the Applicants claim a declaration of invalidity of “the Water Sharing Plan for the Upper and Lower Namoi Groundwater Sources” as made by order pursuant to s50 of the Water Management Act 2000 published in the Gazette of 27 December 2002.
3 On 9 May 2003 the Applicants filed Points of Claim which allege a number of grounds or bases for the invalidity of the Water Sharing Plan. These are conventional administrative law grounds including procedural and substantive ultra vires and failure to take into account relevant considerations. The Points of Claim is a comprehensive document of some 16 pages and 84 paragraphs.
4 On 4 June 2003 the Respondent filed Points of Defence (Amended Points of Defence were filed on 2 July 2003). On 11 July 2003 the Registrar gave by consent directions in preparation for trial (including the filing of all affidavits by 3 October 2003). The matter has been stood over to the Registrar’s Call-over on 8 October 2003 when it may be expected that hearing dates will be allocated.
5 In the meantime by Notice of Motion dated 2 July 2003 the Respondent seeks an order for the separate decision by the Court on questions of law.
- B. THE QUESTIONS RAISED FOR SEPARATE DECISION
6 The questions, as formulated in the Respondent’s Notice of Motion were as follows:
- (a) Is the “Water Sharing Plan for the Upper and Lower Namoi Groundwater Sources 2003”, as made by order published in the New South Wales Government Gazette of 27 December 2002 (“the Plan”), an instrument:
- (i) to which the doctrine of legitimate expectations is capable of applying?
- (ii) in relation to which the Respondent was required to afford the Applicants procedural fairness?
7 In the course of the hearing of the Notice of Motion the Respondent obtained the leave of the Court, without objection from the Applicant to reformulate the questions as follows:
- 1. Is the Minister’s power to make a water management plan under section 41 of the Water Management Act 2000 a power whose exercise is not subject to the common law doctrine of procedural fairness?
- 2. Is the Minister’s power to make a Minister’s plan under s50 of the Water Management Act 2000 a power whose exercise is not subject to the common law doctrine of procedural fairness?
8 The Applicants maintained their objection to the reformulated questions being the subject of separate determination in advance of the trial.
- C. EXERCISE OF JUDICIAL DISCRETION
9 It is convenient to determine the disputed Motion by reference to the statutory power conferred by Part 31 Rule 2 of the Supreme Court Rules which has been expressly adopted by the Rules of Court: vide Part 6 Rule 1(2) of the Land and Environment Court Rules 1996. The power conferred by Part 31 Rule 2 is in the following terms:
2. The Court may make orders for-
(a) the decision of ay questions separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.
10 It is to be noted that ‘question’ is widely defined by Part 31 Rule 1 as follows:
- 1. In this Part, question includes an question or issue in any proceedings, whether fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise
11 The nature of the judicial discretion and the occasion for its exercise are well illustrated by decided cases (a number of which were referred to in argument), which are conveniently summarised in the following commentary from Ritchies’ Supreme Court Practice at paragraph 31.2.2:
- Ordinary position – all issues should be tried together
- Generally speaking all issues should be tried at the same time. This general rule is accompanied by much judicial caution, indeed reluctance, about making orders for separation. However, as the present rule makes clear, the court does have a discretion to order separate determination in appropriate cases, and the exercise of the discretion does not require an applicant to show special circumstances. Order for separate determination may be made whenever the court considers that it is proper to do so. The most usual instances where separate determination is appropriate are:
- (i) where there is some preliminary question of fact or law that is critical to the disposition of the proceedings (in the sense that if it decided in one way it will dispose of the proceedings) (see Printing & Kindred Industries union of Australia v Clark (SC(NSW), Needham J, ED 550/76, 17 September 1976, unreported), behind guide card “Practice Decisions” in vol 2 at[13.006]; and
- (ii) where there are separate hearings of liability and damages issues.
- In either case the principal justifications for the making of the order is that the separate determination is likely to offer some real saving of convenience or expense: Love v Mirror newspapers Ltd [1980] 2 NSWLR 112; Coenen v Payne [1974] 2 All ER 1109 at 1112; [1974] 1 WLR 984 at 988; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671. Accordingly, the proper exercise of the discretion is not limited to those situations, and can permit orders for separate determination whenever the court is satisfied that the order is appropriate, eg, where it may lead to the early resolution of the proceedings, or avoid significant additional expense or delay: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-2.
12 In support of the Motion Counsel for the Respondent identified paragraphs 26, 27, 28, 29, 30, 47, 55, 66, 75, 78, 79, 80, 81, and 82 of the Points of Claim as being “affected by” the reformulated questions, thereby candidly conceding that the decision on the separate questions will not resolve the whole of the proceedings.
13 Notwithstanding this fact it was submitted on behalf of the Respondent that the relief claimed in the Motion should be granted because the result may be the saving of convenience and expense to the parties by virtue of the following consequences:
(i) the discovery process will be abbreviated;
(iii) the relevant evidence would probably be confined to documentary materials.(ii) evidence of relevant verbal communications (eg representations) will not be required; and
14 In addition to these potential savings to the present parties there was the possibility that the same costs savings benefits could flow on to other litigants in other pending proceedings in this Court involving legal challenges to the validity of other water management plans.
15 The Respondent’s submissions concerning the possible benefits flowing from the separate decision (favourable to the Respondent) on the questions it has raised are based upon the fundamental premise that the reformulated questions are entirely to be answered as a matter of statutory construction. In this respect the Respondent has anticipated that his argument on that question of statutory construction is that the powers respectively conferred upon the Minister by ss41 and 50 of the Water Management Act 2000 are not subject to the common law doctrine of procedural fairness because (i) those powers are not of an administrative nature – rather they are a form of delegated legislation and (ii) the scope and content of the water management plans affect “large numbers of people in their capacity as members of the public”.
16 Whereas it may be readily accepted that the proper construction of the relevant powers of the Water Management Act 2000 will determine whether the rules of natural justice or procedural fairness regulate the exercise of the powers respectively conferred upon the Minister by ss 41 and 50 of that Act (see Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 622/623 per Mason P) I am by no means satisfied that the answers to the reformulated questions based upon the proper construction of the relevant provisions of the Water Management Act will determine each and every basis of alleged denial of procedural fairness or legitimate expectation as pleaded in the Points of Claim.
17 In expressing this conclusion I am assuming that the decision on the separate questions is entirely favourable to the Respondent.
18 In particular that decision on the separate questions would not answer the following allegations in the Points of Claim:
(i) the alleged legitimate expectation that the Respondent would ensure that his ‘plan’ would comply with the requirements of Parts 2 and 3 of Chapter 2 of the Water Management Act : paragraph 26 ;
(ii) the alleged departure from the requirements of Parts 2 and 3 of Chapter 2 of the Water Management Act involved a breach of the requirements of procedural fairness: paragraph 29 ;
(iv) the alleged legitimate expectation that the plan would be prepared by a management committee and would be made as a management plan rather than the Minister’s plan: paragraph 75.(iii) the alleged denial of procedural fairness by denying the Applicants the opportunity to make submissions on particular contents of the Plan namely (a) the State Water Management Outcomes Plan; and (b) the access licence dealing rules: paragraph 66 ; and
19 It is because the decision on the reformulated questions will not answer the foregoing allegations contained in the Applicant’s Points of Claim that the suggested benefits of the separate decision are not likely to materialise.
20 Quite apart from that consideration there is considerable force in the Applicants’ objection to the Motion that even the proper construction of the relevant provisions of the Water Management Act to determine whether the rules of procedural fairness have been “excluded by plain words of necessary intendment” (Transport Action Group) cannot be undertaken without a proper understanding of (i) the content of the Water Sharing Plan and (ii) the nature of the rights or legitimate expectations held by the various Applicants in the present case. This feature of the case weighs against exercising the judicial discretion in favour of ordering a separate decision on the reformulated questions. In this respect it is to be noted that the Water Management Act is a most comprehensive recent statute of some 400 sections not yet the subject of any judicial scrutiny or consideration.
21 This leads me to a final consideration of the significance to the exercise of the judicial discretion in the present case. In paragraph 26 of the Points of Claim alleging a legitimate expectation that the Respondent would ensure that the ‘Plan’ would comply with Parts 2 and 3 of Chapter 2 of the Water Management Act the supporting particulars are stated as follows:
- The expectation was engendered by various public statements and representations made by the Respondent, the Department or employees and agents thereof.
22 Paragraph 26 of the Amended Points of Defence denies the allegation and includes in the supporting particulars the following:
- “(c) there was no conduct of the Respondent capable, in any event, of giving rise to legitimate expectations”.
23 This state of the pleadings indicates that there is a disputed factual issue concerning the conduct of the Respondent alleged to found the Applicants’ relevant legitimate expectation.
24 Since the Respondent has frankly conceded that the relief claimed in the Notice of Motion does not approximate the relief otherwise claimable on the procedure of a demurrer or of a strike out motion (where the facts are assumed to be as pleaded), the existence of the disputed factual issue strongly suggests that any order for separate decision on the reformulated questions would prove unfruitful: see Bass v Permanent Trustees Company Ltd (1999) 198 CLR 334 at 358, and compare the following observations in the joint judgment of Kirby and Callinan JJ in Tepko Pty Ltd & Ors v Water Board (2001) 206 CLR 1 at 55:
- The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
25 For all of the foregoing reasons I do not think it is appropriate or useful to order the separate decision on the Respondent’s reformulated questions in the face of the Applicants’ cogent objections.
26 It is more appropriate that the whole of the case be heard and determined at trial, towards which it is currently well advanced. An order for separate decision may interrupt this advanced progress of the proceedings.
27 Accordingly I order that the Notice of Motion be dismissed with costs.
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