Arnold & Ors v Minister Administering the Water Management Act 2000 & Ors

Judicial Review :- water rights - reduction of extraction entitlements - whether the applicants have standing - whether there are any reasonable causes of action against the Commonwealth KEY ISSUES: Jurisdiction :- claims against the Commonwealth - validity of Commonwealth legislation - whether the court has jurisdiction to grant relief as sought against the Commonwealth

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9(1) Judiciary Act 1903 (Cth), s 39(2) Land and Environment Court Act 1979, s 16(1A), s 20, s 22, s 23 National Water Commission Act 2004 (Cth) LEGISLATION CITED: Natural Resources Management (Financial Assistance) Act 1992 (Cth) Supreme Court Act 1970 Supreme Court Rules 1970, Pt 8 r 8, Pt 11 r 8, Pt 13 r 5, Pt 31 r 2 Water Act 1912 Water Management Act 2000, s 47, s 336 Water Management (General) Amendment (Lower Murray) Regulation 2006

Attorney-General v Butterworth [1963] 1 QB 696; Attorney-General (Vic); Ex Rel Dale v Commonwealth (1945) 71 CLR 237; Caltex Oil (Australia) Pty Ltd v The Dredge Willenstad (1976) 136 CLR 529; Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; Cameron v Cole (1944) 68 CLR 571; Campbelltown City Council v Vegan & Ors (2006) 235 ALR 342; Chadwick v Maden [1851] 9 Hare 188; Combet v Commonwealth (2005) 224 CLR 494; Commonwealth v Tasmania (1983) 158 CLR 1; Croome v State of Tasmania (1997) 191 CLR 119; D & H Investments Pty Ltd v Wagner (2005) 91 SASR 27; Davis v Commonwealth (1988) 166 CLR 79; Davis v Commonwealth (1986) 61 ALJR 32; (1986) 68 ALR 18; Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Hocking v Bell (1945) 71 CLR 430; CASES CITED: Meehan & Ors v Commissioner of Police (1999) 47 NSWLR 284; Minister for Minerals and Energy v Vaughan-Taylor & Anor (1991) 73 LGRA 115; Morgan v Commonwealth (1947) 74 CLR 421; National Parks and Wildlife Services & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518; New South Wales v Bryant [2005] 227 ALR 129; Newcrest mining (WA) Ltd v BHP Minerals Ltd and Commonwealth (1997) 190 CLR 513; Nix & Dunn v Pittwater Council (1994) 84 LGERA 199; NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; Pettitt v Dunkley [1971] 1 NSWLR 376; PJ Magennis Pty Limited v The Commonwealth (1949) 80 CLR 382; Pye v Renshaw (1951) 84 CLR 58; R v Federal Court of Australia & Adamson; Ex parte WA National Football League (Inc) (1979) 143 CLR 190; R v Rogerson, Nowytager, and Paltos (1992) 174 CLR 268; R v Ross Jones; Ex parte Green (1984) 156 CLR 185; Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347; Shin Kobe Maru, Owners of the Ship v Empire Shipping Co Inc (1994) 181 CLR 404; Victoria v Commonwealth (1975) 134 CLR 338; West Midland Rly Co v Nixon [1863] 1 Hem & M 176

DATES OF HEARING: 15/08/2007, 16/08/2007, 22/08/2007, 20/09/2007, 05/11/2007, 07/11/2007 and 21/11/2007

APPLICANTS: Mr P E King (barrister) & Mr C P Carter (barrister) SOLICITORS: Taylor & Whitty

FIRST & SECOND RESPONDENTS: LEGAL REPRESENTATIVES: Mr J K Kirk (barrister) SOLICITOR: I V Knight Crown Solicitor

THIRD RESPONDENT: Mr A Robertson SC & Mr C Lenehan (barrister) SOLICITOR: Australian Government Solicitor

JUDGMENT:

• 30 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ALAN ARNOLD & ORS v MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 & ORS [NSWLEC] 531

1 HIS HONOUR: Alan Arnold and over 100 other applicants in this case reside in the Lower Murray of New South Wales. The applicants are the owners of farming land and were the holders of bore water licences under the Water Act 1912. 2 The Water Management Act 2000 (NSW) ("the WM Act") was made in 2000 and the Water Sharing Plan for the Lower Murrumbidgee Groundwater Source Plan 2006 ("the Plan") was made under that Act and published in the Gazette on 20 October 2006. The applicants claim, among other things, that their water rights including their former entitlements "were converted from the Water Act 1912 by Water Management Act 2000 schedule 10 and thereby acquired" (par 25, Further Amended Points of Claim). What actually happened was that prior to the Plan coming into effect on 1 November 2006, the applicants were the holders of entitlements under Part 5 of the Water Act 1912 (NSW); and on 1 November 2006 such entitlements were replaced by aquifer access licences and supplementary water access licences under Part 2 of Chapter 3 of the WM Act. As a result of the replacement, the applicants' extraction entitlements have been reduced. The applicants claim, inter alia, that the Plan is invalid as a plan, and/or as a law of New South Wales and is ultra vires and of no effect, or alternatively exceeded the authority and the jurisdiction of the first respondent's (the Minister Administering the WM Act) plan making functions. 3 In April 2007 Justice Jagot granted leave to the applicants to join the State of New South Wales as second respondent and the Commonwealth of Australia as third respondent. 4 The applicants by their further amended application claim the following relief:

1. (Withdrawn by the further amended application dated 14 November 2007);

3. An order in the nature of prohibition precluding the respondents and each of them from applying the Plan to the applicants;

4. An order in the nature of Certiorari quashing the Plan;

5. An order in the nature of prohibition or injunctive relief precluding the respondents from implementing their decisions in respect of the applicants in respect of the Plan;

6. (Withdrawn by the further amended application dated 14 November 2007); 6A. Declaration that the Plan in whole or in part is void, and consequential orders for and with respect to the status and/or restoral or the applicants' water rights and entitlements. 6B. Declaration that the WM Act does not apply to the water licences and/or water entitlements of the applicants, and consequential orders for and with respect to the status and/or restoral or the applicants' water rights and entitlements. 6C. Declaration that the decision or decisions of the respondents and each of them with respect to the investigation recommendation and adoption of the Plan in the purported exercise or non-exercise or improper exercise of plan making functions relating to the making of the Plan are void and of no effect. 6D. Declaration that the decision or decisions of the respondents to adopt and/or implement the reductions for the Lower Murray water management areas and the provisions of the Plan under the WM Act as amended and any Regulation under or relating thereto as amended were made in excess of jurisdiction or were not authorised where by each such decision is void and of no effect. 6E. Declaration that the decision of the Murray Regional Verification Committee and the respondents as notified to the applicants in or about June 2006 and in October 2006 with respect to water allocation reductions are in excess of jurisdiction or made in breach of the rules of procedural fairness and are void and of no effect.
7. Declarations that: (i) the Natural Resources Management (Financial Assistance) Act 1992 [Act No. 242 of 1992] (Cth) ("the Financial Assistance Act ") and National Water Commission Act 2004 [Act No. 156 of 2004] (Cth) or the provisions of the Acts so far as they relate to water and water resources were ultra vires and beyond the powers of the Commonwealth; (ii) The Water Management (General) Amendment (Lower Murray) Regulation 2006 and the Plan were void and inoperative; (iii) Parts 2 and 3 of Chapter 3 of the WM Act and schedule 10 as amended in relation to the Lower Murray water management areas were void and inoperative with respect to the applicants' water licences; (iv) The proclamation of her Excellency the Governor of New South Wales made on 25 October 2006 with respect to the Plan was void and inoperative; (v) The former entitlements of the applicants with respect to water on, in or under their lands as described in water licences issued pursuant to Water Act 1912 have not been affected or converted by the Water Management (General) Amendment (Lower Murray) Regulation 2006.

8. Injunctions restraining: (i) the second and third respondents from carrying out or taking action pursuant to the Intergovernmental Agreement on a National Water Initiative and the Intergovernmental Agreement on Addressing Water Over-allocation and Achieving Environmental Objectives in the Murray Darling Basin and on Achieving Sustainable Ground Water Entitlements with respect to the applicants; (ii) the second and third respondents by their servants or agents including agencies from carrying out or taking any action comprising any decision, act or conduct which interferes in the trade of the applicants in water entitlements under water aquifer licences or the extraction of water from their land under such licences or otherwise; (iii) the third respondent by its servants or agents including agencies from carrying out or taking any action comprising any decision act or conduct which has the intent or purpose or effect of interfering in acquiring or confiscating the applicants' water entitlements and/or doing same without first providing just compensation for such acquisition or confiscation of the said water entitlements; (iv) the third respondent by its servants or agents including agencies from carrying out or taking any action comprising any decision act or conduct which abridges or otherwise interferes in the reasonable use by the applicants of water in New South Wales including but not limited to waters of rivers; (v) the second respondent from taking any further action with the object or intention of reducing the former water entitlements of the applicants.

9. Damages, including compensation for interference in the water entitlements fo the applications including their trade in water aquifer licences and all consequential losses and compensation for the acquisition and/or confiscation thereof without authority, permission, particulars of which are supplied separately, and interest.

11. Alternatively or further to 9, compensation under the WM Act Chapter 2, Part 3 Division 9.

13. Directions with respect to particular claims, case management and other proceedings. 5 The Commonwealth now applies for orders that the Court dismiss or stay the applicants' claim in so far as it concerns the Commonwealth on various bases: · The Court has no jurisdiction to grant the relief sought against the Commonwealth in the applicants' amended application (par [1]) · The applicants do not have standing to seek the relief sought against the Commonwealth in the applicants' amended application (par [2]) · The applicant discloses no reasonable cause of action as against the Commonwealth or on the basis that it is frivolous or vexatious (par [4]) · Alternatively to the order sought in par [2] the Commonwealth seeks (in par [3]) that the Court separately determine the following question in advance of the trial: Do the applicants have standing to seek the relief against the Commonwealth in the applicants' amended application? · The Commonwealth also moves the Court for various other orders (pars [5]-[7]). At present, the Commonwealth does not press for the order set out in par [5] of the motion regarding the purported interrogatories served by the applicants, because the Court has suspended the orders made on 16 May 2007. 6 The applicants' claims must be examined to determine if they are within the jurisdiction of the Court and whether they disclose any cause of action against the Commonwealth. The further amended points of claim are quite lengthy and detailed and are drawn in a somewhat cumbersome, repetitive and inelegant way. In fairness to the applicants they seem to be based on an equally cumbersone, repetitive and inelegant precedent. As I understand them, the points of claim may be summarised as follows:

At all material times: · the applicants were farmers in the Lower Murray area of the State of New South Wales; · the incorporated applicants in the proceedings were duly incorporated and able to sue in their respective corporate names and styles; · the applicants were the owners of farming land and the holders of bore water licences under the Water Act 1912 with possession of and the right to take all groundwater and moisture found in aquifers in the soil in or under their land to the limit of the restriction stipulated by the licence and to possess, harvest, dam and sell or otherwise consume or transfer or market all such water.

On or about 8 December 2000 the WM Act was made.

At all material times: · the Minister administered the Water Act 1912 and the WM Act. · the State employed public servants in New South Wales including the staff of the Minister, the staff and the employees of the then Department of Natural Resources and the staff and employees of the Catchment Management Authorities for the Murrumbidgee and the Murray water management areas; · the Catchment Management Authorities for the Murrumbidgee and the Murray water management areas were each a public authority in New South Wales and were each authorised by the Minister and/or the State to act on their behalf and for whose acts they or one of them are responsible.

In or about late 2005 the Minister and/or the State by their servants or agents established the Murray Regional Verification Committee or similar name and its sub-committees, the Groundwater Adjustment Advising Committee ("the GAAC") and the Groundwater Adjustment Officials Committee ("the GAOC") for the purpose of making a management plan for the Lower Murray.

In 2006 the Minister, assisted by and in association with the Commonwealth, purported to make a water management plan ("the Plan") pursuant to the WM Act applicable to water sources in the Murrumbidgee and Murray water management areas being for the sharing, use and control of the groundwater sources inter alia on the farms of the applicants.

Between about June 2004 and 2006 the Minister assisted by and in association with the Commonwealth purportedly drafted a management plan with a view of the conversion of water licence and water rights of the applicants as holders under the Water Act 1912 to holders under WM Act with respect to two water sources namely the Calivil Renmark and Lower Shepparton Aquifers (the water sources) in parts of the said water management areas and described as the Lower Murray area. 7. The first claim was withdrawn by the further amended application dated 14 November 2007. 8. The second claim: The 2006 Plan is invalid as a Plan, and/or as a law of New South Wales and is ultra vires and of no effect, or alternatively exceeded the authority and hence the jurisdiction of the Minister's plan making functions. Various grounds are particularised in support of this claim. Declarations and orders are sought with respect to the applicants' water rights and entitlements.

The third claim: The 2006 Plan as made and implemented is invalid as not authorised by the WM Act whereby same is ultra vires or made in excess of the authority and hence the jurisdiction of the Minister and is of no effect. Various grounds are particularised in support of this claim. Declarations and orders are sought with respect to the applicants' water rights and entitlements.

The fourth claim: The 2006 proclamations made by or on behalf of Her Excellency the Governor of New South Wales in or about October 2006 by direction or authority of the Minister which purported to apply the WM Act or parts thereof to the Lower Murray Groundwater Sources and/or to the water licence and/or water entitlements of the applicants were void as being ultra vires and of effect [sic] on the ground of non-compliance with the Act. Declarations and consequential orders are sought with respect to the applicants' water rights and entitlements.

The fifth claim: The Water Management (General) Amendment (Lower Murray) Regulation 2006 made by the Minister, which purported to convert the water licence under the 1912 Act to aquifer licences under the 2000 Act, is void as being ultra vires and of no effect. Declarations and consequential orders are sought with respect to the applicants' water rights and entitlements.

The sixth claim was withdrawn by the further amended application dated 14 November 2007.

Claims 6A - 6E were added by the further amended application dated 14 November 2007 (as to which the parties made no further submissions).

The seventh claim: The Plan, or provisions of it, has been made as the result or consequence of the breach of WM Act or Regulations within the meaning of s 336(1) of the Act by the Minister and the State and their servants or agents. By reason of the breach or breaches of the WM Act the applicants have lost water rights and entitlements and have suffered loss and damage whereby they seek an order pursuant to s 336(1) of the WM Act to remedy the breach or breaches and the restoration or making good in monetary terms of their loss and damage. The Minister and/or the State have breached the provisions of the WM Act and as a result of the Minister and the State breaching the WM Act the applicants have had their former entitlements converted to aquifer access licences and substantially reduced and have suffered loss and damage. In addition to seeking a declaration to that effect, the applicants seek an injunction restraining the respondents from compulsorily acquiring the applicants' water entitlements without any just compensation, or alternatively, they claim damages.

The eighth claim: The applicants seek various declarations and orders for compensation. The declarations sought include: that they are holders of an access licence to which s 87AA of the WM Act applies or to which s 87 applies and whose water allocations have been reduced because of a change to provisions of the relevant management plan dealing with water sharing or as a consequence of the variation of a bulk access regime and are entitled to compensation out of the Consolidated Fund; and, that there is in force pursuant to ss 87AA(8) and (9) of the Act an agreement between the Commonwealth and the State for the payment of compensation to the applicants for the purposes of paying farmers and the applicants in particular for the reduction in their water access licence allocations and funding thereof. The Minister and/or the State have failed to determine any or any adequate compensation to which the applicants are entitled by reason of the purported loss of access licences or the reduction in water allocations under such licences.

The ninth claim: The Minister or the State and each of them by their servants and agents or otherwise in the purported exercise of the plan making functions under the WM Act and in the purported implementation of the Plan and the Regulation under the Act made a decision or decisions in excess of jurisdiction and which were void and of no effect on a number of particularised grounds, including denial of procedural fairness and manifest unreasonableness. Further or alternatively the applicants seek a declaration that the decision or decisions of the respondents and each of them with respect to the investigation, recommendation and adoption of the 2006 Plan in the purported exercise or non-exercise or improper exercise of plan making functions relating to the making of the Plan are void and of no effect as being affected by procedural unfairness and/or made in breach of the rules of natural justice in whole or in part. Further the respondents and each of them by their servants and agents or otherwise made a decision or decisions in relation to the Plan and the plan making and implementation functions referred to by the Act and Regulations in the purported exercise or the non-exercise or the improper exercise of functions under the Act relating to the making of the Plan which were in excess of jurisdiction and are void and of no effect. The applicants seek a declaration that the decision or decisions of the respondents to adopt and/or to implement the reductions for the Lower Murray water management areas and the provisions of the Plan under the WM Act as amended and any Regulation under or relating thereto as amended were made in excess of jurisdiction or were not authorised, whereby each decision and the Plan are void and of no effect, and seek the further or consequential orders sought in the applications as amended. 17. The tenth claim: In relation to the recommendation or decision for the allocation of water under the proposed aquifer access licences for conversion from the applicants' Water Act 1912 licences, the applicants allege that: the Minister and/or the State by their servants or agents took into account irrelevant considerations, or failed to take into account relevant considerations, or made a decision that was so unreasonable that no reasonable person in the position of the respondent its servants or agents could make or failed to comply with the requirements of procedural fairness, whereby the decision or decisions of the Murray Regional Verification Committee and the decision or decisions of the respondents to adopt the Committee's decision are void and of no effect. The applicants seek a declaration that the decision of the Murray Regional Verification Committee and the respondents as notified on or about June 2006 and in October 2006 with respect to water allocation reductions are in excess of jurisdiction or made in breach of the rules of procedural fairness and are void and of no effect, and the further or consequential orders in the amended applications.

18. The eleventh claim: The applicants sue in respect of the following further cause of action or claims in the incidental or auxiliary or accrued jurisdiction of the Court. At all material times the Minister and the State by their servants or agents were under a duty of care in the exercise of the plan-making functions in Chapter 2 of the WM Act to prevent economic loss to the applicants and each of them with respect to any act or omission. Prior to 1 November 2006 the Minister and/or the State by their servants or agents made various representations, which were false and/or erroneous, were made in breach of the duty of care of the Minister and the State their servants or agents, in the course of and for the purposes of the plan-making functions in Chapter 2 of the WM Act, to prevent economic loss by a misstatement which he or she knows or ought to realise that the words used in each of the representations was such as to engender in the applicants reasonable reliance thereon, were material and were relied on by the applicants. As a result of relying on each of the representations the applicants have each suffered loss and damage.

19. Claim 11A was added by the further amended application dated 14 November 2007 (as to which the parties made no further submissions).

The Commonwealth's submissions 7 The Commonwealth submits that the applicants have failed to make it clear in the amended application what relief is sought against it. The Commonwealth notes that it appears that the relief now sought against the Commonwealth is that in pars [3], [5], 7, [8], [9] and [10] of the amended application, as set out in par [4] above. The amendments made by the applicant to its application are said not to affect the submission made by the Commonwealth, as discussed below. 8 The applicants have, according to the Commonwealth, failed to make clear how the relief they seek is related to the points of claim. The Commonwealth states that all material allegations against it were set out in the "sixth claim", which was withdrawn by the further amended application dated 16 November 2007, with some of the allegations repeated in the eighth and ninth claims. The Commonwealth notes that the applicants still contend by the further amended application that: a. the Natural Resources Management (Financial Assistance) Act 1992 and National Water Commission Act 2004 are, for a variety of reasons, invalid; b. the pleaded actions of the Commonwealth (in entering the Intergovernmental Agreement on a National Water Initiative ("the NWI Agreement") and the Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray-Darling Basin ("the Overallocation Agreement") and threatening to pay money under that agreement) are unlawful by in that those actions were carried out under those invalid enactments; and/or c. the pleaded actions of the Commonwealth (in entering the NWI Agreement and the Overallocation Agreement and threatening to pay money under that agreement) are unlawful by reason of the fact that they exceed the limits imposed on the powers of the Executive by the Constitution.

The Commonwealth also infers that the orders for prohibition and injunction sought in pars [3], [5] and [8] of the amended application relate to the matters identified in (b) and (c) above. 9 The Commonwealth notes that it has no obligations or responsibilities under the WM Act or the Plan, which was made under s 50 of that Act. Neither the Commonwealth, nor its officers are capable of exercising "plan making functions", being functions under a New South Wales enactment. 10 The Commonwealth's application is summarised in par [5] above. The Commonwealth submits that there is no cause of action against it and it also raises the question of jurisdiction. The issue of jurisdiction having been raised, the Court is required to satisfy itself that it has jurisdiction before it proceeds further with the matter (R v Federal Court of Australia & Adamson; Ex parte WA National Football League (Inc) (1979) 143 CLR 190 at 215 and National Parks and Wildlife Services & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585 per Kirby P). The Commonwealth notes that the burden is upon the applicants to establish that the Court has jurisdiction and to the extent that the question depends upon particular facts or state of affairs, it is for the applicants to prove those matters on the balance of probabilities: Shin Kobe Maru, Owners of the Ship v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan & Ors v Commissioner of Police (1999) 47 NSWLR 284 at 285. The Commonwealth submits that the Court cannot simply rely upon a "failure" on the part of the party objecting to jurisdiction to adduce evidence proving absence of jurisdiction. 11 The Commonwealth argues that the Court would not be satisfied that the applicants have established jurisdiction for various reasons. This Court, which a superior court of record, is a statutory court of limited jurisdiction (Stables at 578 per Gleeson CJ, with whom Meagher JA agreed). The Commonwealth notes that the Court may, in resolving a claim which is properly brought within jurisdiction, decide all questions of law and fact which need to be decided in order to deal with that claim (Stables at 582 per Gleeson CJ, with whom Meagher JA agreed). That includes determining (in an indirect or collateral fashion) matters which would otherwise not be within the jurisdiction of the court: Minister for Minerals and Energy v Vaughan-Taylor & Anor (1991) 73 LGRA 115 at 123 per Meagher JA. However, the limitation to such matters as "need" to be decided means that their resolution must be a "necessary step" in the cause of action which is within jurisdiction: NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 412-413 per Pearlman J. The Commonwealth relies on Stables as authority for the submission that the jurisdiction is not enlarged by reasoning analogous to that which supports the pendent or accrued jurisdiction of the Federal Court (Stables at 580 per Gleeson CJ, with whom Meagher JA agreed). 12 The Commonwealth made further submissions in relation to jurisdiction. It submitted that the applicants, in asserting that the Court may proceed to hear the originating application against the Commonwealth, over the objection of the Commonwealth, even if the Court does not satisfy itself that it has jurisdiction to do so, have overlooked the point made by Kirby P in NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 at 521. There his Honour observed, "No court should exercise jurisdiction, at least where it is in contest, without being satisfied that there is jurisdiction to exercise." The Commonwealth further submits that the jurisdiction of this Court may not be established by concession, nor may it be established by conduct said to constitute "waiver" (Stables at 585 per Kirby P). The Commonwealth submits that its application may not be refused as a matter of discretion as no question of discretion arises - the Court simply lacks power to hear the claims against it. 13 In relation to the first order sought by the Commonwealth, noted in par [5] above, it submits that the power to dismiss or stay proceedings which are outside jurisdiction is not dependent upon the characterisation of the Commonwealth's application as being made under a particular rule of Court. 14 The Commonwealth says that the applicants appear to overlook a fundamental point - that the only potential source of jurisdiction for the claims against the Commonwealth is s 39(2) of the Judiciary Act 1903 (Cth). The Commonwealth submits that jurisdiction is only conferred upon state courts within the limits of their several jurisdictions, including limitations as to subject matter. The Court possesses a limited jurisdiction, which is defined by reference to specified statutes relating to specialised subject matter. The Commonwealth therefore submits that s 39(2) of the Judiciary Act does not confer jurisdiction. 15 Section 16(1A) of the Land and Environment Court Act 1979 (NSW) was inserted by the New South Wales legislature to seek to overcome some of the resulting limitations upon the Court's jurisdiction. There is nothing, according to the Commonwealth, in the language of the LEC Act, or other relevant New South Wales legislation, which indicates an intention on the part of the New South Wales Parliament to confer jurisdiction to determine the claims made against the Commonwealth in these proceedings. 16 Further, none of the claims against the New South Wales respondents are in any way contingent upon the claims made or the relief sought against the Commonwealth. It cannot be contended that the resolution of those matters is a necessary step to the determination of the claims against the New South Wales respondents. The claims against the Commonwealth and the State are said to be "separate to and independent of" one another. The Commonwealth goes further, submitting that even if s 16(1A) of the LEC Act did confer jurisdiction, the provision would be invalid in so far as it was said to confer federal jurisdiction on this Court. Any such jurisdiction must, it is submitted by the Commonwealth, be found in s 39(2) of the Judiciary Act 1903 (Cth). Section 39(2) of the Judiciary Act 1903 is said to be of no assistance to the applicants due to the limitations upon the jurisdiction of the Court being adopted for the purposes of the conferral of federal jurisdiction under that section (D&H Investments Pty Ltd v Wagner (2005) 91 SASR 27 at 41). 17 The Commonwealth states that the Court should dismiss the applicants' claims for relief as against the Commonwealth on the basis that the applicants are unable to satisfy the Court that it has jurisdiction. 18 In relation to the fourth order sought by the Commonwealth for summary dismissal, as noted in par [5] above, the Commonwealth acknowledges that it bears the onus of showing that the applicants' claims are so untenable that they cannot possibly succeed: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The Commonwealth also accepts the truth of each of the allegations of fact in the points of claim for the purposes of the Court's consideration of the power conferred by Pt 13 r 5. 19 The applicants allege that the NWC Act and the Financial Assistance Act were invalid in whole or in so far as the provision of those enactments relate to water or water resources. When clarification was sought by the Commonwealth as to which provision were said to relate to water or water resources, the applicants solicitors stated that specific reliance was place upon "sections 4(1)(a) and (5)(c)" of the Financial Assistance Act. The Commonwealth notes that the Financial Assistance Act does not contain sections 4(1)(a) and (5)(c). 20 The Commonwealth submits that the applicants have failed to specify with any precision the basis upon which it is said that the NWC Act and the Financial Assistance Act are beyond the legislative competence of the Commonwealth. None of the matters that the applicants rely on, or appear to rely on, disclose an action with any reasonable prospect of success. In relation to the applicants' claim that the Acts are invalid by reason of the fact that the Commonwealth lacks legislative power, the Commonwealth submits that the applicants' contentions are based on the discredited reserve powers doctrine, overlook a number of heads of Commonwealth legislative power and are bound to fail. 21 In so far as the NWC Act and the Financial Assistance Act provide for the provision of financial assistance by the Commonwealth to the States, the Commonwealth submits that the relevant provisions fall within, inter alia, s 96 of the Constitution. It is noted by the Commonwealth that the only legislatively based conditions imposed upon the provision of financial assistance under the NWC Act and the Financial Assistance Act are those set out in ss 8 and 9 of the Financial Assistance Act and the applicant does not take issue with any of the conditions there specified. The Commonwealth says that the specification of conditions upon any grant to the States or the making of any other formal or informal arrangements between the States and the Commonwealth regarding those grants is otherwise to be determined by the Commonwealth Executive. The Commonwealth further submits that the payment or threatened payment of any money and the entry into agreements cannot give rise to any tenable claim as against the Commonwealth as the State of New South Wales would be obliged to pay money it received pursuant to such a grant into the Consolidated Fund and the manner in which and the purposes for which that money was appropriated and spent would be a matter entirely in the discretion of the State. 22 Alternatively, the Commonwealth submits that the provisions of the NWC Act and the Financial Assistance Act which provide for financial assistance to the States are supported by the appropriations power, s 81 of the Constitution. The weight of authority, according to the Commonwealth, favours the proposition that s 81 and/or the incidental power conferred by s 51(xxxix) confer power upon the Commonwealth Parliament to appropriate and spend money for any purpose it authorises (Victoria v Commonwealth (1975) 134 CLR 338 at 369-70 per McTiernan J and at 419 and 424 per Murphy J and Combet v Commonwealth (2005) 224 CLR 494 at [5] per Gleeson CJ. See also Attorney-General (Vic); Ex Rel Dale v Commonwealth (1945) 71 CLR 237 at 256 per Latham CJ and at 273 per McTiernan J). Alternatively, due to the impossibility of establishing standing to challenge an exercise of that power, the Commonwealth submits that that limitation is not one which is justiciable by this Court or by any other Court (Victoria v Commonwealth at 388-91 per Stephen J and at 410 per Jacobs J). 23 In any event, the Commonwealth submits that it has power with respect to national schemes for natural resource management for a number of reasons. The financial assistance provisions are also supported by the legislative power conferred by s 51(xxxix) in conjunction with s 61 of the Constitution as laws which are incidental to the execution of the executive powers of the Commonwealth. Relevantly, the powers conferred upon the Commonwealth Executive power to engage in enterprises and activities peculiarly adapted to government of a nation and which cannot otherwise be carried out for the benefit of the nation (Davis v Commonwealth (1988) 166 CLR 79 at 111 per Brennan J and Victoria v Commonwealth at 196-97 per Mason J). The funding of national schemes for natural resource management is to be characterised as an activity of that nature and thus falls within the power conferred by s 61. Section 51(xxxix) authorises Parliament to legislate in aid of such an exercise of executive power. Alternatively, the so called "implied nationhood power" supports those provision for similar reasons: Davis v Commonwealth at 93-5 per Mason CJ, Deane and Gaudron JJ and Victoria v Commonwealth at 397 per Mason J and 412-3 per Jacobs J. In so far as the applicants seek to impugn the validity of the provisions of the NWC Act, which create and confer functions upon the NWC, the Commonwealth submits that those provisions are at least supported by one or more of the powers referred to above. Similarly, the provisions of the Financial Assistance Act which provide for entry into financial assistance agreements are similarly at least supported by one or more of those powers. 24 The Commonwealth notes that the applicants rely upon the limitation in s 51(xxxi) of the Constitution ("the acquisition of property on just terms") and the Commonwealth submits that the limitation in that section is not engaged by "purposes" or "agreements". Its relevance depends upon there being a law of the Commonwealth which may be characterised as a law with respect to the acquisition of property. In any event, the Commonwealth submits that it may be doubted that any rights possessed by the applicants constituted property. It is further submitted that even if there were a relevant proprietary right, regulation under the Plan made pursuant to s 50 of the WM Act merely involved the prohibition or control of a particular use of or particular acts upon property. Section 51(xxxi) requires "acquisition" for the purposes of the Commonwealth and some interference with or adverse effect upon a pre-existing right which an owner enjoys in relation to her or his property is not sufficient (Commonwealth v Tasmania (1983) 158 CLR 1 at 145 per Mason J, with whom Murphy and Brennan JJ agree; note also Deane J at 283). The Commonwealth made further submissions that the applicants have not addressed all of the significant obstacles to any reliance upon s 51(xxxi). 25 In relation to the applicants' contention that some or all of the provisions of the NWC Act and the Financial Assistance Act contravene the constitutional guarantee or prohibition which appears in s 100 of the Constitution, the Commonwealth refers to Commonwealth v Tasmania, where an argument similar to that put by the applicants in this case was rejected. The Commonwealth submits that the NWC Act and the Financial Assistance Act as enacted were not made, nor capable of being made, under ss 51(i) and 98. That approach is, it is submitted by the Commonwealth, consistent with the approach to s 99 enunciated in Morgan v Commonwealth (1947) 74 CLR 421. 26 In relation to the allegations that the Commonwealth executive has acted unlawfully, in that it entered into the NWI Agreement and the Overallocation Agreement, but lacked power under the Constitution to do so, and abridged the rights of the State and the residents of the State to the reasonable use of the waters of the State in contravention of the constitutional guarantee in s 100, the Commonwealth submits that those contentions are bound to fail for the reasons given above. 27 In response to the arguments advanced by the applicants based on executive power of the Commonwealth, the Commonwealth refers to the decision of Pye v Renshaw (1951) 84 CLR 58 - a decision which has stood for over 50 years. As regards the claim said to rest upon s 100 of the Constitution, the Commonwealth submits, in its final submissions dated 5 December 2007, that that prohibition applies only to a "law or regulation of trade or commerce" (emphasis added). The words "trade or commerce" are used in the sense employed in s 51(i) meaning trade or commerce with other countries or among the states. The Commonwealth submits that neither the laws impugned by the applicants nor the actions of the Commonwealth executive identified in the applicants' submissions dated 5 November 2007 relate to that subject matter. The Commonwealth further submits that the applicant's submissions apparently invite the Court to reject those propositions regarding s 100 and (with them) two decisions of the High Court (Commonwealth v Tasmania and Morgan v Commonwealth). A case founded upon such a departure from authority cannot, according to the Commonwealth, be said to have reasonable prospects of success. 28 In relation to the allegations that the Commonwealth has made some form of "threat" against the applicants, the Commonwealth submits that the applicants are incorrect in characterising the conduct of the Commonwealth in such a way. The applicants suggestion that this amounts to contempt and a breach of the Magna Carta is similarly incorrect, according to the Commonwealth. 29 The Commonwealth made submissions in relation to standing. Apart from the question of whether the applicants have a cause of action at all, it submits that a member of the public will have standing to bring an action challenging the validity of an Act of Parliament or of the Commonwealth Executive if, and only if, he or she can establish that the statute/Executive action affects his or her private rights or interests (Davisv Commonwealth (1986) 61 ALJR 32 at 35; (1986) 68 ALR at 23 and Croome v State of Tasmania (1997) 191 CLR 119 at 126-7). The Commonwealth submits that the legislation and Executive action, which the applicants seek to impugn in their claims against the Commonwealth, relate solely to funding and administrative arrangements between the Commonwealth and the State of New South Wales. The interests of the applicants are not affected or not affected in a relevant sense by those matters. The Commonwealth further notes that it appears unlikely that a private citizen would ever have standing to challenge a law enacted pursuant to ss 81 or 96, save perhaps in "extraordinary circumstances" (Davis v Commonwealt (1988) 166 CLR 79 at 95). 30 Further or alternatively, the Commonwealth submits that the claims against it involve matters wholly internal to the Commonwealth government and/or considerations of undertakings and obligations dependent entirely upon political sanctions and such matters are not justiciable at the suit of the applicants (Victoria v Commonwealth at 410 and Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 370). 31 Finally the Commonwealth submits that the applicants' application in so far as it concerns the Commonwealth should be dismissed or stayed. There should be an order that the applicants pay the Commonwealth's costs of and incidental to the proceedings, including the notice of motion.

The applicants' submissions The Notice of Motion 32 The applicants submit that the Commonwealth's claim should be dismissed with costs. In relation to the Court's jurisdiction, the applicants acknowledge that the Court is being asked to exercise federal jurisdiction in relation to the case against the Commonwealth. The applicants note that the Commonwealth's claim does not distinguish particular causes of action, instead it seeks to "dismiss or stay" every part of the application "as far as it concerns" the Commonwealth. In relation to par [3] of the Commonwealth's application (as set out above in par [5]), the applicants submit that it must be presumed that this is brought pursuant to the Court's powers under the Supreme Court Rules 1970 (SCR) Pt 31 r 2. The applicants submit that the Commonwealth's claim that the Court dismiss or stay the applicants' motion in so far is it concerns the Commonwealth on the basis it discloses no reasonable cause of action as against the Commonwealth or on the basis that it is frivolous or vexatious, invokes the Court's jurisdiction under SCR Pt 13 r 5. 33 The applicants contend that no basis for the application is specified with respect to the power to make the orders sought in pars [1], [2] and [3] of the Commonwealth's application (again, see par [5] above which summarises the Commonwealth's application). The applicants note that the Commonwealth's submissions on jurisdiction assert that this aspect of the application "differs" from the summary dismissal order, but do not mention how, or under what rule the application proceeds in respect of the orders sought in par [1] of the motion. The applicants conclude that the Commonwealth must rely on SCR Pt 13 r 5 to obtain the orders sought in pars [1], [2] and [3] of the motion. The applicants submit that SCR Pt 13 r 5 is a discretionary power, that is to say that even if one of the grounds for an order to dismiss or stay is made out by the applicant, then it must still persuade the Court that the matter is one in which such order ought to be made in the exercise of its discretion. It is further submitted that a party who invokes the rule invokes the jurisdiction of the Court.

34 The applicants refer to the chronology of events in relation to the application as follows: 22 January 2007 - commencement of action against NSWG 20 April 2007 - Jagot J grants leave to join the Commonwealth as third respondent 20 April 2007 - Third respondent served with the amended process including the points of claim 2 May 2007 - Notice of appearance of Third respondent filed with Registry 3 May 2007 - Third respondent serves its notice of appearance on Taylor and Whitty 3 May 2007 - final day under the Rules to file notice of motion to challenge jurisdiction 16 May 2007 - Third respondent appears by AGS; orders made by consent for timetable in the matter including production of documents and interrogatories 30 May 2007 - Third respondent first foreshadows possible jurisdiction issues 16 July 2007 - Third respondent files notice of motion for orders under SCR Pt 13 r 5 18 July 2007 - Court orders that interrogatories be suspended 35 After referring to various provisions of the Supreme Court Rules, the applicants note that the Commonwealth's motion complied with the Rules. The applicants infer from SCR Pt 11 r 8 that objections to jurisdiction should be made at the inception of the proceedings before taking any step in the action such as filing an unconditional appearance and the failure to make such an application shall be treated as a submission to the Court's jurisdiction. Moreover, SCR Pt 13 r 5 assumes the existence of its jurisdiction over the matter, and that it is a competent Court but that in its discretion it ought to dismiss or stay the matter on one of three alternative grounds, none of which are want of jurisdiction or competency. The applicants contend that the rule contemplates that it cannot be invoked unless the Court is competent. The applicants argue that the Commonwealth's submissions do not establish any or any sufficient basis for making either order sought in par [1] of its motion. 36 Under the rules of the Court, the applicants claim that the Commonwealth has submitted to the jurisdiction of the Court and it is too late for it to now make such an application or to make it in the form adopted. The effect of unconditional appearance is a submission to the jurisdiction of the Court: Caltex Oil (Australia) Pty Ltd v The Dredge Willenstad (1976) 136 CLR 529 at 539 per Gibbs J. The applicants submit that the period to object to jurisdiction expired on 3 May 2007. Furthermore, the applicants submit that, since then, the Commonwealth has taken two significant steps in the proceedings confirming its unequivocal submission to this Court's jurisdiction - on 16 May 2007 it applied for and consented to orders for the filing of its defence to the points of claim, production of documents and for interrogatories, and on 16 July 2007 it made the current application which further invoked the jurisdiction of the Court and its discretionary powers under SCR Pt 13 r 5. The only available objection to jurisdiction that might have been open to the Commonwealth, according to the applicants, is an application asking the Court to decline its jurisdiction on the basis of inconvenient forum however, no submissions of that kind have been made. 37 The applicants submit that the Commonwealth says nothing about why the Court should grant the orders sought and overlook the discretionary considerations as there are none in favour of a stay or dismissal order - this Court is not only the most appropriate forum to hear this matter against all three respondents in the action, but that no other Court may sensibly be suggested as is a more convenient forum. 38 The applicants raised various additional reasons as to why the Court should not entertain the Commonwealth's application. The applicants contend that the Commonwealth's application is internally inconsistent, contradictory and embarrassing as the orders sought in it can only be granted if the Court exercises jurisdiction by an order under the rules of the Court for dismissal and for separate determination, yet in the same application it presses for an order which denies the very jurisdiction it has already invoked. The applicants submit that the Commonwealth cannot invoke the Court's jurisdiction and refute it and the application should be dismissed or the Court should require the Commonwealth to elect between two inconsistent positions and specify which of the two inconsistent remedies it seeks. The applicants also contend that the Commonwealth's application contains another procedurally embarrassing inconsistency as it urges the Court to accept the truth of the case brought by the applicants for the purposes of the application for an order sought in par [1] of the application, then urges the Court to make the order sought to dismiss or stay the proceedings on the ground of want of jurisdiction on the basis that the applicants have not proved those very facts in the same application. The applicants distinguish this case from Shin Kobe Maru. For this reason, the applicants claim that the whole of the Commonwealth's application or pars [1] and [4] of the application should be dismissed as embarrassing and an abuse of process or, at least the Commonwealth should be required to elect which position it takes on the evidence in the application, reserving all rights of the applicants. 39 The applicants also submit on a further procedural impediment to the application, namely that the Commonwealth seeks the exercise of the Court's powers against the applicants and at the very same time that it is in breach not only of formal orders of the Court (orders made by Talbot J on 16 May 2007) but also of the Practice Note of the Court concerning the matter. 40 The applicants submit that the Commonwealth concedes that it has made a decision and acted on it in the course of this litigation, to publicly refuse what it calls ex gratia compensation payments to the present applicants, by reason only of the fact that they are claimants in this Court. It is submitted that what has occurred is a deliberate interference in this litigation by the Commonwealth, which is an attempt to pressure or drive the claimants away from the Court by threats. The applicants submit that it is a breach of Magna Carta and a contempt in the face of the Court qua the conduct of the case of the applicants by the Government by interference with a party and its witnesses (Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 at [24]; Attorney-General v Butterworth [1963] 1 QB 696 at 726 per Donovan LJ; R v Rogerson, Nowytager, and Paltos (1992) 174 CLR 268 at 278 per Mason CJ; and as to the activities of government see eg New South Wales v Bryant [2005] 227 ALR 129). The applicants submit that one way the Court might express its disapproval is to dismiss the application exercising its powers under the Act and Rules to do so (eg SCR Pt 13 r 5). 41 The applicants contend that taken together, or singly, each consideration referred to above requires the dismissal of the Commonwealth's application, or alternatively should lead to the refusal of par [1] of the application. The applicants further submit that the Court may show its disapproval of the highhanded approach the Commonwealth has adopted or which is at least unbefitting of a model litigant. Alternatively, the applicants submit that due to the unusual circumstances of the matter the Court should require the Commonwealth to resolve the inconsistencies of its position in the manner submitted or by electing which procedure it is adopting. Finally it is submitted as a further discretionary consideration that this is a proceeding in which the present application might have been brought as an application for removal in the High Court and not in this Court. However, the applicants note that that Court was not suggested as an inappropriate forum for the resolution of the claims against the Commonwealth. The applicants submit that the High Court would in all likelihood refer it back to this Court to determine the issues of law and fact as the most appropriate forum (Newcrest mining (WA) Ltd v BHP Minerals Ltd and Commonwealth (1997) 190 CLR 513 at 545).

Joinder 42 The applicants submit that the Commonwealth was properly joined as a party to the proceedings. The applicants say that the orders for joinder were made by consent of the Minister and the State and no application to set aside those orders has been made. The applicants outlined the factual basis on which the application for joinder was based. The applicants contend that the matter involving the Commonwealth is bound up with the matter involving the Minister and the State and concerns the same subject matter. 43 The applicants say that the State entered into a joint venture or partnership with the Commonwealth to alter the methodology of water entitlement reductions under the WM Act. The applicants state that the Commonwealth agreed to make a 50/50 contribution to the partnership for the extra costs involved in adopting a methodology for the compulsory acquisition of the water entitlements of licence holders based on the asserted history of extraction, including ex gratia or "adjusting" payments to some farmers through committees appointed by the Minister which included appointees of the Commonwealth. It was that methodology dictated by the Commonwealth to the State and the Minister under the NWI, which the applicants say favours large irrigators and not small family concerns and is unfair and ignores the socio-economic considerations relevant to the plan making functions. The applicants also contend that the plan is rendered invalid for those and various other reasons. The Commonwealth, according to the applicants, drafted the skeleton plan and obtained agreement from the State for the statutory framework for the provisions of the water management plan to be made under the Act which would effectuate the acquisitions. The applicants submit that it was all three respondents in the action who formulated a first draft of the water management plan. The applicants further submit that the Commonwealth associated itself with the plan making functions and assisted the process by nominating its representatives to the Lower Murray Regional Groundwater Verification Committee and the Groundwater Adjustment Advisory Committee and other committees made by the Minister for plan making purposes. The Commonwealth was also consulted on, and approved, the terms of the actual reductions recommended by the committees and the Minister. 44 The applicants contend that the Commonwealth has threatened farmers suing in the action through media and its other methods with withdrawal of any compensation benefits they might otherwise obtain should they not discontinue this action or because they are parties to the action. The several causes of action have been brought against the Commonwealth because it has by its agents the Minister and the State acquired property of the applicants without just compensation in contravention of s 51(xxxi) of the Constitution such that the legislation authorising it to do so is invalid, and it has abridged the rights of the applicants as residents of NSW to the reasonable use of the waters of rivers for conservation and irrigation in breach of the prohibition in s 100 of the Constitution, rendering invalid the Commonwealth legislation and the agreements under the NWI. Common law causes of action also arise from those same facts, including interference of trade by unlawful means. 45 As to proof of constitutional facts the applicants submit that the High Court has indicated in analogous cases that the facts at the time of the acquisition or interference are the relevant factual context. It is submitted that the proper approach to the factual issues on the hearing of this application is that the case of the applicants must be treated as made out. 46 The following considerations illustrate the sound basis for the order for joinder - the case against the Commonwealth arises under and in respect of the same substratum of facts as the case against the Minister and the State; the same or similar questions of law arise in the case against the Commonwealth as arises in the case against the Minister and the State; there is no discretionary reason why the Commonwealth should not be joined to this action; and it is the factual basis of the case against it that it is also submitted must be considered conceded by the consent to jurisdiction. It is further submitted that s 79 of the Judiciary Act 1903 has relevance to the procedural context. Amongst other things, the applicants submit that the case involves the interpretation of s 100 of the Constitution in an, until now, untested context. As a result of the application of s 79 of the Judiciary Act, this Court's rules of procedure and the continued application of the former SCR Pt 8 r 8 applies. Thus the case against the Commonwealth, the applicant submits, is inextricably interwoven with the case against the State and hence consideration of that case is incidental to consideration of the case against the State by reason of the proper order for joinder; on that basis the Court has inherent or incidental jurisdiction to consider the case against the Commonwealth so long as there is jurisdiction to hear the case against the State. Furthermore, the applicants make reference to s 39(2) of the Judiciary Act to confirm that the Constitution does not prevent this Court hearing the matter against the Commonwealth in the circumstances.

Jurisdiction 47 The applicants submit that the Commonwealth's argument on jurisdiction fails to address important substantive sources of the Court's jurisdiction and to explain how those it does address have any relevance to the grounds expressed in SCR Pt 13 r 5. 48 The applicants note that the Land and Environment Court is, similarly to the Supreme Court of New South Wales, a superior court of record established by statute. The applicants submit that the Court's jurisdiction may be characterised as including the following categories: (i) inherent jurisdiction, (ii) incidental jurisdiction, (iii) invested jurisdiction and, (iv) ancillary jurisdiction.

49 In relation to the first category - inherent jurisdiction - the applicants refer to s 16 of the Land and Environment Court Act 1979 and the Stables case. In respect of water management issues in New South Wales substantive jurisdiction is conferred on the Court under s 20(1)(df1) of the LEC Act. In addition, the applicants submit that the Court has jurisdiction in respect of any proceedings relating to the making of water management plans as contemplated by Chapter 2 of the WM Act, pursuant to s 47 of the Act. In relation to the second category - incidental jurisdiction - the applicants rely upon the Vaughan-Taylor at 123 in which Meagher JA noted: "The Land and Environment Court has jurisdiction to determine any question which arises incidentally to a matter within its jurisdiction." The applicants say that the joinder of a party under the Rules of Court who is a proper or necessary party in relation to an existing claim in the Court is an example of such jurisdiction. In relation to the third category - invested jurisdiction - the applicants rely upon s 39(2) of the Judiciary Act 1903. In relation to the fourth category - ancillary jurisdiction - the applicants rely upon s 16(1A) of the LEC Act. 50 The applicants submit that the exercise of any of these categories of jurisdiction may be concurrent with another court, equivalent to another superior court, or exclusive. The applicants make several preliminary observations as to the present matter and jurisdiction - it is not disputed that the Court has jurisdiction to hear the claims against the Minister and the State; it is not disputed that the present proceedings were commenced within the limitation period and it is irrelevant that the Commonwealth was joined after the period had concluded; the WM Act confers on the Court jurisdiction independently of the LEC Act and which does not depend on s 20 of the LEC Act; and, as to the basis of the claims against the Commonwealth, the Commonwealth makes several assumptions favourable to itself in its submissions and which are in error.

Inherent jurisdiction 51 As to the substantive bases for jurisdiction apart from the matters considered above, the applicants submit that the Commonwealth wrongly assumes that the Court has no inherent jurisdiction in respect of the case brought against it. The applicants rely on s 47 of the WM Act, which makes specific provision for the jurisdiction of the Court. Accordingly, the Court has jurisdiction to hear the claims against the Commonwealth in this case in the inherent jurisdiction of the Court under s 47(4) of the WM Act. 52 The Commonwealth is, according to the applicants, a designated person under s 47(8) as the Commonwealth not only assisted but directed the Minister in relation to the making of the water management plan. Further, the applicants submit that the Commonwealth actively associated itself with the Minister in that endeavour as a partner, and joint venture partner or principal qua Minister and by itself announcing publicly and promoting the ASGE. In short, the applicant challenges the plan making function of the Minister assisted by and in association with the Commonwealth. 53 The applicants submit that if the present action against the Commonwealth had been commenced in the Supreme Court, it would have been transferred under s 72 of the LEC Act or stayed by reason of s 47(1) of the WM Act pursuant to the s 61 of the Supreme Court Act 1970, in favour of this Court's jurisdiction. The only provision that would prevent that result, according to the applicants is s 75(ii) of the Constitution, concerning the conferral of original jurisdiction on the High Court in respect of claims against the Commonwealth. However, the applicants say that s 39(2) of the Judiciary Act removes that inability. 54 The applicants argue that the Court has inherent jurisdiction on another ground. Even though s 47(1) of the WM Act provides that the validity of any water management plan may not be challenged or called into question in any court or otherwise affected by any proceedings other than by proceedings in the LEC commenced within the judicial review period, the applicants argue that the proceedings fall into this category. 55 By conduct in breach of ss 51(xxxi) and 100, the Commonwealth has called into question the validity and/or operability of the water management plan. It is a necessary or proper party to proceedings that address those questions. On that basis the applicants state that the Court has inherent jurisdiction. 56 Inherent jurisdiction of the Supreme Court, or its general jurisdiction, is also conferred on the Court in any matter falling within s 47(8) of the WM Act and the extended definition of proceedings. Even on a strict reading of the section, the applicants argue that the case against the Commonwealth on the proper construction of s 47 falls within the subject matter of the WM Act. Therefore the WM Act itself confers every aspect of the Supreme Court's inherent jurisdiction and its general jurisdiction on the Court. 57 The applicants further submit that by its conduct, the Commonwealth caused a breach of the WM Act within the meaning of s 336(1), which falls under the head of power found in s 20 of the LEC Act and in the section itself. Accordingly, the Commonwealth is a proper or necessary party in relation to those breaches by the servants or agents of the State and by the Minister: West Midland Rly Co v Nixon [1863] 1 Hem 176; Chadwick v Maden [1851] 9 Hare 188; Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590.

Incidental jurisdiction 58 In relation to the incidental jurisdiction, the applicants argue that as no application to set aside the joinder has been made by the Commonwealth, it cannot now adopt an impermissible procedure to remove itself as a necessary or proper party to the action. It has since taken a step in the proceedings. The applicants contend that if there was any irregularity in the joinder it has now been waived. The applicants submit that the Court has incidental jurisdiction with respect to each claim concerning the Commonwealth.

Invested jurisdiction 59 The applicants also relies on the invested federal jurisdiction of the LEC under s 39(2) of the Judiciary Act in respect of claims against the Commonwealth concerning the subject matter of the Court's inherent jurisdiction to entertain the present proceedings. The applicants say that s 39(2) of the Judiciary Act invests the Court with all the original jurisdiction of the High Court. The applicants submit that this Court is a court of unlimited jurisdiction within the limits of its subject matter. The procedural reality, according to the applicants, is that this court is the only appropriate forum at the primary stage for the resolution of the factual and legal questions in this case. 60 The applicants submit that s 38 of the Judiciary Act does not apply. Section 39 is not a limiting provision but is rather a provision which adds to the Courts existing jurisdiction. In summary, the applicants say that s 39(2) invests this Court with the same jurisdiction as the High Court in matters falling within the jurisdiction of the Court.

Ancillary jurisdiction 61 Finally, the applicants raise a fourth basis for jurisdiction - the terms of the LEC Act itself, in particular ss 16(1A), 22 and 23. The case against the Commonwealth is said to be cognate with, inextricably intertwined with, and part of that case. It is therefore argued by the applicants to be ancillary to that case, and within the accrued jurisdiction of the Court.

Triable issues 62 The applicants note that the orders sought in par [4] of the Commonwealth's application (as noted in par [5] above) are discretionary. It would be highly inappropriate, according to the applicants, to determine issues involving the interpretation of the Constitution on a strike out application. The applicants submit that the Court is under an obligation to give the matter the fullest consideration, especially because there is a direct right of appeal to the High Court, and that Court and the parties are entitled to the amplest consideration of the facts and law by this Court so that appeal rights may property be exercised (Hocking v Bell (1945) 71 CLR 430 at 499; Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267; Pettitt v Dunkley [1971] 1 NSWLR 376 at 388; Campbelltown City Council v Vegan & Ors (2006) 235 ALR 342). 63 The applicants submit that the Commonwealth's conduct is involved in almost every facet of the case, especially through its involvement in the plan making functions which was exercised in this case. On the evidence proposed to be led in support of the case as pleaded, the applicants submit that there is no basis for the order sought by the Commonwealth in par [4] of their application to dismiss or stay.

Standing 64 The applicants submit that they are each persons who have common law standing over and above the interest of other persons. Their property in their licence and their share of the water in the aquifer which has been acquired or abridged or interfered in is recognised by certificates of title. The applicants also argue that they have sufficient standing in respect of their claim to compensation for the acquisition of such interests except on just terms. Expressly, each applicant is given a "right" not to have his water use as claimed abridged by the respondent under s 100, which is one of the few examples of a "right" expressly being given by the Constitution to individuals. The applicants submit that it is difficult to see how a "right" expressly recognised by the Constitution is not sufficient to give standing to sue when each applicant claims to assert such a right in this case. 65 Further and in any event, the applicants claim that it is not appropriate to decide issues about standing in an application to dismiss. 66 The applicants submit that the Commonwealth's notice of motion should be dismissed with costs in favour of the applicants. The applicants also seek that costs should be ordered payable forthwith and catch up orders should be made so as to require the Commonwealth to comply with previous orders.

Findings Does the Court have jurisdiction to hear the claims against the Commonwealth?

67 It is for the applicants to establish, on the balance of probabilities, that this Court has jurisdiction to hear the claims against the Commonwealth: Shin Kobe Maru at 426. 68 The applicants characterised the Court's jurisdiction into four categories - inherent, incidental, invested and ancillary jurisdiction. Firstly, the applicants rely upon s 47 of the WM Act, submitting that the section confers jurisdiction of the Court independently of the LEC Act. Section 47 provides that a challenge to the validity of management plans and exercise by a designated person of any plan-making function is to come before this Court. The applicant challenges the plan making function of the Minister assisted by and in association with the Commonwealth. The issue here is whether the Commonwealth is a designated person who exercised any plan-making function. 69 A "designated person" is defined in s 47(8) to mean "the Minister, a management committee, the Director-General or any person or body assisting or otherwise associated with any of them." The applicants submit that the Commonwealth not only assisted, but also directed the Minister in relation to the making of the water management plan. The applicants also contend that the Commonwealth actively associated itself with the Minister in that endeavour as a partner or principal and by itself announcing publicly and promoting the ASGE. 70 However, neither the Commonwealth, nor its officers are capable of exercising any such plan-making functions under the WM Act. The Act is a State act and the reference in s 47(8) to "any person or body assisting or otherwise associated with" the Minister, a management committee or the Director-General is a reference to individuals or instrumentalities of the State. Consequently s 47(4) of the WM Act does not confer jurisdiction on this Court to hear claims against the Commonwealth. I agree with the Commonwealth's submissions that s 47 is not a source of jurisdiction. Even if there was a tenable argument that s 47 conferred jurisdiction (which there is not) such jurisdiction is removed by operation of s 9(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 71 The applicants made numerous other submissions to support their position that the Court has inherent jurisdiction. I have noted that the applicants submit that the Commonwealth's conduct, alleging breaches of ss 51(xxxi) and 100 of the Constitution, has called into question the validity and/or operability of the water management plan and that it is a necessary or proper party to proceedings that address those questions and on that basis the Court has inherent jurisdiction. The Court is said to have the inherent jurisdiction of the Supreme Court conferred upon it by virtue of the definition of "proceedings" in s 47(8) of the WM Act. Furthermore, the applicants argue that the WM Act itself confers every aspect of the Supreme Court's inherent jurisdiction and general jurisdiction on this Court due to the case against the Commonwealth falling within the subject matter of the WM Act. Lastly, the applicants submits that the Commonwealth caused a breach of the WM Act within the meaning of s 336(1) of the WM Act, which falls under the head of power in s 20 of the LEC Act. 72 As to the alleged breach of sections of the Constitution, I agree with the submissions put by the Commonwealth that that section is not engaged by "purposes" or "agreements". It is also questionable as to whether the rights of the applicants constitute property. Even so, the Plan made pursuant to s 50 of the WM Act prohibits or controls a particular use of or particular acts upon property. I note that the relevance of s 51(xxxi) depends upon there being a law of the Commonwealth with respect to the acquisition of property. In relation to the alleged breach of s 100 of the Constitution, in line with the decision of Mason J in Commonwealth v Tasmania, the NWC Act and the Financial Assistance Act as enacted were not made, nor capable of being made, under ss 51(i) and 98, so that those sections are of no relevance. 73 It is clear that the WM Act itself does not confer inherent jurisdiction on the Land and Environment Court. The Commonwealth correctly submits that the Court's jurisdiction under the WM Act is conferred only by ss 335 and 336. Section 335 is plainly irrelevant. Under s 336 the Court has jurisdiction to restrain a breach of the WM Act. The alleged breach of s 336(1) of the WM Act by the Commonwealth does not provide any valid foundation for contending that the Court has jurisdiction to grant the relief sought by the applicants against the Commonwealth because the Commonwealth cannot breach the Act. 74 Secondly, I have noted the applicants' submission that the Court has an incidental jurisdiction, and as no application to set aside the joinder has been made by the Commonwealth it cannot now adopt an impermissible procedure to remove itself as a necessary or proper party to the action. The applicants contend that if there was any irregularity in the joinder, it has now been waived. I reject the applicants' submission. The jurisdiction of this Court cannot be established by conduct said to constitute "waiver": Stables at 585 per Kirby P. A court does not acquire jurisdiction by consent or by the procedural act of waiver. 75 Stables case involved an appeal from a decision of Bignold J in the Land and Environment Court. The proceedings in the Land and Environment Court involved a claim for damages arising out of one party's alleged negligence or breach of statutory duty. That party, by motion, sought a stay or dismissal of that claim, which was refused by Bignold J. An appeal was brought before the Court of Appeal, by leave, from that decision. 76 Gleeson CJ, with whom Kirby P and Meagher JA agreed, determined the issue of whether the Land and Environment Court has jurisdiction to deal with the respondent's claims. In determining that issue, His Honour considered the statutory provisions affecting the jurisdiction of the Land and Environment Court and other considerations affecting the jurisdiction of the Land and Environment Court. Gleeson CJ noted, at 578, that while the Court is both a superior court of record and a court of limited jurisdiction, these characteristics are not inconsistent (See eg, Cameron v Cole (1944) 68 CLR 571 at 599 per McTiernan J and R v Ross Jones; Ex parte Green (1984) 156 CLR 185). The jurisdiction conferred on the Federal Court was distinguished from that conferred on the Land and Environment Court. His Honour went on to state: The jurisdiction of the Land and Environment Court is, as s 16 of the Act declares, to be found in the language of the Act and of any other Act conferring jurisdiction on the court. 77 Gleeson CJ found that the relevant statutory provision, s 20(2) of the LEC Act, did not contain a word to suggest that the court had jurisdiction to hear and determine a claim in tort for general damages. His Honour noted, at 582, that the Land and Environment Court, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim. Resolution of the respondent's claim for damages for negligence or breach of statutory duty was ultimately found to be "well beyond the jurisdiction of the Land and Environment Court." 78 In applying Stables to the present case, it is clear that the Court has no incidental jurisdiction to hear the claims in this case against the Commonwealth. 79 Thirdly, the applicants rely on the invested federal jurisdiction of the LEC under s 39(2) of the Judiciary Act 1903. This appears to be the only potential source of jurisdiction for this Court to hear the claims against the Commonwealth. The applicants submit that this Court is a court of unlimited jurisdiction within the limits of its subject matter and that s 39(2) of the Judiciary Act invests this Court with all the original jurisdiction of the High Court. Section 39 is therefore said to add to the existing jurisdiction of this Court. The Commonwealth, however, submits that jurisdiction is conferred upon state courts within the limits of their several jurisdictions, including limitations to their subject matter. Since this Court is a court of limited jurisdiction, I agree with the submissions of the Commonwealth on this point. Section 39(2) of the Judiciary Act 1903 confers jurisdiction on the courts of the State "within the limits of their several jurisdictions", whether such limits are as to locality, subject matter, or otherwise. Section 39(2) is of no assistance to the applicants due to the limitations upon the jurisdiction of the Court being adopted for the purposes of the conferral of federal jurisdiction under that section: D&H Investments Pty Ltd at 41. 80 Fourthly, the applicants submit that a final basis for jurisdiction is the terms of the LEC Act itself, more specifically, ss 16(1A), 22 and 23. The case against the Commonwealth is, according to the applicants, cognate with, inextricably intertwined with, and part of that case. 81 The case of Nix & Dunn v Pittwater Council (1994) 84 LGERA 199 concerned an appeal against an interlocutory decision of the Land and Environment Court dismissing a motion to add a cross-claim, and against a final judgment determining injunction proceedings and a development appeal. The background to the appeal is as follows. The Council commenced injunction proceedings in the Land and Environment Court to restrain the appellants from carrying out unauthorised earthworks. The appellants sought leave to file a cross-claim against the Council alleging common law nuisance. Such a claim had already been raised in proceedings commenced in the Equity Division of the Supreme Court at a time before s 16(1A) was inserted into the Land and Environment Court Act 1979. That section provides that the Court has jurisdiction to hear and dispose of any matter not falling within its express statutory jurisdiction, being a matter ancillary to a matter that falls therein. In asserting that the Land and Environment Court had jurisdiction to hear and dispose of the proposed cross-claim the appellants relied principally on s 16(1A) of the Land and Environment Court Act. The Land and Environment Court dismissed the motion on the ground that the main proceedings were commenced before the date when s 16(1A) came into force and on other discretionary grounds. 82 The Court of Appeal held that as a matter of discretion the decision of the Land and Environment Court was one that was both open to it and appropriate. The Court also noted, at 205, that the matter the subject of the Equity proceedings could not reasonably be regarded as ancillary to the matters the subject of the Land and Environment Court proceedings. 83 There is nothing in the language of the Land and Environment Court Act which shows an intention of the New South Wales Parliament confer jurisdiction to determine the claims made by the applicants against the Commonwealth in these proceedings. None of the claims against the Minister or the State are in any way contingent upon the claims made or the relief sought against the Commonwealth. Resolution of the claims against the Commonwealth is not a necessary step to the determination of the claims against the Minister or the State. 84 Moreover, the Achieving Sustainable Groundwater Entitlements ("ASGE") Joint Programme made between the Commonwealth and the State on 4 November 2005, which was tendered during argument shows that the Commonwealth's role is to provide funding for the implementation of the NWI. The State's role is, inter alia, to help achieve the program by its contribution and conduct of the ASGE project; and the Commonwealth's role is to support the project by funding. But it is only the Minister Administering the WM Act who can make a management plan under that Act. 85 Even if s 16(1A) of the Land and Environment Court Act did confer jurisdiction on this Court to hear the claims, that provision would be invalid in so far as it was said to confer federal jurisdiction on this Court. Any such jurisdiction must be found in s 39(2) of the Judiciary Act 1903, which I have already determined in par [79] to be of no assistance to the applicants in this matter. It follows that the Land and Environment Court Act does not confer jurisdiction on this Court to determine claims made against the Commonwealth in these proceedings. 86 As I have rejected all of the grounds of jurisdiction put forward by the applicants in these proceedings, it follows that this Court lacks the power to hear the claims made against the Commonwealth.

Does the Court have the power to make the orders sought by the Commonwealth? 87 The orders sought in the Commonwealth's notice of motion are summarised above in par [5]. The applicants made various criticisms of the Commonwealth's notice of motion. The applicants contend that no basis for the Commonwealth's application is specified with respect to the power to make the orders sought in pars 1, 2 and 3 of the notice of motion. The applicants refer to s 61 of the Supreme Court Act and note that it makes provision for an order for a stay; there is no equivalent provision, however, in the Land and Environment Court Act and in any event that provision is irrelevant to this circumstance. The applicants submit that the rule upon which the Commonwealth must rely to obtain such orders is Pt 13 r 5 of the Supreme Court Rules. 88 The applicants submit that it is of particular significance that Pt 13 r 5 is a discretionary power. Even if one of the grounds for an order to dismiss or stay is made out by the Commonwealth, the applicants argue that the Commonwealth must still persuade the Court that the matter is one in which such order ought be made in the exercise of its discretion. The Commonwealth's submissions do not, according to the applicants, establish any or any sufficient basis for making either order sought in par [1] of the notice of motion. 89 The applicants submit that the Commonwealth's written submissions completely overlook discretionary considerations. The applicants object to the competency of the Court with respect to the whole of the Commonwealth's claim and submit that the Court should not entertain the Commonwealth's notice of motion or any part of it for various reasons. The applicants note that the orders sought by the Commonwealth can only be granted if the Court exercises jurisdiction by an order under the Rules of Court for dismissal (SCR Pt 13 r 5) and for a separate determination (SCR Pt 31 r 2). They submit, however, that in the same application the Commonwealth presses for an order which denies the very jurisdiction it has already invoked. 90 The Commonwealth differentiates between the order sought in par [1] and par [4] of its notice of motion. It acknowledges that the order sought in par [4] of the motion is sought under Pt 13 r 5 of the Supreme Court Rules. The Commonwealth submits that the court must have power to dismiss or stay proceedings which it cannot lawfully hear. The power to dismiss or stay proceedings which are outside jurisdiction is therefore not, according to the Commonwealth, dependent upon the characterisation of the Commonwealth's application as being made under a particular rule of Court. The Commonwealth further submits that the power to summarily dismiss a matter is readily exercisable where, as here, the applicants pursue a manifestly hopeless argument which is clearly bound to fail (Ngo Ngo Ha v State of New South Wales (1996) 70 ALJR 611 Kirby J at 613). 91 I agree with the submissions put by the Commonwealth. It is clear that the Court has the power to make the orders sought by the Commonwealth. As noted above, a court cannot acquire jurisdiction by waiver. The court cannot exercise jurisdiction which it does not have. Do the applicants have standing to seek the relief against the Commonwealth in the applicants' application?

92 The applicants claim that they are each persons who have common law standing over and above the interest of other persons for various reasons. The applicants contend that their property in their water licence and their share of the water in the aquifer acquired or abridged or interfered in is recognised in certificates of title. Sufficient standing is said to exist due to the applicants having a "right" not to have his water use abridged by the Commonwealth under s 100 of the Constitution. The applicants argue that it follows that the "right" expressly recognised by the Constitution is sufficient to give standing to sue when each applicant claims it asserts such right in this case. 93 Further and in any event the applicants contend that it is not appropriate to decide issues about standing in an application to dismiss, raised by arguments such as those of the Commonwealth which are contentious or undecided, or on the facts as asserted may or may not exist. 94 It is clear, in my opinion, that a member of the public will have standing to bring an action challenging the validity of an Act of Parliament or of the Commonwealth Executive only if he or she can establish that the statute/Executive action affects her or his private rights and interests (Davis v Commonwealth(1986) 61 ALJR 32 at 35; (1986) 68 ALR 18 at 23 and Croome v Tasmania at 126-7). In Davis, the question arose whether the plaintiffs had standing to challenge the validity of a Commonwealth Act. Gibbs CJ stated, at 23: The traditional view is that a member of the public has standing to bring an action challenging the validity of an Act of Parliament only if he establishes that the statute affects his private rights or interests or, on a rather more liberal view of the matter, only if he establishes that he is more particularly affected than other people. 95 After referring to analogous cases, Gibbs CJ observed, at 24, that: … [A] person has standing to bring an action of that kind if he has a special interest in the subject-matter of the action, but that a mere intellectual or emotional concern would not suffice to give locus standi: Australian Conservation Foundation v Commonwealth (CLR) at 526-31, 537-40, 547-52; Onus v Alcoa of Australia Ltd (CLR) at 35-8, 41-3, 43, 44, 60-2, 72-4; cf at pp 49-56. A strong belief on the part of the plaintiffs that the Act is offensive and undesirable as well as unconstitutional would not in itself give them standing to challenge its validity. However it was submitted on behalf of the plaintiffs that as Aboriginals, descendants of the indigenous inhabitants of this country, they have a special interest in objecting to a statute which is designed to assist the celebration of the settlement and occupation of Australia by peoples who were not indigenous to this continent. It was further submitted that this interest goes beyond a mere emotional or intellectual concern, and that the cultural and civic interests of the plaintiffs are affected. As at present advised, although I agree that the plaintiffs, as Aboriginals, are members of a class which may have a special interest in challenging the validity of the Act, I find difficulty in accepting that the interest is other than emotional or intellectual. Having regard to the principles which govern applications of this kind it is not necessary for me to express any concluded view whether the plaintiffs have an interest sufficient to give them standing; it is enough to say that it seems to me that the plaintiffs' argument cannot be dismissed as frivolous or hopeless - opinions may differ upon its acceptability and it is not plain and beyond debate that it must fail. … 96 I have determined that this Court lacks the power to hear the applicants' claims against the Commonwealth. I am also asked to further determine whether the applicants have standing to seek relief against the Commonwealth. The Commonwealth submits that the question of standing must be determined. It is of the view that the applicants had an opportunity to raise an objection when Talbot J ordered that standing be determined as a separate question. I agree with the Commonwealth that the question of standing, having now been raised, must be determined. 97 The legislation and executive action, which the applicants seek to impugn in their claims against the Commonwealth relate solely to funding and administrative arrangements between the Commonwealth and the State of New South Wales. I am inclined to the view that those matters do not demonstrate a sufficiently affected interest. I conclude that the applicants lack standing to seek the relief against the Commonwealth in their amended application. Does the applicants' application disclose any reasonable cause of action against the Commonwealth? 98 Although it is not necessary for me to determine this issue, as I have determined that the Court lacks the power to hear the claims made against the Commonwealth, I accept the submissions of Mr Robertson, on behalf of the Commonwealth, that the Court should also dismiss or stay the applicants' application in so far as it concerns the Commonwealth on the basis it discloses no reasonable cause of action as against the Commonwealth or on the basis that it is frivolous or vexatious (par [5]). That is, I accept the Commonwealth's submissions which I have described in pars [18]-[26] above. Unlike PJ Magennis Pty Limited v The Commonwealth (1949) 80 CLR 382, the Commonwealth legislation challenged by the applicants does not authorise entry into any particular agreement and is unable to be characterised as a law with respect to the acquisition of property and, furthermore, the terms of the pleaded agreement do not specify acquisition on other than just terms. 99 I agree with the Commonwealth's submission that the applicant's case involves the attempted resurrection of the very claim which was rejected by the High Court in Pye v Renshaw - it is a claim that Commonwealth cannot by a grant or any other provision of the Constitution provide money to the State for the "purpose" of inducing it to resume land on otherwise than just terms. Section 51(xxxi) does not attach to "purposes". It is a limitation that applies to laws characterised as laws with respect to the acquisition of property. The Commonwealth correctly submits that there is no Commonwealth legislation in issue here which could be characterised as such a law and that is an insurmountable obstacle to any claim founded on s 51(xxxi). 100 The applicants have failed to specify with any precision the basis upon which it is said that the NWC Act and the Financial Assistance Act are beyond the legislative competence of the Commonwealth. I do not think that any of the matters which the applicants rely upon disclose an action with any reasonable prospects of success against the Commonwealth. 101 The Commonwealth submits correctly, in my opinion, that the applicants' contentions regarding the lack of legislative power overlook a number of heads of Commonwealth legislative power and are bound to fail. Even if the applicants were correct in alleging that the Acts authorise payments for such purposes, I agree with the Commonwealth's submissions that the validity of the legislation would be unaffected. For the reasons advanced by Mr Robertson, I find that there is no cause of action.

102 It is not necessary for me to determine the issue of whether the Commonwealth was properly joined as a party to these proceedings. 103 It follows that the proceedings against the Commonwealth must be dismissed. It would also usually follow that the applicants should be ordered to pay the Commonwealth's costs of the notice of motion, but I formally reserve that question in case they wish to argue to the contrary.

104 I make the following final orders:

1. The proceedings against the Commonwealth be dismissed.
2. The question of the cost of the Commonwealth's notice of motion is reserved. I hereby certify that the preceding 104 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

12/05/2008 - Omitted citation - Davis v Commonwealth (1986) 61 ALJR 32; (1986) 68 ALR 18 - Paragraph(s) Judgment cover; par [29] - second sentence & par [94] - first sentence

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