Harris v Mathieson - [2019] NSWSC 1064 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Harris v Mathieson

[2019] NSWSC 1064

Supreme Court of NSW|2019-06-24|Before: Davies J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-06-24

Before

Davies J

Catchwords

[2014] NSWCA 414 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No.3) (1980) 31 ALR 519
47 FLR 163 Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565
57 FLR 368 SA Brewing Holdings Ltd v Baxt (1989) 89 ALR 105

Source

Original judgment source is linked above.

Catchwords

[2014] NSWCA 414 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No.3) (1980) 31 ALR 51947 FLR 163 Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 56557 FLR 368 SA Brewing Holdings Ltd v Baxt (1989) 89 ALR 105

Judgment (37 paragraphs)

[1]

Judgment

Peter Harris and Jane Harris (the plaintiffs) operate farms called 'Janbeth' and 'Latoka' in the general vicinity of Bourke in New South Wales. Mr and Mrs Harris hold water approvals for water supply works and water use at those properties.
On 2 January 2019 the defendant on behalf of the National Resources Access Regulator ("NRAR") issued notices requiring Mr and Mrs Harris to provide information and records in relation to the two properties. The Notices were said to have been issued under s 338A(2) of the Water Management Act 2000 (NSW). The Notices stated that the express purpose for which the Notices were issued was to determine whether there had been compliance with or contravention of certain provisions of the Act.
On 1 February 2019 the solicitors for Mr and Mrs Harris wrote to NRAR alleging that the scope of the Notices went beyond the power conferred to NRAR under the Act. It was not asserted that the Notices were wholly misconceived but that certain identified paragraphs in the Notices were not relevant to any investigation of the identified potential offences. The solicitors proposed that NRAR re-issue notices which were confined to the matters properly within the scope of the investigation.
On 8 February 2019 NRAR rejected the proposal put on behalf of Mr and Mrs Harris. NRAR contended that all of the documents sought in the Notices were properly within the scope of the investigation. NRAR issued varied notices on that date but the only variation was to extend the deadline for compliance to 22 February 2019.

[2]

Legislative provisions

The following provisions of the Act are relevant for the purposes of the present proceedings: 56 Access licences (1) An access licence entitles its holder: (a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and (b) to take water: (i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and (ii) in specified areas or from specified locations, (the extraction component). … 60B Contravention of terms and conditions of access licence (1) A person (other than the holder) who takes water pursuant to an access licence is guilty of an offence if the person contravenes any term or condition of the licence. Tier 2 penalty. (2) If any term or condition of an access licence is contravened by any person, each holder of the access licence is guilty of an offence. Tier 2 penalty. (3) It is a defence to a prosecution under subsection (2) if the accused person establishes: (a) that the contravention of the term or condition was caused by another person, and (b) that the other person was not associated with the holder at the time the term or condition was contravened, and (c) that the holder took all reasonable steps to prevent the contravention of the term or condition. A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder. 60C Taking water for which there is no, or insufficient, water allocation (1) Offences involving allocations under a single access licence A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and: (a) who intentionally or negligently fails to ascertain whether the taking of water is in accordance with the water allocation, or (b) who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation, is guilty of an offence. Tier 1 penalty. … 66 Conditions of access licence generally (1) An access licence is subject to such conditions as the Minister may from time to time impose: (a) which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan, and (b) which may include such other conditions, such as: (i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and (ii) conditions relating to the protection of the environment, as the Minister thinks fit (discretionary conditions). (1AA) An access licence is subject to any mandatory conditions imposed by this Act or the regulations. (1A) Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an access licence unless they are included in the terms of the licence. (2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them. Note. If a management plan or Minister's plan is replaced or amended during the term of an access licence, the mandatory conditions applying to the access licence may vary. … 89 Water use approvals (1) A water use approval confers a right on its holder to use water for a particular purpose at a particular location. (2) A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales. 90 Water management work approvals (1) There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals. (2) A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location. (3) A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location. (4) A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location. … 91I Taking water when metering equipment not working (1) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating and: (a) who intentionally or negligently fails to ascertain whether the metering equipment is not operating properly or is operating, or (b) who knows or has reasonable cause to believe that the metering equipment is not operating properly or is not operating, is guilty of an offence. Tier 1 penalty. (2) A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence. Tier 2 penalty. (3) Subsections (1) (b) and (2) do not apply if the person who takes the water complies with any requirements set out in the regulations for the purposes of this subsection. (4) In this section, metered work means a water management work in connection with which metering equipment has been installed. Note. See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act. … 100 Conditions of approvals generally (1) An approval is subject to such conditions as the Minister may from time to time impose: (a) which must include such conditions as are required to be imposed on the approval by this Act or by any relevant management plan, and (b) which may include such other conditions, such as: (i) conditions to give effect to any agreement between an applicant and objector under section 93 (5), and (ii) conditions relating to the protection of the environment, as the Minister thinks fit (discretionary conditions). (1AA) An approval is subject to any mandatory conditions imposed by this Act or the regulations. (1A) Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an approval unless they are included in the terms of the approval. (2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them. … (4) In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 101A. Note. If a management plan or Minister's plan is replaced or amended during the term of an approval, the mandatory conditions applying to the approval may vary. … 101A Metering equipment condition (1) It is a mandatory condition of a water supply work approval that metering equipment is installed, used and properly maintained in connection with the work. (2) The holder of a water supply work approval is taken to have complied with a particular aspect of the condition imposed by this section if the holder has complied with the applicable requirements (if any) prescribed by the regulations. (3) The regulations may provide that the condition does not apply to holders of approvals, or works, specified by the regulations, or in circumstances specified by the regulations. … 337 Purposes for which powers under Part may be exercised (1) Powers may be exercised under this Part for any of the following purposes: (a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any access licence, approval, notice or requirement issued or made under this Act, (b) for obtaining information or records for purposes connected with the administration of this Act, (c) generally for administering this Act and protecting the environment. (2) In this Part, a reference to this Act or the regulations extends to the Water Act 1912 and the regulations under that Act. (3) For the purpose of applying this Part to the Water Act 1912 and the regulations under that Act, references to this Act in section 390 of this Act, and in the definition of authorised officer in the Dictionary to this Act, extend to the Water Act 1912 and the regulations under that Act. … 338A Powers of authorised officers to require information and records (1) The Minister may, by notice in writing given to a person, require the person to furnish to the Minister such information or records (or both) as he or she may require for the purposes of this Act. (2) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for the purposes of this Act. (3) A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished. (4) A notice under this Division may only require a person to furnish existing records that are in the person's possession or that are within the person's power to obtain lawfully. (5) The person to whom any record is furnished under this Division may take copies of it. (6) If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides. Note. See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
The words water allocation are defined in the Dictionary to the Act as meaning the water to which the holder of an access licence is entitled from time to time under the licence, as recorded in the water allocation account for the licence. The words water allocation account are defined in respect of an access licence as meaning the account for the licence referred to in s 85(1). Finally, the words water supply work are defined as meaning, inter alia, a work (such as a water pump or water bore) for the purpose of taking water from a water source or a work (such as tank or dam) for the purpose of capturing or storing water.
The issue in the present proceedings is whether the defendant is entitled to require the plaintiffs to furnish the information and records stipulated by reason of their being required for the purpose set out in s 337(1)(a), that is: For determining whether there has been compliance with or a contravention of this Act or the regulations or any access licence, approval, notice or requirement issued or made under this Act.

[3]

(a) The Latoka Notice

The relevant facts relating to the Latoka Notice are these: E. The NRAR is investigating potential breaches of section 60B and 91I of the WM Act in relation to alleged contravention of conditions of an access licence and, taking water when metering equipment not working for the 2015/16 water year. … L. During February 2018 the NRAR received information associated with water access licence ("WAL") 85AL753202 alleging, contravention of terms and conditions of access licence and, taking water when metering equipment not working during the 2015/16 water year. M. WAL 85AL753202 is a current unregulated river B Class WAL linked to four specified works referred to in paragraph H. It is alleged that during the 2015/16 water year, 290 megalitres ("ML") was extracted outside of the specified flow conditions from the 01/03/2016 - 02/03/2016 and, that a negative flow totalling 343 ML was recorded from a pump site over a 27 day period from 28/01/2016 - 27/02/2016.
The Notice then went on to provide as follows: PURPOSE FOR WHICH THIS NOTICE IS ISSUED This notice is issued for the purposes of determining whether in relation to water access and use at the premises, there has been compliance with or contravention of the following provisions of the WM Act. (i) Section 60B - Contravention of terms and conditions of access licence; Condition number MW2338-00001 of 85AL753202 Condition number MW0655-00001 of 85CA753203 Condition number MW0089-00008 of 85AL753202 (ii) Section 91I - Taking water when metering equipment not working. REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS In accordance with s.338A(2) of the WM Act, I, Scott Mathieson, an authorised officer under the WM Act, require you, Peter and Jane Harris to furnish to me the following information and records [varied to not later than close of business on Friday 22 February 2019]. Please provide your response electronically to [email address]. In the event that files are too large for an electronic transfer it is acceptable to provide files by post using a USB drive or similar, or using a recognized and secure electronic file transfer service. 1. Information A. For the 2015/16 water year, identify the property manager(s) for the Premises relevant to combined approvals 85CA753203. B. For the 2015/16 water year, identify all workers, employees, staff and contractors who carried out duties at the Premises. C. For the 2015/16 water year, explain the duties and roles of each of the employees, staff or contractors referred to in (1B). Water access, use and records D. During the 2015/16 water year, were records made, kept and maintained at each of the pumps relevant to combined approvals 85CA753203 during water extraction events? E. If the answer to (1D) is yes, detail for each combined approval ESID and pump: (i) Who made the records; (ii) What manner and form they were recorded in; (iii) What records were made; (iv) What the dates and times of water extractions were; F. Are the pumps referred to in (1D) fitted with any type of meter and/or data logger? G. If the answer to (1D) is yes, explain: (i) What were the dates of meter and/or logger installation at each pump; (ii) Who installed the meter and/or logger at each pump; (iii) What type of meter and/or logger is installed at each pump; (iv) Were any repairs or maintenance carried out on any meter during the 2015/16 water year; (v) Who maintains and services the meter and/or logger [at] each pump; (vi) What data each meter and/or logger records at each pump. H. If the answer to (1D) is no, explain: (i) What the pump types area [scil. are] at each location including but not limited to make, model, pump method or mechanism, rating, capacity; (ii) How pump usage and water extraction is recorded by the Holder for at each pump; (iii) Who recorded pump usage during the 2015/16 water year; (iv) The pumping capacity or agreed pumping rate for each pump; (v) How the pumping capacity or agreed pumping rate was identified, calculated, established or agreed for each pump. I. Were the pumps or associated intake pipework at each of the pumps replaced, repaired or renewed before, during or after the 2015/16 water year? J. If the answer to (1I) is yes, explain: (i) What pumps were replaced, repaired or renewed; (ii) Why they were replaced, repaired or renewed; (iii) When they were replaced, repaired or renewed (iv) Who carried out the work associated with pump replacement, repair or renewal; K. Was any water taken for the purposes of the approvals in (1A) from a runoff harvesting dam during the 2015/16 water year? L. If the answer to (1K) is yes, explain for each dam: (i) Which dam was used; (ii) The location of each dam; (iii) How water was taken from the dam; (iv) The capacity of each dam at the time water was taken; (v) What land lot(s) the water was used on; (vi) The date and duration of each water take from the dam; (vii) How the dates and volume of water use was recorded. M. During the 2015/16 water year, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)? N. If the answer to (1M) is yes, identify: (i) Where each of the storages are [sic] located on the premises, (ii) The maximum capacity of each storage; (iii) When each storage was used for the purposes of receiving water; (iv) When each storage was used for the purposes of using the stored water; (v) The purposes for which the water in each storage was used; (vi) How the water in each storage was transferred. (vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done. O. For WAL 85AL753203 explain how you checked that water could be taken in relation to conditions of WAL 85AL753203 prior to each water extraction event during the 2015/16 water year. P. Did you become aware of a breach of any condition of an approval or WAL during the 2015/16 water year? Q. If the answer to (1P) is yes, explain: (i) What the breach was, including reference to the specific WAL or combined approval condition that was breached; (ii) When the breach occurred; (iii) Which persons were involved in the breach; (iv) What actions were put in place to rectify the breach and prevent a recurrence of the breach; (v) Whether any notifications of the breach were made to any party including a state government agency, and how such notifications were made. Water accounting R. During the 2015/16 water year did any trades or reallocations of water occur relevant to 85AL753203? S. If the answer to (1R) is yes, provide details for each trade or reallocation event and WAL: (i) Identify which WAL was involved; (ii) What trades were made into or out of the WAL; (iii) When the trade was completed; (iv) The quantity of the trade; (v) What the effects of the trade were on water entitlements for each affected WAL; (vi) Who approved the trade(s); T. During the 2015/16 water year did you enter any data into the WaterNSW Water Accounting System ("IWAS")? U. If the answer to (1R) [scil. (1T)] is yes, detail: (i) What data was submitted; (ii) When data was submitted: (iii) Who submitted the data; (iv) What ESID, approval and WAL the data related to; (v) What discrepancies, faults, problems or errors were encountered during data entry into IWAS, if any; (vi) What communications were had with any individual, organisation or state government agency including WaterNSW to acknowledge, resolve or discuss any discrepancies, faults, problems or errors encountered with IWAS in relation to the 2015/16 water year or thereafter. V. During the 2015/16 water year, did you have access to sufficient quantities of water available under other WALs or approvals at locations off the Premises, to use on the Premises for the purposes of the combined approvals in (1A)? W. If the answer to (1V) is yes, identify as applicable; (i) The nature and type of each of the water source; (ii) The location of each of [sic] water source; (iii) Whether water was used on the Premises from any of the water sources; (iv) The purpose for which the water was used at the Premises; (v) When any such water sources were used on the Premises; (vi) How the water was transferred to the Premises; (vii) How much water was transferred to and used at the Premises; (viii) Which persons were involved with the transfer to the Premises; (ix) How the use of the water on the Premises was authorised; Other water use X. During the 2015/16 water year, was any water extracted from the Darling River in accordance with basic landholder rights? Y. If the answer to (1X) is yes, please identify: (i) Each water source from which water was taken; (ii) The purposes for which the water was used; (iii) How the water was taken from each water source; (iv) What dates the water was taken from each water source; (v) Who managed or coordinated the taking of the water from each water source (vi) How much water was taken from each water source; (vii) In relation to the Premises, how many and what type of dwellings, sheds, structures, buildings were supplied with the water from each water source; (viii) lf any of the water was mixed and stored in water storages or other water sources on the Premises used in connection with the combined approvals in (1A); (ix) The amount of water that was mixed and stored with water storages or other water sources on the Premises. Business activities at the Premises Z. For the 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A). AA. Identify what was grown and produced, and in what quantities, at the Premises during 2015/16 and 2016/17. BB. Identify the size and location of the "areas of land at the Premises used for economic activity in the 2015/16 and 2016/17 water years. CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during the 2015/16 and 2016/17 water years. DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder for 2015/16 and 2016/17. EE. Identify the amounts of water utilised for economic activities in relation to (1DD). FF. How was the rate of water use in (1CC) derived, implemented and managed at the Premises during 2015/16 and 2016/17? 2. Records A. Any documents including but not limited to employment contracts, job descriptions, timesheets, emails, calendars, letters, invoices or written reports related to 1A, 1B, 1C. B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1D, 1E, 1F, 1G, 1H, 1I, 1J, 1K, 1L, 1M, 1N, 1O,1P, 1Q. C. Any documents including but not limited to invoices, logbooks, statements, receipts, emails, letters, certificates, computer or mobile device screenshots, data summaries, plans, maps, GPS records, diagrams, written reports, or photographs relevant to 1R, 1S, 1T, 1U, 1U [sic], 1V, 1W. D. Any documents including but not limited to photos, emails, logbooks, diaries, letters, notes, emails, written reports or related to 1X, 1Y. E. Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF. Should you require any assistance understanding this Notice or you require further information, please contact Scott Mathieson on [telephone number] or [email address]

[4]

(b) The Janbeth Notice

The Notice first set out a series of facts under the heading "Background". Relevant facts for present purposes are these: E. The NRAR is investigating potential breaches of section 60B and 60C of the [Water Management Act 2000 ("WM Act)] in relation to alleged contravention of conditions of an access licence, and unlawful taking of water for which there is insufficient water allocation from the 2012/13 to 2017/18 water years. … M. During February 2018 the NRAR received information alleging a significant overuse of water allocations associated with water access licence ("WAL") 85AL753372 during the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years and, pumping outside of flow conditions in the 2016/17 water year. N. WAL 85AL753372 is a current unregulated river C Class WAL linked to four nominated works. It is alleged that during 2012/13 its annual use limit of 3 megalitres ("ML") and account balance of 6517 ML was exceeded by 3660.0 ML, in 2013/14 its annual use limit of 3 ML and account balance of -3658.9 ML was exceeded by 5813.9 ML, in 2014/15 its annual use limit of 3.3 ML and account balance of -5812.8 ML was exceeded by 2354.7 ML until March 2015, in 2015/16 its annual use limit of 3.3 ML and account balance of 1104.5 ML was exceeded by 354.5 ML and, in 2016/17 its annual use limit of 3.3 ML and account balance of -354.5 was exceeded by 19617.4 ML. It is also alleged that 1011.25 ML was extracted outside of flow conditions between 28/07/2016 - 13/12/2016 and 03/05/2017 - 07/05/2017.
The Notice then went on to provide as follows: PURPOSE FOR WHICH THIS NOTICE IS ISSUED This notice is issued for the purposes of determining whether in relation to water access and use at the premises, there has been compliance with or contravention of the following provisions of the WM Act. (i) Section 60B - Contravention of terms and conditions of access licence; Condition number MWO605-00001 of 85AL753372 Condition number MW0915-00001 of 85AL753372 Condition number MW5946-00001 of 85CA753373 (ii) Section 60C - Taking water for which there is no, or insufficient, water allocation. REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS In accordance with s.338A(2) of the WM Act, I, Scott Mathieson, an authorised officer under the WM Act, require you, Peter and Jane Harris to furnish to me the following information and records [varied to not later than close of business on Friday 22 February 2019]. Please provide your response electronically to [email address]. In the event that files are too large for an electronic transfer it is acceptable to provide files by post using a USB drive or similar, or using a recognized and secure electronic file transfer service. 1. Information A. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify the property manager(s) for the Premises relevant to combined approvals 85CA753160 and 85CA753373. B. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify all workers, employees, staff and contractors who carried out duties at the Premises. C. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, explain the duties and roles of each of the employees, staffer contractors referred to in (1B). Water access, use and records D. During the 2012/13, 2013/14, 2015/16 and 2016/17 water years, were records made, kept and maintained at each of the pumps relevant to combined approvals 85CA753160 and 85CA753373 during water extraction events? E. If the answer to (1D) is yes, detail for each combined approval ESID and pump: (i) Who made the records; (ii) What manner and form they were recorded in; (iii) What records were made; (iv) What the dates and times of water extractions were; F. Are the pumps referred to in (1D) fitted with any type of meter and/or data logger? G. If the answer to (1D) is yes, explain: (i) What were the dates of meter and/or logger installation at each pump; (ii) Who installed the meter and/or logger at each pump; (iii) What type of meter and/or logger is installed at each pump; (iv) Who maintains and services the meter and/or logger each pump; (v) What data each meter and/or logger records at each pump. H. If the answer to (1D) is no, explain: (i) What the pump types area [scil. are] at each location including but not limited to make, model, pump method or mechanism, rating, capacity; (ii) How pump usage and water extraction is recorded by the Holder for at [sic] each pump; (iii) Who recorded pump usage during 2012/13, 2013/14, 2015/16 and 2016/17 water years; (iv) The pumping capacity or agreed pumping rate for each pump; (v) How the pumping capacity or agreed pumping rate was identified, calculated, established or agreed for each pump I. Were the pumps or associated intake pipework at each of the pumps replaced, repaired or renewed before, during or after the 2012/13 2017/18 water years? J. If the answer to (1I) is yes, explain: (i) What pumps were replaced, repaired or renewed; (ii) Why they were replaced, repaired or renewed; (iii) When they were replaced, repaired or renewed (iv) Who carried out the work associated with pump replacement, repair or renewal; K. Was any water taken for the purposes of the approvals in (1A) from a runoff harvesting dam during 2012/13, 2013/14, 2015/16 and 2016/17 water years? L. If the answer to (1K) is yes, explain for each dam: (i) Which dam was used; (ii) The location of each dam; (iii) How water was taken from the dam; (iv) The capacity of each dam at the time water was taken; (v) What land lot(s) the water was used on; (vi) The date and duration of each water take from the dam; (vii) How the dates and volume of water use was recorded. M. During the 2012/13 - 2017/18 water years, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)? N. If the answer to (1M) is yes, identify: (i) Where each of the storages were [sic] located on the premises; (ii) The maximum capacity of each storage; (iii) When each storage was used for the purposes of receiving water; (iv) When each storage was used for the purposes of using the stored water; (v) The purposes for which the water in each storage was used; (vi) How the water in each storage was transferred (vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done. O. For WAL 85AL753372 explain how you checked that water could be taken in relation to conditions of WAL 85AL753372 prior to each water extraction event during 2012/13, 2013/14, 2015/16 and 2016/17 water years. P. Did you the Holder of WAL 85AL753372 become aware of a breach of any condition of an approval or WAL during 2012/13, 2013/14, 2015/16 and 2016/17 water years? Q. If the answer to (1P) is yes, explain: (i) What the breach was, including reference to the specific WAL or combined approval condition that was breached; (ii) When the breach occurred; (iii) Which persons were involved in the breach; (iv) What actions were put in place to rectify the breach and prevent a recurrence of the breach; (v) Whether any notifications of the breach were made to any party including a state government agency, and how such notifications were made. Water accounting R. During the four water years 2012/13, 2013/14, 2015/16 and 2016/17 did any trades or reallocations of water occur relevant to WAL 85AL753372? S. If the answer to (1R) is yes, provide details for each trade or reallocation event and WAL: (i) Identify which WAL was involved; (ii) What trades were made into or out of the WAL; (iii) When the trade was completed; (iv) The quantity of the trade; (v) What the effects of the trade were on water entitlements for each affected WAL; (vi) Who approved the trade(s). T. During the 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18, did you enter any data into the WaterNSW Water Accounting System ("IWAS")? U. If the answer to (1R) [scil. (1T)] is yes, detail: (i) What data was submitted; (ii) When data was submitted; (iii) Who submitted the data; (iv) What ESID, approval and WAL the data related to; (v) What discrepancies, faults, problems or errors were encountered during data entry into IWAS, if any; (vi)What communications were had with any individual, organisation or state government agency including WaterNSW to acknowledge, resolve or discuss any discrepancies, faults, problems or errors encountered with IWAS from 2012/13 to or after 2017/18. V. During the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water year, did you have access to sufficient quantities of water available under other WALs or approvals at locations off the Premises, to use on the Premises for the purposes of the combined approvals in (1A)? W. If the answer to (1V) is yes, identify as applicable. (i) The nature and type of each of the water source; (ii) The location of each of water source; (iii) Whether water was used on the Premises from any of the water sources; (iv) The purpose for which the water was used at the Premises; (v) When any such water sources were used on the Premises; (vi) How the water was transferred to the Premises; (vii) How much water was transferred to and used at the Premises; (viii) Which persons were involved with the transfer to the Premises; (ix) How the use of the water on the Premises was authorised; Other water use X. During the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years, was any water extracted from the Darling River in accordance with basic landholder rights? Y. If the answer to (1X) is yes, please identify: (i) Each water source from which water was taken; (ii) The purposes for which the water was used; (iii) How the water was taken from each water source; (iv) What dates the water was taken from each water source; (v) Who managed or coordinated the taking of the water from each water source (vi) How much water was taken from each water source; (vii) In relation to the Premises, how many and what type of dwellings, sheds, structures, buildings were supplied with the water from each water source; (viii) lf any of the water was mixed and stored in water storages or other water sources on the Premises used in connection with the combined approvals in (1A); (ix) The amount of water that was mixed and stored water storages or other water sources on the Premises. Business activities at the Premises Z. For the 2012/13, 2013/14, 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A). AA. Identify what was grown and produced, and in what quantities, at the Premises during 2012/13, 2013/14, 2015/16 and 2016/17. BB. Identify the size and location of the areas of land at the Premises used for economic activity in the 2012/13, 2013/14, 2015/16 and 2016/17 water years. CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during 2012/13, 2013/14, 2014/15, 2015/16,2016/17 and 2017/18 water years. DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18. EE. Identify the amounts of water utilised for economic activities in relation to (1DD). FF. How was the rate of water use in (1CC) derived, implemented and managed at the Premises during 2012/13, 2013/14, 2014/15, 2015/16, 2016/17 and 2017/18? 2. Records A. Any documents including but not limited to employment contracts, job descriptions, timesheets, emails, calendars, letters, invoices or written reports related to (1A, 1B, 1C). B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1D, 1E, 1F, 1G, 1H, 1I, 1J, 1K, 1L, 1M, 1N, 1O, 1P, 1Q. C. Any documents including but not limited to invoices, logbooks, statements, receipts, emails, letters, certificates, computer or mobile device screenshots, data summaries, plans, maps, GPS records, diagrams, written reports, or photographs relevant to 1R, 1S, 1T, 1U, 1U [sic], 1V, 1W. D. Any documents including but not limited to photos, emails, logbooks, diaries, letters, notes, emails, written reports or related to 1X, 1Y. E. Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF. Should you require any assistance understanding this Notice or you require further information, please contact Scott Mathieson on [telephone number] or [email address]
In the summons, the plaintiffs objected to a number of paragraphs in the Notices. At the hearing, the plaintiffs produced a schedule (marked MFI1) summarising their objections to the paragraphs objected to. However, some of the paragraphs identified in the schedule were additional to those identified in the summons. This took the defendant by surprise. The defendant had also prepared a schedule (marked MFI 2) summarising the reasons why the paragraphs objected to in the summons were said to be within the powers under the Act to issue notices.
I gave leave to the defendant to file a further schedule to deal with the added paragraphs. That was done. I marked that schedule as MFI 3. I thereafter relisted the proceedings to enable any further oral submissions to be made. In the result, the defendant indicated that it did not press certain specified paragraphs in the Notices.
The final position is, therefore, that the following paragraphs of the Notices are in dispute: 1. In relation to the Latoka Notice, paragraphs 1A, 1B, 1C, 1M, 1N, 1P, 1Q, 1Z, 1AA, 1BB, 1CC, 1DD, 1EE and 1FF and the documents requested in paragraphs 2A, 2B, and 2E. 2. In relation to the Janbeth Notice, paragraphs 1A, 1B, 1C, 1I, 1J, 1K, 1L, 1M, 1N, 1P, 1Q, 1Z, 1AA, 1BB, 1CC, 1DD, 1EE and 1FF and the documents requested in paragraphs 2A, 2B and 2E.

[5]

Legal principles

Both parties agreed that the relevant principles are to be found in a series of cases, principally in the Federal Court of Australia concerning notices under s 155 of the Trade Practices Act 1974 (Cth). It does not appear that there are any cases that directly concern notices such as the ones in dispute issued under the Water Management Act.
Section 155 of the Trade Practices Act provided: 155. (1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person - (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents, or …
In Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No. 3) (1980) 31 ALR 519; 47 FLR 163, the Full Court of the Federal Court said (at 529-531; 172-175): Only the last question falls for determination in these proceedings, namely whether the Chairman has required each of the applicant companies to furnish information or produce documents other than information or documents relating to a matter that constitutes or may constitute a contravention, the "matter" being, in each case, "that the company has given effect to a provision of an arrangement or understanding between the company and other corporations which has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining the prices for Ford spare parts supplied by those corporations, in competition with each other, to motor vehicle body repairers in Melbourne". If the information to be furnished or the documents to be produced in accordance with the notice respectively answer the description of "information relating to" or "documents relating to" the matter specified in the notice, the Chairman's requirement lies within the power which s 155 confers upon him. Provided the necessary relationship exists between the matter and the information or documents required, the notice is not open to objection on the ground that it is burdensome to furnish the information or produce the documents. As Bowen CJ said in Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129 at 136; 15 ALR 561 at 567: "It is not, l think, a good ground of objection to a notice under s 155 that it is burdensome or oppressive. It is clear that when such a notice is given, the answering of it may involve the recipient in considerable work and expense. This, in itself, may constitute a kind of penalty whether or not there is ultimately found to have been a contravention. The legislation assumes that the public interest necessitates this. No doubt in practice, the Commission will administer the Act in such a way as not to impose upon a person or company a burden completely disproportionate to the value to the commission of the information sought." In the case of a matter that may constitute a contravention, the Chairman may not know the constitutive facts of a contravention (if there has been one) and he may ultimately ascertain that there has been no contravention in the conduct or transaction which he is investigating. Because his attention has been drawn to a particular act or transaction which warrants investigation, and because he has reason to believe that the person to whom the notice is given is capable of furnishing information relating to the matter under investigation, he is engaged in a function of investigation, not in a task of proving an allegation. The power conferred by s 155(1) is in aid of that function and is a power which authorizes inquiries both wide in scope and indefinite in subject matter. It is an investigative power which is under consideration here and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined. In the present case, the investigative power of the Chairman is being exercised in an investigation into a matter that may constitute a contravention of s 45. Proof of a contravention of that section often depends upon circumstantial evidence. Section 45 is itself expressed in general terms, and when an investigation into such a matter commences with little information, the range of inquiries may need to be broad rather than specific. There is no analogy to be made with interrogatories in litigation. Rules which are entirely appropriate to limit discovery with respect to issues defined by pleadings provide no sure guide to the manner of exercise of a power to ascertain facts which may or may not result in litigation. The investigative power may properly be exercised by inquiring into the existence of facts which do not themselves constitute a contravention or deny the possibility of a contravention. The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation. … The court cannot undertake the task of determining the way in which an investigation should be carried out, for that is a task which the legislature has confided to the Commission, the Chairman or the Deputy Chairman. The court's jurisdiction is not to set the course of an investigation but to call a halt if it is shown that the investigation exceeds the powers conferred. Short of that point, the protection of the corporate citizen from harassment rests in the good sense of the repository of the power. To say that an undue or oppressive burden is imposed by a notice is not legally significant unless what is meant is that the powers conferred by s 155 have been exceeded in the particular case. An excess of power may appear if the requirement for information or documents is couched in such wide and general terms that a proper exercise of the investigatory power could not support the requirement in question. This is but a particular application of the general principle that the exercise of a discretionary power must be reasonably capable of being regarded as related to the purpose for which the power is conferred (see, eg Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490; [1971] ALR 201 ). If the requirement expressed in a particular notice is reasonably capable of being so regarded, that ground for alleging an excess of power fails.
In A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414 Basten JA (with whom Bathurst CJ agreed) said at [34]: [I]t is well established that the possibility, even the certainty, that the summons will cover documents which are not relevant to the investigation is not a basis for setting aside the summons. His Honour then went on to cite as authority for that proposition the passages from Melbourne Home of Ford which I have set out above. Bathurst CJ also said at [4] that, Objection to production could include objections on the ground of relevance.
In Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565; 57 FLR 368, the Full Court of the Federal Court said (at 568-572; 371-377): The suggested grounds of invalidity are, first, absence of an allegedly necessary degree of certainty in the terms of the notices and, second, absence of an allegedly necessary element of relatedness between the information or documents sought and "matters" that are identified by the notices as "constituting or possibly constituting, contraventions of section 45 of the Act". The suggested general principle is that if a requirement in a s 155 notice is partly invalid by reason of uncertainty in terms or lack of a requisite element of relatedness, the recipient of the notice cannot properly be expected to reconstruct the requirement by severing what is valid from what is invalid. The remaining requirement to produce documents which is in question is submitted to be invalid for the reason that it is harsh, oppressive and unreasonable. … In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, there are, in our view, two further implicit conditions of validity of a notice purportedly given pursuant to s 155(1) of the Act. Those two further conditions of validity relate to the form or content of the notice. The first is that the notice must convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce. The second is that the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes. … The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see, Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519 at 531). … If, on examination, of the terms of the notices, it does not appear that the information or documents sought by a particular requirement are information or documents relating to one or other of the above "matters", the requirement will, at least to the extent to which it would require the furnishing of such information or the production of such documents, be beyond the power conferred by s 155(1) of the Act. In this regard, however, it should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified "matters" is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an over-technical or hypercritical way. As was pointed in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (31 ALR at 529-30), the power conferred by s 155(1) is an investigative power which authorizes questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s 155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to any one of the "matters" which the notice identifies. … We turn to consider the related principle for which the appellants contend, namely, that if a requirement to furnish information or to produce documents is partly invalid by reason of uncertainty of the requirement or lack of relatedness of the information or documents, the recipient of a notice cannot properly be expected to reconstruct the requirement by severing what is valid from what is invalid. In this regard, it is relevant to note that the appellants did not contend that the invalidity, in whole or in part, of one question or requirement to produce documents in a notice would lead to invalidity of other independent questions. In Melbourne Steamship Co v Moorehead (1912) 15 CLR 333 at 334, Griffiths CJ, when referring to a notice under s 15B of the Australian Industries Preservation Act 1906-1909, commented: "... I am disposed to think that when a question demanding a categorical answer is put under s 15B, being so framed as to include matters concerning which the questioner is not entitled, as well as matters concerning which he is entitled, to ask, the person to whom the question is put may refuse to answer it in that form, and that it is for the questioner, and not for the person questioned, to modify it so as to confine it within permitted limits." Subject to one possible qualification, we consider the tentative views expressed by Griffiths CJ in the above passage to be correct and to be applicable to a question asked or a requirement to produce documents contained in a notice given pursuant to s 155(1) of the Act. The possible qualification is that we consider that the principle for which the appellants contend and which finds support in the comments of Griffiths CJ should be confined to a case where a blue pencil deletion of what is invalid is not practicable or where, if such deletion be practicable, it would result in what is substantially a different question.
In SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357; 89 ALR 105, the Full Court of the Federal Court said (at 369-370; 115-116): The proposition that the specification of a relevant "matter" is a condition of the validity of a s 155 notice was made explicit by the Full Court in Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 at 570; 57 FLR 368 at 374: "... the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes." And (ALR at 571: FLR at 375) their Honours said that the entitlement would not be shown "unless it appears from the notice that the information or documents sought are information or documents 'relating" to one or more 'matters' of a kind described in the sub-section". It is clear from what follows in that judgment that the description of the relevant "matter" must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. The notice must disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the "matter" to enable the relationship to be discerned. We shall refer to this for convenience as the "entitlement disclosure condition". As with the requirement that the notice be clear in its terms, this will not support an over-technical or hypercritical approach to its construction: Pyneboard Pty Ltd v Trade Practices Commission, supra (ALR at 572; FLR at 376). And it is fundamental that, given the investigative nature of the power under consideration, there is no requirement that the notice "plead" all the facts necessary to constitute a contravention or possible contravention. The words "may constitute" enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: Davenport v Trade Practices Commission (1983) 47 ALR 505 at 513; 70 FLR 123 at 130 per Northrop J. In doing so however, it is not necessary for the court to determine whether a contravention has occurred or will occur, nor will it idly speculate or draw on improbable circumstances to uphold the validity of a notice (FLR at 132).
The principles that I derive from these cases are these: (a) The notice must convey with reasonable clarity to the recipient what information he/she is required to furnish or what documents are required to be produced: Pyneboard at 374; (b) The documents sought must be capable of being properly regarded as related to the potential contravention: Pyneboard at 376; (c) The notice must disclose the relationship between the information sought and the matter in respect of which the information is sought: Pyneboard at 375; SA Brewing Holdings at 370; (d) These requirements (in (a), (b) and (c) above) are not to be applied in a precious, over-technical or hypercritical way: Pyneboard at 375 and 376; (e) Provided the necessary relationship exists between the matter and the information and documents required, the notice is not open to objection on the ground that it is burdensome to furnish the information or to produce the documents: Melbourne Home of Ford at 173; (f) The power conferred is in aid of a function of investigation, not of proof of an allegation, and it is not possible to define a priori the limits of an investigation which might properly be made. In that way the power should not be narrowly confined: Melbourne Home of Ford at 173; (g) The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry: Melbourne Home of Ford at 174; (h) The invalidity of one question or requirement to produce will not lead to the invalidity of other independent questions unless the blue pencil deletion of what is invalid is not practicable or, if it is, would result in a substantially different question: Pyneboard at 376-7; (i) Objection may be taken to production on the ground of relevance: A v Independent Commission Against Corruption at [4] and [28]-[30]; (j) The possibility, even the certainty, that the notice will cover documents which are not relevant to the investigation is not a basis for setting aside the notice: A v Independent Commission Against Corruption at [34].

[6]

Submissions

I will first set out the general submissions that were made in relation to the Notices. I will then deal with the specific paragraphs in the Notices that are objected to. The schedules to which I have referred in each case set out the basis for the resistance to providing the stipulated information and producing the stipulated documents by the plaintiffs and why, on the defendant's part, the requirement to provide the information and produce the documents is said to be appropriate. The plaintiff has helpfully linked the records which are sought to be produced to the information sought to be provided. I will summarise the competing contentions and then determine whether or not the information and documents are legitimately required.
The plaintiffs submitted that the Notices are beyond power because they fail to comply with principles derived from the cases, in particular, that for the Notices to be valid: (a) the documents sought must be capable of being properly regarded as related to the potential contravention of the Act; and (b) the notice must disclose the relationship between the information sought and the potential contravention.
The plaintiffs submitted that certain of the documents sought to be produced are not sought for the purposes stated in the Notices. By way of example, the plaintiffs submitted that the defendant seeks information or documents which relate to: (a) economic activities undertaken at Janbeth and Latoka for which water was used (paragraph 1Z of the Janbeth Notice and the Latoka Notice); (b) what was grown and produced at Janbeth and Latoka (paragraph 1AA of the Janbeth Notice and the Latoka Notice); (c) the size and location of the areas of land at Janbeth and Latoka used for economic activity (paragraph 1BB of the Janbeth Notice and the Latoka Notice); and (d) farm plans, property plans and business plans relating to the matters identified in paragraphs (a) to (c) above (paragraph 2E of the Janbeth Notice and the Latoka Notice).
The plaintiffs submitted that those documents are wholly unconnected with the identified potential contraventions of the Act, and that the Notices fail to disclose the relationship between those matters and the potential contraventions.
The defendant submitted that each of the matters about which information and documents are sought is capable of proving: circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation. (Melbourne Home of Ford at FLR 174)
In that way, the defendant submitted that information as to the economic activities conducted at the properties over a period of time could shed light upon whether water was, in fact, taken in a manner which contravened the access licences over that time. If the economic activities conducted at the properties were such that they would necessarily have required water in excess of the entitlement under the access licenses, then this would tend to prove circumstances from which an inference can be drawn that the relevant access conditions were breached.
The defendant submitted that information as to the crops grown at the properties and the quantities of those crops could shed light upon whether water was taken in a manner which contravened the access licences. If the crops grown, and the quantities in which they were grown, were such that they would necessarily have required water in excess of the entitlement under the access licenses, then this would tend to prove circumstances from which an inference can be drawn that the relevant access conditions were breached.
The defendant submitted that the size and location of the land used for economic activity and farm, business, and property plans are capable of shedding light upon whether water was, in fact, taken in a manner which contravened the relevant access licences. The defendant submitted that information as to these matters could be used, either by itself, or in combination with other information sought (for example, the quantity of the crops grown, the economic activities conducted), to prove that it was not possible to conduct certain activities without taking water in excess of the entitlements provided for.
The defendant submitted that he is not to be confined to seeking information and documents concerning only the matters stipulated in the Latoka Notice at Background paragraphs L & M, and in the Janbeth Notice at Background paragraphs M & N. The defendant submitted in particular that he is entitled to information that may show further contraventions regarding Latoka during the 2015/2016 water year in addition to the contraventions identified in paragraph M.

[14]

Paragraphs 1M, 1N and 2B 1M. During the 2015/16 water year, were any surface water storages utilised at the premises to store water taken in accordance with the approvals in (1A)? 1N. If the answer to (1M) is yes, identify: (i) Where each of the storages are [sic] located on the premises, (ii) The maximum capacity of each storage; (iii) When each storage was used for the purposes of receiving water; (iv) When each storage was used for the purposes of using the stored water; (v) The purposes for which the water in each storage was used; (vi) How the water in each storage was transferred; (vii) If any of the storages were repaired, renewed or expanded, and details of any work in that regard including the scope of the work, who did the work, why it was done, and when it was done. 2B. Any documents including but not limited to log books, timesheets, maps, plans, GPS records, photographs, diagrams, notes, quotes, invoices, computer or mobile device screenshots, spreadsheets, emails, journals, diaries, data summaries or written reports related to 1M and 1N.

The plaintiffs submitted that the information and documentation required under paragraphs 1M and 1N are irrelevant to contraventions alleged in the Latoka Notice, namely that water was extracted outside of specified flow conditions for a 2 day period, and that a negative flow was recorded for a period of one month. The plaintiffs submitted that the Latoka Notice is not concerned with taking more water than the licence allows. The plaintiffs suggested that this requirement for production has arisen from an erroneous duplication of the Janbeth Notice where the contravention in that Notice is said to be taking more water than is allowed. Paragraph 1N is merely a subsidiary demand reliant on 1M being appropriate.
The defendant submitted that the contraventions being investigated were whether water was taken outside of flow conditions. The defendant submitted that whether the plaintiffs had other sources of water supply was relevant to an assessment of the likelihood of excess water being taken from the river system.

[19]

Paragraphs 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF and 2E 1Z. For the 2015/16 and 2016/17 water years, identify the economic activities undertaken at the Premises by you for which water was taken and used in connection with the combined approvals in (1A). 1AA. Identify what was grown and produced, and in what quantities, at the Premises during 2015/16 and 2016/17. 1BB. Identify the size and location of the areas of land at the Premises used for economic activity in the 2015/16 and 2016/17 water years. 1CC. Identify the rate in terms of megalitres per hectare at which any water was applied to land at the Premises for economic activity at the Premises during the 2015/16 and 2016/17 water years. 1DD. Identify which economic activities utilised water taken in accordance with any WAL or combined approval held, issued to the holder for 2015/16 and 2016/17. 1EE. Identify the amounts of water utilised for economic activities in relation to (1DD). 1FF. How was the rate of water use in (1CC) derived, implemented and managed at the Pre mises during 2015/16 and 2016/17? 2E. Any documents including but not limited to farm plans, property plans, business plans, irrigation plans, water management plans, spreadsheets, worksheets, computer or mobile device screenshots, production reports, cropping reports, harvesting reports, written reports or company annual reports related to 1Z, 1AA, 1BB, 1CC, 1DD, 1EE, 1FF.

I have earlier set out a number of general submissions made by the parties in relation to this aspect of the Notices. In addition, the plaintiffs submitted that there is no evidence to justify the defendant's suggestion that knowing what the land was used for could assist in the determination of whether excess water was taken. There was no evidence to suggest that knowledge of what crops were grown on the property would enable an accurate calculation of water usage and, therefore, the likelihood of excess water being taken. The plaintiffs submitted that there were too many variables including rainfall during the periods. The plaintiffs submitted that, as the defendant accepts, the documents sought must be capable of being properly regarded as related to the alleged contravention, and the Notice must disclose the relationship between the information sought and the matter in respect of which the information is sought. The plaintiffs submitted that neither of these essential requirements has been satisfied.
The plaintiffs submitted that these demands appear to be the product of an erroneous duplication from the Janbeth Notice where the contraventions involved taking excess water over a number of years.
The defendant first pointed to what was said in Melbourne Home of Ford at 174 about ascertaining facts which may indicate another line of enquiry. The defendant submitted that the information sought, mediated through the opinion of an expert, would provide at least an approximation of how much water might have been applied to the property. Inferences could then be drawn about whether it was likely that water was wrongly taken. The defendant submitted that the nexus between the information sought and the matter under investigation was sufficiently demonstrated in the Notice.

[21]

The Janbeth Notice

This Notice was issued for the purpose of determining whether in relation to water access and use at the premises there had been compliance with or contravention of identified provisions of the Act. This was on the basis that during February 2018 the NRAR had received information alleging a significant overuse of water allocations associated with water access licence 85AL753372 during the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years, and pumping outside of flow conditions between 28 July 2016 and 13 December 2016, and 3-7 May 2017. These were said to involve breaches of ss 60B and 60C of the Act.
In relation to s 60B there were said to be a contravention of three conditions of the access licence. The first was condition number MW0605-00001 of 85AL753372. That condition provided that water must be taken in compliance with the conditions of the approval for the nominated work on the access licence through which water is to be taken.
The second condition was condition number MW0915-00001 of 85AL753372. That condition provided: The maximum volume of water taken under this access licence in any one water year must not exceed a volume equal to the sum of: (A) The ML/unit share of the licence multiplied by three (3), plus (B) The net amount of water assigned to or from the account under a water allocation assignment, plus (C) Any water re-credited by the Minister to the account.
The third condition was condition number MW5946-00001 of 85CA753373. That condition provided: (1) Subject to subclause (2), water must not be taken under WAL number 33667 (85AL753372) when the flow in the Darling River at the Bourke gauge [No. 425003] is equal to or less than 1,610 ML/day. (2) Notwithstanding subclause (1), when the flow in the Darling River at the Bourke Town gauge [No. 425003] is more than 1,250 ML/day and less than or equal to 1,610 ML/day, application may be made to the Department's Dubbo office at the address listed in Appendix 3 for permission to take water for the irrigation of an area equal to or less than 1,000 hectares on properties: Lot 4914 Plan 40034, Lot 5159 Plan 720987 (Western Land Lease 13652), and Lot 5183 Plan 720986 (Western Land Lease 13879) in Parish Paka and County Gunderbooka, Lot 6656 Plan 820416 (Western Land Lease 14082) in Parish Nulty and County Gunderbooka and/or Lot 7 Plan 815343 in Parish Boyong and County Gunderbooka. Permission to divert water, for limited periods, for the purpose of such irrigation shall only be granted by the Department when the quantity of water flowing in the Darling River exceeds the quantity considered by the Department to be required for all purposes. If any such application be granted in whole or in part by the Department, then the water may be taken for such period and under such conditions as may be specified by the Department in granting the application. The application and the granting thereof by the Department shall be in writing.

Harris v Mathieson

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (37 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (1)