Harvey & Anor v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd & Ors v Minister Administering the Water Management Act 2000

KEY ISSUES: Costs :- judicial review - whether proceedings brought in public interest - whether usual order as to costs should be made - usual costs order made

Civil Procedure Act 2005 Courts Legislation Amendment Act 2007 LEGISLATION CITED: Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005 Water Management Act 2000

Construction, Forestry, Mining and Energy Union v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd (2003) 132 FCR 516 CSR Limited v Eddy (2005) 226 CLR 1 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 CASES CITED: Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 Oshlack v Richmond River Shire Council (1998) 193 CLR 72 Perrett v Commissioner for Superannuation (1991) 29 FCR 581 Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 Shelton v Repatriation Commission (1999) 85 FCR 587

APPLICANTS Mr Shane Prince SOLICITORS Mackenzie Vardanega (41275 of 2006) LEGAL REPRESENTATIVES: Watson Mangioni (41283 of 2006)

RESPONDENT Mr Jeremy Kirk SOLICITORS Crown Solicitor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ADRIAN DAVID HARVEY & MARGARET ELIZABETH HARVEY & ANOR Applicants

MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 Respondent

MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 Respondent

JUDGMENT Jagot J: 1 The issue of costs in these matters remains for determination. On 18 June 2008 I dismissed the applicants' Class 4 applications challenging the validity of the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 Amendment Order 2006 (the amendment order) under s 45(1)(a) of the Water Management Act 2000 (the Water Management Act) (Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165). The Minister claims the usual order as to costs. The applicants submit that circumstances displace the usual order with the consequence that each party should pay its or their own costs of the proceedings.

2 The Courts Legislation Amendment Act 2007 and related amendments altered the provisions relating to costs in the Land and Environment Court (in effect, replacing s 69 of the Land and Environment Court Act 1979 with s 98 of the Civil Procedure Act 2005 and rules 42.1 of the Uniform Civil Procedure Rules 2005 and 4.2 of the Land and Environment Court Rules 2007, subject to the general savings provision in cl 17 of Sch 6 to the Uniform Civil Procedure Rules). The parties agree that the amendments to the statutory provisions relating to costs do not alter the basic position that costs are in the discretion of the court and one factor affecting the discretion is whether the proceedings having been brought in the public interest.

3 The applicants submit that the following propositions displace the usual order as to costs in these proceedings: - (i) there is a public interest in the judicial review of administrative action, particularly where that review clarifies the law, (ii) the Minister is a repeat litigant who has obtained a substantial benefit by reason of the litigation in that the principal decision establishes a wide reaching precedent that has direct and indirect impacts on the future management of a basic resource. As to the first, there are other proceedings pending before the Court challenging the validity of water management plans. As to the latter, the principal decision excluding procedural fairness is of general application to all water management plans that affect a large number of people throughout NSW, (iii) the applicants have thus taken on themselves the burden of exposing the decision-making process and proper construction of the statute and, in so doing, the broader public interest has been served. The applicants rely on observations in Shelton v Repatriation Commission (1999) 85 FCR 587 at [10], Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594 and CSR Limited v Eddy (2005) 226 CLR 1 at [81] in support of these submissions. The applicants also reject the Minister's suggestion (albeit faintly put) that the applicants are guilty of some disentitling conduct.

4 The Minister submits that the important purpose of the usual order as to costs should not be overlooked, referring to the observations in Oshlack v Richmond River Shire Council (1998) 193 CLR 72 at [67]). According to the Minister: - (i) the proceedings cannot be viewed as public interest litigation. The applicants brought the proceedings for their private interests, specifically, in order to have a much agonised over plan declared invalid so that the applicants might obtain a larger share of a limited natural resource that would inevitably be at the expense of others, (ii) comparison with the factors considered relevant in the first instance decision in Oshlack (recorded in (1998) 193 CLR 72 at [20]) exposes the difference in the circumstances in that and the present cases, (iii) the applicants' case was arguable and interesting but the Minister was a mere respondent to the proceedings. The Minister did not obtain any benefit by defending the proceedings either in the sense referred to in CSR v Eddy or otherwise. But for the applicants' challenge there was no uncertainty about the legislative provisions so the benefit argument was circular, (iv) the applicants' pleadings disclosed very wide ranging grounds of review but, at the heel of the hunt, the challenge was limited to two grounds, (v) the cases of Perrett and Shelton are distinguishable as they concern an appeal from a tribunal where the tribunal was subject to special rules about costs, and (vi) CSR v Eddy is also distinguishable. CSR was a large repeat litigant seeking the boon of special leave whereas the Minister was just a respondent required to defend the proceedings.

5 Various decisions disclose the breadth of the costs discretion and the potential relevance of public interest factors in the discretion's exercise (see, for example, the brief overview in Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 at [7] - [16]).

6 The applicants in the present case sought to vindicate their asserted entitlement to a greater share of the groundwater source than allocated to them under the water sharing plan as amended by the amendment order. As the Minister submitted, unlike the facts in Oshlack: - (i) on the evidence it cannot really be doubted that the applicants' prime motivation was their own commercial position, (ii) the applicants had a substantial amount to gain from the proceedings, and (iii) it is not apparent that a significant number of members of the public shared the applicants' stance about the water sharing plan and its amendment (although some did, as the other proceedings pending in this Court disclose). In these circumstances the real issue seems to be whether the proceedings resolved questions of sufficient general importance as to the future interpretation and administration of the water management provisions so as to found an exercise of discretion on costs in the applicants' favour. The closest analogy in this Court is probably the decision in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 (at [21] in particular). See also Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 at [12].

7 I accept that the procedural fairness arguments in the present proceedings raised matters of importance to the future administration of the plan making part of the Water Management Act. Accordingly, there were "important and difficult questions of law affecting many people" raised in and resolved by the litigation (Save the Ridge at [14] citing Construction, Forestry, Mining and Energy Union v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd (2003) 132 FCR 516). I do not consider that fact, or any of the other matters relied on by the applicants, sufficient to deprive the Minister of the benefit of an order for costs. The questions, while important to this area of resource management and difficult, were not novel and did not involve any fundamental category of rights. These considerations must be weighed with the matters referred to above, namely, that the applicants were seeking to vindicate rights of a commercial character, stood to gain substantially from the litigation, in circumstances where it is by no means apparent that many members of the public or people affected by the water sharing plan also adopted the applicants' stance that the applicants are entitled to be allocated a greater share of the groundwater. Further, the Minister's legitimate interest as a party who has successfully defended the challenge to the validity of the amendment order to be compensated for the costs that would not otherwise have been incurred is also relevant.

8 The circumstances of the present proceedings do not indicate that it is appropriate to make any order other than the usual order as to costs. Accordingly, in each of proceedings 41275 of 2006 and 41283 of 2006 I order the applicants to pay the respondent's costs of the proceedings as agreed or assessed.

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