Inland Rivers Network Incorporated v Harris

Land and Environment Court (NSW)|2019-05-30|Before: Pain J

SOLICITORS: Environmental Defender's Office (Applicant) Horton Rhodes (Respondents) File Number(s): 17/340269

Judgment

The Applicant has filed Class 4 proceedings seeking numerous declarations and consequential orders alleging breaches of water access licences (WALs) under the Water Management Act 2000 by the Respondents. By notice of motion dated 13 May 2019 the Respondents seek orders vacating a hearing date set down for five days commencing 11 November 2019.
The Respondents are also charged with two water licence offences by WaterNSW to which they pleaded not guilty in Class 5 proceedings (2018/73936 and 2018/73940). The hearing has concluded and judgment is reserved. One of the issues in these Class 4 proceedings concerning the operation of a B-class WAL also arose in the Class 5 proceedings. I am informed by senior counsel for the Respondents Mr Elliott SC who appeared in the Class 5 matter that the issue of the construction and application of the B-class WAL required most of the five days of hearing in the Class 5 proceedings.

Affidavits filed for the Respondents

Ms Otavski solicitor for the Respondents swore an affidavit dated 10 May 2019 which sets out the procedural history of the proceedings.
Ms Otavski swore a second affidavit dated 22 May 2019 which describes the availability of the Respondents' counsel and experts. The Respondents have briefed senior counsel Mr Elliott and counsel Mr Ireland to advise and appear for them in these proceedings. The same counsel appeared for the respondents in the Class 5 proceedings. There would be significant additional cost and dislocation caused to the Respondents' preparation in these proceedings should Mr Elliott be forced out and additional prejudice caused from losing the senior counsel who argued the key 4,894 megalitres condition issue in relation to the B-class WAL in the Class 5 proceedings. Mr Ireland is available for the present November 2019 hearing. Mr Elliott is not available to appear for a continuous period of five days between November and December 2019. He is available to appear from 6 March 2020 onwards.
Dr Robertson ecologist and Dr Martens hydrologist have been engaged as experts for the Respondents. Dr Robertson's availability to attend court for the week commencing 11 November 2019 is confined to the morning of 11 November 2019. Accordingly the Respondents would need to secure a new ecological expert if the present hearing dates are maintained.

Chronology of matter

Ms Otavski's affidavit dated 10 May 2019 contains a chronology of the proceedings which is summarised below: 10 November 2017 The Respondents were served with the Class 4 summons. 8 December 2017 The proceedings were listed for first return. 1 February 2018 The Applicant filed a notice of motion seeking leave to amend its summons. 16 February 2018 Leave was granted to the Applicant to file and serve an amended summons. 15 May 2018 The Respondents filed a notice of motion seeking that these proceedings be stayed until the trial of the Class 5 proceedings concluded. At this time the Class 5 proceedings were listed for 12 to 23 November 2018. 25 May 2018 The Class 4 proceedings were stood over by consent to 30 November 2018. 15 November 2018 The Prosecutor in the Class 5 proceedings applied for an adjournment. 16 November 2018 The Class 5 proceedings were listed on 11 February 2019 for five days. 26 November 2018 The Respondents served on the Applicant a proposed notice of motion seeking that the Class 4 proceedings be stood over to 1 March 2019. 28 November 2018 The Class 4 proceedings were stood over by consent to 1 March 2019. 18 February 2019 The Respondents received an email from the Applicant indicating its intention to file a notice of motion seeking to further amend its summons to include a further allegation of a contravention of the Water Management Act. 6 March 2019 The Respondents notified the Applicant that they did not oppose its application. 8 March 2019 Leave was granted to the Applicant to file and serve an amended summons and points of claim. The parties were to approach the Registrar via Online Court by 16 April 2019 to obtain hearing dates for a hearing of not more than 10 days. 30 April 2019 Following consent given by the Applicant to the proposed communication that the first mutually convenient date to the parties for a five day hearing fell in February 2020, the Respondents made an Online Court communication. 2 May 2019 The Class 4 proceedings were listed for a five day hearing by the Registrar commencing 11 November 2019.

According to correspondence with the court registry, hearing dates in February 2020 were sought jointly. As earlier dates were available in November and the Applicant's lawyers and experts were also available the matter was set down in November 2019. The hearing dates allocated did not suit the Respondents' lawyers or experts.

Respondents' submissions

The matter should have been set down for 10 days not five. While accepting that was the agreed position before the Registrar the advice of senior counsel is that 10 days is required.
There is substantial overlap between an important and complicated issue in the Class 5 proceedings and one aspect of the Class 4 proceedings pressed by the Applicant concerning the construction and operation of a B-class WAL. It is more efficient for the parties if the outcome of the Class 5 proceedings is known to them before the Class 4 proceedings are litigated.
It is preferable that the Respondents retain the same counsel in the Class 4 matter as the Class 5 matter. Counsel is unavailable in November 2019 and is now not available until March 2020.
The November dates do not entirely suit the Respondents' expert although he can be available at some point in the week presently allocated.

Applicant's submissions

The hearing dates should remain at five days.
The B-class WAL issue which overlaps with the Class 5 case is a minor part of the Applicant's case.
According to Blacktown City Council v Wilkie [2001] NSWLEC 90 at [14], the Court does not generally accommodate the availability of counsel when setting hearing dates and that applies to the Respondents' counsel.
While the Applicant consented to two adjournments pending the Class 5 hearing, it never agreed to delay the Class 4 matter until judgment was delivered in the Class 5 case. It is likely that judgment will be delivered in the Class 5 matter in time for the November hearing dates and in any event the judgment in the Class 4 proceedings could be postponed until the Class 5 judgment is handed down.
Nothing has changed since the matter was set down for hearing by the Registrar for five days in November 2019.

Consideration

Relevant practice and procedure considerations are referred to in ss 57 (objects of case management) and 58 (court to follow dictates of justice) of the Civil Procedure Act 2005. An express power to adjourn matters at any time is referred to in s 66.
While the notice of motion refers to the vacation of hearing dates I consider that I am effectively reviewing the decision of the Registrar on 2 May 2019, some four weeks ago, to set the matter down in November 2019 as there is no material change in circumstances since then. The power of the Court to review a registrar's order is contained in r 49.19(1) of the Uniform Civil Procedure Rules 2005.
The Court must be satisfied that it is in the interests of justice and otherwise "reasonable" to depart from the Registrar's decision: Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 at [12]-[13], cited in Samcourt Pty Ltd v Inner West Council (No 2) [2017] NSWLEC 1691 at [5]. There is an onus on the party seeking to have a decision set aside or varied to make out a case that the court, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [6] and [10] (Hodgson JA, Ipp JA agreeing at [17]), followed in Groeneveld v Wollongong City Council at [11]. Preston CJ stated in Groeneveld v Wollongong City Council at [12]: What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights.
In the case of a decision on practice and procedure, demonstration of an error of law or a material change of circumstances will normally be required: Tomko v Palasty (No 2) at [9] (Hodgson JA, Ipp JA agreeing at [17]), cited in Groeneveld v Wollongong City Council at [12].
In relation to a review of the then registrar's decision fixing hearing dates, Bignold J in Blacktown City Council v Wilkie stated at [6]: … it must at the outset be emphasised that requests for such reviews obviously are not common and in order to ensure the efficient administration of the business of the Court, including the most efficient utilisation of judicial resources, requests for such reviews are not to be encouraged. It follows that as a general approach, the Registrar's decisions fixing hearing dates will only be set aside by the review process provided by the Rules of Court, if it can be shown that there are cogent reasons for interfering with what is conventionally accepted as one of the Registrar's principal functions in the overall discharge of the business of the Court.
Turning to the issues raised in submissions, disputation about the appropriate hearing length is unfortunate to say the least. Senior counsel for the Respondents advised that 10 days is necessary if all the issues presently in the Class 4 proceedings are to be litigated based on his experience in the Class 5 proceedings. That the Applicant considers the issue in relation to the B-class WAL a minor issue in its case does not mean that it is a minor issue. It is apparently a major issue in the Respondents' view as I am informed that this occupied a substantial part of the five day hearing of the Class 5 matter. It is preferable that a longer hearing period of 10 days be set to avoid the matter being part-heard. If the judgment in the Class 5 matter is delivered and one or both of the parties conclude that the hearing in the Class 4 matter can be truncated the matter can be returned to the list and the hearing dates adjusted accordingly.
The Applicant is correct to submit that the Court does not generally accommodate the availability of counsel where this causes undue delay in getting a hearing date. It is not a hard and fast rule. The Class 4 proceedings are significant and complex to the extent that can be gleaned from the amended summons which seeks 10 declarations in relation to an A-class WAL for three water years and two declarations in relation to a B-class WAL for a single water year. The consequential orders sought are the return of a substantial amount of water to the natural environment. It is likely that this is the first time such arguments have been determined in the Court. If the Applicant is successful in these Class 4 proceedings I consider the impact on the Respondents will be substantial. It is appropriate that they utilise the same senior counsel given the overlapping nature of the Class 4 and Class 5 proceedings and I accept the submissions in Ms Otavski's affidavit that briefing new senior counsel will be expensive for the Respondents. I should note that the Registrar was not told by the parties of the overlap between the Class 4 and Class 5 proceedings.
No evidence as to prejudice to the Applicant if the matter is further delayed with a hearing in early 2020 is before me. Its solicitor submitted from the bar table that if the Applicant is successful the longer the matter takes the longer for consequential orders for the return to the environment of water illegally removed by the Respondents to come into effect. Given the current drought conditions in western New South Wales the improvement of the environment is important. While the remedies sought by the Applicant are demonstrably important, the impact on the Respondents is likely to be substantial as already noted. Given that the Class 4 proceedings were commenced on 10 November 2017 and have been adjourned by consent on two occasions (appropriately I might add), a further delay in the hearing of three months (given the court vacation in January) is not inappropriate in the scheme of things.
While this is a matter of procedure and no error of law or material change in circumstances has been identified, I consider that on balancing up the various considerations referred to above, it is in the interests of justice that the matter be set down for 10 days in March 2020. If the judgment in the Class 5 matter is handed down and the parties consider that as a result the hearing date can be reduced, they are to return the matter to the court list within 21 days and advise of revised hearing dates. If by consent, the matter can be considered through Online Court communication.

Orders

I make the following orders in relation to the notice of motion dated 13 May 2019: 1. The order of 2 May 2019 fixing this proceeding for hearing for five days from 11 November 2019 be vacated. 2. The proceeding be listed for final hearing on 9 March 2020 for 10 days. 3. The parties are to restore this matter to the list within 21 days of judgment in the related Class 5 proceedings (2018/73936 and 2018/73940) being delivered if the parties consider a change in the hearing time is warranted. 4. Each party is to pay its own costs of the notice of motion dated 13 May 2019.

Amendments 24 February 2020 - Clerical error to name of Respondent's representative on cover page. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2020

(2009) 168 LGERA 260

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