EX TEMPORE Judgment
1On 1 April last I delivered a reserved judgment upon a notice of motion filed on behalf of the respondents in which they sought an order striking out parts of the points of claim filed on behalf of the applicants in each of these proceedings ( NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act 2000 [2011] NSWLEC 51 ( the principal judgment ). In each case I determined that the challenged parts of the points of claim should be struck out but I refrained from making orders at that time [97]. The matters pleaded and which were the subject of the respondents' notice of motion were common to each proceeding.
2The first of the challenged parts of the pleading alleged that in making or amending, as the case may be, a water sharing plan under the Water Management Act 2000 ( the Water Management Act ), the respondent Minister was required, but failed, to consider representations made on behalf of the respondents to some or all of the applicants as to the content and effect of the water sharing plan that was then yet to be made ( the mandatory consideration claim ). I determined that on the proper construction of the Water Management Act, no reasonable cause of action was demonstrated by this claim, as it was pleaded.
3The second part of the challenged claims sought to be struck out was an action in tort claiming damages for negligent misrepresentation ( the negligent misrepresentation claim ). The representations relied upon for the purpose of this part of the claim were the same representations that were sought to found the mandatory consideration claim. I determined that the negligent misrepresentation claim was not one that fell within the jurisdiction of the Court to determine.
4Notwithstanding my determination that these components of the claims made in each case could not be sustained, as I have said, I refrained from making formal orders striking out the relevant paragraphs at the request of the parties. The applicants in each case foreshadowed that, depending upon my determination of the notice of motion, they may wish to make a further application that would enable a single judge to determine all claims.
5The applicants in proceedings 40049 of 2007 ( the Arnold Applicants ) have filed a notice of motion, the effect of which is that either a judge of this Court or the Supreme Court be vested with jurisdiction to determine all claims that the applicants seek to propound. I record that although an opportunity so to do was afforded to the applicants, they have not, since the delivery of my judgment on 1 April, sought leave to amend the points of claim that were the subject of the strike out motion brought by the respondents. I also record that no notice of motion nor leave to amend pleadings has been filed by the applicants in the proceedings brought by NA & J Investments Pty Ltd (41292 of 2006) ( the Investments applicants ).
6The Arnold Applicants seek to sustain their application for determination of all claims by a single judge, vested with all relevant jurisdiction, on three bases. These are -
(i) in reliance upon the provisions of s 11A of the Land and Environment Court Act 1979 ( the Court Act ) or its counterpart provision in s 37B of the Supreme Court Act 1970 ( the Supreme Court Act );
(ii) s 149B of the Civil Procedure Act 2005 ( the Civil Procedure Act ), or
(iii) a special application whereby a judge of either this Court or the Supreme Court be given a temporary commission to exercise contemporaneously the jurisdiction of both Courts so as to facilitate resolution of proceedings in the manner sought.
7Section 11A of the Court Act and s 37B of the Supreme Court Act are essentially in the same terms. Their effect is to authorise a judge of one court to act as a judge in the other court for a particular period of time or in relation to a particular proceeding. The acting appointment requires the agreement of the judge concerned as well as the agreement of both the Chief Judge of this Court and the Chief Justice of the Supreme Court. In each case the relevant statutory provision requires certification by either the Chief Judge of this Court, if a Supreme Court Judge is to take up the acting appointment in this Court, or the Chief Justice, if a judge of this Court is to take up the acting appointment in the Supreme Court. The requirement for certification in each case is that "it is expedient" for the judge taking the acting appointment to do so in the other court.
8As I read the legislation, its purpose is to facilitate the exchange of judges between the two courts either by reason of the need for the existing judicial complement of one court to be supplemented by a judge of the other on a temporary basis, or having regard to the nature or subject matter of the particular proceeding, it is thought that the experience of a particular judge may better suit the resolution of the particular proceeding. Importantly, as I determined in the principal judgment, neither section by its own force confers jurisdiction on the court in which the appointee judge sits, where that jurisdiction is not otherwise conferred independently upon that court (principal judgment at [94]).
9As already indicated, I have determined that this Court has no jurisdiction to hear and determine the negligent misrepresentation claim. Appointment of a judge of the Supreme Court to this Court pursuant to s 11A of the Court Act would not alter this position. Equally, appointment of a judge of this Court to the Supreme Court pursuant to s 37B of the Supreme Court Act would not confer upon that judge jurisdiction to hear those claims of the applicants challenging validity of the relevant water sharing plans under the Water Management Act. Determination of such claims is within the jurisdiction of this Court pursuant to s 20(1)(df1) of the Court Act and s 47 of the Water Management Act.
10For these reasons, I cannot accept the submissions made by Mr King, appearing on behalf of the applicants, that implementation of either provision would empower the Court to resolve the proceedings in the manner that he seeks. In the course of his submissions, reference was made to the provisions of ss 52, 53 and 54 of the Constitution Act 1902. The effect of these submissions, as I understood them, was that removal from office of a Supreme Court judge or a judge of the Land and Environment Court could only be achieved by the Governor, "on an address from both Houses of Parliament in the same session" (s 53) and a holder of judicial office could not be suspended from office except in accordance with legislation (s 54). The submission maintained that as neither of those sections was invoked, the acting appointment of one judge from one court to the other did not deny to that judge the judicial office to which he or she was originally appointed. Therefore, if a Supreme Court judge was appointed to act in this Court, he or she continued to exercise the role and jurisdiction of that Court while also acting as a judge of this Court.
11It seems to me that appointment to act either in accordance with s 11A of the Court Act or s 37B of the Supreme Court Act does not amount either to removal or suspension from office. Neither section operates to affect the judicial appointment of that officer: the relevant section only operates to identify the jurisdiction that is being exercised during the temporary or acting appointment. The continuation of the original appointment is preserved by subsection (3), paragraphs (c), (d) and (e) of each of the relevant sections. I find no substance in this argument.
12Section 149B of the Civil Procedure Act permits the transfer of proceedings between this Court and the Supreme Court. Subsection (1) of that section relevantly provides as follows -
"(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court."
Subsection (2) of that section has no present relevance as I am told that none of the Arnold Applicants have commenced proceedings in the Supreme Court. By s 149E the transferee court may exercise the jurisdiction of the transferor court in relation to the proceedings.
13There are two matters to be noticed in relation to s 149B(1). The first is that it provides a discretion as to the course to be taken. So much follows not only from the use of the word "may" but also the fact that a determination is to be made that it is "more appropriate" for proceedings to be heard in the other court. I will return to this matter shortly. The second matter arises from the phrase "in relation to the proceedings before it".
14The respondent submits that the phrase "in relation to the proceedings before it" means proceedings that have been lawfully commenced in the court from which transfer is sought. If that court lacked jurisdiction to entertain those proceedings from the outset then, so the argument runs, they were not "proceedings before it" and thus no basis for transfer lawfully exists.
15I am inclined to the view that this submission is not correct, particularly having regard to the "mischief" which the section and its predecessor provisions in s 72 of the Court Act (prior to amendment) was intended to address. However, in light of the decision that I have reached in relation to this application, it becomes unnecessary to determine this particular question.
16Clearly enough, the provisions of s 149B(1) do not enable proceedings to be separated or split. That is, if transfer was otherwise considered appropriate, it is not possible to retain part of the proceedings in this Court and part in the Supreme Court. The entire proceeding must travel as one.
17The essential factual premise upon which the applicants place their claim for transfer is the expediency of having all evidence related to their claims, properly brought within the jurisdiction of this Court, heard together with their negligent misrepresentation claim. However, it seems that this factual basis has proceeded, at least in part, upon a false premise. I have determined that the mandatory considerations claim is not a reasonably sustainable claim. Thus, the representations upon which reliance is placed for the purpose of the negligent misrepresentation claim would not, on the basis of the pleading amended by my determination, be relevant to the determination that properly falls within the jurisdiction of this Court.
18The claims brought by the applicants that are accepted as being within the jurisdiction of this Court are essentially claims invoking principles of judicial review. They challenge the validity of the relevant water sharing plans on the basis that -
(i) the Minister failed to take into account relevant considerations, 12 in number being identified;
(ii) the Minister took into account irrelevant considerations;
(iii) the Minister's decision was irrational; and
(iv) the Minister failed to comply with mandatory statutory procedures.
All of these claims are founded upon the provisions of the Water Management Act .
19The other claim, falling within the jurisdiction of this Court, is a claim that there was a failure to provide compensation under the Lands Acquisition (Just Terms Compensation) Act 1991. That claim involves the interaction between the latter Act and the Water Management Act. There is also a claim that I think is still sought to be sustained under the Constitution. That claim ultimately asserts an acquisition of property other than on just terms.
20I recite the nature of the claims brought within the jurisdiction of the Court in order to demonstrate that the issues necessarily arising in the determination of those claims bear little, if at all, upon the matters necessary to be determined should the proceeding travel as one and involve determination of the negligent misrepresentation claim. Having determined that the mandatory considerations claim directed to the representations cannot be sustained in the proceedings properly brought in this Court, there is really no relevant factual nexus between the remaining claims and the negligent misrepresentation claim.
21In those circumstances, I conclude that it is "appropriate" that the proceedings commenced in this Court be continued and determined in this Court and that it is not appropriate for proceedings that include a claim for negligent misrepresentation to be transferred to the Supreme Court. Those matters that fall within the jurisdiction of this Court can be determined within a relatively short period of time involving as they inevitably must, focus upon a documentary case. Conversely, the negligent misrepresentation claim is likely to involve considerable lay and expert evidence directed, amongst others, to issues that I identified in the principal judgment at [75] and [76]. Indeed, Mr King candidly informed me in the course of argument in this application that it was desired to have approximately 120 of the applicants give evidence.
22I earlier indicated that there was a third basis upon which Mr King submitted that this Court should act in a way which would enable all proceedings to be heard together. That involved the granting of a special commission to a judge so that the judge would exercise the jurisdiction of both courts. In light of the matters that I have identified in the preceding paragraphs, it seems to me inappropriate to endeavour to seek the making of any special arrangements of that kind.
23In the result, I propose to dismiss the notice of motion filed on 15 April 2011 on behalf of the Arnold Applicants. As I have earlier recorded, no notice of motion was filed on behalf of the Investments Applicants. In consequence, paragraphs 15E, 16E and 43 to 48 in the Second Amended Points of Claim filed by the Arnold Applicants will be struck out. In the proceedings brought by the Investments Applicants, paragraphs 17E, 18E and 50 to 55 of the Third Amended Points of Claim will be struck out.
24There remains to be determined the question of costs. Having succeeded in their notice of motion, the respondents seek an order that the applicants in both matters pay their costs of that notice of motion. That order is opposed by the applicants.
25Mr King, on behalf of the applicants, acknowledges the provisions of s 98 of the Civil Procedure Act and the provisions of Uniform Civil Procedure Rule r 42.1, the effect of which is that the costs of proceedings, even interlocutory proceedings of this kind, should ordinarily follow the event. Nonetheless, the Court retains a discretion to make an order that does not reflect what I might call "the usual rule".
26Mr King opposes the making of an order and alternatively seeks an order that the respondents pay the applicants' costs on three bases. First, he submits that because of the amendment of the notice of motion, as originally filed, there were costs incurred by the applicants, those costs being costs which ought properly to be borne by the respondents. Second, he says that the delay that had been occasioned in bringing the challenge, ultimately successful, would militate against any order and may indeed support the making of an order in his client's favour. Third, he submits that costs ought not be determined adversely to his clients on the basis that the matter raised an important issue as to the Court's jurisdiction and the applicants effectively represent a large section of the community having an interest in the determination of that issue.
27It is certainly true that the notice of motion originally filed by the respondents was one that sought to have struck out a significant number of paragraphs from the amended points of claim filed in each matter on 1 April 2010. On the first return date of the notice of motion the respondents were directed by the Registrar to give particulars, indicating the basis upon which each of the paragraphs nominated in the original notice of motion was sought to be struck out. Those particulars were given sometime between 10 and 17 June 2010. The respondents were also directed to file their written submissions in support of the notice of motion which had then been fixed for hearing. Those submissions, it would appear, were filed on or about 25 June. It would therefore seem that between a date shortly prior to 17 June and the filing of submissions on 25 June, some costs may possibly have been incurred by the applicants in considering the various bases upon which the respondents had indicated they would seek to strike out parts of the points of claim.
28However, the respondents' submissions filed and served on 25 June made their position clear. Those submissions indicated at their outset that the respondents restricted the challenges which they would make to the two matters that are the subject of my principal judgment. Indeed, annexed to the respondents' submissions was the draft of an amended notice of motion which so confined the challenges made. In as much as the amended notice of motion reduced the number of matters to which challenge was made, the result was that the initially challenged paragraphs remained in the points of claim and as a consequence remain matters that will be agitated in the principal proceedings.
29For my part I would have thought that any costs incurred by the applicants in the space of approximately one week would, in the scheme of things, be relatively small, given the limited time upon which they were on notice of the matters that the respondents wished to agitate. Their subsequent withdrawal from the strike-out motion left those same matters for determination in the principal proceedings.
30The second matter that was raised on behalf of the applicant is the question of delay. That question needs to be considered separately in each set of proceedings.
31In the case of the Arnold Applicants there was an intervening event which seems to have had a significant effect upon the conduct of the proceedings. That significant event was the filing of a notice of motion by the Commonwealth, then a party to the proceedings, seeking to challenge the jurisdiction of the Court to make orders of the kind that were sought in the initiating process. That aspect of the proceedings led to an appeal to the Court of Appeal ( Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; (2008) 73 NSWLR 196) and ultimately to the High Court ( Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; (2010) 240 CLR 242).
32It seems (and it would seem sensible) that while appeal proceedings were pending in each of those courts, the parties did little, if anything, to progress the proceedings. In fact, there is an inference to be gained from some of the documents before me that the inactivity in those proceedings was the product of an agreement among the parties that the matter should be kept on hold, given the potential impact which any determination made by the appeal courts might have on the further conduct of those proceedings.
33Once the decision of the High Court was handed down in February 2010 the evidence reveals that the respondents suggested to the applicants that they may wish to consider the filing of amended points of claim. That is what the applicants did. It was in response to those amended points of claim headed Second Further Amended Points of Claim, filed on 1 April 2010, that the respondents filed the notice of motion which resulted in the principal judgment which I delivered.
34It is true that in the earlier iterations of the pleadings, claims identifying misrepresentation, although not framed as a cause of action in negligence for misrepresentation, were raised in the pleadings. However, it is also true that at an early stage when allegations of that kind were pleaded, that is to say in 2007, the Crown Solicitor, acting for the respondents, signalled to the applicants that a question of jurisdiction arose as to the capacity of the applicants to maintain those proceedings in this Court. Those questions having been raised, to the extent to which any further action was taken, the applicants appear to have acted on the basis that they could sustain any challenge in that regard.
35In the case of claim by the Investment Applicants, the position is a little different. In their proceedings and as a result of some interlocutory processes, they amended their points of claim. They deleted from an earlier iteration of their pleadings, any claim founded upon the tort of negligent misrepresentation. So much appears from the document headed Second Further Amended Points of Claim which in mark-up mode, shows those parts of the claim to be struck out. It is true that within that claim there is maintained, as part of the judicial review claim, an assertion that representations were made in terms if not identical then similar to those pleaded in the succeeding pleading. It is pleaded that those representations led to a failure in making of the water sharing plan resulting in "an anomalous manner of exercise of the discretionary function" or manifesting an exercise of that function "in bad faith".
36As I understand the evidence before me, further issue as to the Court's jurisdiction was taken with that allegation by the Crown Solicitor. This ultimately led to the further iteration of the points of claim in which the negligent misrepresentation claim was pleaded and the relevant paragraphs in what I have earlier called the mandatory consideration claim were recast. It was, as I have said, that further iteration of the points of claim which were filed on 1 April and which resulted in the notice of motion which ultimately came before me for determination.
37The third matter that needs to be addressed is the interest which the applicants clearly have in the question of jurisdiction. It was put that the issue of jurisdiction to entertain the negligent misrepresentation claim involved some exploration of areas of the law that had not previously been considered or at least considered in any significant way. For my part, I have difficulty accepting that submission. As I indicated in the principal judgment, the Chief Justice in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 stated (at 580) in the clearest possible terms that s 16 of the Court Act did not contemplate and could not be interpreted as contemplating that an action for damages in tort would fall within the Court's jurisdiction. Quite why the claim for negligent misrepresentation should be seen to fall outside that clear statement was not made apparent to me in the course of submissions. I accept that since Stables Perisher s 16(1A) has been inserted in the Act but that section, while the subject of consideration by the Court of Appeal in Tubbo Pty Ltd v Minister Administering Water Management Act 2000 ; Harvey v Minister Administering Water Management Act 2000 [2008] NSWCA 356, is nonetheless a provision that does not alter in any significant way the observations made by the Chief Justice in Stables Perisher .
38I accept that the applicants in these proceedings have a significant interest in the jurisdictional issue and that they represent a significant number of members of the farming community in south western New South Wales affected by the water management plans that are the subject of these proceedings. However, it must also be observed that they bring the proceedings not for some altruistic purpose by endeavouring better to have explained an aspect of environmental law or, more particularly, to have explained the intricacies of the Water Management Act itself. Rather they bring the proceedings in their own interests because of the apparent economic effect that the plans have upon their continuing farming activities. While, as I have said, the commencement of the proceedings by them is perfectly understandable, the protection of their own economic interests, to my mind, takes them outside the normally accepted principles that would apply to the determination of costs payable by a public interest litigant. Their position, in the context of proceedings of this kind, are reflected in the judgment of Biscoe J in Arnold v Minister Administering the Water Management Act 2000 (No 4) [2009] NSWLEC 87, given in an interlocutory application involving the Arnold Applicants. The observations made by his Honour at [26] of the judgment remain apposite to the current proceedings.
39For these reasons I am disposed to make an order for costs in favour of the respondents in both sets of proceedings, pertaining to the notice of motion by the respondent, the amended form of which was filed in July last. Further, there is no reason why the ordinary costs consequence should not follow in the case of the notice of motion filed by the Arnold Applicants in their application to have the negligent misrepresentation claim heard by a single judge. They have been unsuccessful in that application, in particular they have been unsuccessful in persuading the Court that there is any statutory basis for the exercise of the jurisdiction which they seek to invoke.
40The orders that I make therefore are these:
In proceedings 41292 of 2006 (the claim by the Investment Applicants):
- Strike out paragraphs 17E, 18E and 50 to 55 inclusive of the Applicants' Third Amended Points of Claim.
- Direct that the applicants file and serve amended points of claim deleting those paragraphs ordered to be struck out by Order 1.
- The applicants are to pay the respondents' costs of the amended notice of motion filed 12 July 2010, being costs also ordered to be paid by the applicants in proceedings 40049 of 2007.
- Direct the applicants to notify the respondents of that lay evidence already filed upon which they intend to rely, such notification to be given by 12 August 2011.
- Direct that the applicants notify to the respondents by 12 August 2011 the nature of any additional lay evidence upon which they intend to rely.
- Direct that the applicants notify to the respondents the identity of experts intended to be retained and the scope of the expert evidence expected to be the subject of the reports of those experts, such notification to be given by 12 August 2011.
- Stand over the proceedings to the list judge on Friday 19 August 2011.
In proceedings 40049 of 2007 (the claim by the Arnold Applicants):
- Strike out paragraphs 15E, 16E and 43 to 48 inclusive of the Applicants' Second Further Amended Points of Claim.
- Direct that the applicants file and serve amended points of claim deleting those paragraphs ordered to be struck out by Order 1.
- The applicants are to pay the respondents' costs of the amended notice of motion filed by the respondents on 12 July 2010, being costs also ordered to be paid by the applicants in proceedings 41292 of 2006.
- Dismiss the applicants' notice of motion filed on 15 April 2011.
- The applicants are to pay the respondents' costs of the notice of motion filed on 15 April 2011.
- Direct that the applicants notify to the respondents the identity of experts intended to be retained and the scope of the expert evidence expected to be the subject of the reports of those experts, such notification to be given by 15 July 2011.
- Direct that the applicants serve upon the respondents an outline of the evidence intended to be adduced by each lay witness, such outline to be served by 12 August 2011.
- Stand over the proceedings for further directions to the list judge on Friday 19 August 2011.