NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act 2000

EX TEMPORE Judgment 1These proceedings are before me for case management in order that they may be prepared for trial. Also before me is a notice of motion filed on 26 August 2011 on behalf of the respondents in which they seek directions for the further conduct of these proceedings. That notice of motion in effect seeks orders of a kind that might be made at a case management hearing. 2The applicants' proceedings ( Arnold v Minister Administering the Water Management Act 2000 ) are of long standing. They were commenced in 2007. As is reflected in the most recent pleading, being the applicants' third further amended points of claim filed on 18 July 2011, the proceedings have as their foundation the making of a Water Sharing Plan for the Lower Murray ground water source, a Plan made by the Minister in October 2006 pursuant to the provisions of the Water Management Act 2000. 3The basis upon which the applicants make their claim is threefold. First, they challenge the validity of the decision of the Minister to make the Plan on administrative law principles directed to judicial review of an administrative decision. The bases upon which judicial review is sought are conventional. The applicants allege that in making the Water Sharing Plan the Minister failed to take into account relevant considerations; that he took into account irrelevant considerations; that the decision was irrational and, to the extent that there is a difference from the first two grounds upon which judicial review is claimed, there was a failure to comply with nominated statutory requirements of the Water Management Act in making the Water Sharing Plan. 4The second basis of claim is that upon the Water Sharing Plan being made, it effected the acquisition of an interest in land for which compensation is payable pursuant to the Lands Acquisition (Just Terms Compensation) Act 1991 ( the Just Terms Act ). In terms, this claim is pleaded as an appeal pursuant to s 67 of the Just Terms Act. 5The third basis of claim is founded upon s 100 of the Constitution. As I understand this claim, it is said that either the Minister failed to consider s 100 in the making of the Water Sharing Plan, or by its operation, that plan has been made in contravention of the rights of the applicants under that section. Further, it is pleaded that in making the Plan the respondent acted in breach of s 51(xxxi) of the Constitution. 6The second basis of claim that I have identified is clearly one that will only arise should the applicants be unsuccessful in their first basis of claim. That is, it is dependant upon it being established that there was, by the valid making of the Water Management Plan, an acquisition of an interest in land. If the Water Sharing Plan is invalid then there has been no acquisition of an interest in land and thus the provisions of the Just Terms Act will not be engaged. 7Further, in relation to this second basis of claim, it is important to notice that it is brought in reliance upon s 67 of the Just Terms Act. As such, that claim has not been properly included within the present proceedings. The proceedings have been commenced in Class 4 of this Court's jurisdiction. While proceedings under the Just Terms Act are assigned to this Court for determination, by the combined operation of s 19(e), and ss 23 and 24 of the Land and Environment Court Act 1979 ( the Court Act ), claims arising under the Just Terms Act are assigned to Class 3 of the Court's jurisdiction. Section 67 of the Just Terms Act provides, in terms, that claims brought under that section are to be brought in this Court. Thus, they fall within Class 3 of the Court's jurisdiction. 8This distinction between the classes of jurisdiction in which proceedings are brought is of importance. Proceedings brought within Class 3 are proceedings able to be heard by a commissioner of the Court or by a judge sitting with a commissioner (see s 33 of the Court Act). That is not the case in respect of proceedings brought in Class 4 of the Court's jurisdiction. 9Further, the provisions of the Court Act pertaining to evidence apply differently to Class 3 proceedings than they do to Class 4. By s 38(1) of the Court Act, the Court is enjoined to conduct proceedings falling within Class 3 of its jurisdiction "with as little formality and technicality ... as the proper consideration of the matter before the Court permits". As the section also provides, in so conducting such proceedings, the Court is not bound by the rules of evidence. The provisions of s 38 are in marked contrast to the position that pertains when determining proceedings brought in Class 4 of the Court's jurisdiction. 10Also of significance in this context are the appeal provisions of the Court Act. The right of appeal in respect of a matter determined in Class 3 of the Court's jurisdiction can only be exercised in respect of a decision of the Court on a question of law (ss 56A and 57). In respect of proceedings brought in Class 4 of the Court's jurisdiction, exercisable only by a judge of the Court, the right of appeal to the Court of Appeal is available on all grounds (s 58). 11I have raised these matters in order to indicate that the claim founded on s 67 of the Just Terms Act must properly be separated from the other two bases of claim identified in the applicants' pleading. So to require involves a proper application of the provisions of the Court Act to which I have referred and in no way involves an application of the provisions of Pt 28, r 28.1 of the Uniform Civil Procedure Rules ( UCPR ). Section 31 of the Court Act allows an irregularity of the present kind to be addressed by either party or by the Court of its own motion (s 31(1)). In exercise of the power available under s 31(2)(b), an order should be made in these proceedings requiring that the second basis of claim involving an appeal pursuant to s 67 of the Just Terms Act be separated from the present Class 4 proceedings. This can be done by filing an appropriate document in the Registry indicating that the claim as framed by reference to the Just Terms Act be a proceeding in Class 3. No further formality need attend that requirement other than to extract from the present Class 4 proceedings so much of the pleaded claim as relates to the Just Terms Act that will then become part of the Class 3 proceeding. 12The requirement just identified will have the consequence that the claim under the Just Terms Act will be separately determined. Apart from the matters to which I have already adverted, this has a practical consequence for the determination of the proceedings that properly fall within Class 4 of the Court's jurisdiction. As I have already indicated, the claim for compensation will only arise if the applicants are unsuccessful in challenging the validity of the Water Sharing Plan on the grounds for judicial review which they have pleaded. That aspect of the proceedings should first be considered. 13There are 120 applicants in these proceedings. Mr King, who appears on their behalf, has indicated that he proposes to call all, or almost all, of the applicants to give evidence. He requests that the Court sit in either Deniliquin or Albury to hear this evidence, given that the Water Sharing Plan affects properties in South Western New South Wales. He anticipates that this evidence may occupy the Court for two to three weeks. Given the basis upon which the action has been pleaded by reference to the claim for judicial review, the likely relevance of evidence from each of the applicants is not immediately apparent. 14Further, it is, and has for some years past been, the practice of this Court to require that the evidence in chief of witnesses to be called in Class 4 proceedings be by way of affidavit. The Court's current Practice Note pertaining to Class 4 proceedings requires as much. However, that requirement has been resisted by the applicants. The cost of so doing has been identified as the essential reason for that resistance. 15When this matter was before me in June last, the matter of affidavits to be filed on behalf of the applicants was raised with Mr King. It was then that he indicated the resistance of his clients to filing affidavits by reason of the substantial costs involved. Because the relevance of the evidence to be given by each of the applicants in support of their case for judicial review was not readily apparent, and was not made apparent by Mr King at that time, I directed that, in the first instance, there be provided by the applicants to the respondents an outline of the evidence likely to be given by each applicant to enable consideration to be given as to whether their evidence was likely to be admissible, having regard to the grounds of challenge pleaded. As the transcript reveals, the possibility of affidavit evidence being required was left open. At that time, Mr King drew attention to the provisions of s 192A of the Evidence Act 1995 as a means by which the relevance of that evidence could be addressed once the outlines of evidence were provided. 16Regrettably, the direction then given for an outline of evidence from each of the applicants has not been observed in any substantive way. Approximately 10 documents described as an outline of evidence of ten applicants were provided on behalf of the applicants to the respondents, with an indication that the evidence of the remaining applicants would be in the form of a pro forma prcis of evidence that was then provided. Those outlines of evidence, including the pro forma outline, were couched in very general terms so that much detail was left for oral explanation. The need for these outlines of evidence to be supplemented by oral evidence was accepted by Mr King. 17While the generality of these outlines of evidence did not fulfil the purpose of the earlier direction that I had given, tentative as that direction was as to the ultimate use of such outlines as a precursor to the potential need for affidavit evidence, the material contained in them sufficiently demonstrated the need to question the likely admissibility of the evidence to be given by each applicant. In so saying, I express no concluded view as to the ultimate admissibility of evidence given by way of explanation and elaboration upon the matters identified in the outlines. However, having regard to the grounds of challenge identified under the rubric of judicial review, the admissibility of that evidence is very much a live and important issue to be considered in managing the preparation of this matter for hearing. 18In their notice of motion of 26 August, the respondents seek two directions. First, they seek a direction that evidence be by way of affidavit and second that once the affidavit evidence is filed, there be a determination of the admissibility of that evidence prior to the commencement of the hearing proper. They seek such determination either in accordance with the provisions of s 192A of the Evidence Act or consistently with the provisions of s 61 of the Civil Procedure Act 2005. 19The orders sought by the respondents are opposed by the applicants. They press that evidence be received from in excess of 100 of the applicants at a hearing convened for that purpose in South Western New South Wales and that such evidence be led from them individually based upon the outlines of evidence that have been served. It is submitted that if the evidence of all those intended to be called is required to be reduced to affidavit form not only would there be considerable delay occasioned in the preparation of the matter for hearing but that costs in the order of $100,000 would be incurred in the preparation of those affidavits. 20On behalf of the applicants, Mr King submits that the requirement for the preparation of affidavits would be inconsistent with the relevant provisions of the Civil Procedure Act . He identifies in particular those provisions contained in Div 1 of Pt 6 commencing with s 56, expressing the overriding purpose of the Act and rules in their application to proceedings of this kind. That purpose is to facilitate the just, quick and cheap resolution of the real issues in dispute. 21Reference is also made to the provisions of ss 57 and 58 of the Civil Procedure Act by which the legislature has identified those matters to be considered when giving effect to the overriding purpose. Quite correctly, he identifies the provisions of s 58 which enjoins the Court to act in accordance with the dictates of justice when making a procedural order or giving directions sanctioned by s 61. Those matters that are relevant to the determination of "the dictates of justice" are identified in s 58(2) and include the objects of case management identified in s 57. 22In giving effect to these provisions, it is necessary not only to have regard to the position advanced on behalf of the applicants but also to consider the position of the respondents, as well as the efficient use of judicial resources and disposition of all proceedings in the Court. One consequence of acceding to the request of the applicants would involve the Court arranging for a judge and administrative staff to be involved in a hearing over a number of weeks at a court facility in south western New South Wales. In an appropriate case arrangements for that to occur no doubt could and would be made. The fact that it involves a judge and support staff being taken from Sydney for a lengthy period is, nonetheless, a factor to be considered. However, the determination of an appropriate venue is a matter to be considered in due course. 23The fundamental problem to be resolved for present purposes is one directed to the step that must be taken before the venue of a final hearing is determined. The effect of the application made on behalf of the applicants is that a large body of lay evidence is sought to be adduced orally with only the broadest of outlines of that evidence provided to the respondents. As I have said, much of the detail, potentially important, is to be provided in the course of that oral evidence. This process will take a considerable amount of time. The process of leading evidence in the manner suggested from in excess of 100 witnesses and then allowing appropriate cross-examination of those witnesses, in my opinion, is likely to take many more weeks than the estimate of two to three weeks provided by the solicitor for the applicant. 24While the time necessary to be set aside for the purpose of hearing the case will be accommodated by the Court, the time taken to receive that evidence is important in the present context where the relevance of the evidence sought to be adduced is not readily apparent to a claim that seeks judicial review of the Minister's decision on the grounds earlier identified. Obviously, no decision as to the ultimate relevance of that evidence can be made until its precise detail is exposed. Such a decision could not be made based upon the outlines of evidence presently served, such as they are. Moreover, the generality of those outlines does not reasonably permit the respondents to consider the evidence that they may wish to lead in response. 25I return then to the provisions of the Civil Procedure Act . While it may seem that there is cost and inconvenience occasioned to the applicants if directed to file their evidence by way of affidavit, if this is not done and the matter proceeds as the applicants wish, there will be a very considerable cost incurred by the applicants as well as the respondents and also the Court in convening a hearing away from Sydney over a number of weeks. This has potential significance if it is ultimately determined that the evidence sought to be adduced by the means proposed is in whole or at least substantial part, irrelevant to the judicial review grounds of challenge that the applicants seek to make good. 26I acknowledge the practical difficulty that may be experienced by Mr Taylor, the applicants' solicitor, in preparing in excess of 100 affidavits in proper form and the expense that may be occasioned to the applicants if that course is pursued. However, it seems to me that such a concern is a matter that should properly be addressed within the applicants' camp. If, upon proper consideration of the legal principles, it is considered that such evidence is likely to be admissible, having regard to the case as presently pleaded, then no doubt the exercise will be undertaken and the respondents will be at risk of costs if the applicants are ultimately successful. Moreover, assuming admissibility, the respondents will be in a position to identify the evidence which they need to address, with consequent efficiency in conducting the trial. 27Taking proper account of the dictates of justice, including the potential injustice that would be suffered by the respondents if the matter proceeds to trial on the basis of the outlines of evidence presently filed, I do not identify any good reason that would militate against adherence to the Court's Practice Note, requiring that evidence in chief to be given by witnesses should be by way of affidavit served in advance of the hearing. 28I should make clear that my remarks hitherto have generally focused upon proceedings 40049 of 2007, being the proceedings known as Arnold v Minister Administering the Water Management Act 2000 . In those proceedings I am disposed to direct that the evidence in chief of the applicants in these proceedings be by way of affidavit. Once that evidence has been filed, the respondents will be in a position to assess it and make such application as they may be advised to have determined, in advance of the hearing if appropriate, the extent to which that evidence is admissible, such application being made either under s 192A of the Evidence Act or under s 61 of the Civil Procedure Act . If such an application is successfully made, an argument directed to admissibility could take place within a relatively short hearing, certainly one that would be considerably shorter than that which might otherwise occur if the course of hearing proposed on behalf of the applicants was the course that the Court followed. 29Clearly enough the evidence to be adduced by way of affidavit is that necessary to address the two bases of claim that are left after removal of the claim based upon the Just Terms Act. That latter claim is, as I have said, for another day. 30My proposed direction that the lay evidence to be adduced on behalf of the applicants be by way of affidavit does not compel each applicant to swear an affidavit. It simply requires that following proper consideration on the part of the applicants' legal advisors, the evidence of each of those applicants seen to be relevant to the two bases of challenge be the evidence adduced in affidavit form. 31The filing of this evidence would also enable consideration to be given to any application that the respondents seek to make for determination of a separate issue or question pursuant to UCPR 28.2. In so saying, I do no more than identify the fact that the respondents had foreshadowed such an application although they did not press for it at the present time. Understandably, the respondents seek to know the content of the lay evidence that will be adduced before making any decision upon such an application. 32In proceedings 41292 of 2006, being the proceedings NA & J Investments Pty Ltd v Minister, I foreshadow making a similar direction. They are also proceedings of long standing, having been commenced in 2006. I acknowledge that there are fewer applicants in those proceedings but there are still about 40 in number so that, in principle, the same considerations that I applied in considering the Arnold matter apply to my consideration of these proceedings. The basis of challenge to the Minister's decision to make a Water Sharing Plan is essentially the same. Once again, the direction will require that the evidence in chief of any lay witness intended to be called must be prepared by way of affidavit that is filed and served. 33The time by which affidavits in each matter are to be prepared, filed and served was not the subject of debate before me. It will therefore be necessary for the parties to bring in short minutes reflecting my determination to direct the filing and serving of affidavits in respect of lay evidence and the time by which this should be done. No doubt the number of affidavits proposed to be filed in each case will depend upon the advice given in that regard and, as a consequence, it will affect the reasonable time required for those affidavits to be prepared. It is to be hoped that the parties can agree upon an appropriate timetable for this to occur and that this agreed position can be incorporated into the short minutes to be prepared. The short minutes should also reflect the direction for separation out of the second basis of claim in each proceeding, namely that which is founded upon the provisions of the Just Terms Act.