Pierce v Minister Administering the Water Management Act 2000

Land and Environment Court (NSW)|2012-03-02|Before: Pepper J

The Applicant Applies to Transfer Proceedings from the Land and Environment Court to the Supreme Court 1This is an oral application made by the applicant at the commencement of the hearing of the proceedings, to transfer the matter from this Court to the Supreme Court pursuant to s 149B of the Civil Procedure Act 2005 ("the CPA"). The application was not opposed. 2Because I am satisfied that the Supreme Court is a more appropriate Court for the proceedings to be heard in for the reasons that follow, the proceedings are transferred. 3It is convenient to first set out the circumstances giving rise to the application for transfer.

The Applicant Seeks Rectification of the Water Access Licence Register 4By amended summons, filed 8 August 2011, the applicant has principally sought declaratory relief against the first respondent ("the Minister") and the second and third respondents, in respect of the Minister's decision to register the second respondent, rather than the applicant, as having the benefit of a Water Access Licence on the Water Access Licence Register ("the Access Register") under the Water Management Act 2000 ("the WMA"). 5The applicant has also sought an order that the Minister cause the Access Register to be changed to record the name of the applicant instead of the second respondent.

Factual Background to the Application 6The second and third respondents are the executors of the estate of Mrs Dee Greenwell. Mrs Greenwell died in 2008. 7The deceased had lived on a rural property know as "Doma". In June 1992 the deceased and her husband were granted a water licence for a period of five years. 8In September 1995 a licence agreement was entered into between the applicant and the deceased. This agreement provided that the applicant was the occupier of the property but that no right of exclusive occupation of the property was conveyed on the applicant. 9On 6 September 1996 the applicant applied to replace the deceased's licence. He was granted a separate water licence in his own name. This licence was renewed in February 2003 and again in February 2007. 10In her will, the deceased gave the whole of her estate to her executors to be held in trust for the benefit of, amongst other people, the applicant in a "4/20th" share of her estate. Her estate included "Doma". 11In April 2009 the executors leased the property to the applicant and his partner, Ms Geary, as joint tenants for a term of six months. The lease expired in December 2009. 12On 1 August 2009 the Minister recorded the deceased as the registered proprietor of a Water Access Licence in relation to Doma pursuant to the WMA. The Minister did so on the basis that the landowners on the appointed date, the executors, were not the current occupiers, namely, the applicant, and therefore, by operation of the WMA, the deceased was deemed to be the owner of the Water Access Licence. 13By deed dated 14 September 2009, the applicant took ownership of Doma in satisfaction of the bequest for the sum of $625,000. At the time this agreement was made, the existence of the water licence held by the applicant was not disclosed by him to the executors. Similarly, the applicant did not disclose that the deceased had also owned a water licence. This was discovered by the executors in February 2010. 14The applicant claims that as at August 2009 he was the landowner and the current occupier of the property for the purposes of the WMA, or alternatively, because he was the successor in title, he was entitled to the ownership of the property and thus should have been granted the Water Access Licence. 15The applicant argues that as at August 2009 he had an agreement to acquire the land with the executors of the estate which was specifically enforceable in equity. As a consequence, the conveyance of the land included the owner's entitlement to be issued with a replacement Water Access Licence, that is to say, the licence that was issued to the second respondent. Thus, the applicant argues that he has a proprietary interest in Doma which prevails ahead of the vendors' legal interest and he is therefore the owner of the property for the purposes of the WMA. 16Alternatively, the applicant argues that he has an unregistered equitable interest in his favour preventing the executors from obtaining or retaining the benefit of their registered ownership of Doma, which therefore entitles him to the Water Access Licence.

The Court Raises a Question of Jurisdiction 17At the outset of the hearing the Court raised for consideration with the parties whether or not it had jurisdiction to hear the matter. This is because on the face of the amended summons it appeared that it did not. 18While the Court is a superior court of record, its jurisdiction is exclusively defined by the Land and Environment Court Act 1979 ("the LEC Act"). Under s 20(1)(df1) of the LEC Act the Court has limited jurisdiction to "hear and dispose of" proceedings under ss 335 and 336 of the WMA. 19These provisions provide as follows: 335 Land and Environment Court may grant injunctions On the application of the Minister, the Land and Environment Court may grant an injunction directing any person to whom a direction has been given under this Part to comply with the direction. 336 Restraint of breaches of this Act (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. (4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling body), having like or common interests in those proceedings. (5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (6) If the Land and Environment Court is satisfied that a breach has been committed or that a breach will, unless restrained by the order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. (7) In this section, "breach" includes a threatened or apprehended breach. 20Thus power is conferred on the Court to grant injunctive relief (s 335) and to make orders "to remedy or restrain ... a breach of" the WMA (s 336(1)). 21The amended summons does not seek any relief by way of restraint or injunction. It does allege, at a very high level of generality, a breach of the WMA. However, the applicant has not and could not when pressed identify how the WMA has been breached by the Minister or the second and third respondents 22The applicant tentatively referred to Sch 10 cls 3 and 10 as a source of possible breach. These clauses concern the conversion of former entitlements to water under now repealed water legislation to access licences and approvals under the WMA. But the clauses do no more than describe the transitional mechanisms by which water entitlements that were in existence immediately before the promulgation of the WMA are carried over and replaced by new entitlements under that Act. They are not provisions that render themselves to breach per se. They do not, therefore, enliven the jurisdiction of the Court pursuant to ss 335 or 336 of the WMA. 23Reference was also made to s 71A of the WMA. But again that provision does not speak to any breach by the Minister and none is revealed on the applicant's case. 24Section 368 of the WMA equally does not assist the applicant. That provision permits appeals to this Court in respect of the decisions made by the Minister referred to in that provision. In particular, s 368(1)(fa) permits an appeal to this Court from: (fa) a decision: (i) in relation to the recording of any matter in the Access Register, or (ii) in relation to the issue of any access licence certificate 25However, these proceedings are not constituted as an appeal and even if they were, any appeal must not be made more than 28 days after the date upon which the decision by the Minister was made. That time has long since lapsed. Furthermore, any such appeal would not be proceedings in Class 4 of this Court's jurisdiction. 26Finally, s 47 of the WMA confers jurisdiction on this Court to seek judicial review of the validity of a plan of management made under the Act. Clearly that section has no application here. 27While the Court has an ancillary jurisdiction pursuant to s 16(1A) of the LEC Act, absent any breach by any of the respondents of the WMA, there is no matter 'ancillary' to another matter that would enable recourse to this appended jurisdiction ( Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; (2008) 73 NSWLR 196; (2008) 163 LGERA 429 at [66]-[81]). 28It therefore appears that, as the proceedings are presently constituted, the Court does not have jurisdiction to entertain the application. 29This may be contrasted with the Supreme Court, which plainly would have jurisdiction to hear the matter and to grant all forms of relief sought.

Utility of Granting the Relief Sought 30In addition, the Court raised with the applicant the utility of granting the declaratory relief in the amended summons given that, leaving aside any issue of jurisdiction, the Court arguably did not have the power to order rectification of the Access Register, in the absence of any breach of the Act or otherwise. As counsel for the applicant conceded, the applicant ultimately seeks rectification of that Register. Declaratory relief alone will not affect the substantive rights of the parties and cause the Access Register to be amended. 31The applicant was not able to point to any provision within the WMA or the LEC Act that directly permitted the Court to make such an order. 32The applicant sought to rely upon s 16(1A) of the LEC Act. This must be rejected for the reasons given above. The applicant also sought to rely on the words in the chapeau of s 20(1) of the LEC Act, namely, that the Court has "jurisdiction to...hear and dispose" of the matters referred to therein. But these words would not, in my view, confer on the Court the power to amend the Access Register. These words merely permit the Court to grant final relief. In this instance, the making of the declarations would constitute 'disposing' of the proceedings. The words cannot confer a plenary power on the Court which would have the effect of amplifying its statutorily confined jurisdiction. 33Having said this, the Minister informed the Court that, in accordance with his obligations as a model litigant, if declaratory relief was granted by the Court he would in all likelihood rectify the Register Access to accord with the Court's orders. In these circumstances, there may therefore be some utility in making the declarations sought, assuming there is a breach of the WMA (which the applicant cannot currently identify), although no undertaking was given to this effect by the Minister.

The Proceedings Raise Issues for Determination that are More Appropriately Determined by the Supreme Court. 34Finally, the Court raised for consideration that, contrary to the submissions of the applicant, this case concerned more than the proper construction of the WMA, and that in order to determine who was the owner and who was the occupier of the property at the time the Water Access Licence was registered by the Minister, the Court would be required to examine issues touching upon the law of succession and to determine questions concerning the interpretation and specific performance of contractual obligations, both of which were matters that were more naturally and appropriately dealt with in the Equity Division of the Supreme Court.

The Supreme Court is the More Appropriate Court 35After an adjournment during which counsel for the applicant sought instructions on whether to proceed with the question of jurisdiction, with the attendant risk that the proceedings could be dismissed, or whether to apply to transfer the proceedings to Supreme Court, the applicant opted for the latter course. 36Limited guidance exists to assist the Court in determining, as an exercise of its discretion to transfer proceedings pursuant to s 149B of the CPA, whether another court is more appropriate to hear and dispose of the proceedings. 37Logically, and having regard to the overriding purpose contained in s 56 of the CPA (as informed by ss 57-60 of that Act), the following factors are likely to be relevant, but few will be wholly determinative: (a) whether an issue concerning the jurisdiction of either court to hear and dispose of the proceedings exists; (b) whether either court has the power to grant the relief sought; (c) whether one court is better placed to determine the issues raised by the proceedings, having regard to each court's expertise and skill; (d) whether the transfer will result in a saving of time and costs to the parties; (e) whether the transfer will result in a more efficient allocation of judicial resources; and (f) whether in all the circumstances the transfer is just. 38Applying these factors to the present proceedings, I am of the opinion that the Supreme Court is the more appropriate court in which the proceedings are to be heard because, first, there is a real question as to whether or not this Court has jurisdiction to hear the proceedings, whereas the Supreme Court does have the requisite jurisdiction; second, absent any ability to amend the Access Register, and while acknowledging the remarks of the Minister, there remains a question of the utility of this Court granting declaratory relief; third, the proceedings raise issues of succession law and the construction and performance of contractual obligations that are more appropriately agitated and determined in the Supreme Court; and fourth, the transfer is likely to effect a real saving of time and costs to all parties.

Costs 39The applicant sought an order that the costs of the transfer application be costs in the cause. However, s 149D(3) of the CPA states that the issue of the costs of any transfer application is to be determined by the transferee court, in this case the Supreme Court. 40Notwithstanding this provision it is nevertheless worth observing that the jurisdictional issue, which is the principal reason for transferring the proceedings, was not raised by the respondents in answer to the amended summons but was raised by the Court. In these circumstances it might be considered somewhat unjust for the applicant to bear the cost of the transfer. Against this, however, is the fact that it was the applicant's decision to bring these proceedings in this Court. These are, however, matters for the transferee court to determine.

Order 41The formal order of the Court is that pursuant to s 149B of the Civil Procedure Act 2005 these proceedings are to be transferred to the Supreme Court.

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: 06 March 2012

(2008) 163 LGERA 429

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