Randren House Pty Ltd v Water Administration Ministerial Corporation

Land and Environment Court (NSW)|2018-07-05|Before: Molesworth AJ, Mr P

CONTEXT

This matter relates to an application for judicial review made by Randren House Pty Ltd and Mr Paul Andrews (together, the Applicants) against the Water Administration Ministerial Corporation, the State of New South Wales and the Minister administering the Water Management Act 2000 (together, the Respondents) in relation to decisions made under that Act.
The Further Amended Summons, filed on 13 November 2017, identified seven decisions that the Applicants sought to challenge. In brief, these were decisions: to amend a water sharing plan, not to provide regulated water access, to notify water sharing plan licence conditions, refusing to amend (or refusing to consider to amend) water sharing plans, to change operational levels of the Yanco Creek, and to prevent the Applicants from accessing (or having an entitlement to) regulated waters.
The Further Amended Summons also set out seven grounds of challenge to the impugned decisions. The first five grounds challenged the identified decisions on the basis that the Respondents failed to consider or have regard to various statutory considerations. The sixth ground was that the Respondents failed to "have regard to the impact on the Lake Paddock water source of river planning decisions with respect to river management of the Murrumbidgee River and Yanco Creek affecting the water source". The seventh ground was that the Respondents "have impaired the constitutional guarantee in Section 100 of the Constitution and have abridged the right of all farmers holding land adjacent to Yanco Creek and the Applicant and Paul Andrews to the reasonable use of the waters of Yanco Creek for conservation or irrigation".

EX TEMPORE

This judgment determines a confined issue at a mid-point in the trial of the on-going proceedings. The question to be resolved is whether the evidence of an expert witness, Mr James Purcell, proposed to be called for the Applicants, ought to be allowed.
With these proceedings being Class 4 judicial review proceedings, wherein the calling of expert evidence is not the normal course, the onus falls upon the Applicants to satisfy the Court that it is in the interests of justice that the expert evidence be allowed. That question is concurrently bound to the overriding requirement at s 56 of the Civil Procedure Act 2005 to consider whether the achievement of a just, quick and cheap outcome is likely to be achieved should the expert evidence be allowed.
The starting point when considering this question in judicial proceedings is to categorically confirm that the long-standing and oft repeated understanding of practice and law in judicial review proceedings is that expert evidence should not be allowed.
I refer in that respect to the decision of Pain J in Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 at [7], and to the Court of Appeal decision in Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348 at [35] wherein it was stated that: The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.
In the context of the proposed expert evidence having not been before the decision-maker, in the judgment of Biscoe J in the Friends of King Edward Park v Newcastle City Council [2012] NSWLEC 113 at [74] his Honour stated: In judicial review proceedings, the general principle is that the only documents that are admissible are those which were before the decision-maker when he made his decision or which, if not actually before him, were or should have been in the hands of his officers and should have been brought to his attention. This is a concomitant to the principle that judicial review is not concerned with the merits of a decision but with its lawfulness.
In essence, the underlying rationale for the rule is that because the judicial review proceeding is focussed upon the decision of a decision-maker at a given point in time, it is the material that was before that decision-maker which should enable the Court to understand the process of decision-making that was actually followed. The documents which were examined, or those which should have been examined but weren't, by the decision-maker should be capable of being identified and produced so that the Court, upon review, can identify whether decision-making process was proper, that is, made in accordance with the relevant law.
It is the "relevant law" that provides the context, confirming the considerations that were required to be taken into account and concurrently setting the parameters for identifying proper considerations, thereby enabling the identification of other matters that might have been considered which were, at the point of decision-making, extraneous and irrelevant. With proper considerations taken into account and the absence of improper considerations, the decision in question should be capable of sustaining challenge.
However, the documentary record is only part of the matters relevant to the examination of a decision under review. Obviously, the legislative context is of critical importance, hence an examination of the statutory scheme is essential in order to identify the nature of the decision that was made, or ought to have been made, and the statutory considerations required to be taken into account by the decision-maker. In this regard, the objectives of the relevant legislation, pursuant to which the decision-maker is empowered to make the subject decision, is a material context. In this case, the Applicants have stressed that in these proceedings the degree to which the objectives of the relevant legislation, together with statutory water management principles, were considered and then applied is fundamental to their case.
Judicial authorities have identified exceptions to the general rule disallowing the admission of expert evidence in judicial review proceedings. To select from a number of those authorities, I cite with approval the following at [75] in the judgment of Biscoe J in Friends of King Edward Park v Newcastle City Council: As discussed below, the limited exceptions to the general rule, depending on the circumstances of the case, include where the grounds of review are manifest unreasonableness (Moolarben, INL) or constructive failure to exercise jurisdiction and there is a duty to inquire. The exceptions also include denial of procedural fairness in one category of case.
Talbot J stated in Caldera Environmental Centre Inc v Tweed Shire Council [1993] NSWLEC 102, at pp 9-10, that: In exercising its function of judicial review this Court is not entitled to go beyond the material before the consent authority except to the limited extent already discussed. (See King v Great Lakes, Hastings and ULV v Scott). Trespass into the field of merits is forbidden as one can see from the decision in Minister for Aboriginal Affairs v Peko Wallsend Ltd and Others 162 CLR 24 at 40-42 and Chan Yee Kin v Minister for Immigration and Ethic Affairs 169 CLR 379 at 391 and 392. The limited extent to which the Court can go beyond the material actually before the council might be summarised as follows: 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. 2. To show what a council acting reasonably ought to have done. 3. To achieve an understanding of the environmental consequences of the action or inaction of the council. 4. To explain factors, principles or materials relevant to the determination. 5. In a challenge to the reasonableness of the decision where all the relevant material before the council is in the possession of the witness to explain what was before the council.
In this case the Applicants submit that there are three bases upon which it is necessary, in the interests of justice, that the expert evidence ought to be received as, it is said, such evidence is necessary in order for the Court to determine the issues with an understanding of the proper context.
Counsel for the Applicants submitted that he intended to rely on the evidence of Mr Purcell to support three components of his clients' case. 1. First was the contention that the impugned decisions were so unreasonable that no reasonable decision maker could have made those decisions. 2. Secondly, the orders sought by the Applicants with respect to remediation. This relates to the ninth prayer for relief in the Further Amended Summons (numbered 6) by which an order is sought that the Respondents "take all reasonable steps to restore the natural heritage of the Lake Paddock as a water source and to maximise its natural heritage values". 3. Thirdly, the claim that the Respondents breached the constitutional guarantee under s 100 of the Commonwealth Constitution, which states "The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation."
With respect to these three bases, I have chosen to put to one side and not address the third basis upon which the Applicants say the expert evidence is necessary, that being to assist the Court to understand how it might interpret, or perhaps apply, the words "reasonable use of rivers for conservation or irrigation" in s 100 of the Commonwealth Constitution. Although I am yet to hear full argument from either party regarding that aspect of the Applicants' case, at this point in the proceedings I remain at a loss to understand how there is any basis for the s 100 case to be put. I sought an explanation from counsel for the Applicants as to how the decisions in question in this case could give rise to the alleged constitutional infringement, specifically, how the decisions in question might be interpreted as actions (or perhaps inactions) of the Commonwealth. Counsel for the Applicants did not provide me with a sufficient answer to enlighten me. Considering Ground 7 of the Further Amended Summons and paragraph 12 in the Further Amended Points of Claim, in the context of the Respondents' brief response being paragraph 12 in their Points of Defence, I am presently of the view that this alleged Constitutional breach component of the Applicants' case is vulnerable to being justifiably struck out. Accordingly, it would be inappropriate to consider this component of the Applicants' case as a justification to allow an exception to be made with respect to allowing expert evidence to be considered in these judicial review proceedings.
With respect to the Applicants' second basis, in essence that the evidence of the expert would assist the Court determining what might the detail of remediation be should the Court see fit to grant the relief sought in the ninth prayer for relief, I consider that basis for calling such expert evidence to be entirely premature. In this respect I agree with counsel for the Respondents, in that if and only if the Court arrived at such a point of considering relief, then it could then be reasonable to reconvene the hearing and receive submissions and evidence specifically addressing such considerations. It is both inappropriate and premature to consider allowing such evidence at this stage of the trial, especially given the great many issues still at large, which may quite possibly mean the Court never arrives at that point.
Finally, returning to the Applicants' first ground for relying on such evidence, I do find the Applicants' arguments more persuasive. There is no doubt that there is a carefully constructed framework set by the Water Management Act within which decision-makers (to deliberately use an unspecific general term at this stage) are required to be make various decisions.
Commencing with ss 9(1) and (2): 9 Act to be administered in accordance with water management principles and State Water Management Outcomes Plan (1) It is the duty of all persons exercising functions under this Act: (a) to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and (b) as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection. (2) It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan.
This takes the decision-makers, the persons exercising functions under this Act, to s 5: 5 Water management principles (1) The principles set out in this section are the water management principles of this Act. (2) Generally: (a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and (b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and (c) the water quality of all water sources should be protected and, wherever possible, enhanced, and (d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and … (g) the social and economic benefits to the community should be maximised, and (h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements. (3) In relation to water sharing: (a) sharing of water from a water source must protect the water source and its dependent ecosystems, and (b) sharing of water from a water source must protect basic landholder rights, and (c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b).
The objects of the Water Management Act in s 3 are also pertinent: 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and … (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water.
Section 20, as it deals with water sharing provisions of a management plan, is also relevant in that it sets out matters which must be dealt with as follows: (1) The water sharing provisions of a management plan for a water management area or water source must deal with the following matters: (a) the establishment of environmental water rules for the area or water source, … (e) the establishment of a bulk access regime for the extraction of water under access licences, … (2) The bulk access regime referred to in subsection (1) (e): (a) must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and (b) must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and (c) must recognise the effect of climatic variability on the availability of water …
Section 21 is also relevant as that section sets out other optional considerations which may be considered: 21 Additional provisions The water sharing planning provisions of a management plan for a water management area or water source may also deal with the following matters: … (d) water sharing measures for the protection and enhancement of the quality of water in the water sources in the area or for the restoration or rehabilitation of water sources or their dependent ecosystems, (e) measures to give effect to the water management principles and the objects of this Act …
As to whether these considerations, as I've just highlighted in the Water Management Act, apply to one or other or all of the Respondents, depends upon how the Applicants put their case. In this regard it is relevant to consider s 372 which deals with the functions of the Ministerial Corporation. Relevantly, I refer to: 372 Functions of Ministerial Corporation (1) The Ministerial Corporation has the following functions: (a) to construct, maintain and operate water management works, … (d) to do anything for the purpose of enabling the objects of this Act to be attained. … (4) It is the duty of the Ministerial Corporation to exercise its functions consistently with the principles of ecologically sustainable development.
For the sake of completeness, I note that the principles of ecologically sustainable development are defined in accordance with s 4(1) in the dictionary as follows: Principles of ecologically sustainable development, means the principles of ecologically sustainable development defined in s 6(2) of the Protection of the Environment Administration Act 1991.
Putting aside whether the expert sought to be called by the Applicants, Mr Purcell, or for that matter the expert sought to be called in response by the Respondents, Mr Warren, can actually assist in fact once the Court closely analyses their evidence, on a prime facie basis the Court accepts that there is an arguable basis for such evidence to be received in these proceedings. This conclusion is despite their precise material having not been before the decision-makers and despite their evidence being capable of being interrogated, in order to ascertain its respective veracity, on a number of bases.
In the context of the statutory scheme setting up an irrefutable context, which has regard to the principles of ecologically sustainable development and a number of other interrelated considerations as elaborated upon in the water management principles in s 5(2) and in the Act's objects as found in s 3, I consider the Court will be assisted when considering the contextual decision-making process issues. As noted earlier, Talbot J in the Caldera Environment Centre Incorporated case highlighted (in a very different context) instances conceivably falling within the exception to the rule disallowing expert evidence in judicial review proceedings (paraphrased): 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports, or consultations would have revealed; 2. To show what a decision-maker acting reasonably ought to have done; 3. To achieve an understanding of the environmental consequences of the action or inaction of the decision-maker; 4. To explain the factors or principles or materials relevant to the determination; and 5. In a challenge to the reasonableness of the decision where all the relevant material before the decision-maker is in the possession of the witness to explain what was before the decision-maker.
Clearly point 5 does not apply here.
Further, with apologies to Cripps CJ, as he then was, in King v Great Lakes Shire Council (1986) 58 LGRA 366, I edit and paraphrase the passage of his judgment at p 371 and say as follows: In my opinion, evidence is admissible to establish what a decision-maker, in the proper discharge of its duty, ought reasonably have done in the course of the decision-making process. Where, as here, the breach alleged is the failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. That is to say, evidence is admissible as to what a decision-maker acting reasonably ought to have done. It may be accepted that the decision-makers are not normally obliged to consult with independent experts, or to solicit independent opinions about the appropriateness of the decision to be made. But that circumstance does not preclude the admission into evidence of what a decision-maker, acting reasonably, ought to have done with respect to the making of the particular decision. To understand the basis and the validity of the challenge, the Court needs to understand the environmental consequences of the action or inaction of the decision-maker.
The finding of the Court to this point determines, first, whether an exception ought to be made to the rule disallowing expert evidence to be called in judicial review proceedings and, secondly, to a certain extent, whether the evidence in question is relevant. I do consider that with respect to Mr Purcell's evidence, he being a water engineer with an almost career-long speciality in water management systems including irrigation, his evidence can be relevant, however that is not to say that all aspects of his evidence will actually be relevant. I have already indicated earlier in the hearing that I would disallow a water engineer's opinion as to the meaning of the legislation, however his understanding of how water management practice is applied on the ground, within the context of the regulatory system within which such a person must operate, does mean that familiarity of that regulatory system necessarily must be accepted. It would, for instance, be irresponsible for a consultant water engineer in the irrigation field, to give professional advice if he or she was ignorant of the regulatory regime applicable to the district in relation to which advice was being given.
The remaining question is whether Mr Purcell's evidence might be inadmissible on the basis that his particular observations and conclusions are outside his particular expertise. I am of the opinion that Mr Purcell's evidence is capable of falling within the exception, to the opinion evidence rule (at s 79 of the Evidence Act 1995) in that his opinion is that of a person who has specialised knowledge based on the person's training, study or experience, being mindful that it is to be wholly or substantially based on that knowledge.
The Court notes Mr Purcell's curriculum vitae describes a career extending over decades in water management, with a particular specialisation in irrigation. Mr Purcell does not purport to be an ecologist. However, his career experience encapsulates "all aspects of engineering for water resources and irrigation development projects" including 34 years' experience in "flood modelling and analysis of river systems and rural floodplains". It would be fair to observe, that for at least the last two decades in NSW, probably longer if I were to carefully examine earlier legislation, no water engineer could carry on their consulting practice without considering the implications of the very environmental considerations which are relevant, indeed potentially mandatory, considerations to the decision-making processes under examination in these proceedings. If the principles of ecologically sustainable development are to be considered and applied in the preparation of a water management system, how could a practitioner in the field be other than irresponsible or incompetent, if they were ignorant of these matters or blind to their application in practice?
By analogy, an architect must be aware of and apply their skills in accordance with the applicable Building Codes and regulatory regime, as indeed do town planners when applying their skills in accordance with Local Environmental Plans and State Environmental Planning Policies, yet in the instance of both professions the remit of their task thereby extends to and interlocks with all manner of related and associated disciplines. So it is, in my opinion, with respect to a water engineer working within the irrigation field in modern Australia where for at least two decades all manner of environmental considerations must be taken into account. Mr Purcell may not be a botanist, nor an ornithologist nor an expert in freshwater fish, nevertheless at the higher or broader level he would be required to have a working knowledge of relevant environmental considerations and be able to express a view, as a relevant expert, within the limits of his experience and expertise, on such matters in this Court.
This does not mean that I have decided that each and every statement in Mr Purcell's evidence is admissible, but it does mean much of his evidence ought to be admitted as being within his expertise and experience. Accordingly, I so order that his expert evidence may be admitted.

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: 13 July 2018

(2012) 194 LGERA 226

(2011) 189 LGERA 348

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