WaterNSW v Harris [2020] NSWLEC 18 | Case summary

WaterNSW v Harris [2020] NSWLEC 18 | Case summary | Zoe

[7]

Schedule 4 - Conditions The approval is subject to the following conditions: Plan Conditions Water sharing plan Baron (sic) Darling Unregulated and Alluvial Water Sources Take of water MW0655-00001 Any water supply work authorised by this approval must take water in compliance with the conditions of the access licence under which water is being taken. MW1916-00001 Water must not be taken when the flow in the Darling River at the Bourke gauge (425003) is equal to or less than 4,894 ML/day. [Emphasis added.] Water management works When a water supply work authorised by this approval is to be abandoned or replaced, the approval holder must contact DPI Water in writing to verify whether the work must be decommissioned. MW0491-00001 The work is to be decommissioned, unless the approval holder receives notice from the Minister not to do so. Within sixty (60) days of decommissioning, the approval holder must notify DPI Water in writing that the work has been decommissioned. Monitoring and recording MW0481-00001 A logbook must be kept and maintained at the authorised work site or on the property for each water supply work authorised by this approval, unless the work is metered and fitted with a data logger. MW2338-00001 The completed logbook must be retained for five (5) years from the last date recorded in the logbook. Before water is taken through the water supply work authorised by this approval, confirmation must be recorded in the logbook that cease to take conditions do not apply and water may be taken. The method of confirming that water may be taken, such as visual inspection, internet search, must also be recorded in the logbook. If water may be taken, the: MW0484-00001 A. date, and B. time of the confirmation, and C. flow rate or water level at the reference point in the water source must be recorded in the logbook. The following information must be recorded in the logbook for each period of time that water is taken: A. date, volume of water, start and end time when water was taken as well as the pump capacity per unit of time, and MW2337-00001 B. the access licence number under which the water is taken, and C. the approval number under which the water is taken, and D. the volume of water taken for domestic consumption and/or stock watering. MW0482-00001 Where a water meter is installed on a water supply work authorised by this approval, the meter reading must be recorded in the logbook before taking water. This reading must be recorded every time water is to be taken. Reporting Once the approval holder becomes aware of a breach of any condition on this approval, the approval holder must notify the Minister as soon as practicable. The Minister must be notified by: MW0051-00001 A. email: water.enquiries@dpi.nsw.gov.au; or B. telephone: 1800 353 104. Any notification by telephone must also be confirmed in writing within seven (7) business days of the telephone call. Other conditions Use of water DK1542-00001 The approved work must not be used for the purpose of irrigation unless the following flow conditions exist: the Barwon River flow exceeds 760 ML/day at the Culgoa River Junction (upstream) gauge and 840 ML/day at the Brewarrina gauge. Water management works DK1642-00001 Native vegetation may be cleared only to the minimum extent necessary for the construction and maintenance of the authorised works, that is, the minimum area of clearing to permit access for appropriate mechanical implements to maintain the works. Clearing of land for irrigation must be in accordance with the provisions of the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003. DK1215-00001 The holder of the approval must not construct or install works used for conveying, distributing or storing water taken by means of the approved work that obstruct the reasonable passage of floodwaters into or from a river. Additional conditions The approval holder must not allow any tailwater or drainage water to discharge, by any means including surface or sub-surface drains or pipes, from the approval holders property, into or onto: - any adjoining public or crown road - any other persons land - any crown land DK1362-00001 - any river, creek or watercourse - any groundwater aquifer - any area of native vegetation as described in the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003. - any wetlands of environmental significance - any identified site of [A]boriginal significance - any identified site of cultural significance. Glossary cease to take - Cease to take conditions means any condition on this approval, or on the access licence under which water is proposed to be taken, that prohibits the taking of water in a particular circumstance. ..."

[9]

Entitlements under the Water Act 1912 (NSW)

While the WM Act is the legislation relevant to these proceedings, in order to understand the regulatory regime and the Approval in question, and to consider a number of issues raised by the defendants, it is appropriate to consider the earlier regulatory regime which applied prior to 4 October 2012 under the Water Act 1912 (NSW) ('1912 Act') pursuant to which different licences and authorities were held by Clyde Agriculture, the former occupier of Beemery Farm.
As will be seen, the WM Act from 4 October 2012 made specific provision for the "conversion" of "entitlements" in force under the 1912 Act, and effectively provided a new licensing and approval scheme which "replaced" earlier approvals and licences issued under the 1912 Act. As noted above, the Approval the subject of the charges arises under the WM Act.
Pursuant to ss 10 and 12 of the 1912 Act, an occupier of land could apply for a licence to use a "work to which this Part extends" (defined to include any machinery or appliance through which water is taken from a river). Clyde Agriculture had held such a licence under the 1912 Act being licence number 85SL105059 (which was a "B Class" licence under the 1912 Act and is referred to for convenience in this judgment as the '1912 Licence') issued on 24 June 2010, which was later modified by the regulatory authority (at the time, the NSW Department of Primary Industries (for convenience, unless otherwise noted, the 'Department') within which was the NSW Office of Water) on 20 February 2012 pursuant to s 17A(2) of the 1912 Act. This variation was expressly notified to Clyde Agriculture by post on 20 February 2012.
Under the 1912 Licence, the permitted "purpose" was "irrigation" and the licensed "Works" included four "660mm Centrifugal Pumps" located on the Barwon River in Lot 1 DP 751597 including the Pumps referred to at [14(3)] above. The 1912 Licence allowed, in effect, the Pumps to be used by Clyde Agriculture for irrigation on the four lots comprising Beemery Farm (noted at [2] above) subject to specific conditions relating to the operation of the Pumps noted below, one of which is similar to the condition the subject of the charges.
To understand some of the issues they raise, the defendants highlight a different aspect of the history which requires explanation. They point to other licences and authorities issued under the 1912 Act earlier held by Clyde Agriculture, and aspects of various conditions that were attached to those licences and authorities. They note that as at April 2000, there were three instruments held by Clyde Agriculture issued under the 1912 Act for Beemery Farm, being authority 80SA10502 (referred to by the defendants as the "2000 B Class Authority") and two licences, 80SL27580H and 80SL27414H (referred to by the defendants as the "2000 C Class Licences"). On 15 September 2000, Clyde Agriculture was sent a notice pursuant to s 20H(2) of the 1912 Act amending conditions attached to authority 80SA010502 (the 2000 B Class Authority), which included a particular "flow" condition (referred to by the defendants as the "B Class Take Condition"). This condition read: "... (6) THE LICENSED/AUTHORISED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATION UNLESS THE FOLLOWING FLOW CONDITIONS EXIST:- THE BARWON RIVER FLOW EXCEEDS 760 MEGALITRES PER DAY (2.20 METRES) AT THE CULGOA RIVER JUNCTION (UPSTREAM) GAUGE AND 840 MEGALITRES PER DAY (2.39 METRES) AT BREWARRINA GAUGE OR SUCH OTHER HEIGHTS AS MAY BE DETERMINED FROM TIME TO TIME." ..."
As will be seen, this condition is similar to one of the conditions in the Approval although it is not the condition the subject of the charges.
The defendants note that, prior to 2010, the 2000 C Class Licences (but not the 2000 B Class Authority referred to above) had two specific conditions which together are described by the defendants as the "Menindee Lakes C Class Access Condition". These conditions read: "... (5) SUBJECT TO CONDITION (6) THE LICENSED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENCED AREA OR ANY PART THEREOF UNLESS THE DISCHARGE OF THE DARLING RIVER AT THE BOURKE GAUGE EXCEEDS 4894 MEGALITRES PER DAY. (6) THE LICENCED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENSED AREA OR ANY PART THEREOF UNLESS THE TOTAL VOLUME OF WATER STORED IN THE MENINDEE LAKES STORAGE IS IN EXCESS OF 907,840 MEGALITRES. ..."
The defendants note that in 2009 and 2010 the then regulatory authority, the Department of Land and Water Conservation, at the request of Clyde Agriculture, undertook a process by which the 2000 B Class Authority (which as noted at [29] above had the "flow" condition again referred to by the defendants as the "B Class Take Condition") was converted to a water licence under the 1912 Act, and the two C Class Licences were replaced with new licences. The new licences, issued on 24 June 2010, were licence 85SL105059 (which although referred to by the defendants in submissions as the "2010 B Class Licence", as noted at [27] above, is the '1912 Licence'), and C Class Licences 85SL105056H and 85SL105057H (referred to by the defendants as the "2010 C Class Licences").
Although the Menindee Lakes C Class Access Condition remained in the 2010 C Class Licences (as it had in the earlier C Class licences), the defendants note that the terms of the 1912 Licence, from 24 June 2010, included (as condition (5) below), what the defendants referred to as the "4894 Term", which had previously only been present in the C Class Licences, such that the 1912 Licence from that date included the following conditions: "... (5) SUBJECT TO CONDITION (6) THE LICENSED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENSED AREA OR ANY PART THEREOF UNLESS THE DISCHARGE OF THE DARLING RIVER AT THE BOURKE GUAGE EXCEEDS 4894 MEGALITRES PER DAY. (6) THE LICENSED/AUTHORISED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATION UNLESS THE FOLLOWING FLOW CONDITIONS EXIST:- THE BARWON RIVER FLOW EXCEEDS 760 MEGALITRES PER DAY AT THE CULGOA RIVER JUNCTION (UPSTREAM) GAUGE AND 840 MEGALITRES PER DAY AT THE BREWARRINA GAUGE." ..."
On 20 February 2012, the conditions of the 1912 Licence were varied slightly, but not relevantly in relation to condition (5) and condition (6).
It is agreed that these two conditions, (5) and (6), were part of the 1912 Licence at the time the provisions of the WM Act were activated on 4 October 2012, which, as noted above, effected a new licensing and approval regime and provided for the conversion of existing entitlements.
The wording of condition (5) is referred to in the evidence and submissions as the "4894 Term". As will be seen, the defendants maintain that the condition, as it appears in the 1912 Licence, was "qualified" in the sense that it was "subject to" condition (6) which, as noted above, the defendants refer to as the "B Class Take Condition".
For clarity, in this judgment I use the following descriptors - '1912 Licence' for licence 85SL105059; '4894 Term' for condition (5) of the 1912 Licence at [33] above; and 'B Class Take Condition' for condition (6) of the 1912 Licence at [33] above. It is clear that the Approval contained two conditions similar to the 4894 Term and the B Class Take Condition. Adopting the expressions used by the parties, I will refer to the condition the subject of the charges, being the term in the Approval that is similar, but for the absence of the words "subject to", to condition (5) as the '(unqualified) 4894 Term', and again adopt 'B Class Take Condition' for the term in the Approval (which has the reference DK1542-00001 in the Approval) which is similar to condition (6). It is the (unqualified) 4894 Term that is the subject of the charges.
Before recording further events, as considered below, two discrete issues arise from this earlier licence history. First, the defendants maintain that the introduction of condition (5) (the 4894 Term) into the 1912 Licence in 2010, which was previously only in the C Class Licences, was a mistake which had consequences for the licensing regime later activated on 4 October 2012 under the WM Act and; second, in any event, there is a dispute as to the meaning and consequence of the words "subject to condition (6)" in condition (5) of the 1912 Licence which were not part of the Approval conditions after it was converted.

[10]

Circumstances after 4 October 2012

On 3 October 2012, the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) ('Proclamation') was made pursuant to ss 55A and 88A of the WM Act. Clause 3 of the Proclamation declared that Pts 2 and 3 of Ch 3 (which, deal with water access licences and approvals respectively) of the WM Act apply to each prescribed water source to which a prescribed water sharing plan applies. The Proclamation enlivened Sch 10 of the WM Act which, as detailed below, specifically provided for the "conversion of former entitlements [under the 1912 Act] to access licences and approvals".
These events meant that the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 ('the Plan'), (made pursuant to s 50 of the WM Act) commenced on 4 October 2012, with the effect that the licensing and approval regime in the WM Act commenced to apply to the subject catchment on that day and, at the same time the Plan became operational, the Water Access Licence and the Approval were brought into existence.
The prosecutor maintains that the introduction of the WM Act had the effect of replacing the 1912 Licence with the Approval (and the Water Access Licence) and notes that the 1912 Licence included conditions (noted at [33]) relating to both the discharge of the Darling River at a location described as the Bourke gauge exceeding 4,894 ML per day (condition (5)), and the flow at other parts of the river system upstream of Beemery Farm reaching certain levels (condition (6)), and that these conditions are similar to the two conditions attached to the Approval which the prosecutor maintains effectively replaced the 1912 Licence.
On 17 October 2012, the Commissioner of the NSW Office of Water (within the Department), informed Clyde Agriculture in writing that the Plan had commenced on 4 October 2012 and that the 1912 Licence (described as "former entitlement(s) 85SL105059") had been replaced with "Water Access Licence 85AL753235" and "Approval 85CA753236" (being the Water Access Licence and Approval referred to at [19], [22] above). The correspondence stated that details of the "water access licence/s and approval/s and conditions will be mailed to all licence and approval owners" and that until then, licence and approval holders continued to be the subject to the conditions of their former licence that apply to either an access licence or an approval. The relevant parts of the letter are included as follows: "... Following consultation on its development, I am writing to inform you that the Water Sharing Plan for the Barwon Darling Unregulated & Alluvial Water Source (the Plan) commenced on 4 October 2012. Water sharing plans and water access licences issued under the Water Management Act 2000 establish clear and secure rights for access to water by water users. Water access licences are held separate from land and have an independent title. Approvals are different to access licences. Approvals give holders the right to construct and operate water supply works and to use water on land. Approvals continue to be tied to the land. ... The commencement of the Plan means that your former entitlement/s 85SL105059 issued under the Water Act 1912 has now been replaced with the following access licence/s and approval/s: Water Access Licence: 85AL753235 Approval/s: 85CA753236 ... A notice containing the details of the water access licence/s and approval/s and conditions will be mailed to all licence and approval holders. Until then, licence and approval holders continue to be the subject to the conditions of their former licence that apply to either an access licence or an approval. ..."
The defendants purchased Beemery Farm in 2014 and by letter from their solicitors dated 4 July 2014 to the Department provided a "Notice of Sale or Transfer of Water Access Licence", containing a schedule of water access licences, which informed the Department that they had purchased various water access licences (including reference to the Water Access Licence and the Approval) from Clyde Agriculture under a Contract of Sale dated 28 March 2014, with a transfer date of 12 June 2014. The letter stated "all further correspondence in relation to their Licences which have been acquired as part of this transaction should be forwarded to ... Mr & Mrs PJ Harris PO Box 20 Bourke NSW 2840". Around that time, Mr Harris informed Richard Wheatley, a Senior Water Regulation Officer with the Department, that Clyde Cotton would be replacing Clyde Agriculture at all of Clyde Agriculture's properties, including Beemery Farm. The extent and effect of other matters discussed between Mr Wheatley and Mr Harris in relation to the provision of information and related matters at that time is in issue.
The transfer of the Water Access Licence and the Approval to the defendants was recorded in water access licence title searches and records of the former NSW Office of Water. The system of registration is outlined below.
On 11 September 2014, the Department wrote to Mr Harris (at an address "Kindamindi, PO Box 1626, MOREE NSW 2400"). The letter stated: "... You have recently become the holder of the above licence or approval resulting from your purchase of a water access licence (WAL) or the purchase of lands benefitted by approvals. Licences and approvals issued under the Water Management Act 2000 operate under a set of terms and conditions which are imposed and regulated by NSW Office of Water. Licence conditions define when and how much water you can extract. Approval conditions authorise water supply works - and the circumstances and location of where the water can be used. We have attached information relevant to the above matter as indicated by the following tick boxes. ☒ We have attached a copy of your Water Act 1912 licence. ☒ The NSW Office of Water is currently finalising the conversion process with reference to approvals and conditions for the BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES. As soon as this process is finalised, a notice containing details of the WAL and/or approval/s conditions that apply will be mailed to you. Until then, licence and approval holders continue to be subject to the conditions of the former licence 85SL105059. Further information on licences and approvals under the Water Management Act 2000 can be obtained from the Office of Water's website go to: www.water.nsw.gov.au - Water licensing. ..."
There is an issue in relation to whether, and if so how, notification was given to the defendants or Clyde Agriculture. The prosecutor submits, and the defendants deny, that, in circumstances considered below, if notification of the Approval (and therefore the condition the subject of the charges) was required, it has been provided in correspondence by email to an agent appointed by Mr Harris on 23 September 2015. The prosecutor also noted the possibility of a letter to Clyde Agriculture on 17 October 2012 and letter to Mr Harris on 11 September 2014 fulfilling the notice requirement.
WaterNSW's system of registration for water access licences and approvals issued under the WM Act is explained in the evidence of Mr Wheatley, who has held various roles in relation to water licensing and regulation since 1999, and provides some factual context for the issues in dispute. The following summary is uncontentious.
Since July 2004, the Department has maintained a register of water access licences called the "Water Access Licence Register" ('WAL Register') which is accessible online and holds a record of every water access licence in NSW. The purpose of the WAL Register is to make information available to WaterNSW and to the public and to provide a secure system for information in relation to water access licence information. The WAL Register is maintained by Land Registry Services on behalf of the Minister administering the WM Act in accordance with Div 3A of Pt 2 of the WM Act. Details in the WAL Register are accessed by conducting searches through Land Registry Services.
The WAL Register maintains a separate record for each water access licence, which contains specific details of each licence including the share component; the extraction component; the relevant water sharing plan; nominated works and expiry date; the current ownership of the water access licence; and the details of any mortgages or charges.
The share component of a water access licence details the licence holder's entitlement to a given number of shares in the available water which may be extracted from a specified water source and is expressed as a "unit share" of the water available in the water source. The actual quantity of water available to be extracted in any year depends upon the applicable "Available Water Determination". Separate Available Water Determinations are generally made for each category of licence in a water source.
WaterNSW generates and issues a "Statement of Conditions" under the WM Act to set out the conditions applicable to a water access licence. Statements of Conditions are generated by and stored on WaterNSW's "Water Licensing System database".
As well as the WAL Register maintained by the Department, WaterNSW maintains on behalf of the Minister administering the WM Act another register known as the "NSW Water Register" and information about approvals is recorded on the NSW Water Register in accordance with s 113 of the WM Act. Specifically, the details of an approval, including the conditions of an approval are set out in a "Statement of Approval" which is generated by, and stored on, WaterNSW's Water Licensing System database.
WaterNSW's Water Licensing System database records that the 1912 Licence was replaced by the Water Access Licence and the Approval, and that the Water Access Licence was transferred from Clyde Agriculture to the defendants in September 2014.
Further, according to WaterNSW's Water Licensing System database, from 4 October 2012, the Water Access Licence has been an unregulated river (B Class) Licence that entitled the holders to shares in the available water in the water source and to take water using the works authorised by a nominated work approval. In particular, the Water Access Licence provided that the unit share of available water was 10,449 units until 12 January 2015 and 11,444 units thereafter. The Water Access Licence further specifies that the water source is the Barwon-Darling Unregulated River Water Source and the "nominated work approval" is "85CA753236" (which is the Approval). The evidence of Mr Wheatley is that the Water Access Licence (as recorded on WaterNSW's Water Licensing System database) provided for a specific share of the available water from the Barwon-Darling Unregulated River Water Source, and to take water using the works nominated in the Approval (being the Pumps).

[11]

Evidence

On 1 February 2019, the Court made orders that evidence in the proceeding against one defendant be evidence in the proceeding against the other defendant.
Over the course of the five day hearing, the Court received extensive documentary and oral evidence.
The prosecutor relies on the following evidence: 1. Two affidavits of Paul O'Neill, investigator with WaterNSW, affirmed 6 March 2018 and 1 June 2018; 2. Three affidavits of Andrew Thomas Cutler, Hydrometric Coordinator (North West) with WaterNSW, affirmed 5 March 2018, 28 September 2018 and 31 January 2019; 3. An affidavit of Trevor Lee Pearce, Customer Field Officer with the Department at the time of the alleged offences, affirmed 28 May 2018; 4. Three affidavits of Richard John Wheatley, Senior Water Regulation Officer with WaterNSW, affirmed 12 June 2018, 5 November 2018 and 31 January 2019; 5. An affidavit of Glenn Evan McDermott, Hydrology and Hydrometric Practice Consultant, affirmed 21 November 2018; and 6. Further material, including an extensive bundle of documents comprising detailed appendices to Mr McDermott's report; copies of the NSW Office of Water, quality codes including the Gauging Quality Codes; and Australian Standard 3778: Measurement of Water Flow in Open Channels ('AS3778'), Pt 3.1.
The defendants rely on the following evidence: 1. An affidavit of Daniel Michael Martens, Engineer and Environmental Scientist, affirmed 8 February 2019; and 2. Further material, including a bundle of documents comprising correspondence and copies of various instruments and licences; a letter from Mitchell Abbo, General Manager of Clyde Agriculture, to Mr Wheatley dated 26 March 2009; and a subpoena to produce issued to WaterNSW filed 28 June 2018.
Each of Mr Cutler, Mr Wheatley, Mr McDermott and Dr Martens gave oral evidence.
For convenience, I briefly note the nature of the evidence given by the witnesses, some of which I have incorporated into the factual narrative above and some which will be considered in further detail later in this judgment.
Mr O'Neill, an investigator with WaterNSW assigned to the investigation into compliance at Beemery Farm in 2017, gives evidence of the issuing of notices pursuant to s 338A(2) of the WM Act to the defendants and exhibits documents produced in response to those notices.
Mr Cutler, a hydrometric coordinator with WaterNSW, gives evidence regarding the procedures in relation to the collection and recording of hydrometric data. He also gives evidence of WaterNSW's Hydstra database and the processes regarding data extraction from that database.
Mr Pearce, a customer field officer with the Department, gives evidence of his site attendances at Beemery Farm and the downloading of data from a Measuring and Control Agriflo ('MACE') Meter at Beemery Farm in July 2017. He also gives evidence regarding the use and operation of meters in the Barwon-Darling region and the layout of the Pumps.
Mr Wheatley, a senior water regulation officer with WaterNSW, gives evidence primarily concerning WaterNSW's registration and licensing system; various procedures; the recording of the defendants as holders of the Water Access Licence and the Approval in respect of Beemery Farm; evidence of his attendances at Beemery Farm; and his conversations with Mr Harris.
Mr McDermott, an expert in the area of hydrography and hydrometrics, with expertise in flow measurement, gives evidence relating to the calculation of the flow rate at the Bourke gauge during the charge period ('McDermott Report').
Dr Martens, an engineer and environmental scientist, with expertise in hydrology, gives evidence regarding his concerns in relation to the methodology of measuring and recording flow data relied upon by the prosecutor.
Objections to various aspects of the above evidence were ruled upon during the hearing, and rulings on a number of objections were deferred. As the remaining objections relate to the technical and scientific evidence regarding the methodology used in the measurement of flow in the Darling River at the Bourke gauge, I deal with these objections when considering the discrete issues relating to those matters.
In reaching the factual conclusions that I have set out in this judgment, I have taken into account all the evidence.

[12]

Water Management Act 2000 (NSW)

The WM Act is complex legislation and an understanding of the relevant provisions is necessary. I have briefly referred to a number of provisions above. The following provisions provide background and are referred to by the parties in submissions.
Section 50(1) of the WM Act provides that the Minister may, by order, make a plan (being a "Minister's plan") for any water management area or water source for which no existing "management plan" is in force. At the time the WM Act commenced there was no such plan for the subject catchment. Section 50 provided: Part 4 Minister's plans 50 Minister's plan (1) The Minister may, by order published on the NSW legislation website, make a plan (a Minister's plan): (a) for any part of the State that is not within a water management area, or (b) for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or (c) for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan. … (2) A Minister's plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan. (2A) Part 3 (except sections 15 and 36-41) applies to a Minister's plan. However, the Minister: (a) may adopt any of the provisions of sections 36-41 in a particular case, and (b) may dispense with a particular requirement of Part 3 in the case of a Minister's plan referred to in subsection (1A). … (4) Except to the extent to which this Act otherwise provides, a Minister's plan has the same effect as a management plan. (5) The Minister may decide whether to make a Minister's plan or a management plan in respect of any matter (whether or not any draft management plan has been submitted to the Minister).
Pursuant to s 50(2A) of the WM Act, Pt 3 of Chapter 2 (other than ss 15 and 36-41) applies to the Plan.
The WM Act provided for both access licences and approvals in Pt 2 and Pt 3 respectively of Ch 3. The relevant provisions at the time were: Part 2 Access licences ... 55A Application of Part (1) This Part applies to: (a) each part of the State or each water source, and (b) each category or subcategory of access licence that relates to that part of the State or that water source, that is declared by proclamation to be a part of the State or water source, and category or subcategory of access licence, to which this Part applies. ... (2) Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly. ... 56 Access licences (1) An access licence entitles its holder: (a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and (b) to take water: (i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and (ii) in specified areas or from specified locations, (the extraction component). (2) Without limiting subsection (1) (a), the share component of an access licence may be expressed: (a) as a specified maximum volume over a specified period, or (b) as a specified proportion of the available water, or (c) as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work, or (d) as a specified number of units. (3) Shares in available water may be assigned generally or to specified categories of access licence. (4) In the case of a local water utility licence, its share component is to be expressed as a specified volume per year. (4A) Without limiting subsection (1) (b), the extraction component of an access licence may authorise the taking of water from a water source specified in the share component of the licence and from another water source not so specified if those water sources are vertically abutting (either wholly or partly) water sources. (4B) In the circumstances referred to in subsection (4A), the water source specified in the share component of the access licence is to be the water source that is the main source for the extraction of water by the holder of the licence. (5) For the purposes of this Act, an access licence may also be referred to as a water access licence or a WAL. (6) (Repealed) Note. An access licence: (a) does not confer a right on any person to use water for any particular purpose (that right is conferred by a water use approval), and (b) does not confer a right on any person to construct or use a water supply work (that right is conferred by a water supply work approval). Part 3 Approvals ... 88A Application of Part (1) This Part applies to: (a) each part of the State or each water source, and (b) each type or kind of approval that relates to that part of the State or that water source, that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies. ... 89 Water use approvals (1) A water use approval confers a right on its holder to use water for a particular purpose at a particular location. (2) A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales. 90 Water management work approvals (1) There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals. (2) A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location. (3) A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location. (4) A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location. 91 Activity approvals (1) There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals. (2) A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land. (3) An aquifer interference approval confers a right on its holder to carry out one or more specified aquifer interference activities at a specified location, or in a specified area, in the course of carrying out specified activities. Note. Examples of where an aquifer interference approval may be needed include mining operations, road construction and any other large scale activity that involves excavation.
Schedule 10 of the WM Act, which contains the statutory mechanism through which entitlements issued under the 1912 Act are converted to access licences and approvals under the current scheme, and as enlivened by the "Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012" ('Proclamation') made on 3 October 2012, relevantly provided: Schedule 10 Conversion of former entitlements to access licences and approvals Part 1 Preliminary ... 1 Application of Schedule This Schedule applies: (a) to each category or subcategory of access licence that relates to a part of the State or water source to which Part 2 of Chapter 3 applies by operation of a proclamation under section 55A, and (b) to each type or kind of approval that relates to a part of the State or water source to which Part 3 of Chapter 3 applies by operation of a proclamation under section 88A. ... Part 2 Conversion of former entitlements ... 3 Access licences and approvals arising from former entitlements (1) Subject to this Schedule, an entitlement that, immediately before the appointed day, was in force under the 1912 Act, the 1948 Act or the 1994 Act is taken to have been replaced: (a) to the extent to which it entitles any person or body to take a specified quantity of water, by an access licence held by that person or body (subject to such of the conditions of the entitlement as are applicable to an access licence): (i) for the quantity of water so specified, or (ii) if the relevant management plan, and regulations made for the purposes of this paragraph, indicate that a different quantity of water calculated in accordance with a specified methodology may be taken under an access licence issued in relation to the water management area or water source to which the management plan applies - for a different quantity of water calculated in accordance with that methodology, and (b) to the extent to which it entitles any person or body to use a specified water management work, by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and (c) to the extent to which it entitles any person or body to use water on any land, by a water use approval held by that person or body in respect of that land (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and (d) to the extent to which it entitles any person or body to carry out a specified activity, by an activity approval held by that person or body in respect of that activity (subject to such of the conditions of the entitlement as are applicable to an approval of that kind). …
Clause 3, Pt 3 of Sch 10 of the WM Act provides that an "entitlement" that, immediately before the appointed day (4 October 2012) was in force under the 1912 Act, is taken to have been "replaced". As such, upon commencement of the Plan, the existing instruments (under the 1912 Act) were treated as licences and approvals to which the Plan applied. That is, for every licence under the former legislation, cl 3 deemed there to be an access licence which related to the taking of water and an approval related to the using of a work. At that time that the Water Access Licence and Approval were allocated the reference numbers they now have (noted at [42]).

[14]

Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012

Specific provisions of the Plan are considered below, however, in summary, the Plan: 1. divided the Barwon-Darling River system into a number of different management zones. Beemery Farm is located in the Brewarrina to Culgoa River Junction Management Zone; 2. provided various "rules" which are given effect by the imposition of "mandatory" conditions for access licences and approvals; 3. established different "flow classes" for the sharing of flows on a daily basis in the Barwon-Darling Unregulated River Water Source for water licences in different zones;
Clause 2 of the Plan provided that the Plan was made under s 50 of the WM Act (therefore taking effect as a Minister's plan) and that it is a "plan for water sharing and generally deals with matters set out in sections 20 and 21 of the [WM] Act". Before considering the Plan, it is relevant to note that these sections provided: Part 3 Management Plans ... 20 Core provisions (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, (b) the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights, (c) the identification of requirements for water for extraction under access licences, (d) the establishment of access licence dealing rules for the area or water source, (e) the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c). (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, and (d) may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and (e) may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and (f) must be consistent with the water management principles. (3) The rules referred to in subsection (2) (d) must comply with the priorities established under section 58. (4) The access licence dealing rules established under subsection (1) (d): (a) must comply with the access licence dealing principles, and (b) must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and (c) subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3. 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: (a) the rates, times and circumstances under which water may be taken from any water source in the area, or the quantity of water that may be taken from any water source in the area or delivered through the area, (b) the kinds of water supply works that may be constructed and used in the area, (c) the operation of water accounts for the area or water source, such as the carrying over of credits from one accounting period to the next, the maximum credit that may be allowed to accumulate in any account and the withdrawal of water from any account by reason of evaporation or dam spill or in such other circumstances as may be prescribed by the regulations, (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, (f) such other matters as are prescribed by the regulations.
Clause 4 of the Plan provided that it applies to certain "water sources" located within the Central West Water Management Area including the Barwon-Darling Unregulated River Water Source, which is the water source from which the Pumps drew water during the charge period.
Clause 7 of the Plan provided: 7 Understanding the rules in this Plan This Plan contains various rules. Where appropriate, the rules specified in this Plan are given effect by the mandatory conditions for access licences and approvals contained in Part 11 of this Plan.
In relation to "access rules" (imposed as mandatory conditions in licences which replace the 1912 Act entitlements), cl 46(9) of the Plan provided as follows: 46 Access rules for the taking of surface water … (9) Subject to subclauses (10), (11) and (15), water must not be taken by a water supply work located in a management zone specified in Column 3 of Schedule 2 under an access licence specified in Column 1 of Schedule 2 in contravention of the corresponding access rule specified in Column 2 of Schedule 2. ...
Correspondingly, Schedule 2 of the Plan provided: Schedule 2 Access licences with cease to pump rules that differ from the flow class cease to pump rules Those access licences which replace a Water Act 1912 entitlement listed in Column 1 of the table below will have the access rule specified in Column 2 imposed as a mandatory condition on all water supply work approvals nominated by that access licence to give effect to clause 46 (9) of this Plan. Column 1 Column 2 Column 3 Water Act 1912 entitlements that will be replaced by access licences on commencement of this Plan Access rule Management zone … … … 85SL105059 Water must not be taken when the flow in the Darling River at the Bourke gauge(425003) is equal to or less than 4,894 ML/day Brewarrina to Culgoa River Junction Management Zone ... ... ...

[15]

Briefly stated, it is agreed that, as a result of cl 3(1) of Sch 10, from 4 October 2012 the 1912 Licence was effectively split into two separate instruments: a water access licence (being the Water Access Licence) and a replacement approval (being the Approval).
As noted below, the defendants challenge the validity of the Plan and the Approval. The prosecutor submits, and the defendants contest, that s 47(1) of the WM Act provides that the validity of the Plan may not be challenged, other than before the Land and Environment Court in proceedings commenced within three months from the date the Plan was published on the NSW legislation website. That period ended in early 2013. Section 47 provided: Part 3 Management plans ... 47 Validity of management plans and exercise of plan-making functions (1) The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period. (2) The judicial review period in respect of a management plan is: (a) the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or (b) in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website. A judicial review period does not arise as a result of the extension of the duration of a management plan. (3) The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law. (4) Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be: (a) challenged, reviewed, quashed or called into question before any court in any proceedings, or (b) restrained, removed or otherwise affected by any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period. (5) The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period). (6) Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function. (7) This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period. (8) In this section: court includes any court of law or administrative review body. designated person means the Minister, a management committee, the Director-General or any person or body assisting or otherwise associated with any of them. exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions. judicial review period - see subsection (2). management plan includes purported management plan. plan-making function means: (a) a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or (b) a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made. proceedings includes: (a) proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and (b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.
Clause 20, Pt 2 of Sch 10 of the WM Act is relevant to a further issue in relation to whether notice was required and/or given to either Clyde Agriculture or the defendants as holders of licences and approvals created by the provisions of the WM Act. This clause provided: Schedule 10 ... Part 2 Conversion of former entitlements ... 20 Notification of licences (1) The Minister must cause written notice of the terms of each access licence or approval arising by operation of this Schedule to be given to the holder of each such access licence or approval. (2) A replacement access licence or approval is to include any mandatory conditions that are required to be imposed on the licence. …
The offence provision is s 91G of the WM Act which at the time of the alleged offence provided: Part 3 Approvals ... 91G Contravention of terms and conditions of approval ... (2) If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence. Tier 2 penalty. (3) It is a defence to a prosecution under subsection (2) if the accused person establishes: (a) that the contravention of the term or condition was caused by another person, and (b) that the other person was not associated with the holder at the time the term or condition was contravened, and (c) that the holder took all reasonable steps to prevent the contravention of the term or condition. A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.
Section 91L of the WM Act relevantly provided for the liability of the occupier of premises as follows: Part 3 Approvals ... 91L Liability of occupier of premises for certain offences (1) The occupier of premises at which: (a) a water management work has been constructed or used in contravention of a provision of this Division, or (b) a controlled activity or aquifer interference activity has been carried out in contravention of a provision of this Division, is taken to have contravened that provision. (2) However, subsection (1) does not apply if it is established that: (a) the work was constructed or used, or the activity was carried out, by a person other than the occupier, and (b) the other person was not associated with the occupier at the time the work was constructed or used or the activity was carried out, and (c) the occupier took all reasonable steps to prevent the work being constructed or used or the activity being carried out. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (3) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.
Further, ss 363A(1) and (2) of the WM Act provided that if an offence against the WM Act arises in relation to an access licence or approval, each co-holder of the licence or approval is taken to have committed the offence, unless the co-holder proves that: ... (a) the offence was committed by some other person (whether or not another co-holder of the licence or approval), and (b) the other person was not associated with the co-holder at the time the offence was committed, and (c) the co-holder took all reasonable steps to prevent the offence from being committed. ...
Section 91M(2) of the WM Act provided for a general defence in the following terms: Part 3 Approvals ... 91M General defence … (2) It is a defence to a prosecution under this Division in relation to the doing of anything without an approval if the accused person establishes that the person was exempt, pursuant to this Act or the regulations, from any requirement for an approval in relation to the doing of that thing. ...

[16]

Outline of respective positions

The prosecutor submits and I find that it must establish the following four elements to make out the charges: 1. The defendants were the holders of a water supply works and water use Approval applying to the Barwon-Darling Unregulated River Water Source ('Water Source') during the charge period ('Element 1'); 2. The Approval contained a condition that water must not be taken from the Water Source when the flow of the Darling River at the Bourke gauge (being gauge number 425003) was equal to or less than 4,894 ML per day ('Element 2'); 3. During the charge period, the defendants took water from the Water Source ('Element 3'); and 4. The water was taken when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day ('Element 4').
The defendants maintain that the prosecutor's case fails for six, somewhat layered, reasons.
First, the evidence does not enable a reliable view to be formed as to whether or not the flow in the Barwon River at the Bourke gauge was less than 4,894 ML per day; second, each summons is bad for duplicity and uncertainty; third, there is, in fact, no (unqualified) 4894 Term in the Approval because - the Approval did not (and should not) contain any term governing the 'take' of water because this was a matter only for a water access licence not an approval, the term was not automatically included in the Approval and no notice was given to the approval holders; fourth, even if the (unqualified) 4894 Term was, or became, a term of the Approval either by operation of the Plan or by action of the Minister, the decisions which brought about that result are ultra vires by reason of infringing the distinction in the WM Act between the scope of access licences (which deal with the taking of water) and the scope of approvals (which deal with work, use and specified activities) and, therefore, there was no power either to create the Plan or issue the Approval, and any decision to do so would be ultra vires and vitiated by jurisdictional error; fifth, as a matter of interpretation, the (unqualified) 4894 Term in the Approval should be read as implicitly qualified by (that is, "subject to") the B Class Take Condition as it was in the 1912 Licence; and sixth, even if it was open for the Plan to mandate the imposition of the (unqualified) 4894 Term, that term has no place in the Approval and its presence (if it was indeed there) is a result of a manifestly unreasonable decision.

[18]

Duplicity

In their amended notice pursuant to s 247K of the Criminal Procedure Act, the defendants contended that each charge is bad for duplicity on the basis of the reasoning in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [55]-[60], such that to allege an offence against s 91G(2) of the WM Act where the manner of contravention alleged is the taking of water over a number of days (22 June 2016 to 27 June 2016) when the flow of the Barwon River at the Bourke gauge was less than 4,894 ML per day, is to impermissibly allege multiple separate offences in the one charge, rendering the "rolled up" charge duplicitous and contrary to law.
The defendants initially submitted that the prosecutor has not restricted itself to a single day or single use, and that each amended summons alleges either that there was a use on each and all of the days (such as to be duplicitous) or that there was only one use for the entirety of the charge period such that there was only one resulting offence. The defendants submitted that the alleged breaches on separate days cannot be properly charged in one count of a summons.
Mr Elliott noted that at par (32) of the prosecutor's amended statement of facts (filed 1 February 2019), the prosecutor alleged that water was taken on each of the days during the charge period. Mr Elliott also directed the Court to par (35) of Mr Cutler's affidavit of 5 March 2018 wherein he deposed that (emphasis added) "…for the entire period between 1 July 2015 and 30 June 2016 the flow rate was less than 4,894 ML per day". Reference was also made to the last sentence in par (166) of the prosecutor's closing submissions in submitting that the prosecutor was referring to the whole of the charge period. If the position were otherwise, the defendants submit that each amended summons would be "hopelessly uncertain" because on that reading, the time at which the breach occurred would not have been identified, with the Court being asked to make an ultimate finding somewhere within that window.
While the defendants initially submitted that the amended summons in each proceeding was bad for duplicity and should be dismissed, Mr Aspinall clarified that the prosecutor was not pleading a continuous offence, but rather a single offence during the charge period. Accordingly, Mr Aspinall submits that the offence would be made out if at any time during the charge period the Court is satisfied that water had been taken when the flow of the river was less than the requirement.
The defendants submit that neither the amended summons in each proceeding nor the prosecutor's brief says what the prosecutor alleges. Mr Elliott emphasised that "at times" in each of the amended summons (at [4] above) is pluralised, making it clear that the prosecutor's case is not concerned with some isolated instance sometime within a stated date range. As the amended summons in each proceeding reads "In the period…", not at some undisclosed point in the period, the defendants submit that the prosecutor must be referring to the whole of the period. If it was any other way, the defendants submit that the amended summons in each proceeding would be uncertain as it would invite the Court to decide whether at some point during the charge period there was an offence, without disclosing when in that window it is alleged an offence occurred.
Mr Elliott submits that the duplicity issue has "ultimately transformed into a slightly different point", such that there was, as I understand his submission, uncertainty because the particulars in each of the amended summons referred to "times" when the river at the Bourke gauge was less than a certain amount.
In Chang v R [2016] NSWCCA 296 at [62], Macfarlan JA cited Phillips and Buchanan JJA (with whom Ormiston JA agreed) in R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 at [40] in describing the concepts of duplicity and uncertainty as follows: "As we apprehend it, a count is bad for duplicity if it charges more than one offence; on the other hand, if the count charges but one offence and evidence is led of more than one instance of such offending, then the verdict, if against the accused, will be uncertain. This last is sometimes called latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown."
Given that the discrete duplicity argument appeared to resolve itself at the hearing, the remaining question is whether, as submitted by the defendants, the offence as pleaded in each amended summons is uncertain. Nevertheless, in accordance with Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [52] (where Leeming JA cited principles identified by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 ('Hannes') at [9]), the two steps used to identify uncertainty appear to be the same as those used to identify duplicity: "There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities."
As noted above, s 91G(2) of the WM Act, as in force at the relevant time, provided: 91G Contravention of terms and conditions of approval ... (2) If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence. Tier 2 penalty. ...
Accordingly, the prohibited act involves contravening a term or condition of a water use approval, a water management work approval or an activity approval.
The amended summons in each proceeding defines the Approval as "Water Supply Works and Water Use Approval 85CA753236" and (at [4] above) includes the following particulars under the heading "Manner of contravention": … "Water was taken in contravention of a term or condition of the Approval in that: a) It was a term or condition of the Approval that water is prohibited from being taken when the flow in the Darling River at the Bourke gauge is equal to or less than 4,894 ML/day. b) Approximately 3147 ML of water was taken in the 2015/2016 water reporting year by means of the water supply works nominated under the Approval and situated on the landholders' land. c) In the period 22 June 2016 to 27 June 2016, water was taken at times when the flow in the Darling River at the Bourke gauge was less than 4,894 ML/day." …
In evaluating questions of uncertainty, in Hannes, Hall and Barr JJ noted at [557] that: "(a) An indictment should furnish fair information and reasonable particularity as to the nature of the offence charged. (b) Evidence that is consistent with the particulars of a charge may be admitted even if the evidence is more specific in content than the particulars."
Further, in Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 at [29], Handley JA referred to Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 218 for the following proposition: "Provided only a single act is charged, alternative or cumulative allegations as to the circumstances making it unlawful will not render it bad for uncertainty or duplicity."
In this case, I find that there has been no miscarriage of justice because of duplicity, uncertainty or lack of particularity. While determinations of duplicity and/or uncertainty involve matters of fact and degree, I am conscious of Pepper J's comments in Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 at [38], that the applicable legal principles in relation to duplicity are "beguilingly simplistic in their articulation but often belie difficult application".
Although the defendants submit that the manner in which the prosecutor's case was presented amounted to "shifting the sands" (that is, what started out as a duplicity issue, in the course of the prosecutor's final submissions became an uncertainty issue because the prosecutor did not indicate at which point the offence begins and ends so long as it is within the nominated period), given the evidence that has been adduced and the manner in which the prosecutor has marshalled its evidence, I do not consider the amended summons in each proceeding to be either duplicitous or uncertain.

[20]

Prosecutor's position

The prosecutor submits that cl 3(1)(a) of Sch 10 of the WM Act transformed the 1912 Licence previously held by Clyde Agriculture (which as noted at [33] above had conditions (5) and (6)), into a replacement access licence (the Water Access Licence) and a replacement approval (the Approval), subject to such of the conditions of the entitlement as were applicable to an access licence or approval.
Since the 1912 Licence was a licence to take water which nominated particular "licensed" works, that is it linked the right to take water with the use of the Pumps, pursuant to cl 3(1) of Sch 10 of the WM Act, the prosecutor's primary submission is that the replacement access licence "nominated" the replacement approval to preserve this linkage.
Alternatively, the prosecutor relies on s 71W and cl 26(1) of Sch 10 of the WM Act which relevantly provided: Part 2 Access licences ... 71W Access licence may nominate water supply works (1) On the application of the holder of an access licence, the Minister may consent to the amendment of the licence so as: (a) to nominate a specified water supply work, or group of water supply works, as a work or group of works by means of which water allocations under the licence may be taken, or (b) to withdraw any such nomination. (2) The water supply work or group of water supply works nominated must be in one or more of the following: (a) the same water management area or water source as the access licence concerned, (b) a NSW water tagging zone, ... (3) For the avoidance of doubt, a water supply work or group of water supply works may be nominated under this section even though no approval is required to be held in relation to the work or works under this Act. ... Part 2 Conversion of former entitlements ... 26 Nominated works (1) Each work specified in a replacement water supply work approval is taken to have been nominated under section 71W in relation to each replacement access licence arising from the same entitlement, including any supplementary water access licence arising from or in relation to that entitlement. ...
The prosecutor submits that pursuant to cl 26(1) of Sch 10, each "work" specified in a replacement water supply work approval is taken to be nominated under s 71W of the WM Act in relation to each replacement access licence arising from the same entitlement. The use of those works is regulated by the replacement water supply work approval and so the prosecutor says that the replacement water access licence nominates that approval in relation to the use of the works.
Accordingly, pursuant to cl 46(9) and Sch 2 of the Plan, the prosecutor submits that the Approval created by cl 3(1)(c) of Sch 10 of the WM Act (which arose from or in relation to the 1912 Licence specified as 85SL105059 in column 1 of Sch 2) was taken to have imposed, as a mandatory condition, the "access rule" that "water must not be taken when the flow in the Darling River at the Bourke gauge (425003) is equal to or less than 4,894 ML/day" upon the Approval.

[21]

Notification

In relation to notification, although the letter of 17 October 2012 (at [42] above) from the Department, while noting that the Plan had commenced, did not specifically notify Clyde Agriculture of the conditions of the Water Access Licence or the Approval, the prosecutor submits that the letter's reference to the continuing applicability of conditions (5) and (6) of the 1912 Licence (at [52] above) and the conditions of the Approval (being the (unqualified) 4894 Term and the B Class Take Condition) were relevantly to the same effect.
The prosecutor accepts that cl 20(1) of Sch 10 (at [239]) required the Minister to notify an approval holder of the terms of a replacement approval (with notice of mandatory or discretionary conditions able to be provided, pursuant to cl 20(3) by one or more written notices) but submits that this clause does not provide that notification was required for a replacement approval to take effect, or that without notification a replacement approval was invalid. The prosecutor submits, and the defendants contest, that the purpose of notification was to ensure procedural fairness so that the holder of a water licence or approval was not caught unaware by a new condition.
Although the prosecutor's primary position is that notification is not required, and that the effect of Sch 10 of the WM Act is to create the Approval and imply conditions upon it, the prosecutor maintains that the defendants were in fact notified of the details of the Approval. The prosecutor first points to the letters sent by post to Clyde Agriculture on 17 October 2012 and Mr Harris on 11 September 2014, which contained information regarding the conversion of the former entitlement (being the 1912 Licence) and noted that licence and approval holders would be subject to the conditions of the former entitlement that applied to either a licence or approval. Second, the prosecutor pointed to evidence that, on 23 September 2015, details of the Approval, being a copy of a Statement of Approval setting out the conditions of the Approval was sent by the Department to email address (noting that the first four digits have been anonymised in accordance with the Court's "Identity Theft Prevention and Anonymisation Policy") "[xxxx]@pjhsons.com" (being the email address operated by Mark Adams, Mrs Harris' brother) which included the condition that water must not be taken when the flow of the Darling River at the Bourke gauge (425003) is equal to or less than 4,894 ML per day.
The prosecutor submits, and the defendants contest, that apart from its other arguments, the email constituted notification under cl 20(1) of Sch 10 of the WM Act and points to s 394 of the WM Act which (at that time) provided: 394 Service of documents (1) A document may be served on a person: (a) personally, or (b) by leaving it at, or by sending it by post to, the person's residential address or, in the case of a corporation, the address of the corporation's registered office, or (c) if it is impracticable for the document to be served on a landholder of land in the manner referred to in paragraph (a) or (b), by affixing the document in a conspicuous position on the land, or (d) in any manner provided for by the regulations. (2) In the case of land that is owned or occupied by more than one person or of an approval that is held by more than one person, service of a document on any one of them, or on any person duly appointed by them for the purpose of accepting service of documents, is taken to be service on all of them. (3) This section does not limit any other manner in which a document may be served.
The prosecutor submits that the effect of s 394(3) is that the provision becomes permissive rather than mandatory insofar as methods of service authorised by other legislation can also be considered good service for the purpose of the WM Act. In that regard, the prosecutor cites s 8(1) of the Electronic Transmissions Act 2000 (NSW) ('ET Act') and says that as at 23 September 2015, s 8(1) provided that if under a law of New South Wales (which would include the WM Act) a person is required to give (or, pursuant to s 8(4), send or serve) information in writing, the requirement is taken to have been met if the person gives the information by means of an electronic communication where: 8 Writing ... (a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference, and (b) the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
The prosecutor submits that both limbs are satisfied and the Court would be satisfied that notification has been effected. The prosecutor notes that "give information" is deemed by s 8(5)(c) of the ET Act to include giving, sending or serving a notification and pursuant to s 6, the ET Act applies to the Crown and thus to any notification given by the Department under cl 20(1) of Sch 10 of the WM Act.
In relation to limb s 8(1)(a) of the ET Act, the prosecutor submits first that: in Singh v Legal Aid New South Wales [2014] NSWIRComm 1016 ('Singh') at [48], it was held that this requirement may be satisfied in circumstances where, at the time a person sends information to a particular email address, the person knows the email address exists and the sender and recipient have previously corresponded via that email address; and, second, when the Statement of Approval was emailed to "[xxxx]@pjhsons.com", the email was in a form where it could in fact be read at that address, (within the test contemplated in Kaczmarski v Victorian Legal Services Board [2017] VSC 690 ('Kaczmarski')). The prosecutor also submits that the email was sent by the Department employees at a time when they knew that email address existed and had been previously used in correspondence involving the Department and Mr Adams concerning water access licences and approvals held by the defendants and Budvalt Pty Ltd (a company of which each of the defendants is a director) ('Budvalt'), within the test contemplated in Singh.
In relation to limb s 8(1)(b) of the ET Act, the prosecutor submits that Mr Wheatley gave specific evidence that following the transfer of the Access Licence and Approval to the defendants, he was informed by Mr Harris, who Mr Wheatley had known since 2008, during a telephone conversation in mid-2014 that Mr Adams (the addressee of the email purportedly attaching the details of the Approval) had authority on behalf of Mr and Mrs Harris (and Budvalt) to deal with all of the water licences and approvals held by them, including dealings in the form of sending and receiving documents by email and post. Specifically, he deposed at par (13) of his affidavit affirmed 31 January 2019 that the following conversation took place: [Wheatley]: A guy called Mark Adams has made a request in relation to your and Jane's licences and approvals. Is this something you were aware of and are you happy for Mark Adams to lodge papers, make requests and deal with your licences and approvals? [Harris]: Thanks Richard, yes that's fine. Mark is employee of ours who helps out in the office. On behalf of Jane, Budvalt and I, I give consent and authority for Mark to deal with all of our licences and approvals. Mark has authority to send and receive documents on our behalf by email and post. [Wheatley]: Thanks Peter. I will let the Dubbo team know.
Accepting that, in cross-examination Mr Wheatley said "The conversation I had with Mr Harris was not about the address for service of notice", the prosecutor submits that Mr Wheatley reiterated that the conversation related to "who can act on [Mr Harris'] behalf, or seek information on his behalf".
The prosecutor submits that Mr Wheatley provided unchallenged evidence that Mr Harris orally nominated Mr Adams as the authorised agent of the defendants (and Budvalt) to conduct dealings in relation to their access licences and approvals (including the Approval relevant in these proceedings), which the prosecutor says must be taken to have included receiving notice of the conditions relating to the Approval from time to time and that Mr Wheatley reaffirmed during cross-examination that Mr Harris authorised Mr Adams to at least send and receive documents by email relating to the access licences and approvals held by the defendants and Budvalt. Further, the prosecutor notes that Mr Wheatley stated, in a clear way which was not challenged by the defendants, that "in the ensuing months, Mr Adams lodged several papers on behalf of Mr Harris that Mr Harris had signed so I don't think there was any misunderstanding or misinterpretation";
In light of the above, the prosecutor submits that the defendants can be taken to have consented to the use of the email address "[xxxx]@pjhsons.com" (being the email address of Mr Adams) to notify them of conditions relating to the Approval; and
Section 5(1) of the ET Act defines "consent" to include "consent that can reasonably be inferred from the conduct of the person concerned but does not include consent given subject to conditions unless the conditions are complied with". The prosecutor notes that in Singh at [53]-[56], it was accepted that consent to receive information at a particular email address could be inferred for the purpose of the ET Act based on the continued receipt and initiating of email communications from that address.
The prosecutor submits that there is evidence including an email of 5 February 2016 from a water regulation officer of the Department to Mr Adams at the email address "[xxxx]@pjhsons.com", attaching a Notice of Determination in relation to a water access licence held by Budvalt. The use of this email address in relation to water access licences and approvals held by the defendants and Budvalt provides an additional ground (on the basis of course of conduct) to infer that the defendants consented to the use of that email address to notify them of conditions relating to the Approval.
The prosecutor submits that service on Mr Adams was also effective service on both defendants. First, even if the effect of the conversation between Mr Harris and Mr Wheatley was only to confer authority on Mr Adams to conduct dealings (including by receiving notification of conditions of the Approval) in relation to the interests Mr Harris had in any relevant water access licences and approvals (as distinct from the interests held by Mrs Harris and Budvalt), by operation of s 394(2) of the WM Act, service of the conditions of the Approval on Mr Adams, as the authorised agent of at least Mr Harris, at his email address was effective notification not only on Mr Harris but also Mrs Harris. Secondly, Mr Adams was at least appointed by Mr Harris as Mr Harris' agent in relation to dealings concerning the water access licences and approvals which Mr Harris had an interest in, such that service of the conditions of the Approval at the email address of Mr Adams can be taken to be "service of a document on any one of" Mr or Mrs Harris as the joint holders of the Approval within the meaning of s 394(2) of the WM Act.

[25]

2010 mistake

The defendants emphasise the history before 4 October 2012 that different classes and kinds of water licences were held by the owners of Beemery Farm and that there was a range of instruments permitting the take of water from the Barwon and Darling River sources, including "A Class", "B Class" and "C Class" instruments and that the defining feature of each class of instrument related to the circumstance in which the holder may take water. The defendants note that prior to 2010, the B Class licence (held by Clyde Cotton) did not include the Menindee Lakes C Class Access Condition and that it only included a "flow" condition (as set out at [29] above) which the defendants refer to as the "B Class Take Condition".
Specifically, the defendants maintain that a defining feature of the B Class licences prior to 2010 had been that water had been permitted to be taken when the flow at the Brewarrina gauge is more than 840 ML per day and the flow at the Culgoa gauge is more than 760 ML per day (that is, the B Class Take Condition) and that, during a process of instrument conversion and renumbering undertaken under the 1912 Act in 2010, which was undertaken simultaneiously for all of the licences held by Beemery Farm as a "job lot" (as accepted by Mr Wheatley in evidence), an aspect of the Menindee Lakes C Class Access Condition (namely the specific condition restricting "take" to when the flow was less that 4,894 ML per day - referred to by the defendants and in this judgment as the "4894 Term") was introduced into the 1912 Licence conditions. The defendants submit that it was introduced in error and had "no place" in a B Class licence, and that there is no evidence of the Minister or any person on his behalf consciously reflecting on (and positively deciding) that what was earlier a part of a C Class condition should be put into a B Class licence.
Similarly, the defendants submit that there is no evidence that the Minister gave any consideration to the existence of any changed circumstances pertaining to either or both of Beemery Farm and the river that would lead to the introduction of the term into the 1912 Licence (which was a B Class licence). The defendants note that the condition had not appeared in the (earlier) 2000 B Class Authority and that Mr Wheatley gave evidence that the intention in 2010 was to simply roll over the B Class "authority" to a B Class "licence" on the same terms.

[27]

The Plan

The defendants submit that cl 3 of Sch 10 of the WM Act should have operated so that, to the extent that the terms of the existing entitlement (that is, the conditions in the 1912 Licence) were applicable to a water licence, they would become the terms of the new licence under the WM Act and, to the extent that the terms of the existing entitlement were applicable to a water approval, they would become the terms of the new approval under the WM Act. However, when the Plan was introduced, the defendants submit that the mistake made in 2010 (said to be the introduction of condition (5), being the 4894 Term into the 1912 Licence) was perpetuated and aggravated. They submit that a decision was made: first, that licences with the Menindee Lakes C Class Access Condition (at [31] above) be simplified so that they only contained one element (the 4894 Term); and, second, that change should be recognised and provided for in the Plan. The defendants say that the 1912 Licence was caught up in that process and was specifically referred to in Sch 2 of the Plan (which, at [81] above, nominated the Approval to contain the mandatory 4894 Term), because the 1912 Licence, by mistake, already contained the 4894 Term.
The defendants submit that the above context is apparent because an internal Departmental Memorandum dated 20 December 2010 ('Memorandum') explains that these two factors are the reason for seeking to impose the 4894 Term on some licences under the 1912 Act at that time. The defendants further submit that, in the course of the drafting of the Plan, the words "subject to" disappeared from the 4894 Term as it was set out in Sch 2 of the Plan. Accordingly, the defendants submit that the regime contemplated by the Plan was consistent with a continuation of that which had existed in respect of the 1912 Licence - that is, a regime under which the holder could take water where the B Class Take Condition (that is condition (6) at [29] above) was satisfied.
The defendants further submit that the fact that there was no regulatory action taken by the Department following the alleged pumping in June 2016, and no prosecution until 2018, is consistent with the Department's staff operating on the same basis as the defendants - that is, that the B Class Take Condition had been satisfied in late June 2016 (that is, the flow was in excess of 840 ML per day at the Brewarrina gauge and 760 ML per day at the Culgoa gauge). As such, the defendants submit that they could take water from the river using the approved works (the Pumps).
The defendants submit that s 56 of the WM Act confirms that a water access licence is the instrument which is to govern the take of water, including specifying the rates and circumstances in which it may be taken, and that the WM Act draws a distinction between the territory of a licence and that of an approval, noting that the former is concerned with regulating the take of water at specified flows or in specified circumstances while the latter is concerned with identifying the purpose for which approved works may be used. The defendants submit that the 1912 Licence authorised the entitlement's holder (then Clyde Agriculture) to use the Pumps for the purpose of irrigation, and not to use those "works" for certain other purposes.
The defendants further submit that the language of Sch 2 of the Plan is confusing, and that on one reading of the chapeau to Sch 2 (at [81] above) it is specifying what an access licence is to provide, noting that a licence which has a nominated approval in it must provide that any such approval is to have the scheduled condition in it. If this is correct, the defendants say that the Plan is mandating a term of a licence, not an approval.
The defendants submit that Sch 2 should be construed, insofar as it was addressing the 1912 Licence (which was specifically identified in Sch 2 as "85SL105059") and its replacement, as addressing the terms of the replacement access licence (and not an approval) because: first, on a plain reading of the words, that is what it says; and, second, it is a licence which deals with take of water at specified rates and the (mandatory) term, as set out in Sch 2, is concerned with that subject (that is, a licence subject). If that is so, the defendants say that the prosecutor's case fails in limine as the (unqualified) 4894 Term was not (and could not have been) a term of the Approval, but instead a term of the Water Access Licence and the separate prosecutions brought under the Water Access Licence have been abandoned.
The defendants alternatively submit that if, properly construed, the Plan specifies what must be included in an approval, then that part of the Plan (and any instrument created based on its implementation) is invalid. The defendants contend that this invalidity is a matter which may now be raised notwithstanding the privative provision in s 47 of the WM Act: Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 ('Kirk') at [96]-[100].
The defendants submit that if the Plan and the Approval were to operate as the prosecutor alleges, each would be invalid either as being ultra vires or, in the alternative, legally unreasonable.
The defendants submit that the effect of this part of Sch 2 of the Plan, if it is to be construed as concerning approval terms, is to mandate a condition in an approval which is expressly addressing a matter which the WM Act itself says is to be covered in a licence. The WM Act does not empower the Minister to create a Plan which provides for licence or approval terms beyond that which may legitimately fall within the scope of a licence or approval under the Act itself. If it were otherwise, the defendants say that the Minister could, by administrative action, subvert the established legislative regime, a course which could not have been intended in circumstances where the Plan is subordinate to the Act: ss 3 and 31 of the Interpretation Act 1987 (NSW).
The defendants submit that, notwithstanding the prosecutor's reliance on s 47 of the WM Act, it is open to a defendant in a criminal proceeding to defend a charge on the basis that the prosecutor's case relies on a provision of an instrument which is invalid on administrative law grounds, such that a breach of the said provision could not constitute an offence. This is so even if the court hearing the proceeding would not itself have had jurisdiction to hear a judicial review challenge to the provision in civil proceedings: Gray v Woollahra Municipal Council [2004] NSWSC 112.
The defendants further contend that it is settled law that a privative clause which seeks to limit or exclude challenges to the validity of decisions made under it (such as s 47 of the WM Act) cannot provide protection in respect of decisions made in jurisdictional error, including ultra vires decisions: Kirk at [96]-[100] and that a decision that is ultra vires by reason of going beyond the authority conferred by an Act (here, to impose a condition on the wrong kind of instrument, contrary to the WM Act) is a decision infected by jurisdictional error: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at 176-180.
Alternatively, the defendants submit that even if it had been open for the Plan to mandate the inclusion of the (unqualified) 4894 Term in the Approval, such a decision would be manifestly unreasonable because it would be radically different and fundamentally inconsistent with the access rule for B Class licences in the zone contemplated by cl 46(5) of the Plan itself (which contemplated that water could be taken where the flows were above 840 ML per day at the Brewarrina gauge and above 760 ML per day at the Culgoa gauge); and, further, the B Class Take Condition (condition (6)) that was then in place under the 1912 Licence at Beemery Farm, under which, according to the defendants' interpretation, water was permitted to be taken where the very same flows described in the access rule above existed, that is, it was "subject to".
The defendants submit that these matters are strong indicators of a material error on the part of the Minister in Sch 2 of the Plan, being an error has produced an unreasonable outcome that could not have been intended. The defendants say that this is reinforced by the fact that neither the 4894 Term nor the (unqualified) 4894 Term have been imposed on any other B Class licence or approval in the vicinity of Beemery Farm, indicating that there is no underlying reason for the imposition of such a term in the Water Access Licence or Approval.
The defendants contend that, at that time, no consideration was given by the authorities to the following matters, each of which demonstrates the irrationality of the decision made: first, the fact that the 1912 Licence was actually a B Class licence, not a C Class licence; second, the 1912 Licence was not a licence that had the two-pronged C Class Menindee Lakes Condition (at [31] above) in it, and therefore it did not fall within the category of licence that was being addressed in the decision; third, the 1912 Licence should never have had condition (5) included in it in 2010 in the first place, and the condition therefore could only have appeared in that licence by mistake; and, fourth, the fact that condition (5) in the 2010 B Class Access Licence, in addition to having been mistakenly included in that licence, was also expressly subject to condition (6) which was consistent with the provisions in the Plan for B Class licences in the Brewarrina to Culgoa River Junction Management Zone.

[28]

Notice

As a separate matter to the above concerns, the defendants submit that the Minister did not give written notice of the introduction of the conditions to Clyde Agriculture, the then‑proprietor of Beemery Farm, and no such notice had been given to either Mr or Mrs Harris in the period following their acquisition of the property and up to the date of the alleged offences.
The defendants submit that cl 20 of Sch 10 establishes a notice requirement which is to be satisfied before a new term will form part of the licence or approval conditions. The defendants submit that cl 20(1) provides that the Minister must notify the holder in writing of that which has been created by way of licence or approval conditions and cl 20(2) provides, within that context of notification, that a licence or approval "is to include any mandatory conditions that are required to be imposed" and "may include such other conditions as the Minister thinks fit". The defendants submit that cl 20(2) is therefore both requiring (in the case of mandatory conditions) and permitting (in the case of other conditions) the Minister to do something with respect to the creation of licence or approval conditions - it is not purporting to say that certain conditions will automatically become licence or approval conditions as if that had been intended, it would have been addressed in cl 3 of Sch 10.
In response to the prosecutor's suggested interpretation of cl 20(1) as a process for "procedural fairness", the defendants say that it is difficult to see how it would be "procedurally fair" for the WM Act to operate such that a licence holder could have a term imposed without notice, with the consequence that he or she would thereafter act in a manner that was criminal. The defendants contend that such a result could not have been intended by the legislature. The defendants submit that notice was never given when the Plan commenced operation on 4 October 2012, and the letter of 17 October 2012 to Clyde Agriculture made this apparent.
The defendants contend that there is no reliable evidence that the Department provided written notice to either defendant of the terms of the Approval so as to amend the conditions of the Approval from those terms in the 1912 Licence (in which the 4894 Term was qualified by reference to the B Class Take Condition). The defendants submit that such written notice was essential to amend the existing terms of the Approval in accordance with s 102(5) of the WM Act, and notes that the prosecutor does not assert that notice was served directly on the defendants.
The defendants note that their solicitors wrote to the Department on 4 July 2014 and confirmed that all correspondence in relation to "their Licences" should be forwarded to the defendants at a nominated PO Box address. The letter attached a Notice of Sale which formally provided that the "Address for Services of Notices" was the same nominated PO Box address. Thereafter, on 11 September 2014, the Department wrote to Mr Harris, attaching a copy of the 1912 Licence (referred to as "your Water Act 1912 licence"). The letter stated: "The NSW Office of Water is currently finalising the conversion process with reference to approvals and conditions for the BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES. As soon as this process is finalised, a notice containing the details of the WAL and/or approval/s conditions that apply will be mailed to you. Until then, the licence and approval holders continue to be subject to the conditions of the former licence 85SL105059."
In writing to Mr Harris in this way, the defendants submit that the Department remained cognisant that the conditions of the Water Access Licence and Approval, that it had given notice of, were those set out in the 1912 Licence, and the fact that any notice about such important subject matter should be sent by post and directly to the defendants.
The defendants submit that the letter failed to identify that, consequent upon the operation of cl 3 of Sch 10 of the WM Act, some of the 1912 Licence terms were now the terms of the Water Access Licence, and other of the 1912 Licence terms were now the terms of the Approval.
The defendants say that all of the other records of communications with licence holders at Beemery Farm in relation to the provision of licence or approval conditions were in hard copy and sent by mail.
The prosecutor relies upon a print out of the history of an email purportedly dated 23 September 2015, requested by and sent to Mr Harris at Mr Adams' email address "[xxxx]@pjhsons.com", the text of which reads: "Message Please find attached, an updated copy of the Statement of Approval for 85CA753236. If you have any questions, please reply to this email"
The defendants submit that, regardless of Mr Adams' status and what modes of service may be effective, there is no evidence to demonstrate beyond reasonable doubt that the email actually attached the Approval. As the sender of the email was not called to give evidence, the defendants submit that a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference arises that the person could not have given evidence that would assist the prosecutor's case in this regard.
The defendants submit that the evidence surrounding this communication relied upon by the prosecutor in relation to notice is erroneous and unreliable. The (email) document contains an erroneous date ("23 Wed 2015" rather than "23 September 2015") and, further, the document said to be an automatic out of office auto-reply to the email was sent (according to time recording on the documents) before the email from the Department.
The defendants note that the prosecutor also suggested that an inference can be drawn that the document was attached because of the text in a table at the bottom of the electronic print out, however the defendants submit that this does not constitute a record of what was attached to the email. Even if the document was a Statement of Conditions, the defendants submit that it was produced after the time of the email and, on that basis, the statement referred to in that table cannot have been attached to the email.
Further, the defendants observe that the line entry immediately above the aforementioned entry contains an administrative note which reads "…Details of the customer and/or work(s) may not be accurate". The defendants submit that this warning is apt given that the customer details being used was the email was sent to "[xxxx]@pjhsons.com", which was not the address or mode for service that had been formally communicated by the defendants to the Department.
In response to the prosecutor's reliance on s 8(1) of the ET Act, the defendants submit that the requirement in s 8(1)(a) is of very particular import as the new conditions become effective immediately upon service, have the potential to radically alter the rights and interests of the recipient, and require the recipient to immediately act in a manner different from that to which they are accustomed. The defendants say that the information is of critical importance and needs to be received and understood by the other party almost immediately. The defendants submit that the words "readily accessible" must be taken to mean accessible by the person to whom notice is to be given. Given the operation of the WM Act and consequences associated with a change in conditions, "readily" accessible so as to be useable must mean immediately (or almost immediately) accessible.
The defendants make detailed submissions regarding why it was not reasonable to expect that the email would be readily accessible by the defendants so as to be usable by them as: first, the email address was not that of either of the defendants; second, there is no evidence to demonstrate the email address belongs to Mr Adams; third, there is no evidence to demonstrate that Mr Adams was a person that could reasonably be expected to pass the email on to the defendants, and the prosecutor did not subpoena Mr Adams; fourth, even disregarding the above, gaining access to the email by the defendants required Mr Adams to read the email and its attachment diligently, notice (as a non-lawyer) the subtle changes in language (being the absence of the words "subject to" in the 4894 Term), appreciate the significance of the absence of those words, consider that the document was something of significance that should be drawn to the defendants' attention, inform them that he had received the email, and consequentially provide them with the email and its attachment for review; fifth, the email itself failed to identify any change in the approval conditions or warn that the approval would regulate the "take" of water and it was not otherwise cast in terms that were suggestive of the document being one that should be brought to the defendants' attention; sixth, the address for service that the defendants provided to the Department specified that the documents were to be addressed to them personally at a nominated postal address; seventh, the Department had written to the defendants personally by post on 11 September 2014 and expressly told them that if new conditions were issued, they would be mailed to them; eighth, pursuant to the Department's own records, it regarded the appropriate means by which documents extending or varying approval or licence terms would be served was by service on the defendants by post to the address maintained by the Department; and ninth, the automatic reply to the email was that the holder thereof, allegedly Mr Adams, was away and out of office.
In relation to s 8(1)(b) of the ET Act, the defendants submit: first, they had expressly stated to the Department in writing that service was to be effected by way of post; second, the evidence does not disclose the defendants giving their consent, either expressly or impliedly, to such information being sent by way of email to Mr Adams; and, third, consent in the context of this provision must be clearly established (Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911 at [22]) and in the context of there being a clear written notification of the defendants' address for serving being "PO Box 20 Bourke NSW 2840" and the Department on 11 September 2014 sending the letter notifying of the conversion of the 1912 Licence to the WM Act to "PO Box 1626 MOREE NSW 2400", such consent cannot be said to have been established at all, let alone clearly.
In relation to the prosecutor relying upon Mr Wheatley's third affidavit, where he deposed at par (13) that he had a conversation with Mr Harris at an unspecified date (but around mid-2014), the defendants submit that that evidence is problematic because, first, it is highly legalistic and idealised, which demonstrates that it is artificial and unlikely to have been said naturally by a farmer and non-lawyer; second, the artificiality is apparent from the fact that the description of the conversation descends to the very modes by which such communications could be effected, including "by email" and it is untenable that Mr Wheatley would remember such granular detail from a conversation in 2014; third, this conversation was not in Mr Wheatley's two earlier affidavits, even though he had been addressing the question of service since 12 June 2018 which was the date of his first affidavit; and, fourth, it is inherently improbable that Mr Harris would have responded in this manner at a time when he had only recently informed the Department in writing that the appropriate method of service was by way of post addressed to him.
Additionally, given the evidence of Mr Wheatley in cross-examination and his demeanour during that process, the defendants submit that it is clear that he did not have an independent recollection of the alleged conversation set out in his affidavit. The defendants note that the conversation occurred long ago and Mr Wheatley properly conceded that it was "hard to remember". Further, on a number of occasions, Mr Wheatley couched his evidence in terms of his "belief" as to what "would have been" said and the defendants submit that Mr Wheatley's belief about what would have been said does not provide a satisfactory basis for a finding that such a conversation occurred.
The defendants also submit that Mr Wheatley did not have a verbatim recollection of the conversation, nor did he have a diary note of the conversation.
The defendants contend that there is an insufficient basis for finding beyond reasonable doubt that such a conversation occurred or that certain words were said. The defendants submit that the mere fact that Mr Campbell of the Department sent an email to the email address some 18 months after the conversation Mr Wheatley described does not corroborate the prosecutor's submission. The defendants note that there is no evidence of emails to and from Mr Adams and Mr Wheatley and others in the weeks, months and years following this alleged conversation, and the fact that Mr Wheatley, by his own admission, continued to deal mainly with Mr Harris further supports this submission.
Notwithstanding the above, the defendants submit that there is no evidence that Mrs Harris was served. The defendants say there is no evidence she consented to service of amended conditions of approval by email to anyone, let alone Mr Adams. In response to the prosecutor's reliance on s 394(2) of the WM Act, the defendants submit that either Mr Harris had to be served directly (not through an agent) or service had to be on a person nominated by both defendants, and neither requirement was satisfied here.
Thus, the defendants submit that they did not consent to notice of amended Approval terms being provided to them via email. That being so, the defendants say that the requirements of s 8(1) of the ET Act are not satisfied and the email in question does not establish notification to the defendants under the WM Act.

[30]

Introduction

The WM Act is complex legislation. There has been a system of regulation regarding the extraction of water from the Barwon-Darling River for many years and although a feature of that system has been (and continues to be) the division of instruments into different "classes", for reasons to follow, I do not consider this historical aspect relied upon by the defendants to be persuasive or determinative. As noted above, the history in relation to the issuing of licences and authorities is largely uncontested. Simply stated, before the introduction of the Plan in October 2012 the extraction of water at Beemery Farm was regulated by authorities and licences issued pursuant to the 1912 Act. The relationship between those conditions which existed in the 1912 Licence and the conditions in the Approval is a primary subject of dispute.
I have set out the relevant provisions of the WM Act and Plan above and except where necessary are not repeated. In summary, the following is clear. The WM Act governs the issue of licences and approvals for certain water sources and provides for two primary classes of regulatory instrument being water access licences and approvals although, as noted above, there are subclasses of each. The demarcation between water access licences and approvals is a significant issue and will be considered below. The 1912 Licence continued up until 4 October 2012 when the Plan commenced. The Plan was one made by the Minister pursuant to s 50(1) of the WM Act. Clause 4 of the Plan provided that it applied to the Water Source the subject of the charges and cl 7 provided for "rules" that are given effect by mandatory conditions contained in Pt 11 of the Plan. On the day the Plan commenced, the Proclamation took effect such that Pts 2 and 3 of Ch 3 of the WM Act were activated and applied to the Plan. Further, the Proclamation enlivened Sch 10 of the WM Act and, as noted above, cl 3 of Sch 10 provided that any "entitlement" under the 1912 Act was deemed to be replaced.
Accordingly I find that cl 3(1) of Sch 10 of the WM Act had the effect that the 1912 Licence was replaced in accordance with cl 3(1)(b) which provided: "to the extent to which it entitles any person or body to use a specified water management work, by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind),..."
Although not germane to any of my findings, I accept the defendants' submission that there is no evidence that the B Class Take Condition in the Approval was not satisfied as at the dates relevant to the charges. This would only have relevance if the "interpretation" argument raised by the defendants was sound.
In relation to Element 1 and Element 2, given the nature and extent of the issues raised by the defendants, the following general questions arise: 1. Whether the inclusion of the 4894 Term in the 1912 Licence and later in the Approval was a mistake (and whether "subject to" should have been included or should be implied); 2. Whether the Plan could and did validly require the (unqualified) 4894 Term to be a mandatory term of an approval (including the Approval) and if so, whether that term automatically became a term of the Approval upon inception of the Plan, or by some other action at a later time; 3. In considering the difference between an approval and a licence, whether an approval could regulate the taking of water; 1. whether the defendants are able to raise a collateral challenge to the decisions made; 2. if so, whether the decisions which brought about that result were ultra vires and vitiated by jurisdictional error; and/or manifestly unreasonable. 1. Whether the defendants were required to be notified of the conditions of the Approval, including: 1. whether notification is necessary to make out the offence; 2. whether the correspondence to Clyde Agriculture of 17 October 2012, the letter sent to Mr Harris of 11 September 2014, and/or the email sent by the Department to "[xxxx]@pjhsons.com" on 23 September 2015 constituted notification (if needed) under cl 20(1) of Sch 10 of the WM Act and if so, whether service on Mr Adams was effective service on both defendants; and 3. whether a conversation between Mr Wheatley and Mr Harris took place concerning the address for service of notices;

[31]

2010 mistake

I accept that the (unqualified) 4894 Term, clothed in not dissimilar wording, was similar to a condition in one or more C Class licences issued pursuant to the 1912 Act at one time being one part of the Menindee Lakes C Class Access Condition (as per [31] above) and that, at least in 2012, the proprietors of Beemery Farm held a B Class licence and the two C Class Licences and that the C Class Licences contained the "Menindee Lakes C Class Access Condition". However, and relevantly, it is clear that the 1912 Licence contained both the 4894 Term and the B Class Take Condition and that the Approval has very similar conditions as noted a number of times above.
I do not accept the defendants' submission, and the evidence does not establish, that during the course of instrument conversion in 2010 that the introduction into the then 1912 Licence of the 4894 Term (which hitherto had been in the C Class Licences) was a mistake. Leaving to one side whether the defendants are able to raise this question now - a matter about which I have real doubt - I do not accept, nor do I consider it relevant, that there was some form of mistake. Despite this, at the time the Plan effected the conversion, the conditions attached to the 1912 Licence were clear. Further, even if there had been some "mistake" in the inclusion of the 4894 Term in the 1912 Licence, that fact was not relevant (nor determinative) to the subsequent inclusion of the (unqualified) 4894 Term (mandated through Sch 2 of the Plan) in the Approval because I find that the commencement of the WM Act (and the subsequent activation of the Plan) effected a different regime than that which had previously applied under the 1912 Act which not only did not prohibit the inclusion of a term such as the (unqualified) 4894 Term in an approval but specifically provided for it subject to any notice requirement which I consider below.
The various entitlements enjoyed by Clyde Agriculture that existed under the 1912 Act are outlined earlier in this judgment. The defendants' emphasis upon the licensing and regulation history relating to Beemery Farm before October 2012 summarised above is based upon limited evidence. Accepting that there were different classes of instrument pursuant to the 1912 Act and accepting that there was at least prior to 2010, conditions in some classes of licence that may well not have been in other classes of licence (for example, the fact that a B Class licence held by Clyde Cotton did not include the Menindee Lakes C Class Access Condition) or one aspect thereof, I do not consider this material relevant or determinative in relation to the issues before the Court.
Although Mr Wheatley accepted a suggestion that certain instruments had been re-issued and/or converted (and re-numbered) in 2009 or 2010, that being the only evidence before the Court apart from copies of a number of earlier licences held by Clyde Agriculture, I do not accept the submission that the 4894 Term had been either introduced in error or that it had "no place" in a B Class licence.
Although the fact that the 4894 Term was included in the 1912 Licence prior to October 2012 may have had some relevance to the manner in which the 1912 Licence was considered by the relevant authority at the time of consideration of the new (replacement) regime, however I consider this is of marginal (and only historical) relevance. I make this finding leaving to one side my concern as to whether in the circumstances a challenge raising some "mistake" can be raised at this stage.
As I understand the defendants' submissions, the "mistake" issue is raised independently to the collateral challenge considered below in relation to the making of the Plan and the consequent issuance of the Approval.

[32]

"Subject to"

Irrespective of my finding that there was no mistake or error as submitted by the defendants, the defendants maintain that the existence in the 1912 Licence of the 4894 Term had no negative practical effect at that time because it was "subject to condition (6)" such that, on the defendants' construction, the restriction in the 4894 Term did not apply to the take of water which was otherwise expressly permitted by compliance with the B Class Take Condition. If I understand the submission correctly, that purported construction has two consequences. First, it may have, or should have, affected the replacement instruments created by Sch 10 or the mandatory conditions contained in the Plan; and/or second, apart from the other challenges made by the defendants, the (unqualified) 4894 Term (the subject of the charges) should be read as subject to the B Class Take Condition in the Approval even though the words "subject to" are absent from the condition the subject of the charges, such that the obligations replicate those in the 1912 Licence.
The parties provided submissions in regard to the interpretation of condition (5) and condition (6) as they were in the 1912 Licence and, in particular, the effect of the words "subject to" which appear in condition (5). I have summarised the submissions at [128] and at [136]-[139] above. For reasons that follow, while I do not consider the argument in relation to the words "subject to" to be determinative in relation to any outstanding issue with the possible exception of the defendants' 'interpretation' issue, I find that in the particular statutory and factual context, the words "subject to" in the 1912 Licence have a meaning akin to "in addition to". My reasons are as follows.
First, while I accept that "subject to" has been the subject of much judicial consideration including the authorities to which I have been referred, I consider that, apart from providing some guidance as to the appropriate approach, each case was decided on its own facts and I am therefore guided by the general principles of construction that words are to be given their ordinary grammatical meaning and considered in their context and, where appropriate a construction which promotes the purpose of the instrument will be preferred: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky') at [69]-[71]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [51]; Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174 at [257]-[272]. Nevertheless, in Jones v Territory Insurance Office (1988) 55 NTR 17, Asche CJ held at 21: The words "subject to s 29" mean no more than "conditional on the performance of the requirements of s 29": see Massey-Harris & Co Ltd v Stasbourg (1941) 4 DLR 620 at 622; Prior v Hannaford [1970] VR 772 at 779.
Further, Mansfield J in Akpata held at [10]: In context, I think the introductory words to s 46(1) 'Subject to subsections (1A) and (2)' are intended to prescribe additional requirements for the validity of an application for a visa.
The words "... subject to ..." were also considered in Medical Council of New South Wales v Lee [2017] NSWCA 282, where Sackville AJA (Beazley P and Basten JA agreeing) stated at [87]: "When used to define the relationship between two statutes or provisions, "subject to" is a standard means of establishing which provisions are dominant and which are subservient. The subservient provisions therefore operate only to the extent that they are not inconsistent with or repugnant to the dominant provisions."
Second, although I do not regard context as determinative, I consider that, taking into account the fact that the conditions are contained within an instrument that has the purpose of controlling the use and extraction of water through pumps, and noting that the Culgoa gauge and the Brewarrina gauge represent different locations closer to Beemery Farm in comparison to the Bourke gauge at which water flow may be measured, I consider the construction I have adopted does not result in an inconsistent or conflicting practical or legal result. Considering the principles above, it appears both literally and practically that each of the restrictions in relation to the extraction of water unless certain flow requirements should be met at each of the three gauges is what is properly intended irrespective of the words "subject to". Although the defendants submit that if, contrary to their submission, it was the intention (or the proper meaning) of the conditions that each restriction was required to be separately met, it would have been plainly stated that each flow restriction must be separately met, I do not accept that submission.

[33]

Applicable term

As noted above, the defendants submit that the regime contemplated by the Plan provided for a continuation of that which already existed in relation to the earlier 1912 Licence (that is the regime under which the holder can take water where the B Class Take Condition was satisfied) and that the 4894 Term was not a term that was "applicable" to an approval.
On the assumption that that concern can now be raised, a matter about which I address below pursuant to the collateral challenge arguments, I consider that leaving to one side the question of "replacement" and/or the imposition of the "access rule" on "all water supply work approvals" (as per Sch 2 of the Plan), the matter is one primarily of statutory construction and requires consideration of Pts 2 and 3 of Ch 3 of the WM Act and ss 56 and 89 in particular.
It is well accepted that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute, and that the meaning of a provision must be determined "by reference to the language of the instrument viewed as a whole": Project Blue Sky at [69]. Further, where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 at 305.
I do not find that merely because there is a statutory distinction between that which is to be the role of an approval as opposed to a water access licence, and accepting that the WM Act effected a markedly different regime to that which was previously in place (both consequent upon the 1912 Act and a number of subsequent legislative enactments) and, while I accept that it is clear that there are significant differences between a water access licence and an approval (or a number of approvals), it does not follow that a condition such as the 4894 Term cannot be imposed upon an approval. My reasons follow.
First, the essential differences between a water access licence and an approval do not need to be repeated and are clear from the statute. Despite this, the role which each plays within the overall scheme of regulation is clear. Simply stated, s 56 entitles the holder of an access licence to specified shares in the "available water", within a specified water management area, and also to "take water" at specified times or at specified rates or in specified circumstances. Despite this, s 56 does not seek to necessarily govern or control the actual manner of use of works or, relevantly, when and how a particular work may be utilised. An access licence such as the Water Access Licence held by the defendants and as recorded in the WAL Register (which records the specific details of each licence including the share component; the extraction component; the relevant water sharing plan; nominated works and expiry date; current ownership of the licence; and the details of any mortgages or charges) at [52] above, primarily gives an entitlement to a share of water to the licence holder. The amount allocated is determined after a complex system of allocation.
Understood in this way, s 56 does not militate against or render invalid (in the sense of being beyond power as considered further below), the imposition of a term that may control the actual use of a work (such as the Pumps) which facilitates the physical extraction of water. As is clear, s 56 provides that an access licence entitles its holder to specified shares in available water and to take water at specified times, at specified rates, or in specified circumstances (or any combination thereof). Further, s 56 provides that the share component of an access licence may be expressed as a specified maximum volume, as a specified proportion of the available water, or as a specified number of units.
Further, a water access licence clearly differs from licences and authorities under the 1912 Act. Under the WM Act a water access licence provides a clearly defined entitlement, which is listed on a public register (the WAL Register) that is separate from land ownership and as such, licences separate the entitlement to access a specific amount of water from approvals, which are necessarily associated with specific water supply works and the use of water extracted by the works the subject of an approval. Approvals, in a practical sense, are required to install and operate a work (such as the Pumps) and use the water for a particular purpose, in the present case, for irrigation in specified locations. They run with the land. The regime works in such a way that a water access licence holder can take water if the water allocation account for that water access licence is available, and the water is taken through a water supply work.
Leaving aside the defendants' separate arguments about the replacement of the 1912 Licence (and other entitlements under the 1912 Act) pursuant to the new regime under the WM Act (including concerns regarding the notification and the like), the condition the subject of the charges does not purport to affect the share or volume of water that the defendants as holders of a water access licence can take. It is simply a restraint as to when the Pumps can be (or more particularly) cannot be used. There is no expressed or implied restriction in the WM Act that requires or restricts the imposition of a condition on when a particular work (the subject of an approval) can be used. In my view it is "applicable to an approval" as otherwise provided for in cl 3 of Sch 10.
Inherent in my reasoning is, as noted above, an acceptance that licences and approvals have different but related functions. Considering the fact that a water access licence (with a particular water allocation) can be traded (in the sense of sold or transferred), the imposition of a condition placed on a discrete fixed work is understandable. Further, my finding does not mean that a similar condition could not, or should not, be imposed upon a water access licence.
In light of the above, I do not accept the submission that the application of cl 3 of Sch 10 commands that the terms (in particular the 4894 Term) of the 1912 Licence become terms of a water access licence and, or more relevantly, could not or did not become terms of the Approval. Further, it is clear that approvals (particularly in relation to a water supply work approval) authorise the holder of an approval to construct and use a water supply work at a specified location.
Further, s 100 of the WM Act which provides for "conditions of approval generally" states that an approval is subject to conditions as the Minister may from time to time impose which, apart from "mandatory conditions" may include other conditions which, for example, may relate to "protection of the environment" and may include conditions as to "the method of operation of water management works". As I have found above, I consider that the 4894 Term relates, at least, to method of operation of a work.

[34]

Collateral challenge

The defendants submit that, to the extent the Court finds that the (unqualified) 4894 Term became a term of the Approval (contrary to the defendants' earlier submissions) either by way of the operation of the Plan and the WM Act, or alternatively by the conduct, act or decision on behalf of the Minister, the decisions which brought about that result are first, ultra vires and vitiated by jurisdictional error and, second, such decisions are manifestly unreasonable.
The defendants' primary submission as noted above at [146]-[153], is that the WM Act does not empower the Minister to create a water sharing plan (or issue an approval thereunder) which provides for the inclusion of a condition in an approval that goes beyond that which may legitimately fall within the "scope" of an approval (reporting their submissions earlier made), and that any decision to do so is ultra vires and vitiated by jurisdictional error. Further, as a discrete matter, they submit that the introduction of the (unqualified) 4894 Term into the Approval was itself the result of decisions that are otherwise manifestly unreasonable and void.
As the prosecutor submits that s 47 of the WM Act (at [129]-[130] above) has the effect that the Plan itself, which effectively imposes the (mandatory) condition the subject of each charge, and any suggested decisions relating thereto, cannot be challenged unless such challenge is in accordance with the restrictions in the privative clause; that is, within three months after the date the Plan was published on the NSW legislation website. The Court must therefore determine whether the defendants are able, in the light of s 47 of the WM Act, to mount their collateral challenges based on judicial review.
The question as to the extent to which a defendant to a criminal charge may defend the charge by raising a collateral challenge without notice and pointing to the unlawfulness of either subordinate legislation or an administrative act made under that legislation, the breach of which is alleged to constitute the offence, is not without some nicety.
While judicial review is a way of challenging decisions directly, decisions may also be "challenged in proceedings whose primary object is not the setting aside or modification of that act or decision": Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 ('Ousley') at 99. Despite this, the extent to which a collateral challenge is available is a matter of debate and raises practical concerns including, but not limited to, the fact that judicial review remedies are discretionary, that their availability is subject to a variety of limitations, and that concern has been frequently expressed as to how these limits are considered when decisions are challenged collaterally.
In Boddington v British Transport Police [1998] 2 WLR 639, the House of Lords considered earlier United Kingdom authority and held that it was open to a defendant in criminal proceedings to challenge an administrative decision unless there was a clear parliamentary intent otherwise. This decision and a number of other decisions both in the United Kingdom and Australia were considered by Whealy J in Gray at [58]-[94], who accepted that there was an entitlement to raise by way of collateral challenge, an order issued pursuant to s 121H of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') by Woollahra Municipal Council, the breach of which lead to criminal proceedings in the Local Court which resulted in a conviction and fine. The matter before Whealy J was an appeal commenced by summons in the Supreme Court seeking orders setting aside the conviction and penalty imposed by the Local Court. In the matter before Whealy J and in a number of the authorities he considered, there was no consideration of a privative clause.
Subject to my consideration of s 47 below, I consider that it would ordinarily be open for the defendants to mount a collateral challenge to the validity of the Plan and the Approval in these criminal proceedings: Ousley at 79-80, 86-87 (per McHugh J), 100 (per Kirby J), Gray at [51]-[112], Selby v Pennings (1998) 102 LGERA 253 at 265 and Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [9].
The Court did not receive detailed assistance in relation to this aspect. In final submissions the prosecutor directed the Court's attention to s 47 and submitted that the Plan cannot be challenged in the light of the clear wording of that section, and that any question of how conditions were included in the Approval, including the question of the "application" of the 1912 Licence, were irrelevant because s 47, in the current circumstances, prevents any challenge to the Plan.
The defendants' position, is that s 47 does not provide protection in respect of decisions made in jurisdictional error and because the introduction of a condition in the Approval which the defendants submit goes beyond the ambit which the WM Act authorises for such an instrument, these decisions are ultra vires and vitiated by jurisdictional error. For reasons detailed below, but in addition to my findings above, I do not accept this submission.
Leaving aside the question of whether there has been jurisdictional error, it is now accepted that before the High Court's decision in Kirk, a privative clause such as s 47 of the WM Act did not protect certain decisions from judicial review for certain types of jurisdictional error generally understood as encompassing the three errors identified in The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 involving first, the decision not being a bona fide attempt to exercise power; second, the decision not relating to the subject matter of the legislation; third, not being reasonably capable of reference to the power given to the decision-maker; and additionally, the decision not being a breach of any "imperative duties or inviolable limitations or restraints". It is clear that after Kirk, the full range of jurisdictional error remains subject to judicial review, on one view not withstanding a privative clause: Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 at [37]. Despite this, there has been some limited further consideration, post Kirk, particularly in relation to time limited privative clauses.
In Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 ('Trives'), Basten JA (with whom Macfarlan and Meagher JJA agreed) suggested in obiter dicta that the impact of Kirk on a privative clause with a three month time limitation remained an open and "large" question. At [46]-[49] Basten JA stated (footnotes omitted): [46] The expansion of Kirk beyond its sphere of operation must be undertaken with caution. It was concerned with review by this Court of a decision of a superior court of record, albeit one with limited jurisdiction, namely the Industrial Court. It was not, in terms, concerned with decisions of non-judicial bodies. Further, it was concerned with a strong form of privative clause, not a provision imposing a limitation period on otherwise available relief. Both these matters raise difficult questions which should not be determined unless they squarely arise. For example, s 101 of the EP&A Act does not directly affect the jurisdiction of this Court to review an administrative decision. It imposes a limit on review by the Land and Environment Court, although the reason for that lies in other statutory provisions which confer exclusive jurisdiction on the Land and Environment Court with respect to the supervisory jurisdiction involving a planning or environmental law, which includes the EP&A Act. [47] The argument assumed that the vesting of exclusive jurisdiction in the Land and Environment Court is effective, but that the imposition of a time limit on the exercise of that jurisdiction is not. [48] With respect to the second aspect, the effect of a limitation period is simply not discussed in Kirk. It was, however, discussed in a case dealing with the scope of possible regulation of the jurisdiction of the High Court, pursuant to s 73 of the Constitution, of a limitation period on review of administrative decisions under the Migration Act 1958 (Cth). That decision, Bodruddaza v Minister for Immigration and Multicultural Affairs held that a similar (12 week) limitation period (imposed by s 486A of the Migration Act) was not effective to diminish the power of the Court to grant remedies under s 75(v) of the Constitution. However, that reasoning with respect to the constitutional limits of the Commonwealth Parliament does not necessarily lead to the same conclusion with respect to the limits imposed on a State legislature. The question in that regard, as identified in Kirk, is whether such a limitation would remove "a defining characteristic" of the Supreme Court of a State, so as to contravene the requirement of s 73 of the Constitution that such a body continue to exist. [49] This is a large question. As Bodruddaza explained, there can be significant practical difficulties with limitation periods expressed in absolute terms which deny any discretion to a Court to extend time in circumstances where the justice of the case so demands. On the other hand, decisions under the EP&A Act are quite different in their nature from decisions under the Migration Act and operate in a different context, involving quite different elements of public interest.
Relevant to the consideration of s 47 of the WM Act, s 101 of the EPA Act provided, inter alia, that in certain circumstances, including the public notice of the grant of a development consent given in accordance with prescriptive regulations, the validity of the development consent could not be questioned in any legal proceedings except those commenced before the expiration of three months from the date upon which the public notice was so given. In those circumstances, in Trives, Basten JA noted why Kirk might not bear upon the validity of s 101 in the following terms: [41] Section 101 does not purport to prevent judicial review of development consents or complying development certificates; rather, it imposes a time limit on such challenges. If the time constraint is effective, it will limit the "inconvenience" resulting from the availability of review in the sense of uncertainty with respect to the valid operation of a relevant consent or certificate, pending the expiration of three months from the date of public notification.
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) in relation to time limitations in privative clauses, which the learned authors note raise both interpretative and constitutional issues, state at 1071 (some footnotes omitted): Provisions in New South Wales planning legislation allow appeals to the Land and Environment Court against the validity of certain instruments and decisions, but only if they are commenced within three months of notification. The deadlines are not expressed to apply to the Supreme Court, and their validity remains unresolved. [With reference to Trives v Hornsby Shire Council (2015) 89 NSWLR 268 at 280-281; and Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252 at [62]-[71].] Prior to Kirk and S157, the Court of Appeal treated one of the deadlines as being almost wholly effective, subject only to Hickman's first three provisos, plus its "second step", namely, that there be no breach of any "imperative duties or inviolable limitations or restraints". The requirements of procedural fairness represented inviolable restraints. If, as we argue at [18.160] Hickman's formulaic components have not survived S157 and Kirk, that reading of the limitation provisions might need to be revisited.
At the time of the hearing, there had been little judicial consideration of s 47 of the WM Act (save in Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 at [373]-[385]). However, some consideration was more recently given to s 47 by the Court of Appeal in Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 at [3]-[9] (per Basten JA) and [94]-[103] (per Leeming JA). Although not germane to the Court's finding, Basten JA noted in obiter dicta (footnote omitted): [9] One further matter should be noted in relation to the operation of s 47 [of the WM Act]. In a footnote to written submissions filed in the Land and Environment Court, counsel for the respondents stated that "there may be a question as to whether s 47 could validly oust review for jurisdictional error". That suggestion elided the effect of s 47 in limiting the jurisdiction of the Land and Environment Court with its entirely separate effect in limiting the jurisdiction of this Court. There can be no tenable suggestion that the jurisdiction conferred on a specialist statutory court such as the Land and Environment Court is constitutionally protected. No issue arose before the trial judge as to the exercise of this Court's supervisory jurisdiction.
The weight to be accorded to obiter dicta will vary depending on the circumstances, however considered commentary of appellate courts, although ultimately not binding on this Court, must nevertheless be afforded appropriate weight and would only be departed from with caution.
In light of the above, and again noting that the Court received little assistance in relation to this aspect of the matter, I consider that s 47 of the WM Act operates as a bar to the defendants' challenges to the Plan. I find that the careful and explicit wording of the provision makes it clear that the time allowed for challenge is limited, and s 47(3) clearly takes into account and overrides the otherwise available methods of extending the "judicial review period". Despite this, there is a carve out, contained in s 47(b), for any "amendment" of a management plan in the sense that the three month time limitation applies to amendments (except amendments to give effect to a decision of the Land and Environment Court relating to the validity of a plan). Further, given the likely effect on many other parties (who are not involved in the present proceedings) the clear intention of the section, seen in the context of the important and somewhat complex structure of the WM Act and the Plan is to provide for certainty on the part of those who have acted, and conducted their affairs, in reliance upon a valid system of regulation - particularly one that deals with important matters such as water sharing as well as the detailed matters otherwise required to be taken into account in making a water sharing plan as provided for in ss 20 and 21 of the WM Act.
For the sake of completeness, if I be wrong in my finding above as to s 47 of the WM Act being a fatal bar to the collateral challenges now sought to be made, having considered the submissions made in relation to both the challenge based upon ultra vires and that based upon unreasonableness, I would not have found in favour of the defendants in relation to their challenges for the following reasons.
First, the defendants' primary submissions which related to their claim based on ultra vires, are grounded in the statutory distinction between those matters the statute requires to be addressed by a licence, as opposed to an approval, such that there is no power to make the Plan (or create the Approval) which provides for a "take" condition in an approval because pursuant to the WM Act, the take of water is expressly stated to be a matter for a licence and not an approval.
It is trite to note the task of identifying jurisdictional error involves close analysis of enabling legislation which purports to authorise a particular action, with a view to determining any relevant constraints as well as an identification of an alleged error or mistake particularly where, as in the current case, it may involve misconstruction of a legislative provision. Given my understanding of the defendants' position, construing the WM Act is of primary importance. With apology for some necessary repetition of matters considered above, reference must be had to the power in the WM Act to make the Plan and close attention must be paid to the statutory framework within which the challenged decision has been made, with particular reference to indicators which assist in determining whether a particular exercise exceeds the authority and is unreasonable in a legal sense. In this regard I have taken into account the breadth of the objects of the WM Act and the statutory regime as a whole (including the provisions of the Plan) for the regulation and management of water usage.
As I have found above, I consider it is clear that s 56 entitles the holder of an access licence to specified shares in the "available water" within a specified water management area and to "take water" (that is, that share) at specified times or at specified rates or in specified circumstances. Despite this, it does not seek to, nor necessarily govern or control, in terms of permit, the actual "use" of works or, relevantly, when and how a particular work may be utilised as opposed to the purpose for which the water may be used.
Further, it may be that an access licence which clearly deals with the "share component" and the "extraction component" could or would also have a form of flow rate restriction - however I consider that s 56 does not militate against, or render invalid (in the sense of being beyond power), the imposition of a term to restrict the actual use of a work (such as the Pumps) which facilitates the physical extraction of water otherwise than when a particular water source (to which it is likely or necessarily attached) is flowing at a particular volumetric rate. It is clear that the imposition of the 4894 Term in the Approval relates to the use of the Pumps - it may be different if, for example, it sought to regulate the share component of water or the extraction component. Put simply, when a work (such as a pump) can be used does not affect the share or the volume of water that the holder of a water access licence (or an approval) can take - it is simply when a pump can and cannot be used. There is no restriction in the WM Act that prevents either the making of a management plan which provides for a condition such as the 4894 Term in an approval (being an approval under Pt 3 of the WM Act) or issuing an approval with such a condition. Moreover, the Plan is made pursuant to s 50 of the WM Act, it specifically deals with matters ("core provisions" and "additional provisions") in ss 20 and 21 (at [77] above) and Sch 10 of the WM Act specifically provides for conversion of former entitlements.
In accordance with my reasoning earlier stated, I do not accept that cl 3 of Sch 10 prevents or prohibits the inclusion of a condition in an approval which provides that the work itself should not be used when a flow rate in a river is less than a prescribed level. The flow rate does not represent a "specified quantity of water" being extracted (or taken), it is a condition that regulates, inter alia, the use of the work.
Second, in any event, Sch 2 of the Plan specifically provided for the inclusion of the 4894 Term as a "mandatory" condition in the very instrument that specifically replaced the 1912 Licence. Although not drafted in the most pellucid terms, Sch 2 provided that the specific condition (the 4894 Term), described as "the access rule specified", be "imposed as a mandatory condition on all water supply work approvals nominated by that access licence to give effect to clause 46(9) of this Plan" (emphasis added). Clause 46(9) provided: 46 Access rules for the taking of surface water (9) Subject to subclauses (10), (11) and (15), water must not be taken by a water supply work located in a management zone specified in Column 3 of Schedule 2 under an access licence specified in Column 1 of Schedule 2 in contravention of the corresponding access rule specified in Column 2 of Schedule 2. [Emphasis added.]
While Sch 2 provided for a continuing relationship between an access licence (which would usually and appropriately "nominate" water supply works approvals), it specifically provided that the 1912 Licence itself was an entitlement that would be "replaced" on commencement of the Plan. This does not prevent or render illegitimate a condition (or "access rule") being imposed on both an approval and an access licence.
For the above reasons, I find that the making of the Plan and the imposition of the (unqualified) 4894 Term upon the Approval was a valid exercise of power and did not go beyond the authority conferred by the WM Act.
The defendants' alternative argument based upon manifest unreasonableness is summarised at [153]. For reasons that follow, I do not consider that the inclusion of the (unqualified) 4894 Term in the Approval was (or would be) radically different and fundamentally inconsistent with the not dissimilar condition in the 1912 Licence or the reference to "access rules" in cl 46(5) of the Plan as submitted by the defendants.
The concept of unreasonableness reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise a type or kind of decision. Leaving aside questions of "decisional freedom", there is no suggestion that the "decisions" (as referred to by the defendants, being to make the Plan and/or impose the 4894 Term in the Approval) could be said to be arbitrary or capricious or to abandon commonsense: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (French CJ) at [28]: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10]-[11].
I accept that the legal standard of unreasonableness is not limited to an irrational, if not bizarre, decision and that unreasonableness may encompass a decision-maker misunderstanding a statutory or other obligation.
The defendants raise a number of specific matters which they submit were not considered and are therefore indicative of irrationality. I deal with these briefly. The fact that the 1912 Licence was a B Class licence (and not a C Class licence) is not a matter of significance primarily because I do not accept that the history concerning what the defendants call the "Menindee Lakes C Class Access Condition", which I have dealt with above, is either compelling or determinative. Further, there is no compelling evidence that there was some "mistake" in the inclusion of a particular clause in the 1912 Licence and I do not accept that the 1912 Licence "should never have had condition (5)" as submitted by the defendants. Further, I do not accept that the inclusion in the 1912 Licence, or the exclusion from the Approval, of the words "subject to" has any relevant or determinative effect upon the Approval given my findings above. As such, I do not consider that the absence of that connector (the words "subject to") is indicative or decisive of irrationality.
As I do not consider that the inclusion of the subject condition is an indicator of material error, and even if that were not the case, that there would be an unreasonable outcome that could not have been intended, I am not persuaded by the defendants' submission that similar terms were not imposed upon other similar licences or approvals in the vicinity of Beemery Farm.
While I accept that the Plan and the Approval concern works associated with a B Class licence and that flow rates may vary between the classes, I do not accept that the evidence relied upon by the defendants (including the Memorandum) takes the matter any further. Whatever may have been the subject of this internal memorandum dated December 2010, cannot be determinative of unreasonableness in relation to the Plan that was activated almost two years later, which I have found above is not beyond power.
I find beyond reasonable doubt that the defendants have not established that the suggested impugned decisions lacked any evident and intelligible justification or were contrary to the weight of the material such as to involve justiciable error.

[35]

Notification

I now turn to the issue of whether notice of the terms of the Approval was required in order for those conditions to come into effect. The parties made detailed submissions noted at [114]-[127] and [154]-[175] above.
The question of notice ultimately turns on the meaning of cl 20 of Sch 10 which, at the time the Approval was created, provided: 20 Notification of licences (1) The Minister must cause written notice of the terms of each access licence or approval arising by operation of this Schedule to be given to the holder of each such access licence or approval. (2) A replacement access licence or approval is to include any mandatory conditions that are required to be imposed on the licence. ...
As considered above, cl 3 of Sch 10 of the WM Act provides a mechanism for the conversion of former entitlements into access licences and approvals. Relevantly, the clause provided that, on the appointed day (being 4 October 2012), entitlements pursuant to the 1912 Act were converted into the various instruments available under the WM Act and the conditions of the former entitlement became part of those instruments.
It was common ground between the parties that cl 3 operated in such a manner that the Water Access Licence and Approval came into effect on the appointed day. In doing so, conditions contained within the former entitlement (being the 1912 Licence) were automatically carried over into the Approval "to the extent to which it entitles any person or body to use water on any land" by operation of cl 3. Given my finding above that the 4894 Term is appropriately located within an approval, it therefore follows that the 4894 Term was carried over into the Approval (as created on 4 October 2012) as the condition was applicable to that instrument for the purposes of cl 3, and on the basis that notice was not required under cl 3 for this procedural change.
Clause 3 operates in a self-contained and discrete manner in that it specifically provides for the conversion of former entitlements into licences and approvals, and therefore does not extend its automatic function to the inclusion of other mandatory terms contained in a water sharing plan (including the Plan) or otherwise.
In light of the above, I therefore find that, at a minimum, the 4894 Term was implicitly included in the Approval on the appointed day, being 4 October 2012. I note at this point, given my finding above in relation to the "subject to" argument, that the 4894 Term and the (unqualified) 4894 Term may be considered as having the same effect, the defendants were, in effect subject to the (unqualified) 4894 Term as at this date. On this basis, subject to whether the 4894 Term has been breached (as considered in Elements 3 and 4 below), this would be determinative irrespective of whether notice was given that the (unqualified) 4894 Term had replaced the 4894 Term.
Nonetheless, the primary point of contention between the parties concerned whether the defendants had been properly notified of the change in language from the 4894 Term to the (unqualified) 4894 Term, which first became apparent in the Statement of Approval allegedly served on the defendants by email to "[xxxx]@pjhsons.com" on 23 September 2015.
The defendants submit that the fact that the (unqualified) 4894 Term in the Statement of Approval (as allegedly sent) was different to the 4894 Term contained in the 1912 Licence meant that notice was required as the language of the condition had changed. The defendants submit that the mere fact that the (unqualified) 4894 Term was a mandatory condition and was therefore required to be included in a replacement approval should not affect the requirement to give notice of that term, and that, given that ss 67 and 102 of the WM Act provide notice requirements in circumstances where discretionary and mandatory conditions are imposed or changed after a licence or approval is granted, cl 20 ought to be read consistently with these requirements.
I accept the defendants' submission and consider that, having regard to the legislative context including s 102 of the WM Act, cl 20(2) should be read as subject to the notice requirements as contained in cl 20(1) and s 67. I further accept the defendants' submission that a distinction may be drawn between the automatic operation of cl 3, which concerned a procedural conversion of entitlements to new instruments upon a proclamation, and the cl 20(2) requirement that mandatory terms specified by the new legislation must be included. In making this finding, I am cognisant of the prosecutor's submission that the intention of cl 20 is to provide for procedural fairness, and I note that the construction advanced by the defendant is in fact the interpretation which best protects licence and approval holders from being caught unaware by changes to their former or current licence and approval conditions.
Despite my finding above that the 4894 Term was implicitly carried over into the Approval and that notice was not required in that instance due to the automatic conversion of former entitlements to instruments under the WM Act, I find that, as a separate matter, given that the introduction of the (unqualified) 4894 Term occurred independently from the automatic conversion process included in cl 3 and, further, as the change involved an amendment to a condition, notification was therefore required in order for the (unqualified) 4894 Term to become part of the Approval.
The parties made extensive submissions in relation to whether notice of the (unqualified) 4894 Term had been provided to the defendants. Having considered all the material, I find that notice had been given. My reasons follow.
As submitted by the prosecutor, a letter was sent from the Commissioner of the Office of Water to Clyde Agriculture on 17 October 2012 which, inter alia, noted the commencement date of the Water Sharing Plan. Relevantly, the letter (detailed at [42] above) stated: "...former entitlement/s 85SL105059 issued under the Water Act 1912 has now been replaced with the following access licence/s and approval/s: Water Access Licence: 85AL753235 Approval/s: 85CA753236 … A notice containing the details of the water access licence/s and approval/s and conditions will be mailed to all licence and approval holders. Until then, licence and approval holders continue to be subject to the conditions of their former licence that apply to either an access licence or an approval. ..."
I find that the statements contained within the letter accord with my view of the proper operation of cl 3 of Sch 10, in that the clause converted former entitlements into relevant instruments under the WM Act and subsequently any relevant conditions of the former entitlement would be carried over into the instruments under the WM Act. Mr Elliott acknowledged that the contents of this letter described what had occurred as a consequence of the implementation of the Plan.
The prosecutor noted the possibility of this letter fulfilling the notice requirements in question. It is apparent from the content of this document that Clyde Agriculture, as the holder of the Approval, was notified that, first, the 1912 Licence had been converted into a licence and approval under the WM Act; and, second, that the conditions of the 1912 Licence, to the extent that they apply to either an access licence or an approval, continued to apply (and therefore operate as part of the Water Access Licence and Approval) under the WM Act. Although this letter was not addressed to either Mr or Mrs Harris, it was nonetheless sent to Clyde Agriculture as the holder of the Approval at the time as required by the WM Act. In any event, the prosecutor notes that the letter from the Office of Water to Mr Harris on 11 September 2014 contained the same notification information as that which had earlier been provided to Clyde Agriculture, in that it confirmed that the conditions that had been contained within the 1912 Licence continued to apply to licence and approval holders.
I therefore find beyond reasonable doubt, to the extent that such a finding is necessary, that the Approval holder (being Clyde Agriculture), and later Mr Harris, were informed that the Approval contained the relevant terms carried over from the 1912 Licence, however I note that this did not constitute notice of the (unqualified) 4894 Term as this was not included in the 1912 Licence.
Irrespective of whether the above letters constituted notice, the prosecutor relies upon the provision of the details of the Approval, being a copy of the "Statement of Approval" setting out the conditions being sent to email address being operated by Mark Adams and relies upon s 8(1) of the ET Act to satisfy any requirement otherwise arising pursuant to s 394 of the WM Act.
For completeness, I note that, based upon my finding above that Approval was created on 4 October 2012 and implicitly contained such conditions as provided for by cl 3 of Sch 10, the email sent on 23 September 2015 was therefore updating or amending the terms of the Approval, as opposed to being a grant of approval in its own right. As such, the notice requirement contained within s 102 (regarding the imposition or change of conditions after approval is granted) has thus been engaged, therefore requiring notice to be given in relation to the change from the 4894 Term (which had been carried over from the 1912 Licence) to the (unqualified) 4894 Term as there was an amendment to the expression contained within this condition. I note that the additional notice requirements contained within s 102(1) are not engaged as the 4894 Term is not a discretionary condition. In any event, I consider that s 102 would not be relevant to consideration of the 23 September 2015 email if cl 3 had not resulted in the automatic creation of the Approval and the importation of the terms from the 1912 Licence, and that in those circumstances, the notice requirement contained in cl 20 of Sch 10 would therefore be applicable.
The remaining dispute between the parties in regard to this aspect is whether requirements in ss 8(1)(a) and (b) of the ET Act have been satisfied. The defendants raise various concerns as to why they say evidence surrounding the communication by email to Mr Adams is unreliable and raise a number of concerns primarily criticising the veracity of the prosecutor's evidence. In particular, the defendants point to the "screenshot from WLS entry for Approval for 85CA753236 sent to Peter Harris on 23 September 2015" including (as noted above) concerns regarding the date of the email and a lack of evidence demonstrating the existence and content of any document attached to that email.
Despite the defendants' extensive submissions as to why it was not reasonable to expect that the email would be readily accessible for the purposes of s 8(1)(a) of the ET Act, I am satisfied beyond reasonable doubt that, at the time the email was sent, it was reasonable for the Department to expect that the information would be readily accessible so as to be useable for subsequent reference. My reasons follow.
First, I note that Mr Wheatley's evidence, which I consider in more detail below, makes plain that he had been told by Mr Harris that Mr Adams (who Mr Wheatley understands is Mrs Harris' brother) was an employee of the defendants, and that, given his conversation with Mr Harris which specifically referred to the authority of Mr Adams to "receive documents on our behalf by email and post", including "all our notices and approvals", it follows that a reasonable expectation must therefore exist that the email sent by the Department would be readily accessible to the nominated recipient. This conversation took place in circumstances where Mr Wheatley had known Mr Harris since 2008, and where Mr Wheatley (and therefore the Department) knew that he was both a holder (or joint holder) of a water access licence and approval. Second, the fact that an automated reply from "[xxxx]@pjhsons.com" confirmed receipt of the email from the Department on the same day indicates that the Department must have known at the time that the email address existed, by virtue of the automated email being received by the Department from that same email address which they had sent the Statement of Approval to on that day. Third, I do not accept the fact that there is a discrepancy between the times recorded on the automated reply and the email of the Department as either convincing or material, as in any event the email address on WaterNSW's Water Licensing System database which the Department's email was sent to is the same address from which the automated reply was received and thus shows that the email was sent to that same email address.
Further, in the case of Kaczmarski, relied upon by the prosecutor, the Court, in considering Victorian legislation that similarly included a requirement that information be "reasonably accessible so as to be useable for future reference", held that an email and attachments were within the meaning of s 8 of the ET Act as the email and attachments were able to be read by the recipient. I accept this interpretation as to the meaning of "readily accessible, so as to be usable for future reference" in that the documents were indeed sent to a nominated agent of Mr Harris by email, which later evidence noted below shows was an accepted form of transmission between the Department and Mr Adams and Mr Harris, and further that this evidence shows that Mr Adams was the operator of that email address.
I am similarly satisfied beyond reasonable doubt that the email attached the Statement of Approval. The Court has been presented with the evidence of Mr Wheatley, who explained the operation of WaterNSW's Water Licensing System database which is capable of being (and, in the circumstances, was) used to send a "Statement" by way of email to a nominated email address.
Further, I note that, first, the screenshot of the WaterNSW Water Licencing System database entry for Approval 85CA753236 shows that Approval number at the top of the page and that it contains a message stating "Please find attached an updated copy of the Statement of Approval" under a dialogue box titled "Email history"; and, second, the screenshot shows an icon beside the email information of 23 September 2015 which was described by Mr Wheatley in his affidavit as a "Statement".
I also find that the incorrect reference to "23 Wed 2015" was instead a reference to 23 September 2015, on the basis of Mr Wheatley's sworn evidence clarifying that the automatic reply from "[xxxx]@pjhsons.com" was received on that same day. It is also apparent that the email address was indeed operated by Mr Adams in light of the later correspondence between that email and the Department.
In relation to s 8(1)(b) of the ET Act which requires the Court to be satisfied that the defendants and more particularly Mr Harris consented to the information being given by means of an electronic communication, the prosecutor relies on the evidence of Mr Wheatley and in particular his evidence regarding a conversation with Mr Harris in mid-2014 set out at par (13) of his affidavit affirmed 31 January 2019 (and noted at [121] above) and expanded upon during his oral evidence.
In relation to the conversation, Mr Wheatley was extensively and skilfully cross-examined. It was suggested to him that it was not until his third, most recent, affidavit that he deposed to this conversation with Mr Harris. He gave evidence that he could not remember precisely when he had the conversation and it was suggested to him that he was attempting to reconstruct the conversation, a suggestion which he vigorously denied. He accepted that the words he had recorded in the affidavit were words "to the effect" of those in the conversation. He did not accept that he had misinterpreted or understood what had been said by Mr Harris. It was also suggested to him that the conversation was quite different to the letter of 4 July 2014 which followed the purchase by the defendants of Beemery Farm which had provided that all further correspondence be forwarded to a post box address which he accepted. He was pressed as to whether he remembered with precision that the conversation included the words "post" and "email".
Based upon his oral evidence and Mr Wheatley's demeanour during cross-examination, the defendants made numerous criticisms of his evidence and particularly relied upon what was submitted to be a lack of clear recollection and the absence of any contemporaneous diary note and submitted that the Court could not be satisfied beyond reasonable doubt that the words deposed to by Mr Wheatley were said.
Having considered Mr Wheatley's evidence and having observed him giving his evidence, I see nothing in his demeanour during cross-examination that would indicate he did not have an independent recollection of the conversation he deposed to. Although he indicated that some aspects of his memory were unclear, he steadfastly maintained that that the words which he had recorded in the conversation were, at the very least, "to the effect" of the words actually said. While I accept some of the critical commentary made by the defendants in relation to aspects of his evidence, I take into account the other evidence that Mr Wheatley gave, more particularly that his employment with WaterNSW since 1999 has involved water licensing and regulation matters, and, as noted in his first affidavit, such roles requiring him to consider and apply the licensing and regulatory provisions of the 1912 Act and the WM Act over many years. I take that experience and familiarity into consideration as a context and background for his conversation with Mr Harris. He also deposed that he had known Mr Harris since 2008.
Whilst the precise words deposed to were plain, I do not consider them, in the context of the conversation, as "highly legalistic and idealised" as submitted by the defendants and I do not consider the conversation or the words to be artificial. It is not, as the defendants submit, simply a conversation between a "farmer and a non-lawyer". Although it is correct that the conversation did not appear in Mr Wheatley's earlier affidavits, I do not consider in the circumstances that that is a matter that is persuasive against the veracity of the evidence he has given.
I also observed that while he was willing to make concessions in cross-examination, he was resolute and clear in that the subject conversation related specifically as to who was able to act on Mr Harris' behalf or seek information on his behalf and the method of communication. I also accept, as submitted by the prosecutor, that Mr Wheatley provided evidence that Mr Harris nominated Mr Adams as the authorised agent of the defendants as well as Budvalt.
I also note that he deposed in cross-examination that "in the ensuing months, Mr Adams lodged several papers on behalf of Mr Harris and Mr Harris had signed so I don't think there is any misunderstanding on this interpretation". In this regard, I note that there is evidence, of some relevance but not of determinative weight, of email intercourse between Mr Adams (at his email address) and Mr Campbell, a water regulation officer with the Department, which although occurring on 5 February 2016 involved the provision by email to Mr Adams, consequent upon a conversation between Mr Campbell and Mr Adams, a copy of a Notice of Determination of an application to change a water access licence. I also note that the "application holder" was "Budvalt Pty Ltd" and the "application contact" was stated to be "Budvalt Pty Ltd, Peter James Harris, Kindamindi MOREE NSW 2400". Although after any relevant date his email was used in relation to water access licences held by the defendants and Budvalt and it is, at least, indicative of a course of conduct.
I am satisfied beyond reasonable doubt that the conversation occurred in terms to the effect of that which Mr Wheatley deposed and that both limbs of s 8(1) of the ET Act (as applicable at the relevant date) have been satisfied, as I find that at the time the information was given (being the time that the email was sent), it was reasonable in the circumstances to expect that information would be readily accessible and, as a result of my acceptance of the conversation of the evidence of Mr Wheatley, that the provision of the information to Mr Mark Adams was undertaken with the consent of Mr Harris who, for completeness, provided his consent to that information being given by electronic communication.
Although the defendants made submissions in relation to earlier correspondence between the representatives of the defendants and the Department noting various addresses for service by post, I consider the subsequent intercourse between Mr Wheatley and Mr Harris, and the further oral evidence of Mr Wheatley in this regard, particularly in relation to his conversation being approximately six months after the earlier notifications appropriately responds to the defendants' submission.
While it is clear that the defendants' solicitors wrote to the Department on 4 July 2014 in terms which provided that correspondence be forwarded to the defendants at a nominated PO Box address and that there was subsequent correspondence to the same nominated PO Box, I consider that the documentary history of the email to "[xxxx]@pjhsons.com" which I accept and find (as deposed to by Mr Wheatley) was properly to be dated 23 September 2015, provided by way of attachment, "an updated copy of the Statement of Approval for 85CA753236" and I accept and I find that the documentary material comprising a business record including what has been described as "screenshot from WLS entry for Approval for 85CA753236 sent to Peter Harris on 23 September 2015" (being document II of Exhibit J), considered with the "automatic reply" document from email address of Mark Adams, satisfies me beyond reasonable doubt that the email to "[xxxx]@pjhsons.com" attached the approval. I further note that Mr Wheatley deposed that document II of Exhibit J was a "copy of the screenshot from WLS [database] entry for Approval 85CA753236" and that he had given evidence of the manner in which WaterNSW generated and stored documentation on WaterNSW's Water Licensing System database and the manner that such documents are stored and accessed.
For the reasons above, I find beyond reasonable doubt that notification was given by a delegate of the Minister in sending an email with the Statement of Approval attached to Mr Adams. As this notification concerns the Statement of Approval, the effect of this finding is that Mr Harris was notified that the (unqualified) 4894 Term had been included in the Approval and was therefore operational prior to and during the charge period.
I also accept the prosecutor's submission and find beyond reasonable doubt that Mr Adams was a person duly appointed by Mr Harris for the purpose of accepting service of documents, and that Mr Adams was notified of the Approval conditions in the circumstances. Accordingly, by operation of s 394(2) of the WM Act, both Mr and Mrs Harris can therefore be considered to have been notified, noting that they are also co-occupiers of the land and co-holders of the Approval.

[37]

Element 3

As the circumstances relating to the physical extraction of water from the Barwon River during the charge period were not in dispute, subject to evidentiary objections, the background can be briefly summarised as follows.
Since 16 September 2015, a single solar powered MACE Series III meter ('Meter') has been attached to the Pumps on Beemery Farm. The Meter measures water movement through each of the Pumps using ultrasonic beams to calculate volumetric flow, and captures and records data every 30 minutes including: first, whether the Meter is operational at the time of recording; second, the times at which Meter recordings are taken; third, the velocity of water moving through the Pumps in meters per second; fourth, the flow rate of water moving through the pipes in ML per day; and fifth, the total volume of water which has flowed through the Pumps since installation of the Meter.
On 18 July 2017, Mr Pearce visited Beemery Farm with Mr Wheatley. Mr Pearce downloaded data from the Meter including all recordings taken by the Meter during the period 16 September 2015 to 18 July 2017 to his laptop. This downloaded data was in the form of an excel spreadsheet ("Pearce download").
Responding to notices issued on 22 January 2018 under s 338A(2) of the WM Act ('Notices'), on 23 February 2018, the defendants, by their solicitors, provided material including a document headed "Farm: Beemery" for "Month: June Year: 2016". That document ('Log') refers to "Mace Meter 22/6/16" and contains a table of "estimated ML pumped" for each of the three Pumps on each day for the month of June 2016. These estimates indicate a minimum extraction of 100 ML from each pump against each of the days from 22 June 2016 to 27 June 2016 (inclusive).
The defendant also produced two Excel spreadsheets in response to the Notices which contain data collected by the Meter and are identified by filenames ending in "14022017" and "18072017" respectively. The data contained in these spreadsheets, which reflects the matters referred to above, is identical to the data contained in the Pearce download for the time periods when the spreadsheets and the Pearce download overlap. Relevantly, both the spreadsheets and Pearce download contain identical data throughout the duration of the charge period.
From 22 June 2016 and 27 June 2016, the Meter recorded that water had been taken through the Pumps. Through an examination of the data recorded by the Meter as contained in both the Pearce download and the spreadsheets provided by the defendant, the prosecutor calculated that the total volume of water extracted during the charge period was 1,896.17 ML.
The prosecutor submits that although "taking water" is not defined in WM Act, in the context of the provision and having regard to the purpose of the statute and the canons of construction, "takes water" means that a person removes or extracts water from a water source to which the WM Act applies.
The prosecutor noted that s 367B of the WM Act provides for certain rebuttable presumptions in relation to the taking of water as follows: 367B Rebuttable presumptions (1) In any proceedings for an offence against this Act or the regulations being taken against a landholder: … (c) the fact that water is being or has been taken from a water source by means of a water supply work situated: (i) on the landholder's land, or (ii) in a river or lake within the landholder's land, gives rise to a rebuttable presumption that the water is being or has been taken by the landholder, and … (2) In any proceedings for an offence against this Act or the regulations being taken against the holder of an approval for a water supply work, the fact that water is being or has been taken from a water source: (a) by means of the work, or (b) through metering equipment installed in connection with the work, gives rise to a rebuttable presumption that the holder of the approval is or has been using the work to take water from that water source. …
The prosecutor submits that the spreadsheets provided by the defendants demonstrate that significant volumes of water were taken by the Pumps during the charge period, and that the total volume of water taken during the charge period was approximately 1.9 billion litres.
The prosecutor submits that, as the volumes of water estimated by the person keeping the Log correspond closely with the data downloaded by Mr Pearce, it can be inferred that the person keeping that Log was familiar with the operation of the Pumps. The prosecutor says that it follows that the other representations made in the Log can be relied upon as representing the understanding of a person familiar with the pumping operations and the conduct of the Clyde Cotton business. The prosecutor submits that this confirms that Mr Pearce's download is an accurate copy of what the Meter recorded.
The prosecutor contends that the above evidence confirms beyond reasonable doubt that the defendants took significant volumes of water via the Pumps at Lot 1 on Beemery Farm during the charge period, in contravention of s 91G(2) of the WM Act.
Accordingly, in relation to Element 3, the prosecutor submits that the source of the water was the Barwon River (to which the WM Act applies), and the data produced by the defendants themselves in answer to the Notices, including the Log, confirms that water was taken through the Pumps during the charge period.
Apart from taking objections to certain evidence, the defendants did not discretely address Element 3.
I find that the expression "takes water" means that a person removes or extracts water from a water source to which the WM Act applies, and I find that the presumptions in s 367B of the WM Act are applicable in the circumstances. Given the evidence indicating that water was extracted from the Barwon River using the Pumps between 22 and 27 June 2016 inclusive, as demonstrated by both the defendants' records and those obtained on-site by Department personnel, I am satisfied beyond reasonable doubt that water was taken for the purposes of the WM Act during the charge period.

[38]

Summary of flow rate calculation process

Given the issues raised by the defendants as to the reliability of the prosecutor's evidence regarding flow rate, some understanding of the methodology used and procedures adopted to measure and record the volumetric flow rate ('flow rate') of the Darling River at the Bourke gauge is appropriate. Although the discrete concerns raised by the defendants are dealt with later in the judgment, the facts in this summary are largely uncontested.
The 4894 Term requires consideration to be given to the "flow of the Darling River at the Bourke Gauge". In simple terms, it requires consideration of the volume of water that passes that gauge in a day.
The Bourke gauge (gauging station number 425003) is a river gauging station located on the Darling River approximately 100km downstream of Beemery Farm. As is usual with a gauging station, it contains various measurement, recording and data transmission instruments and is housed within a small "shed" located at the top of the river bank. The Bourke gauge is approximately 6km upstream of the Bourke Weir, a broad crested man-made concrete weir constructed in 1897.
River height and flow rate data have been collected at the Bourke gauge since 1885.
River height, which in simple terms is the height of the water surface above an established reference point, is obtained by observing fixed measuring posts located in the river or through an automatic sensor. River height is also referred to as 'stage' data. The Bourke gauge is fitted with a river height sensor which automatically collects river height data in 15 minute intervals, which is then transmitted electronically to the Department's "Hydstra" database through a telemetry system known as "Hydrotel". The Hydstra database is a data management program which monitors, records, generates and archives surface water flows, whilst also storing information regarding gauging stations, rating tables, recorded flow rates and data quality codes.
In addition to river height, the cross-sectional area of the river channel and average velocity of river flow are also required to calculate the volumetric flow rate of a river.
AS3778 provides detailed consideration of protocols and procedures to be followed when collecting cross-section and flow velocity data. Principles in relation to the method of measurement of water flow in open channels using current-meters and floats are contained within cl 4 of Pt 3.1 of AS3778: 4 Principle of the methods of measurements 4.1 The principle of these methods consists of measuring velocity and cross-sectional area. A measuring site is chosen conforming to the specified requirements; the width, depending on its magnitude, is measured either by means of steel tape or by some other surveying method, and the depth is measured at a number of points across the width, sufficient to determine the shape and area of the cross-section. Velocity observations are made at each vertical preferably at the same time as measurement of depth, especially in the case of unstable beds. They are made by any of the standard methods using current-meters, If unit width discharge is required, it is generally computed from the individual observations. In the integration method, the mean velocity is obtained directly. Under certain circumstances, velocity observations can also be made using surface floats or velocity-rods. Other methods consist of measuring the velocity along one or several horizontal lines of the section (e.g. moving-boat and ultrasonic methods.) 4.2 The discharge is computed either arithmetically or graphically by summing the products of the velocity and corresponding area for a series of observations in a cross-section. Clauses 6 and 7 of AS3778, Pt 3.1 provide comprehensive detail in relation to the measurement of cross-sectional area and velocity.
The Department's practice, (which the evidence shows was adopted in the circumstances here), was based upon and involves the use of a variety of devices including acoustic Dopplers, flow trackers and mechanical current meters to measure river depth and average velocity. Using formulas contained within AS3778, this data is used together with river height to calculate the relevant flow rate (which, as noted above, is a volumetric measure) of the river for a specific location in ML per day.
Flow rate data obtained during Department gaugings (which involves the physical measurement of the river height and flow rate at a particular time) is graphed against river height in order to identify the correlation between the two variables (being river height and flow rate), with each variable represented on the X and Y axis respectively. This correlation is referred to in the AS3778 as the "stage-discharge relationship". The plotting of this data is performed within the Department's Hydstra database, using a software program known as "Ratings Workbench". Each node, or 'dot', on the graph therefore represents the river height and flow rate that was recorded by Department personnel at a particular time during a gauging.
The recording and plotting of flow rate and river height data in graphical form allows for a curve of mean fit to be drawn over the plotted data, known as a "rating curve". The drawing of a rating curve accords with both the AS3778 and the Department's usual practice. The establishment of a rating curve subsequently allows for a flow rate to be interpolated for each specified increment in river height. Simply stated, the rating curve allows for the flow rate to be obtained for any river height, regardless of whether the flow rate associated with that river height had been previously observed or otherwise recorded. Using this method, all that is then therefore required to calculate the flow of the Darling River is river height data, which as mentioned above is measured at the Bourke gauge every 15 minutes. The rating curve is monitored by the Department.
The presentation of data derived from the rating curve in tabular form is known as a "rating table". Rating tables are generated within the Department's Hydstra database, using the Ratings Workbench software, in accordance with cl 6.10 of Pt 2.3 of AS3778.
The rating table described as Rating Table 300.14 is the most current rating table for the Bourke gauge and has been in use in Hydstra since February 2011. Rating Table 300.14 is based upon gauging data from 24 April 1993 onwards.
Through use of Rating Table 300.14, river height data is displayed on the WaterNSW website together with the corresponding flow rate derived from the rating table. This data, which is the same data sourced directly from the river height sensor at the Bourke gauge in 15 minute intervals, is referred to as 'real-time data'.
The Bourke gauge site is inspected by Department staff approximately every two months for maintenance and calibration purposes. A practice was adopted such that, if a discrepancy of greater than 10mm was to be observed between the river height on the fixed measuring post and that recorded by the river height sensor, the real-time data would be retrospectively adjusted to compensate for "sensor drift". The resulting data is consequently termed "adjusted data". If no adjusted height data is entered for a particular period then Hydstra continues to use real-time data.
Observations made in the course of these inspections are recorded by Department staff on hardcopy inspection sheets which are later scanned and saved onto the Hydstra database. The data is also recorded in a digital form on-site during inspections prior to being entered into Hydstra.
Hydstra maintains a record of the review process ('Review Record') which is stored separately from the original real-time data. For each 15-minute interval between inspections by Department personnel, the Review Record displays the adjusted data manually entered and, where an adjustment is not required, the same real-time data which was originally stored in Hydstra.
As rivers are dynamic hydraulic systems with capacity to change over time, the flow rate of a river can vary across different sections of the river and at different positions and depths along a channel cross-section. These variations in flow rate can result from a variety of factors, including changes in the frictional characteristics of a river or the presence of other hydraulic controls as the shape of the channel or by artificial features such as the Bourke Weir.
The WaterNSW procedures and AS3778 provide, and it was agreed between the experts, that some level of uncertainty in calculation of flow rate by reason of possible instrument or measurement error is unavoidable. For example, error (and therefore uncertainty) may result from the calibration and positioning of equipment or the inaccurate recording of data. Further, flow rate may also be either exaggerated or understated due to "hysteresis" or "loop rating" effects, which refers to a phenomenon where a recorded flow rate may be over- or underestimated in circumstances where the river level is rising or falling.
In light of this uncertainty, the experts agree that it is accepted hydrometric practice to assess measurement uncertainty by reference to a confidence level. A 95% confidence level, which is arithmetically expressed as being within two standard deviations of the mean flow rate, refers to the 95% probability that the 'true flow rate' will fall within a certain range from the 'calculated flow rate'. As Mr McDermott explains: "A flowrate may therefore be expressed as having a particular "uncertainty of measurement". For example, an "uncertainty of measurement" of ±10% at the 95%ile confidence level for a flowrate of 500MLD, means that there is a 95% probability that the true flowrate will fall within the range between 450MLD and 55MLD (inclusive)."
AS3778 and the NSW Office of Water also provide guidance on how to estimate uncertainty in flow rate measurement. For example, Pt 2.3 of AS3778 outlines a step-by-step procedure for calculating uncertainty of a flow rate measurement.
In summary, as considered below, although the prosecutor acknowledges that both the real-time flow data and adjusted flow data are subject to around a 10% margin of error, the defendants raise issues regarding the reliability of the data used to determine flow rate due to matters regarding the manner of its collection, usage and adjustment by the Department. Dr Martens opines that the margin of error is much larger and therefore cannot be used to confidently estimate the flow rate.
It is relevant to note that, between 17 and 20 May 2016, the Bourke gauge was relocated approximately 50 to 100m upstream of its prior location. The re-located gauge was formally commissioned on 7 June 2016. The effect of this relocation on the reliability of flow rate data is a matter of disagreement between the experts.

[39]

Objections to evidence

A number of the defendants' objections to compilations of primary data (largely in the form of spreadsheets) were deferred during the hearing to allow the Court to hear further evidence in relation to the process of collecting and recording data. The parties made detailed submissions in relation to both admissibility and reliability of the material. The remaining objections concern: 1. The affidavit of Andrew Thomas Cutler sworn 5 March 2018: • Paragraphs 28 and 29 (including Annexures D and E, being spreadsheets printed out from the WaterNSW database generated by the Hydstra database containing daily and hourly "adjusted river flow data" for the Brewarrina, Beemery and Bourke gauges) and paragraph 35; 1. The affidavit of Andrew Thomas Cutler sworn 28 September 2018: • Paragraph 19 (including Tab A of what became Exhibit G, being a spreadsheet containing "real time height data" stored within the Hydstra database for the period 15 June 2016 to 5 July 2016 at the Bourke gauge); • Paragraph 25 (including Tab C of what became Exhibit G, being a spreadsheet containing "adjusted height data" stored within the Hydstra database for the period 15 June 2016 to 5 July 2016 at the Bourke gauge); • Paragraphs 41 and 42 (including Tab F of Exhibit G, being Rating Table 300.14); • Paragraph 47 (including Tab H of Exhibit G, being a spreadsheet displaying the Bourke gauge rating graphical node points for the gauging events used to generate Rating Table 300.14 and stored within the Hydstra database) ('Node Points Spreadsheet'); • Paragraph 52 (including Tab J of Exhibit G, being a spreadsheet containing data and records of each gauging for the Bourke gauge from 1895 to September 2018) ('Gauging Log'); • Paragraph 65 (being an explanation of adjusted height data spreadsheet); and • Paragraphs 66 and 67 (including Tabs N and O of Exhibit G, being the same spreadsheets as Annexures D and E to Mr Cutler's affidavit of 5 March 2018 above); and 1. The entirety of the affidavit of Glenn Evan McDermott affirmed 21 November 2018, with separate objections to paragraphs 65 to 82 and paragraphs 107 to 108.
The primary concern of the defendants related to the accuracy of underlying measurements that were used in the preparation of various spreadsheets and tables and that to the extent that the underlying data reflects an opinion of the individual responsible for its collection, the facts and alleged earlier opinions underlying those opinions have not been proven.
The defendants submit that the rating curve used to generate Rating Table 300.14 (generated through WaterNSW's computer program Hydstra) is based upon the earlier collection of height and flow rate figures recorded by unknown persons. Leaving to one side the criticism of the procedures undertaken (which fell from the evidence of Dr Martens who, as noted below, considered that each gauging undertaken required discrete consideration of various aspects), objection was taken by the defendants to the Node Points Spreadsheet (being a spreadsheet containing graphical node points) and Gauging Log (being a spreadsheet containing Bourke gauge data recorded from 1895 to September 2018) because the defendants submit it contains, or is comprised of, statements of opinion the basis of which is not revealed and, as such, ss 76 and 79 of the Evidence Act 1995 (NSW) ('Evidence Act') have not been satisfied. Further, the defendants submit s 135 of the Evidence Act is breached because the holders of those opinions have not been called to give evidence.
The defendants further submit that the relevance of the Gauging Log has not been established as gaugings have not been taken at consistent locations and, further, the prosecutor's evidence has not articulated with precision the change in location of the Bourke gauge which occurred in May 2016.
Further, to the extent that the gauging records depended upon Gauge Posts at the Bourke gauge being correctly calibrated, the defendants submit that there is no evidence that this occurred and that Dr Martens' criticisms of the processes, being his evidence in relation to how river heights may change, and the fact that the prosecutor's witnesses did not deal with these matters, provide additional reasons why the Gauging Log and associated material created therefrom should not be admitted. It follows, the defendants submit, on the basis the Court disallows the Gauging Log and Node Points Spreadsheet that the Court would not admit into evidence the rating curve and Rating Table 300.14 as these depend upon the height and flow measurements extracted from the Node Points Spreadsheet. In the alternative, if admitted, the defendants submit it would be as evidence only of a record of flow rates for different locations reported to the Department by an inspector on a given day.
The prosecutor does not accept that the underlying river height and flow rate data is inadmissible opinion evidence. It submits that the term "opinion" is not defined in the Evidence Act and, in recording the data displayed on the Gauging Devices and the Gauge Posts at various times, employees of WaterNSW and its predecessors did not draw any inference or exercise any judgment. Rather, they merely recorded what they directly observed as objective facts. The prosecutor submits that a person reading a meter or looking at an instrument or Gauge Post is not itself an opinion, but is an observation of what the underlying device shows and that, irrespective of the accuracy of the data collected by the instrument in question, the mere observation of what the machine displays is not an opinion.
Further, the prosecutor submits that the real time height data and the real time flow data was based upon automatic recordings taken by the gauge and, as such, did not involve any independent human function giving rise to an opinion.
For the above reasons, the prosecutor submits that the material recorded in the Gauging Log, Node Points Spreadsheet, Rating Table 300.14, rating curve, real time height data, adjusted height data, real time flow data and adjusted flow data are not opinions subject to the exclusionary rule against the admission of opinion evidence.
The prosecutor also submits that, even if the Court took a different view that the selection of gauging sites involved the exercise of independent human discretion such that there is an element of opinion, that opinion is admissible under s 78 of the Evidence Act as lay opinion for two reasons. First, the evidence is based upon what employees of WaterNSW and its predecessors saw, heard or otherwise perceived on the inspection dates on the basis of what was recorded on gauging devices and gauging post; and, second, this evidence is necessary for the Court to obtain an adequate account or understanding of the employees' perceptions on the inspection dates.
In relation to the underlying accuracy of the river height and flow calculations derived from specific measuring devices (being the Gauging Devices and the Gauge Posts), the prosecutor relies on s 147 of the Evidence Act. As such, the prosecutor submits that the Gauging Log is a document produced wholly or partly by a device or process, such as a float gauge, velocity meter, flow meter, acoustic Doppler, gauge post or automatic river sensor. This document is therefore effectively a business record of the Department because the Department has kept these documents and recordings for many years as part of its "remit" to keep track of the flow of rivers and, as such, s 147 of the Evidence Act provides the presumption that the device or process produced that outcome.
In response to the prosecutor's reliance on the presumption in s 147 of the Evidence Act in relation to the Gauging Log and Node Points Spreadsheet, the defendants submit there can be no reliance upon s 147 as the creation of the documents objected to involved "human process", including the fact that Mr Cutler was required to download the data. Further, as the data involved 600 gauging events carried out over 130 years, it cannot therefore be presumed to be an accurate record of the flow on each occasion.
The defendants point to Dr Martens' evidence, which they submit in any event rebuts the (s 147) presumption. They submit, first, that the Gauging Log and Node Points Spreadsheet are the result of a "human process" involving reading, writing and performing other tasks which result in figures not produced by a machine; and second, that there are human judgments and decisions involved in creating the spreadsheet, even if prepared in accordance with a particular quality code or policy, as these clearly required some consideration of whether the gauging section is improved or stable or whether the flow is uniform. Given that these matters require further measurement using various devices and, these considerations are not recorded on the gauging sheets, the defendants submit the record of flow taken during each gauging is therefore based upon an opinion of an unknown individual and without evidence explaining the grounds for that individual's opinion.
In the event that the material objected to is admitted, the defendants further rely upon the evidence of Dr Martens which demonstrates the factual unreliability of this material and the subsequent inability to reliably determine a flow rate at the Bourke gauge.
While I accept that a primary issue in this aspect of the proceedings is the reliability and use of documentation which includes the primary data in particular, despite the criticisms of Dr Martens (which are nonetheless matters that are relevant to my consideration of the overall reliability of the material), I note that Mr Cutler provided detailed evidence explaining how each of the various documents were created as well as detailing the manner in which the various gauging stations are surveyed for accuracy. Mr Cutler also gave evidence in relation to the procedures followed by WaterNSW concerning calibration of the various instruments to be relied upon.
Furthermore, both Mr Cutler and Mr McDermott gave evidence in relation to the various quality codes and procedures which specifically prescribed the manner in which the data is to be recorded and used. As I have noted, and will consider separately, whether the processes, procedures and methodology are sufficiently reliable to determine the flow rate at the Bourke gauge is a matter of dispute between the experts.
I find that the recording of the data (moreover observations regarding the reading of height staffs and equipment) by employees or officers of the relevant departments is not opinion evidence. Although the expression "opinion" is not defined in the Evidence Act, it is usually understood to be "an inference from observed and communicable data": Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (Allstate Judgment No 32) (1996) 64 FCR 73 at 75 (per Lindgren J), Seltsam Pty Ltd v McNeill [2006] NSWCA 158 at [118]-[119]. I consider that the recording of the primary data is not an "opinion" that would otherwise be subject to the exclusionary rule against the admission of opinion evidence.
In ruling on admissibility of the documents (in particular the spreadsheets) based upon the primary data, I am mindful of the distinction between admissibility and weight. I have therefore taken into account the submissions made in relation to admissibility in considering the weight to be attributed to the evidence which I have admitted. I am of the opinion that in recording the data displayed on the Gauging Devices and Gauge Posts at various times, the officers and/or employees of WaterNSW and its predecessors were merely recording what they directly observed as objective facts.
In relation to the reliance on s 147 of the Evidence Act, I find first, that the river flow data stored in Hydstra for the charge period, as well as the real time height data, real time flow data, adjusted height data, adjusted flow data and Rating Table 300.14 are all "documents" within the meaning of the Evidence Act; second, that the Bourke gauge, Gauging Devices and Gauge Posts are "devices" within the ordinary meaning of that term (which is not itself separately defined in the Evidence Act); third, that the documents referred to were based on (and therefore produced by) the measurements taken at the Bourke gauge using Gauging Devices and Gauge Posts; and fourth, the Gauging Devices and Gauge Posts were used for, and the documents referred to formed part of the records of and/or were kept for the purposes of, the "business" of WaterNSW and its predecessors. I find that the material extracted from those devices did form part of the records and were kept for the purposes of "business" on the basis that WaterNSW is a state-owned corporation established pursuant to s 4 of the Water NSW Act 2014 (NSW) and, as it is an instrumentality of the Crown, it is therefore a "business" under the Evidence Act. Further, the Department (the predecessor of WaterNSW) and its own predecessors were each departments of the NSW Government and therefore instrumentalities of the Crown and "businesses" under the Evidence Act.
Further, to the extent necessary, while I accept that s 147(3) of the Evidence Act contains a carve out to the operation of the presumptions in ss 147(1) and 147(2), I do not accept the documents to which objection has been made were produced for the purpose of conducting, or in contemplation of, litigation, nor in connection with an investigation leading to a criminal proceeding. I accept the submission of the prosecutor that if there was evidence of an existing investigation then the exclusion in s 147(3)(b) of the Evidence Act would apply.
However, despite my findings above as to whether the prosecutor can rely upon the presumption in s 147(2), I consider the reliability and accuracy of the material objected to requires separate consideration which I undertake later in the judgment.
In relation to the defendants' submissions regarding movement of the Bourke gauge, although there is dispute between the experts (more particularly Dr Martens and Mr McDermott) in relation to the effect of the movement of the gauge in relation to its effect on the rating curve, Rating Table 300.14 and the flow rate calculations, I do not consider that is a matter relevant to the present objections.
For the reasons above, I admit each of the paragraphs and documents referred to therein of Mr Cutler's affidavit recorded above, being the spreadsheets containing adjusted river flow data (Tabs N and O of Exhibit G), the spreadsheet containing real time height data (Tab A of Exhibit G), the spreadsheet containing adjusted height data (Tab C of Exhibit G), Rating Table 300.14 (Tab F of Exhibit G), the Node Points Spreadsheet (Tab H of Exhibit G), and the Gauging Log (Tab J of Exhibit G).
Consequent upon my findings above, I read the remaining paragraphs the subject of objection (being paragraph 35 of Mr Cutler's affidavit of 5 March 2018 and paragraph 65 of Mr Cutler's affidavit of 28 September 2018).
Despite my earlier rulings during the hearing, the defendants maintain their objection to the whole of Mr McDermott's affidavit affirmed 21 November 2018 on the ground that it is based upon assumptions not established in the evidence; to paragraphs 65-82 on the basis of inadmissible opinion in relation to Mr McDermott's evidence regarding his "line of best fit" without providing his reasoning; and to paragraphs 107-108.
Considering the further evidence now before the Court, including Mr McDermott's oral evidence and the evidence of Dr Martens, I consider that now the material upon which Mr McDermott has relied is the subject of (at times contested) evidence before the Court and I read the whole of the affidavit subject to my earlier rulings which I dealt with at Tcpt, 11 February 2019, p 31(35-45).

[40]

Summary of evidence

With the above introduction, it is necessary to outline briefly the evidence of both parties in relation to flow rate measurement. As noted above, the prosecutor relies on the evidence of Mr Cutler and Mr McDermott and the defendants rely upon the evidence of Dr Martens.
Mr Cutler gives mostly undisputed evidence regarding the nature of river gauging stations, the construction of rating tables, the general use of the Hydstra database and Hydrotel system, and the generation of both real-time and adjusted data summarised above. He further deposed: 1. He and his "hydrometrics team" monitor and maintain the Bourke gauge, which includes publishing flow data on the WaterNSW website and measuring the flow rate at the Bourke gauge approximately every two months; 2. When measuring flow rate, a flow measuring device is placed into the water and the velocity and depth measurements produced by the device and observations are recorded in hardcopy inspection sheets and field laptop computers, which are then transferred into Hydstra once returning to the WaterNSW office; 3. All data entered into or modified in the Hydstra database is time-stamped, and a process is followed when Mr Cutler and his staff are required to adjust a rating table; 4. WaterNSW considers that the real time height data is subject to a margin of error of ±10mm and, for similar reasons, therefore assumes that the adjusted flow rate derived from adjusted height data is subject to a 10% margin of error; 5. At the time the Bourke gauge was relocated in May 2016, WaterNSW's records show that the site was formally surveyed; and 6. A variety of hydrometric procedures produced by the NSW Office of Water in relation to river height and flow data collection and adjustment were adopted by the Department and implemented consistently.
Mr McDermott describes the processes involved in generating a rating table, calculating flow rate, and assessing rating table accuracy. In addition, he: 1. examined the real-time data and adjusted data for the Bourke gauge, noting that the real-time and adjusted data were almost identical and that inconsistencies were only present in 22 of the 1,248 recordings taken during the charge period, with the variation limited to 1mm in each case; 2. assessed the possibility of "hysteresis" effects undermining the accuracy of flow rate data and opined that, due to the presence of the Bourke Weir, hysteresis effects would not apply except in very high flows (and therefore not around a flow rate of 4,894 ML per day); 3. explained, and then separately performed, the required procedures identified in AS3778 to assess the accuracy of Rating Table 300.14 around a particular flow rate. This process first involves 'characterising the uncertainty' by reference to either of two methods prescribed by AS3778. A selection of 20 gaugings that were nearest to a flow rate of 4,894 ML per day was then taken and their respective deviation percentages from Rating Table 300.14 were calculated. Following his consideration and opinion that these deviations were normally distributed with minimal bias or skew, Mr McDermott was able to calculate, with a 95% level of confidence, that the measurement uncertainty for flow rates calculated using Rating Table 300.14 around 4,894 ML per day was a maximum of ±12.6%. As 12.6% of 4,894 ML per day results in a possible discrepancy of ±605 ML per day at that flow rate, Mr McDermott deposed (with a 95% level of confidence) that the "true" flow rate would therefore lie between the calculated flow rates of 4,259 ML per day and 5,499 ML per day; 4. created his own rating curve ('McDermott Rating Curve') based upon data ranging from February 2011 to July 2018 in addition to examining the accuracy of Rating Table 300.14. Mr McDermott followed the same AS3778 procedures referred to above in evaluating the measurement uncertainty associated with the McDermott Rating Curve, which was assessed at a maximum of ±11.1%. At a flow rate of 4,894 ML per day, this percentage uncertainty produces a discrepancy of ±453 ML per day, and consequently the true flow rate can be presumed to lie within the range of 4,351 ML per day and 5,437 ML per day with a 95% level of confidence; 5. adopted, based on the above assessments, four scenarios in order to determine the time at which the flow rate exceeded 4,894 ML per day. The first two scenarios rely on Rating Table 300.14, with the first scenario not accounting for any measurement uncertainty and the second scenario allowing for a maximum uncertainty of ±12.4% (as calculated in the McDermott Report). The third and fourth scenarios utilise the McDermott Rating Curve, with scenario three not allowing for any measurement uncertainty and scenario four accounting for maximum measurement uncertainty of ±11.1%. In relation to each of these scenarios, Mr McDermott concluded that, over the course of the charge period and the days following, the flow rate was below or equal to 4,894 ML per day until, at the earliest: 1. 15:30 on 30 June 2016, using data provided by Rating Table 300.14 and with no allowance for error or uncertainty (Scenario 1); or 2. 08:45 on 29 June 2016, using data provided by Rating Table 300.14 and taking into account a maximum of ±11.1% for error and uncertainty (Scenario 2); or 3. 20:15 on 30 June 2016, using data provided by the McDermott Rating Curve and with no allowance for error or uncertainty (Scenario 3); or 4. 19:15 on 29 June 2016, using data provided by the McDermott Rating Curve and taking into account a maximum of ±12.6% for error and uncertainty (Scenario 4).
The defendants rely on the evidence of Dr Martens, who raises concerns regarding the Department's procedures used to calculate flow rate and the nature of the data used to create Rating Table 300.14. Dr Martens deposes that the assessment of river flow is subject to a range of possible sources of error and uncertainty.
Dr Martens' concerns may be broadly grouped within three primary categories: 1. Uncertainty derived from instrument and equipment error and sensitivity; 2. The effect of human intervention and judgment, including: first, human error and the subjective nature of data collection; second, channel form uncertainty in relation to how channel surveys have been undertaken; third, inconsistent gauging locations and movement of the Bourke gauge in May 2016; and, fourth, the reliability of historical data; and 3. The calculations and processes used to produce Rating Table 300.14 and the rating curve from which that table is derived, which result in uncertainty in flow velocity, rating curve uncertainty, and uncertainty in calculated flow rate.
Dr Martens deposes that, as each of the measured inputs required to assess flow rate are necessarily inexact, these in exactitudes may have a cumulative effect upon the accuracy of the data and therefore have potential to generate a significant amount of uncertainty which can fluctuate over time. He deposes that uncertainty may result from errors relating to the use and maintenance of equipment and that error, and therefore uncertainty, may arise from incorrect calibration, orientation and location. He opined that the equipment used by the Department appeared to be very sensitive to measurement uncertainty at low water levels whilst also noting that the characteristic margin of error for each of the instruments used by Department personnel has not been provided. Further, human error can contribute to the incorrect reading of measurements and operation of equipment.
Dr Martens also states that an inadequate assessment of the nature of the river channel, also referred to as "channel form", can generate data that is unreliable and not reflective of true flow conditions and, as a river channel is unlikely to be uniform, an accurate survey of the channel is required where the gauging is to take place. Specific sources of uncertainty in this regard may include changes in channel bed and bank conditions due to the deposition or removal of material such as sediment, vegetation or other debris, and the extent to which the channel has been accurately assessed so that all changes across the cross-section are incorporated. These possible errors arising in relation to in-situ factors can similarly affect the recording of flow velocity, along with factors such as equipment uncertainty and orientation (as described above), river depth and contour, the time taken to record the measurement, and the extent to which velocity has been assessed in segments along the river cross-section to compensate for variability of flow across the channel. He further notes that records have not been provided regarding the level of uncertainty associated with each gauging.
Dr Martens notes that the precise locations at which river gaugings are taken at the Bourke gauge has varied, including relocation of the gauge in May 2016. Dr Martens notes that none of the gaugings relied on in the McDermott Report were taken at the exact Bourke gauge site either before or after the relocation, nor was this relocation considered in the McDermott Report. Further, as the gaugings used to create Rating Table 300.14 were taken from section of the river of approximately 11km in length and on either side of the Bourke Weir, Dr Martens suggests that each gauging location may have a distinct river flow to river height relationship and that this possibility was not considered by the McDermott Report. Dr Martens suggests that the practice of relying on data not taken at the Bourke gauge is inconsistent with the recommended practice described in AS3778 and referred to Pt 2.2, cl 5.3.2.8 in noting that it is preferable for flow rate to be measured at the gauging station.
Dr Martens notes that the graph of flow rate against river height has significant scatter above and below the rating curve. As a result, a range of possible discharges exist for any given river height; for example, a river height of two metres has historically recorded flow rates of between approximately 10,000 and 20,000 ML per day. Despite 14 revisions of the rating curve occurring between 1995 and 2011, there have not been any revisions to the rating curve since this time. Further, the rating curve does not include any indication of error or the applicable confidence band. Uncertainty in the generation of a rating curve may also be derived from factors listed above, such as movement of recording equipment, human and equipment error, channel survey accuracy and variable backwater conditions. The basis and validity of the approach taken in fitting the rating curve to the graph is also unclear.
Dr Martens notes that uncertainty may also result when calculating flow rate as a result of inappropriate or unrepresentative flow velocity sampling locations, the number of flow velocity sampling locations taken, and errors described above such as failing to accurately assess the river cross-section or mistakes resulting from human or equipment error. He also identifies inconsistencies between the time at which Rating Table 300.14 calculated the flow rate had exceeded 4,894 ML per day and the times calculated in the affidavits of Mr Cutler, which Dr Martens deposes contain contradictions.
Dr Martens also refers to a number of WaterNSW standard and technical operating procedures which consider uncertainty and error. He notes that several of these guidelines refer to possible sources of error such as infrequent calibration or river surveys, involvement of inexperienced personnel or an insufficient number of velocity measurements being taken along a river cross-section without providing a method of assessment for this error. In this regard Dr Martens notes that is unclear whether gaugings taken by Department personnel were compliant with the WaterNSW Hydrographic Gaugings Procedure. Furthermore, Dr Martens notes that the WaterNSW standard procedures do not explain how error is to be determined and aggregated in respect to several measurements relevant to flow rate. He also noted that the quantification and reasoning for error, as well as the aggregate effect of error or uncertainty, was not considered in the evidence of Mr Cutler.

[43]

Prosecutor's position

Mr McDermott rejected Dr Martens' contention as to the accuracy of the underlying gaugings data. Mr McDermott highlighted that each gauging recorded on the Node Points Spreadsheet had been attributed with a numeric code under the column titled "Quality", which indicates a level of measurement uncertainty for each gauging as recorded by the Department employees. These codes are prescribed by a hydrometric procedure used by WaterNSW and its predecessors entitled "Gauging Quality Codes".
In his evidence, Mr McDermott produced a graph plotting 20 gaugings taken in the Darling River for the period February 2011 to July 2018 and with each data point had been colour-coded to represent the quality code it has been ascribed in accordance with the Gauging Quality Codes document ('Gauging Uncertainty Graph'). An analysis of the coloured data points and their corresponding reference in the Gauging Quality Codes document verifies that all gaugings points used in the McDermott analysis have a measurement uncertainty of 10% or less. The prosecutor submits that this demonstrates the accuracy of the underlying gaugings data and further verifies that uncertainty has been measured in accordance with an objective standard of assessment.
Further, the prosecutor says that the strong concentration of gaugings points in the Summary Rating Curve annexed to the Martens Report ('Summary Rating Curve') in the 2,000 ML per day to 7,000 ML per day range, when considered in light of Mr McDermott's independent verification of the accuracy of Rating Table 300.14 and the rating curve, supports an inference that the underlying gaugings data was accurate. The prosecutor submits that to find to the contrary would be to endorse the proposition that every gauging taken in a more than 100-year period across those flow rates, which all fell along the line of best fit represented by the Summary Rating Curve, was inaccurate and therefore results in a highly implausible outcome.
Further, the prosecutor says that Mr Cutler provided unchallenged evidence that gauging stations, including the Bourke gauge, are surveyed for accuracy every two years and that instrumentation relevant to the calculation of height and flow data is usually calibrated every three years.

[44]

Defendants' position

The defendants submit that the critical failing in the prosecution case is that inherent unreliability and uncertainty exists in the data which has been used to determine river height and flow rate. As a result, the evidence is not capable of demonstrating beyond reasonable doubt the flow rate at the Bourke gauge during the charge period. Further, the defendants submit that Dr Martens' opinion that the evidence available did not enable him to reliably assess whether the flow at the Bourke gauge on the days in question was more or less than 4,894 ML per day would be accepted.
In relation to the quality codes, or quality number, ascribed to each gauging recorded in the Department's Gauging Log, the defendants first submit that the quality number is representative of the Department employees' own opinion regarding the quality of the ultimate height and flow combination at the time the data was recorded. The defendants note that the document defining what constitutes a "quality number" requires an individual to consider various factors that subsequently require further observation, judgment and measurement by the employee taking the gauging, and there is no evidence in relation to these considerations. Second, the defendants submit that the fact the quality number is an opinion is apparent from the fact that the assessment relates to "quality". Third, as the Gauging Quality Codes document requires factors such as stability of the river bed and adequacy of soundings to be considered, the defendants submit that, even if these processes were followed, there is no evidence as to the bases for each of the various opinions that the individual would need to have formed.
The defendants submit that the Gauging Log is only evidence of the fact of what the inspectors reported for inclusion into that log, rather than evidence of the truth or reliability of that information. Accordingly, the defendants submit the Gauging Log should not be considered evidence of whether the flow to height combination on any given day was in fact as recorded in the document, or that the combination in fact has the quality attributed to it in the Gauging Log.
The defendants reject the prosecutor's submission that the rating curve and the underlying data it is based upon may be seen to be reliable as the rating curve graph does not indicate a significant disbursement of dot points and instead reflect a clear line. The defendants submit that this assessment is imprecise and lacks rigour.
The defendants submit that the prosecutor sought to take advantage of the scale of the graph on one "piece of paper", and that the more one enlarges the graph to focus in on segments, the greater the disparity appears. Dr Martens noted that the dot points are subject to significant scatter and indicate a wide range of flow rate readings in circumstances where river heights were relatively similar. Dr Martens therefore characterised the scale of the scatter as indicative of error in the flow curve.
While the prosecutor contended that there was no noticeable scatter because of Mr McDermott's work, the defendants submit that Mr McDermott limited his exercise to 20 dot points which is not reflective of a proper assessment of all the data, and that he incorrectly assumed that Rating Table 300.14 was only based on data collected since February 2011. The defendants submit that Mr McDermott's assessment is therefore of limited assistance.
The defendants submit that there are other methods that WaterNSW could have employed to measure flow rate (other than calling those who performed the inspections a hundred years ago) which would not have resulted in the difficulty of proving the reliability of the underlying data. The defendants say that choosing this method to measure flow rate does not reverse the onus of proof, nor does it burden the defendants to establish that the rating curve is not correct. Further, there is no evidence to suggest that the prosecutor could not have called its own employees who performed this work over the last decade.
The defendants therefore submit that the prosecutor failed to present evidence establishing its case to the criminal standard, as it depended upon a statistical analysis which assumed the validity of the very data the reliability of which was not established.

[45]

Consideration

Before turning to the discrete issues raised by the parties, I note that particular care must be taken when approaching scientific evidence in criminal trials. In assessing the reliability of Mr McDermott's assessment methodology, I am satisfied that his evidence is not of a character which introduces a risk of confirmation bias, as each step within Mr McDermott's uncertainty analysis and the creation of the McDermott Rating Curve has been premised on objective standards. For example, the calculations and process undertaken by Mr McDermott has been derived primarily from an Australian Standard which provides detailed guidance on methods to assess flow rate and measurement uncertainty. Similarly, Mr McDermott's decision to select 20 gaugings as part of his analysis was recommended by a WaterNSW Operational Procedure that indicated that this number should be considered for statistical validity.
As noted by the defendants in their written submissions, Rating Table 300.14 was based on data obtained from 1993 onward. As such, I do not find it necessary to consider the accuracy and reliability of data obtained between 1885 and 1993 in relation to Rating Table 300.14. As gauging data obtained prior to 1993 was similarly not used for the purpose of creating the McDermott Rating Curve, and considering that Rating Table 300.14 and the McDermott Rating Curve are the only two methods through which flow rate has been calculated, I consequently find that it is not essential to rely on historical data from 1885 to 1993 when considering the calculation of flow rate. Nevertheless, I accept that this pre-1993 data has been used in the generation of the Summary Rating Curve annexed to Dr Martens' Report and the Gauging Log, and is relevant to the overall reliability of data recorded at the Bourke gauge, and I therefore give it due regard in that context.
The evidence of Mr Cutler, as summarised above, details the processes and procedures undertaken by the Department to obtain and process flow rate data. Mr Cutler deposes that the Department has adopted and "consistently implemented" several NSW Office of Water hydrometric procedures relating to the collection and adjustment of river height and flow data. The hydrometric procedures referred to by Mr Cutler include, inter alia: the recording and documenting of gauging station visits; the review and editing of hydrometric data; the management and monitoring of instruments; and procedures for maintenance and calibration of current meters and pressure sensors.
In relation to the reliability of the underlying data, I accept the evidence of Mr Cutler and Mr McDermott and consequently find that the data is not unreliable to the extent that the flow rate cannot be reliably ascertained as being below 4,894 ML per day during the charge period. In making this finding, I note that the combined effect of Mr Cutler and Mr McDermott's evidence demonstrates that a variety of comprehensive procedures were followed in collecting, processing and analysing flow rate data at the Bourke gauge, which, in any event, produced data with minimal uncertainty as shown by Mr McDermott's statistical assessment, which I accept. Further reasons for accepting the evidence of Mr McDermott and Mr Cutler in relation to this aspect overlap with my consideration of the submissions regarding the reliability of the rating curve and Rating Table 300.14 which follow later in the judgment.

[47]

Prosecutor's position

The prosecutor submits that, once underlying gaugings data has been collected over a sufficient time period, enough data points exist to enable the calculation of the flow rate based on knowing only the current river height. Further, the fact that Rating Table 300.14 is constructed based on gaugings taken by a range of instruments at various different times and at different locations is part of its strength as a reference, since it is a mean best fit of many readings over time. The prosecutor contends that this means that even if an individual gauging happens to be inaccurate, the larger averaging of the data means that a rating table gives relatively little weight to the relevant inaccurate gauging.
The prosecutor submits that a rating table is thus a mean best fit or average of observed river heights and discharge rates over a period of time on the Darling River so that for any given future river height at the Bourke gauge, the height can be applied as an "input" in the rating table to automatically generate the expected flow rate for the Darling River corresponding to that height in the rating table. Rating Table 300.14 can therefore be thought of as a "look-up table", which will give the flow of the Darling River so long as the river's height is known. It is, in effect, a calculation of the Darling River's flow based upon historical data built up over many years of readings.
During the charge period, the height data for the Darling River recorded in the Review Record matched the height data recorded in the real time height data, apart from 15 instances in which there is a 1mm variance in heights. The prosecutor submits that there was no need for the height data to be adjusted because it was accurate and the 1mm variances between the two sets of figures probably reflect rounding differences in Hydstra which occurred when Mr Cutler extracted the real time height data and the Review Record from Hydstra. Accordingly, the prosecutor says that the river flow data stored in Hydstra for the dates in the charge period is properly considered as real time flow data rather than adjusted flow data.
River flow data extracted from the Department's Hydstra system by Mr Cutler shows that, in the period from 15 June 2016 to 5 July 2016, the earliest time at which the flow rate of the Darling River at the Bourke gauge reached 4,894 ML per day was 15:30 on 30 June 2016. The river flow data does not, however, allow for a margin of error. Nevertheless, the impact of that margin of error was quantified by Mr McDermott in his report and he indicated that based on his calculations, when the river flow data is adjusted for measurement uncertainty corresponding to at least a 10% margin of error, the flow rate of 4,894 ML per day may have been reached, at the earliest, by 08:45 on 29 June 2016.
On each of the days during the charge period, the prosecutor submits that the recorded flow at the Bourke gauge was at least one billion litres per day less than the requisite flow rate. Thus, even if it were the case that there was some doubt as to the exact flow of the Darling River at the Bourke gauge, the prosecutor submits that the Court would be satisfied beyond reasonable doubt that the flow rate of 4,894 ML per day was not met at the Bourke gauge during the charge period.

[49]

Consideration

I now consider whether the processes involved in obtaining river height data, generating a rating curve and producing Rating Table 300.14 introduce sufficient uncertainty and error as to prevent the flow rate from being determined as being below 4,894 ML per day during the charge period to the criminal standard of proof. I again note that this forms only one aspect of my overall consideration and on its own is not determinative of my findings in relation to Element 4. In making findings in relation to the reliability of the processes used to calculate flow rate, I have considered my findings above in relation to the reliability of underlying gaugings data, as well as those which are to follow regarding the impact of inconsistent gauging locations and relocation of the Bourke gauge.
While there is always a possibility that error caused by human intervention may occur, this does not mean that it cannot be sufficiently accounted for. The prosecutor submits, and I accept, that an appropriate margin for error has been provided for this possibility. I note that the assessment of associated measurement uncertainty recorded by Department personnel at the time of gauging, demonstrated in the Gauging Uncertainty Graph, indicates that the maximum uncertainty associated with each gauging in the vicinity of 4,894 ML per day was approximately 10%.
Noting the above, I find that an appropriate margin for error is provided in Mr McDermott's assessment of uncertainty and I accept his calculations which take into account any deviations in gaugings data from Rating Table 300.14 around a flow rate of 4,894 ML per day. Even with this allowance being made, and noting that error is not guaranteed in the first place, or indeed could skew a data point in favour of the defendants' position, I accept Mr McDermott's approach toward calculating flow rate. I find that the McDermott Rating Curve provides independent verification of the conclusions derived from Rating Table 300.14 that the flow rate did not exceed 4,894 ML per day before 29 June 2018, as both the McDermott Rating Curve and Rating Table 300.14 calculated the flow to exceed 4,894 ML per day at a similar time. My reasons for accepting Mr McDermott's assessment methodology follow.
First, Mr McDermott conduced a comprehensive assessment of the uncertainty associated with flow rate measurement. While he acknowledges that the calculation of a 100% exact, or "true", flow rate is a "practical impossibility", he notes that it is nonetheless generally accepted practice to proceed on the basis of a calculated flow rate. This calculated flow rate has an upper and lower confidence limit, which represent (at a 95% level of confidence) the maximum range of possible deviations from the calculated flow rate due to error or uncertainty.
Second, in conducting his measurement uncertainty analysis for the Bourke gauge, Mr McDermott specifically examined flow rates around the range of 4,894 ML per day in order to prevent very high or low flow rate data from affecting his calculation, as this data contains the highest measurement uncertainty. Upon examination of the data near this flow rate, Mr McDermott noted that the methodology set out in Pt 2.3 of AS3778 could not be validly applied and thus recourse to the methodology described in Pt 2.4 was necessary. I have considered these provisions and accept that the procedures contained within as comprehensive. Mr McDermott's use of this methodology involved an assessment of the measurement uncertainty for each of the 20 gaugings nearest to a flow rate of 4,894 ML per day to determine the extent of their deviation from the flow rate estimated by Rating Table 300.14 and this selection of 20 gaugings was informed by reference to objective procedures. As Mr McDermott opined that the deviations of these 20 gaugings from Rating Table 300.14 fit with a normal distribution with minimal skew, he was then able to calculate with 95% confidence that gaugings taken around a flow rate of 4,894 ML per day would deviate from the rating table estimate by not more than ±12.4%. Through the above analysis, which I find is based upon an accepted and comprehensive scientific process, Mr McDermott essentially quantified the range of error present in the flow rate data for the 20 gaugings nearest to 4,894 ML per day. The fact that this specific analysis yielded a similar result to that estimated by Rating Table 300.14, I find verifies the reliability of that rating table around the flow rate of 4,894 ML per day.
Third, on the defendants' case, any of the possible sources of error outlined by Dr Martens (or indeed a combination of which) could potentially cause a deviation in the recorded gauging data from that which is estimated by Rating Table 300.14. Nevertheless, in any circumstance under which these errors may be introduced, Mr McDermott has quantified this total error, cumulative or otherwise, as not being greater than 12.4% for gauging data near a flow rate of 4,894 ML per day with 95% confidence. I note that a deviation of 12.4%, when interpreted in favour of the defendants position (i.e. that the flows were overestimated by 12.4%), nonetheless demonstrates that the flow rate remained below 4,894 ML per day throughout the charge period and for another two days following. In passing, I further note that the measurement uncertainty sources described by Dr Martens are substantially similar to those described in Pt 2.4 of AS3778, and that this is the same Part of AS3778 which prescribes the procedures followed by Mr McDermott in assessing uncertainty.
Fourth, having considered the detailed submissions as well as the WaterNSW procedures detailed in evidence and Australian Standard to which the Court was directed to, I accept the evidence of Mr McDermott that Pt 2.4 cl 6.1 of AS3778 is relevant to my findings above. This clause provides that the presence of a larger dataset can reduce the effect of random uncertainty in the following terms: "Whilst no correction can be made to remove random components of uncertainty, the associated uncertainty becomes progressively less as the number of measurements increases..."
As such, I find that Rating Table 300.14, because it is based on gaugings taken by a range of instruments at different times and over a substantial time period, adds to its strength as a reference. To that end, I accept the prosecutor's position that even if an individual gauging may have been inaccurate, a larger averaging of the data would mean that Rating Table 300.14 would give relatively little weight to an inaccurate gauging despite this not being accepted by Dr Martens. I do not find the defendants' argument that errors which are repeated on every gauging occasion would be undetectable as being compelling, and insufficient to contribute a reasonable doubt, given that the data upon which Rating Table 300.14 is based has been recorded over approximately 27 years.
I also accept the analysis of Mr McDermott that the adjusted height data and real time height data for the duration of the charge period were practically identical, as the two data sets contained relatively few discrepancies which, in any event, were limited to 1mm. In consequence, I find that the distinction between adjusted and real-time data therefore has no bearing on the overall accuracy and reliability of the data used to calculate flow rate, or was otherwise accounted for in Mr McDermott's statistical analysis.
Although the defendants submit that Mr McDermott's evidence offers no assistance as he merely assumes the reliability of the Gauging Log and performs a statistical exercise and, as such, allowing a margin of error of some 10% is irrelevant, and that Mr McDermott did not assess the extent to which the rating curve and Rating Table 300.14 would be incorrect if the Gauging Log was wrong, considering the extent of the analysis conducted by Mr McDermott as described earlier and the existence of estimated uncertainty for each gauging as contained in Gauging Uncertainty Graph, I find that the defendants' submission materially understates the evidence of Mr McDermott. I find that he adopted a statistically appropriate methodology to quantify the extent of errors likely to be present in the flow rate data.
Leaving aside what may be seen as a challenging task to call each employee who had at any time inspected and recorded each element of the primary data, questioning the ability of Department personnel to observe a gauge post, operate and calibrate equipment correctly, or otherwise prove that the equipment was indeed working correctly, would place an overwhelming evidentiary burden in cases involving technical or scientific data attained through physical observation over a sustained period of time. Despite this, I consider that the reliability of data derived from physical observations will increase when an identifiable correlation or relationship exists between the variables being observed and where that correlation is capable of statistical validation using established scientific processes that account for possible error or uncertainty. As noted above, I consider and find that the validity of any such correlation or relationship will also be dependent on whether the size of the data set is sufficient. Further, I note Mr McDermott's evidence that he compared the manual Gauge Post readings taken by Department staff on four occasions with the corresponding river height data collected by the automatic sensor, noting that the minimal discrepancies in each case (if any) were consistent with the WaterNSW drift tolerance policy and had been accounted for in his calculation of uncertainty.
Given my findings, I consider that each of the defendants' arguments in relation to this aspect simply hypothesise possible errors which, even if the case, would yield a relatively minor result (for example, without trivialising the concerns, failing to notice a log in the river or misreading the river height by a matter of centimetres due to human error or time delay would have a negligible impact) and, in any event, these errors have been accounted for in Mr McDermott's statistical analysis. As such, I have no reasonable doubt that a combination of these possible errors is insufficient to create a deviation from the recorded flows during the charge period beyond that which was accounted for by Mr McDermott, such that it would approach or exceed 4,894 ML per day.
I therefore accept that the Department's rating curve and Rating Table 300.14 are capable of determining the relationship between river height and flow rate with sufficient precision for it to reliably prove that the flow rate was below 4,894 ML per day. In light of my findings above, I consequently do not accept the defendants submissions that the rating curve is illogical, based upon assumptions which have not been proven, or that the methods used by the prosecutor to demonstrate its reliability lacked in rigour.
For completeness, I also do not accept the defendants' submission that the procedure is "primitive", subjective and prone to error. Although the "system" does depend upon various processes which involve some element of subjective input, these are criticisms that do not, either individually or cumulatively, lead to the view that the system itself or its manner of implementation (especially in relation to adherence to various standards and guidelines) leads to any reasonable doubt in relation to the accuracy of the figures. More particularly, I do not find that the numerous matters raised, considered cumulatively, raise a reasonable doubt in relation to the reliability of the figures.

[51]

Prosecutor's position

The prosecutor disputes the defendants' contention that the use of inconsistent gauging locations makes the underlying data unreliable. The prosecutor notes that Mr McDermott gave evidence that, based on the characteristic features of the Darling River, the Weir, the Bourke gauge and considering Pt 2.3 of AS3778, the Weir creates what he referred to as a "weir pool". This weir pool generates "weir" or "section" control across a stretch of the river that extends at least up to and including the Bourke gauge, meaning that once the height of the Darling River exceeds the relevant "cease to flow level" of 3.92m, the Weir controls the ultimate flow rate across the length of the weir pool during "low to medium flows". Only in "high flows" will this weir control be "gazumped or subsumed". Mr McDermott deposed that at a flow rate of 4,894 ML per day the Weir "remains as the main and unique hydraulic control", producing in effect a uniform flow rate across the length of the weir pool up to and including the Bourke gauge.
The prosecutor submits that the defendants have not provided any evidence to cast doubt on the fact that the cease to flow level at the Weir was 3.92m. In particular, the prosecutor submits that Dr Martens was mistaken in relation to his reading of "No flow @ weir crest Weir gauge = 3.774 @ 1645Hrs" that had been noted in relation to a gauging on 7 June 2016, which, on his interpretation, was taken to mean that the "crest" (or top) of the Weir was itself 3.774m, rather than the cease to flow level of 3.92m. As such, Dr Martens' attempt to dispute the cease to flow height would not be accepted.
Mr McDermott noted that at "low to medium flows" (including the flow rate of 4,894 ML per day), the actual measurement of the flow rate can be taken anywhere along the length of the weir pool (including at or over the Weir) and still be regarded as a measurement at the Bourke gauge because, irrespective of where the measurement is taken, the flow rate would be the same. Mr McDermott deposed that this was consistent with normal practice of the industry, referring to cl 5.2.6 of Pt 2.2 of AS3778, cl 5.1(o) of Pt 3.1 of AS3778 and cl 6.1 of the Commonwealth of Australia, (Bureau of Meteorology) National Industry Guidelines for hydrometric monitoring, Part 8: Application of Acoustic Doppler Current Profilers to Measure Discharge in Open Channels (2013) WISBF GL 100.08-2013 ('National ADCP Guidelines'), which in Mr McDermott's opinion endorses the taking of gaugings as a matter of discretion within a weir pool in a river source and, further, that the consistent flow rate was a result of the incompressibility of water. This contradicts the evidence given by Dr Martens that the taking of gaugings away from the actual Bourke gauge is "inconsistent with the recommended practice described in AS3778". Accordingly, while WaterNSW and its predecessor entities only occasionally took gaugings at the precise Bourke gauge location, the prosecutor, relying on the evidence of Mr McDermott, submits that the impact of the Weir across the weir pool up to and including the Bourke gauge means that the gaugings data recorded at other nearby locations along the Darling River can be taken to be the same data applicable to the Bourke gauge itself.
Although as noted below, Dr Martens opined that various "sources of uncertainty" such as river bed and river bank conditions and river bed obstructions (including scour, rocks, logs and vegetation) may eliminate the controlling impact of the Weir, thereby rendering Rating Table 300.14 and the rating curve used to derive the ultimate flow rate on the Darling River at the Bourke gauge inaccurate, the prosecutor submits that hypothesis cannot be supported in circumstances where the evidence demonstrates that gaugings were taken at various points along the Darling River and still produced an essentially uniform river height to discharge relationship in the 2,000 to 7,000 ML per day range. The prosecutor relied on the Summary Rating Curve, which is a rating curve based upon all gauging data taken from 1885 to 2016 ('Summary Rating Curve'), as evidence demonstrating the strong concentration of this data.
Further, the prosecutor submits that, on that basis that Dr Martens conceded that the underlying area in the weir pool was "very flat", the consistent flow rate in the weir pool based on the incompressibility of water referred to by Mr McDermott during his examination in chief could be expected to hold true.
In response to the defendants' concerns in relation to the reliability of the various calculations, the prosecutor points to Mr McDermott's evidence and submits that after the Bourke gauge was moved, it was still located in the weir pool and therefore the Weir continued to produce weir or section control, and therefore a uniform flow rate, up to and including the location of the Bourke gauge.
The prosecutor submits that the fact that the movement of the Bourke gauge is irrelevant to the certainty and reliability of the rating curve and Rating Table 300.14 was confirmed by Mr McDermott. Mr McDermott deposed that at the time he prepared his report, he was aware that the Bourke gauge had been moved but "dismissed it as not relevant". According to Mr McDermott, there is "one level pool all the way back" so that the movement of the gauge (and the corresponding Gauge Posts adjacent thereto) would still produce the same flow rate measurements without any inaccuracies, so long as the Department "calibrate[d] their new set of level staff gauges to their old ones".
The prosecutor submits that the records of WaterNSW and the evidence of Mr Cutler verifies that the new site was formally surveyed at the time the Bourke gauge was relocated. Further, the records taken by the Department employees during the course of conducting gauging and height data measurements on Inspection Dates between 17 May 2016 and 20 May 2016 and between 7 June 2016 and 8 June 2016 support the fact that the Gauge Posts were calibrated following the movement of the gauge, thereby ensuring that measurements from gaugings (and therefore the Rating Curve, Rating Table 300.14 and the ultimate flow rate) remained accurate in the manner suggested by Mr McDermott. The prosecutor relied upon two gaugings taken after the movement of the Bourke gauge to demonstrate that the relocation had no effect on the data produced, as it remained consistent with the line of best fit identified in the Summary Rating Curve.

[52]

Defendants' position

The defendants note that there was no actual recording of the flow rate at the Bourke gauge on any of the days in the charge period. As such, the defendants say that the prosecutor has sought to rely on an assortment of measurements taken at various locations in the river in different years for the purpose of contending that one can estimate what the flow may have been at the Bourke gauge during the charge period. The defendants submit that the measurements relied upon (even if properly taken) were not taken at the Bourke gauge and were usually taken hundreds of metres or many kilometres away where conditions may be quite different.
While Mr McDermott submitted that flow could be measured anywhere along the stretch of the river which he described as a "weir pool", as the flow was constant and because water was not compressible, the defendants submit that he did not define what a "weir pool" was, how there could be a pool at times where the river height exceeded the weir height, or where the weir pool might begin and end. Nonetheless, the defendants note that Mr McDermott submitted that it depended on the Gauge Post being correctly calibrated and there was no evidence this occurred. The defendants say that Mr McDermott implicitly said it depended upon the flow measurement being related back to the height at the Bourke gauge, and that, there is no evidence this occurred. Mr McDermott also said it depended on there being no leakage and he did now know whether or not there was leakage. The defendants note that one of the four inspection reports tendered by the prosecutor demonstrated that leakage does occur.
The defendants note that Dr Martens explained why Mr McDermott's weir pool explanation is incorrect by reference to catchment area factors, friction related factors, influence of evaporation, and the influence of water leakage and addition along the river. The defendants submit that the Court would prefer the evidence of Dr Martens to Mr McDermott's assertion based on the physical property of water (non-compressibility), without reference to the facts and circumstances of the river.
The defendants submit that the measurement of flow must be related back to the height of the river at the Bourke gauge, and not where the flow is being measured. The defendants say that there is no evidence this was done, nor whether the height measurement being used on any given day was that at the Bourke gauge or that at the gauging event location. Even if it was at the gauge, the defendants submit that it would take time for the inspector to travel to the gauge, by which time the height may well have changed. Dr Martens explained how the rating curve appeared to be extremely sensitive for only small differences in water heights and was therefore particularly susceptible to be rendered inaccurate by incorrect gaugings. The defendants say that Mr McDermott did not deal with this and assumed that all gauging flows related back to the height at the Bourke gauge, an assumption not made out on the evidence.
The defendants submit that the rating curve cannot be considered reliable as it proceeds on the basis that the relevant point to commence measuring flow is 3.92m (on the basis that water at the downstream weir will cease to flow below when the river is at that height at the Bourke gauge) and the McDermott Report was based upon the same assumption. The defendants contend that there is no evidence to demonstrate the accuracy of that measurement. The defendants submit that a document which puts the cease to flow height at the Bourke gauge at 3.92m cannot be relied upon as Mr Cutler admitted that the coordinates on the document may be referring to the previous location of the Bourke gauge.

[53]

Consideration

Although not determinative in my overall findings, I accept the evidence of Mr McDermott in relation to the effect of the Weir, and generally in relation to the "Weir pool". As such, I accept Mr McDermott's evidence that the Weir is a unique hydraulic control producing, in effect, a uniform flow rate across the length of the Weir pool which extends up to and including the Bourke gauge during periods of low to medium flow. I also accept Mr McDermott's evidence in relation to the normal practice in the industry and that consistent flow rate about which he opines is the result of consistency in channel factors throughout the weir pool as well as the incompressibility of water.
In accepting Mr McDermott's evidence, I find that it is unlikely that the possible introduction of "rocks, scour, logs and vegetation and/or evaporation" could eliminate the controlling impact of a Weir which Mr McDermott described. Further, although there was dispute between Dr Martens and Mr McDermott in relation to the amount of the "scatter" in relation to the rating curve, I accept Mr McDermott's evidence that, having conducted a statistical analysis of gauging data nearest to a flow rate of 4,894 ML per day, he found that there was a maximum deviation of 12.4% within the gaugings data from Rating Table 300.14, and Despite Mr McDermott's concession in relation to possible leakage, I accept that potential sources of error such as this have been adequately accounted for in Mr McDermott's uncertainty analysis.
I find that the evidence demonstrates that the cease to flow height at the Bourke gauge was 3.92m, including after the movement of the gauge. Despite Dr Martens' assertion that the note "No flow @ weir crest Weir gauge = 3.774 @ 1645Hrs" could potentially indicate a cease to flow height of 3.774m, I do not accept that this was indicative of a new gauge height level as this record is clearly noting the weir gauge height of 3.774m and noting a lack of flow as two discrete observations. As I find that the lack of flow in circumstances where the gauge height is 3.774m is nonetheless factually consistent with a cease to flow height of 3.92m, therefore I do not accept this contention. The evidence adduced by the prosecutor during Dr Martens' cross examination demonstrates that gaugings after the Bourke gauge relocation were consistent with the long term trend, further supporting this finding.
In addition to the above, I find that the taking of gaugings at various points along the river (even away from the physical location of the Bourke gauge) is in accordance with the accepted industry practice in circumstances where the flow remains uniform due to weir control and as confirmed by reference to Pt 2.2 cl 5.2.6 and Pt 3.1 cl 5.1(o) of AS3778 and cl 6.1 of the National ADCP Guidelines to which I have been referred. I do not accept Dr Martens' evidence in these circumstances that the taking of gaugings away from the Bourke gauge is not in accordance with accepted practice described in AS3778. In making this finding, I note that the presence of the Bourke Weir and its subsequent effect on the hydrology of the relevant river section was critical and I have considered Dr Martens' concerns in relation to this aspect and accept that, had the factual circumstances of the river been different, these concerns may have manifested a different result.
I also accept the evidence of Mr McDermott that the movement of the gauge would have no impact if the gauge was recalibrated correctly, and that the records of WaterNSW indicate that the relocated site was surveyed prior to the charge period. To the extent that there was further criticism by Dr Martens in relation to Gauge Posts being correctly calibrated, I repeat my finding that the evidence demonstrates that gaugings taken after the Bourke gauge relocation were consistent with the long term trend and were further analysed by Mr McDermott as having a marginal deviation from the rating curve. Further, even if it were the case that the river heights were taken at the gauging location instead of the Bourke gauge, the evidence regarding the weir control and incompressibility of water given by Mr McDermott (which I have accepted) indicates that the calculated flow would remain unchanged.
In relation to the movement of the Bourke gauge in May 2016, the prosecutor relied on gauging records taken after movement of the gauge in order to demonstrate the negligible effect of the relocation. Mr McDermott's statistical analysis of gauging number 590 and gauging number 557 and their respective deviations from the rating curve of 1.5% and 5.62% adds weight to the prosecutor's submission that the movement of the Bourke gauge did not impact upon the accuracy and reliability of the rating curve. Further, when questioned in cross examination on the consistency of these data points with the rating curve and Rating Table 300.14, Dr Martens described each as falling within a "scatter" of dots. I consider that the use of statistical methods by Mr McDermott to quantify the extent of uncertainty and variability, which is founded on a scientific basis and outlined in the corresponding Australian Standard, is the approach which ought to be adopted in the circumstances. As such, I have no reasonable doubt that the river height data obtained at the Bourke gauge after its relocation in May 2016 and therefore during the charge period was accurate.
For the above reasons, I find that movement of the Bourke gauge and the taking of gaugings at other locations within the weir pool did not have an impact upon the accuracy of the rating curve, Rating Table 300.14 or the ultimate flow rate calculated at the Bourke gauge beyond the level of uncertainty that was appropriately accounted for by Mr McDermott. Further, I do not accept Dr Martens' evidence that factors such as friction, evaporation and leakage have a relevant or material effect or were otherwise not accounted for in Mr McDermott's statistical assessment.

[54]

Conclusion on Element 4

Whilst I have made separate findings above in relation to specific areas of disagreement between the experts, I consider that Mr McDermott did, as the prosecutor submits, provide clear and reasoned explanations for agreeing (and on occasion disagreeing) and included detailed reference to AS3778 and the processes and practices employed by WaterNSW and confirmed the veracity of these practices including the underlying gaugings data.
Both parties made submissions concerning the manner in which the experts had approached and gave their evidence. The prosecutor sought to contrast the evidence of Mr McDermott, who on its submission had provided clear evidence supported by reference to applicable standards that he was well familiar with, with Dr Martens' evidence which the prosecution submits does not make any hard findings, was based on a limited understanding of the details of the case and the relevant section of river, contained important concessions, and was prepared within a relatively short four day period. Further, the prosecutor submitted, and I accept, that Mr McDermott was also not significantly challenged in cross examination. In response, the defendants submit that it is not open to the prosecutor to make something of the date of Dr Martens' report and the time taken to prepare it given that this was not put to Dr Martens in cross examination. The defendants submit that the issues addressed in Dr Martens' report were not complex in light of his expertise and the limited data available.
Despite the defendants' submission that Dr Martens did not merely express "concerns", and acknowledging that Dr Martens, as an expert, opined that the evidence he had been provided with did not enable him to reliably assess the matter, I nonetheless find that Dr Martens' criticisms were largely of a speculative nature. Dr Martens did not quantify or qualify the impact of any sources of error he addressed, nor did he present any reasonable or practicable alternatives, with the exception of installing a series of measuring devices at appropriate locations along the cross-section of the river, to the methodology employed by Department personnel in recording gauging data and producing Rating Table 300.14.
Although I accept that the prosecutor bears the onus beyond reasonable doubt throughout, I have been presented with the evidence of Mr McDermott which quantifies, in accordance with accepted industry practice and a comprehensive Australian Standard, the full and cumulative extent of error and uncertainty, which in contrast Dr Martens raises as concerns, if not possibilities. As such, I prefer the evidence of Mr McDermott in relation to assessment of error and uncertainty in gauging data and in calculation of flow rate at the Bourke gauge.
In accepting the evidence of Mr McDermott and light of my findings noted above, including in relation to the accuracy and reliability of the underlying data, the accuracy and reliability of Rating Table 300.14, and the evidence in relation to the movement of the Bourke gauge and how gaugings were undertaken, I find beyond reasonable doubt that the flow of the Darling River at the Bourke gauge was below 4,894 ML per day for the duration of the charge period.

Parties

Applicant/Plaintiff:

WaterNSW

Respondent/Defendant:

Harris

Legislation Cited (10)

Electronic Transmissions Act 2000(NSW)ss 5, 6, 8

WaterNSW Act 2014(NSW)s 4

Act 2014(NSW)

Water Management Act 2000(NSW)ss 3, 20, 21, 47, 50, 55A, 56, 60A, 71W, 88A, 89, 90, 91G, 91L, 91M, 100, 102, 113, 338A, 363A, 367B, 394, Ch

Criminal Procedure Act 1986(NSW)ss 29, 247K

Environmental Planning and Assessment Act 1979(NSW)ss 101, 121H

Evidence Act 1995(NSW)ss 76, 78, 79, 135, 147

Interpretation Act 1987(NSW)ss 3, 31

Water Act 1912(NSW)ss 10, 12, 17A, 20H

Migration Act 1958(Cth)

Cases Cited (52)

LR 69; [1997] HCA 49 Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911 Prior v Hannaford [1970] VR 772 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 Selby v Pennings (1998) 102 LGERA 253 Seltsam Pty Ltd v McNeill [2006] NSWCA 158 Singh v Legal Aid New South Wales [2014] NSWIRComm 1016 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Switzerland Insurance Australia Ltd v Mowie Fisheries Pty Ltd (1997) 74 FCR 205 The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Texts Cited: Australian Standard 3778: Measurement of Water Flow in Open Channels Pts 2.2, 2.3, 2.4, 3.1

[2017] VSC 690

[2002] VSCA 98

(1996) 64 FCR 73