Borg v Minister for Natural Resources [2000] QSC 118

-59_s-o2.3 ~cro/118 State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporti~.9.~~~e,a~:..".'.:'.:::-..::::~,··." ··•-.···•«,~M:::•· REVISED COPIES ISSUED' . SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 7 of 1997 KEVIN JOHN BORG and AGATHA BORG and MARIO DE MARIA and THE MINISTER FOR NATURAL RESOURCES CAIRNS .. DATE 05/04/2000 JUDGMENT -llh Fl11111·, The L:m C1111rls, Ct·orge Slrn:I, Brbb:1111:, Q. -HlOO Applicants Respondent Tdcpho11l': ((17) 32-17 ,L\1,0 h1\: 1117) .12-17 5-:_1.~ -- 1 of 8 -- 05042000 D.1 T9/VC M/T CNS264/2000 (Jones J) HIS HONOUR: This is an application for statutory review of a decision of the Department of Natural Resources to surrender, subject to conditions, a waterworks licence number 50857 issued pursuant to the Water Resources Act ("the Act"). The licence was issued on 21 December 1992 and renewed thereafter, for the purpose of_ controlling peak flood levels over the applicant's land which is adjacent to the Bulguru Swamp near Innisfail. There is a history of disagreement between the applicants and officers of the Department of Natural Resources concerning the operation of the licence, but these matters do not need to be canvassed in any detail. The circumstances relate specifically to the surrender of the licence. Having received the applicant's signed surrender of licence dated 7 February 1997, Mr Johnson, the operations manager of the respondent, on 10 February 1997, advised the applicants of his intention to impose conditions on the surrender pursuant to section 48(2) (b) of the Act. The full extent however, of the conditions, were not advised until some time later. The applicant's solicitors wrote on 11 February 1997, suggesting that there had been a failure to comply with section 48(2) (b) of the Act. The respondent replied on the following day contending to the contrary. No further discussions were thereafter held as to the nature of the conditions which had been outlined in broad terms. 2 JUDGMENT IO 2(( 30 40 50 60 -- 2 of 8 -- Cr5'042000 D.1 T9/VC M/T CNS264/2000 (Jones J) The detailed conditions attaching to the surrender, were notified on 14 April 1997. Amongst the conditions was included the following which are relevant to these proceedings: "4. In the event of spoil material in section 1 being less than required, parts of the drain in section 1 of a minimum of 20 metres in length, are to be filled to a height of 110 per cent of the depth of the drain (i.e. 10 per cent above natural surface). The fill sections are to be interspersed with short lengths of unfilled drain. 5. Section 2 is to be backfilled over its total length to a height of 110 per cent of the depth of the drain (i.e. 10 per cent above natural surface level) . " This review was sought on a number of grounds set out in the original application and points of claim dated 17 June 1997, but in the end result only three were particularly agitated before me and I will deal specifically with those. Before doing so I should mention that when the matter first came before me on 11 February 2000, it was adjourned to allow the taking of expert advice on behalf of the applicants. Since that adjournment an affidavit of Mr Graham Smith, a consulting engineer, was filed on behalf of the applicants. Mr Smith suggested a different method of blocking the drain and provided a costing of $16,630 for the work that he suggested should be undertaken. The respondent has countered with an affidavit by Mr Errol Colman, engineer, contending that the method proposed by Mr Smith was ineffective or unsuitable, and estimating that the 3 JUDGMENT IO 20 30 40 50 60 -- 3 of 8 -- 05042000 D.1 T9/VC M/T CNS264/2000 (Jones J) cost of the works that have been prescribed would be of the order of $70,000. I was informed from the Bar table that each party conceded that the material provided by Mr Smith and Mr Colman was further considered by the decision maker Mr Johnson, and that he determined there would be no change in his decision. Mr Johnson was subsequently cross-examined and was not challenged in respect of this·review of his decision. It was urged on behalf of the applicants that the way in which this new material is to be regarded by me, was in relation to submissions on the question of reasonableness to which I will soon refer. The three grounds are broadly grouped as follows: 1. Breach of the rules of natural justice; 2. 3. Unreasonableness in the "Wednesbury" sense; and Uncertainty. On the question of breach of the rules of natural justice, I have reviewed the material which includes a long history of confrontation between the applicants and the department which includes notices to show cause why the licence should not be surrendered and appeals in respect of the licence. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 8 -- 0'5042000 D.1 Tl0/CON M/T 264/2000 (Jones J) It is clear enough that the applicants were well aware of their rights in dealing with -the Department in matters affecting a licence. In relation to this particul~r issue, the applicants had taken legal advice and were aware, in broad terms, of the conditions that were to be imposed on the surrender.. They did not, ·, however, seek any discussion before the detailed conditions were formulated, nor indeed after the detailed conditions had been received. Rather, it seems there was a rejection of any opportunity to do so. There is clear statutory power reposing in the decision-maker for the making of this disputed decision. The contrary is not suggested. The statutory scheme is based on the requirement that conditions and compliance with them be to the satisfaction of the Chief Executive. The circumstances of this case do not require any detailed consideration of whether the rules of natural justice are excluded. The action of the applicants, through their solicitor, indicates rather that they chose not to seek any further opportunity to be heard, which really followed on a long history of regular discussions . ,_.about the matters .affecting this particular licence. In all the circumstances, I am satisfied that there has not been any breach of the requirements of natural justice. The second point of unreasonableness of the decision is based on what is familiarly known as the Wednesbury principle. principle was recently considered by the High Court of That 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 8 -- 05042000 D.1 Tl0/CON M/T 264/2000 (Jones J) Australia in The Minister for Immigration versus Eshetu, reported in (1999) 73 ALJR 746. In the judgment of Chief Justice Gleeson and Justice McHugh, reference is made to this principle, and more particularly to the limitations upon it. At page 754, the following passage appears: "In Wednesbury itself, which was concerned with an issue as to whether·the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the authority's powers, Lord Green, Master of the Rolls, said, "That what a Court may consider unreasonable · is a very different thing from "something 10 overwhelming", such that it means that a decision zo( was one that no reasonable body could have come to". As Mason J pointed out in Minister for Aboriginal Affairs versus Piko Wallsend (1962) CLR2 24 at 42, "When the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another, 11 a Court should proceed with caution .. lest it exceed its supervisory role by reviewing the decision on its merits". The question of unreasonableness here does seem to me to be predicated on a review of the merits. It is essentially based on the costing between two competing methods of work which are proposed by respective engineers. That is something which I cannot, in accordance with the provisions of the Judicial Review Act, embark upon. What seems to me to have happened here is that the decision-maker has simply rejected the model suggested by Mr Smith. It has not been shown that it was unreasonable, in the Wednesbury sense, for him to have done so. Nor indeed, if the matter could be specifically looked at simply on the comparison of cost, has it been shown that the decision is unreasonable. The final contested ground of uncertainty relates to the way in which the description as to the level of backfill has been 6 JUDGMENT 30 40 50 60 -- 6 of 8 -- 95042000 D.1 Tl0/CON M/T CNS265/2000 (Jones J) formulated, Mr Smith, in his affidavit, refers to that description as being inappropriate or confusing. On one view it might be said to refer to the volume of the fill that is required to be at a hundred per cent of the cavity, on another view it is related to the height. And on yet another view, it refers to one hundred and ten per cent of the depth of the drain, and the explanation given is that it is ten per cent above the natural surface. It seems to me, looking at this section, that the hundred and ten per cent is referable to a height measurement. That potentially might be seen to give rise to some conflict of whether one is looking at the hundred per cent of the depth of the drain, or ten per cent above natural surface. But it is clear that what was intended by the decision-maker was that there·should be a return to natural surface level, some filling over and above the natural surface level, to allow for compaction or subsidence in the fill material. The evidence before me is that the soil type over most of the length of the drain is consistent, and that the condition is capable of being complied with. Ultimately, compliance depends on the satisfaction of the Chief Executive, and it does not seem to me to give rise to particular uncertainty of :~uch a nature as would vitiate the decision that has been made. For those reasons, it is my view that the application for review should be dismissed. 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 8 -- 06042000 D.1 Tl0/CON M/T CNS265/2000 (Jones J) . . MR PLUNKETT: Yes, I ask for costs. HIS HONOUR: Given the reasons for my decision, the costs should follow the event. My orders will be that the application for judicial review is dismissed. I order that the applicants pay the respondents' costs of and incidental to the application, including reserved costs, to be taxed. 8 JUDGMENT 10 20( 30 40 50 60 -- 8 of 8 --