Dowling v Commissioner of Water Resources [1991] QSCFC 124 [1993] 1 Qd R 70

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 Tel. (07) 227.4360 (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 Reporting Bureau.) jfptEVISED COPIES ISSUED * 1 Court Reporting Bureau » { Dat^ /ff! I SUPREME COURT OF QUEENSLAND FULL COURT DERRINGTON J AMBROSE J DOWSETT J No 1993 of 1990 PHILLIP JOHN DOWLING and SALLY ROSEMARY DOWLING (Plaintiffs) Appellants and THE COMMISSIONER OF WATER RESOURCES ( Defendant) Respondent BRISBANE .. DATE 17/10/91 JUDGMENT [1991] QSCFC 124 -- 1 of 65 -- 171091 JUDGMENT MR JUSTICE DERRINGTON : In my opinion the appeal should be upheld. In my opinion it should be declared that the respondent is not entitled to charge the appellants $141,000 1 g a nominal allocation at the rate of $300 per megalitre for 470 Ml of water in respect of waterworks licence No A49130 issued pursuant to the Water Resources Act 1989. The respondent is to pay the appellant's costs of and incidental to the appeal and of the action to be taxed. I publish my reasons . MR JUSTICE AMBROSE: I would allow the appeal and declare that the purported imposition by the Water Resources ! j commission of the fee or charge upon the appellants in the j j sum of $141,000 by invoice number B39740 dated 25 September I i 1990 for a nominal allocation of 470 megalitres of water j I was beyond the power of the Commissioner and ineffective to impose upon the appellants a legal liability to pay | that sum or any part of it to the Commissioner. 50 I publish my reasons and I would order that the respondent pay to the appellants their costs of and incidental to the action and appeal to be taxed. MR JUSTICE DERRINGTON: I am authorised by Mr Justice Dowsett to say that having read the judgment of my brother Ambrose, he agrees with that judgment and the reasons 60 G214— Govt Printei, Qld. 2 -- 2 of 65 -- p 1 171091 JUDGMENT given therefor. I might add that he has indicated that he has not read my reasons in the matter. It should be noted that in fact the order which I proposed, and indeed my reasons, were very close to those of my brothe-- Ambrose . But my brother Dowsett did not have time to read that judgment before he went away, and to avoid taking up further time we thought that we would bring the; judgment out now so that the matter could be concluded. In the result, the order will be in the terms proposed by my brother Ambrose. G214—Govt. Printei, Qld. 1 10 20 30 40 50 60 3 -- 3 of 65 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Writ No. 1993 of 1990 BETWEEN : PHILLIP JOHN DOWLING and SALLY ROSEMARY DOWLING (Plaintiffs) Appellants - and - THE COMMISSIONER OF WATER RESOURCES (Defendant) Respondent DERRINGTON J AMBROSE J DOWSETT J Reasons for judgment delivered by Derrington and Ambrose JJ on the 18th October, 1991. Dowsett J agreeing with the reasons of Ambrose J. Derrington and Dowsett JJ concurring with the order proposed by Ambrose J. "APPEAL ALLOWED. DECLARE THAT THE PURPORTED IMPOSITION BY THE WATER RESOURCES COMMISSION OF THE FEE OR CHARGE UPON THE APPELLANTS IN THE SUM OF $141,000.00 BY INVOICE NUMBER B39740 DATED 25TH SEPTEMBER 1990 FOR A NOMINAL y ALLOCATION OF 470 MEGALITRES OF WATER WAS BEYOND THE POWER OF THE COMMISSIONER AND ' ; INEFFECTIVE TO IMPOSE UPON THE APPELLANTS A LEGAL LIABILITY TO PAY THAT SUM OR ANY PART OF IT TO THE COMMISSIONER. ORDER THAT THE RESPONDENT PAY TO THE APPELLANTS THEIR COSTS OF AN INCIDENTAL TO THE ACTION AND APPEAL TO BE TAXED." -- 4 of 65 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 1993 of 1990 Before the Full Court Mr Justice Derrington Mr Justice Ambrose Mr Justice Dowsett BETWEEN : PHILLIP JOHN DOWLING and SALLY ROSEMARY DOWLING (Plaintiffs) Appellants - and - THE COMMISSIONER OF WATER RESOURCES (Defendant) Respondent JUDGMENT - DERRINGTON J. Delivered the 17th day of October, 1991 CATCHWORDS Counsel: Mr Lennon Q.C. and Mr Stewart for appellants Mr Douglas Q.C. and Mr Lane for respondent Solicitors: Cannan & Peterson t/a for D.R. Coutts & Sons for appellants Mr K.M. O'Shea, Crown Solicitor for respondent Hearing dates: 30th August, 1991 -- 5 of 65 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 1993 of 1990 BETWEEN: PHILLIP JOHN DOWLING and SALLY ROSEMARY DOWLING (Plaintiffs) Appellants - and - . THE COMMISSIONER OF WATER RESOURCES (Defendant) Respondent JUDGMENT - DERRINGTON J. Delivered the 17th day of October, 1991 This is an appeal irom the dismissal of an application for a mandamus requiring the defendant to amend a waterworks licence issued under the Water Act 1926-1987; alternatively for a declaration that such licence as amended is required to be issued under that Act; or in the further alternative for a declaration that the respondent is not entitled to charge the appellants $141,000.00 for a particular charge in respect of the licence as amended . On 7 July, 1988 the appellants applied to the respondent Commissioner under the provisions of the Water Act 1926-1987 for a waterworks 'licence authorising inter alia the withdrawal of 1,000 megalitres of irrigation water from the Thuraggi Watercourse for irrigation. The respondent had advertised calling for applications for an allocation of a share in a quantity of surplus water which would be regularly available from its storage in the area. As it turned out, if the appellants had -- 6 of 65 -- 2 been successful they would have been allocated 470 megalitres ("the 470 Ml") as their share of the total allocation. This is why their claim is framed by reference to that figure rather than to the 1,000 Ml applied for. A licence was granted in accordance with another request in the application but it excluded any allocation of the relevant water, that is, the 470 megalitres, for the reason that the first appellant owns an Irrigation Holding which had previously been granted a certain water allocation and a further increase. Apart from the normal charges based upon the quantity of water extracted, there was to be no charge for the grant of this allocation to the successful applicants and so for convenience this will he referred to as "free water" although that expression is not strictly correct. It is however compendiously useful to distinguish it from what followed the distribution of these allocations, for thereafter the respondent auctioned all further water rights granted, and the lowest price produced at that auction was $300.00 per megalitre for the quantity to be allocated by the licence. As the result of the auction contracts were entered into between the respondent and each of the respective successful bidders in which the latter agreed to pay the sum bid in exchange for the grant of the right. This change in ' the method of allocation of water rights by the respondent was brought about by a shift in government policy leaning towards a "user-pays" principle, for the proceeds of the various sales was to be held in a capital fund for the provision of capital works such as the construction of a new pumping station at the site where the water used by the applicants was -- 7 of 65 -- 3 stored. Since a water allocation substantially improved the productivity of the land to which the allocation applied and enlarged the value of the land in the hands of the licencee, this policy appears to be equitable and not surprisingly there was no complaint of it by the appellants. Discontented however with the respondent's refusal to grant that part of their application relating to the 470 Ml of the free water, the appellants appealed to the Land Court, but by 6 April, 1990, the time that the President handed down his decision on the appeal, the Water Act had been repealed and the Water Resources Act of 1989 substituted for it. It is agreed by both parties that the savings provision of the new Act invested jurisdiction in the Land Court to determine the appeal instituted under the old Act, and the same principles applied. The Land Court had no continuing jurisdiction to hear the appeal under the old Act because its provisions investing the court with jurisdiction had been repealed. However the savings provision of the new Act left the appellants' rights of appeal intact as though the application and its refusal by the respondent in respect of the 470 Ml had both been made under the new Act. Unfortunately the parties did not bring the change in legislation to the attention of the President of the Land Court who purported to give judgment under the old Act, but that does not matter because his orders were equally authorised under the new Act. For relevant purposes, it should be noted that s. 4.26(4) of the Water Resources Act authorised him to "confirm, vary or revoke the decision of the Commissioner the subject of the appeal" . -- 8 of 65 -- 4 He revoked that part of the decision of the respondent which refused the application and he ordered that the waterworks licence which had been issued:- "... be amended as necessary to provide for an annual allocation of 470 Ml in lieu of the provisions contained in the licence concerning diversion of water as therein stated but otherwise subject to the usual conditions attaching to such licences in that area." It will be remembered that the licence referred to was that which the respondent had granted in response to those parts of the appellants' application other than in respect of the 470 Ml. From a reading of the President's judgment it is reasonable to deduce that he was not informed of the subsequent history of the disposition of surplus water rights by means of an auction sale wh a h had already been held,' for he made no mention of it. He was however aware of a proposal to fund capital works from the allocation of licences and that it was proposed that "the capital cost of the pump station be recovered through special additional charges". From this it follows that he recognised that he was dealing with an application for an allocation of free water as distinct from an allocation that would involve the proposed charge. The appeal was clearly brought, argued and determined on this basis and the only issue was the justification of the respondent's refusal for the reason which he had given . There was no suggestion by the respondent that the appellants should pay a charge in the way that had been agreed to by those who had later, but before the hearing, entered into contracts pursuant to the auction of water rights. -- 9 of 65 -- 5 However when the Water Resources Commission returned to the appellants the waterworks licence which had been amended in accordance with the order of the Land Court to include an allocation of the 470 Ml, it included an invoice in the sum of $141,000.00 for the allocation. This was shown to be the product of the multiplication of 470 Ml by $300.00 per megalitre. The Commission pretended to do this under cl. 1 .004 of the Schedule of Terms of the licence which provides "The holder of this licence shall pay such fees and charges as are determined by the Commissioner from time to time ..." The amendment to the licence effected by the Land Court had left this term intact, no doubt due to inadvertence because the question was never raised. It ..is now too late for any appeal on the issue: Water Resources Act s. 4.26(3). The respondent argues that a charge such as this comes within the description of that clause, which is empowered by the Act; and that it does not conflict with the order of the Land Court because by the time of such order it was usual to impose the charge on those receiving further allocations as the auction procedure had been put in place and exercised in all allocations made after the allocation of the free water. It is not correct to say, as the respondent would, that by the time of the amendment , of the licence by the Land Court: it had become a usual condition attaching to such licences that such capital charges should be levied upon the grant of the licence. This argument derives from the order of the Land Court that the licence be amended as ordered, "subject to the usual conditions attaching to such licences in that area" . At best for the -- 10 of 65 -- 6 respondent, the usual conditions can only be said to have consisted of a contractual agreement by a purchaser of such a water right to pay a sum in order to be granted that right.; That of course is different from a condition attaching to the licence itself, for the licences granted to those persons contained no such condition. A distinction must be drawn between a contract antecedent to the issue of a licence and containing terms as to payment for its issue, and the licence itself which may contain conditions. The distinction is both real and vital. The provision for payment which was "usual" at that time was limited to the contract antecedent to the licence. In the present case, the allocation of water had been included in the licence by the act of the Land Court without.* any antecedent contractual arrangement. According to the respondent's own evidence, since the commencement of the sale of water allocations by auction on the occasion referred to above, no party in the area other than those who purchased it at the auction has received an additional allocation of water and hence no other person could have been required to pay any capital charge pursuant to a condition of a licence for such allocation. Therefore the suggested condition supporting the imposition of such a charge could not meet the description of a usual condition attaching to the licence. Lest it be argued that cl. 1.004 itself comes .within the description of a usual condition attaching to such licences in that area, the simple answer is that . there is no evidence whatever to that effect. Nor is there any reason why it should be implied to be so. However, the respondent's argument is that cl. 1.004 is a term of the original licence and that the Land -- 11 of 65 -- 7 Court's amendment of that licence to the limited extent of including the additional allocation has the result that such additional allocation is subject to cl. 1.004. Accordingly, the respondent would argue, it does not matter whether the clause is a usual condition or not: the allocation inserted by the Land Court in the licence by amendment is subject to "usual conditions" because that is part of the order, but it is also subject to cl. 1.004 because that is a term of the licence in which the allocation was inserted. Such reasoning assumes that the Land Court's insertion of the allocation of additional water rights in the licence is a simple gesture of its inclusion subject to all the terms of the licence and without an,L implied qualification of those terms. This fails to take account of the President' s explicit definition of the terms and conditions under which the allocation was to be inserted in the licence by the variation. He did not order that the amendment should be subject to the terms and conditions of the licence, which would have been a suitable expression if the respondent' s interpretation were correct. On the contrary he stated explicitly those conditions upon which the allocation was to be subject, that is, as it has been said, the usual conditions attaching to such licences in that area. So the new allocation was to be subject to that condition only whilst the- rights already granted under the licence as originally granted were subject to the terms contained in it. Of course, the "usual terms" would no doubt include some of the terms contained in the licence, but not all, for some expressly apply, for example, to waterharvesting which has nothing to do with this. The point is -- 12 of 65 -- 8 that - there was no automatic application of the terms of the original licence to the allocation made by the court except where they were shown to correspond with "the usual conditions attaching to such licences in that area". In the circumstances of this case the evidentiary onus of establishing this must lie upon the respondent, who asserts it as a justification for the charge. He has failed to discharge this, and so he cannot rely upon cl. 1.004. In any case, even if that clause had application to the allocation it could not be asserted that it could operate in a way which was in conflict with the order of the Land Court for any such conflict must lead to an implication that in respect of the allocation the clause should be i.citably modified in the area of conflict. So it is necessary to see whether there is any such conflict and that requires construction of the order. For that purpose it is permissible to have regard to the reasons handed down with it and to the relevant legislation: Gordon v . Gonda (1955) 1 W.L.R. 885 at p. 890; Australian Energy Ltd, v. Lennard Oil N.L . (No. 2) [1988] 2 Qd. R. 230 at 232, 243. In those reasons the President adverted to the distinction between free water and water for which a headworks charge such as that imposed in the present case was proposed. It follows j that when he dealt with the matter as an application for an allocation of. free water and varied the Commissioner' s decision by granting the licence without any reference to a headworks charge, his order clearly carried the implication that the grant of the licence should be free of any headworks charge. This is as would be expected since the application was made at a time of -- 13 of 65 -- 9 distribution of allocations of free water and in answer to an invitation to apply for free water, and other applicants who were successful, as the appellants should have been, were allocated free water. In those circumstances the order should be assumed to be speaking of free water unless some good reason was demonstrated to the contrary, which should have been explained in the judgment if it had existed. This is the context in which the order should be read: cf . Codelfa Construction Ptv Ltd v. State Rail Authority of New South Wales (1982) 149 C.L.R. 337. If that is done, there is little difficulty in reading the order generally and the limitation implied by the explicit reference to ''usual conditions" as excluding chare®s of this description and, again by implication, modifying the applicability of any terms of the licence to the contrary. Further the "usual conditions" should be read as referring to the conditions applying at the time when the application should have been granted and which, it seems, the President believed were still applying. Accordingly the order should be construed as excluding the charge. It cannot be and has not been argued that the respondent had the right to add to the terms of the licence when he issued it pursuant to the court's order. By s. 4.26(b) of the Water Resources Act he must give effect to the order of the Xand Court. That does not mean that the respondent then grants the licence, for that has already been effected by the order of the Land Court in varying his decision. His obligation to give effect to that order requires only that he should issue the instrument of -- 14 of 65 -- licence in accordance with the order and ; undertake any other administrative procedures necessary to give effect to it. Lest it be thought that the respondent has the power to levy the charge independently of that clause because this power is said to be derived from various sections of the Act and Regulations, which will be discussed later, it should be noted that the charge was expressly made pursuant to the clause and as the respondent's reliance upon it has not been justified it follows that the charge cannot be sustained by the evidence. Having* imposed it upon one basis, the respondent could not now seek to justify it upon another basis within his power which on the evidence he did not pretend to invoke. This dmposes of the matter but it is convenient to deal with an issue which was raised and argued fully on both sides, that is, whether the respondent had any power to impose such a charge whether pursuant to cl. 1.004 or otherwise. The source of* this controversy is the absence of any such charge within the charges which have been prescribed by the Governor-in-Council under the regulation-making powers provided by s. 10.35. The appellants challenge the respondent's power to impose any charges not so prescribed, because, they argue, the Act itself does not authorise any charge such as this. The respondent correctly points out that the regulations which have been made under the Act cannot be determinative of the scope of the power given to the respondent under the section and cannot be relied on as an aid to construction of the statute itself: Jackson v . Hall [1980] A.C. 854, 884, 889; Webster v. McIntosh (1980) 49 F.L.R. 317, 321; Pearce & Geddes. Statutory 10 -- 15 of 65 -- 11 Interpretation in Australia (3rd ed.) para. 3.30. However, this does not mean that it is incompetent to have reference to the subject-matter for which subordinate regulatory legislation is authorised by the Act itself as an aid to the construction of the extent of powers which are invested elsewhere by the statute. For example, in the present case the Second Schedule of the Act, which identifies the subject-matter for regulations authorised by s. 10.35, mentions charges for water allocated, supplied to or taken by consumers under a licence, minimum water charges and variations for excess quantity (para. 23) and fees, charges, allowances, etc. (para. 33). This implies that these are not to be within the respondent's discretion unless it is so expressly stated. Then again the power may be shared. For example, while it is anticipated that minimum water charges may be fixed by regulation pursuant to para. 23 of the Second Schedule, the discretion whether those charges are to be made and levied in particular cases is reposed in the respondent under s. 10.13. Here there is an implication that his power to make and levy the charge does not include the power to fix it. All of this derives from reading the Act with its schedule as a whole and without any reference to the content of any regulations which have been made under it and which, as the authorities above indicate, are not useful instruments in the process of construction of the Act itself. While the respondent's proposition is certainly correct, it is of little application in the present discussion. It is desirable then to return to the principal line of enquiry. One issue that has arisen is the identification of the operative Act under which the allocation was made in the licence -- 16 of 65 -- 12 and consequently under which the respondent purported to exercise his power, for the licence was originally issued under the Water Act and the Land Court's order of variation applied to the licence. However the variation in the licence effected by the Land Court must have been undertaken under the Water Resources Act , because that was the only legislation then operative, and the act of variation is expressed in the order to have been undertaken at the time that the order was made and not retrospectively. There is nothing in the legislation to suggest relation back. Because the appellants acquired no right to the allocation until the Land Court order varying the respondent's decision, they did not have any accrued rights under the old Act: cf. Total (Austra l ia) Ltd v. Registrar of Companies (1969) V.R. 821, 823-824; Coles-Mver Ltd v. Commissioner of Stamp Duties Q.L.R. 24th August, 1991. In any case although the original licence had been issued under the old Act, the savings provision of the new Act said that antecedent licences were deemed to have been issued under its own provisions, and that was the position when the Land Court' s order was made . Consequently there is nothing in the circumstances to relate the rights of the parties back in time to allow the repealed Water Act to have any bearing upon the matter, and it is to the new Act exclusively that attention must be directed. : Learned counsel for the respondent placed reliance exclusively upon ss. 4.19(1 ) (a) and 10.13 of that Act and cl. 23 of its Second Schedule as the sources of the respondent's relevant power, and these would seem to exhaust his prospects. -- 17 of 65 -- 13 They are best dealt with seriatim. The former section reads as follows :- "4.19 Licenses. (1) A licence under this Act - (a) is subject to such terms as the Commissioner determines endorsed thereon or attached thereto including, without limiting the generality of this provision, payment of the prescribed licence fee and other fees and charges together with interest thereon in respect of water allocated or taken and water taken in excess of the quantity of water authorized to be taken;" This of course is rendered subject to the power of the Land Court to confirm, vary or revoke the decision of the Commissioner by s. 4.26(4). The first thing that must be noticed about the section is not that it empowers the respondent to impose fees or charges but that it authorises him to include in the licence such terms as he may determine and on its face it would appear to invest unqualified power relating to those things. However it is necessary to the construction to observe this distinction between the power to impose fees and charges and the power to include in a licence terms which would seem to include terms for the payment of fees and charges. For that reason, the passage, "... payment of the prescribed licence fee and other fees and charges .. in respect of water allocated or taken and water taken in excess of the quantity of water authorised to be taken", the purpose of which will be explained later, is clearly a specific example of terms which may be inserted in the licence at his discretion. Otherwise it does not inferentially limit the apparent generality of the discretion. -- 18 of 65 -- 14 More particularly it should also be noted that the example refers only to the inclusion of a term for the payment of the fees and charges mentioned but unless they are all qualified by the word "prescribed", which is in controversy, there is no identification as to how those which are not so described are to be levied. For example if that qualification applies only to licence fees, the provision, when referring to the others, would read :- "A licence under this Act is subject to such terms as the Commissioner determines endorsed thereon or attached thereto including, without limiting the generality of this provision, payment of ... other ■ fees and charges together with interest thereon in respect of water allocated or taken and water taken in -excess of the quantity of water authorised to be taken ." If this means such other fees and charges etc. as the Commissioner may in his discretion levy, because they are not prescribed fees, then it should have said so. Consequently the inference is that all the words referred to are prescribed fees and charges. This is consistent with the scope of s. 10.35 which gives the Governor-in-Council the power to make regulations concerning, inter alia, the matters and things set forth in the Second Schedule to the Act. In turn the Schedule, where relevant, includes cl. 23 which relates to the fixing of the scale of charges to be paid for water allocated supplied t'o-or taken by consumers under a licence etc., including excess water and cl. 33 which relates to fees, charges, allowances, royalty, costs and expenses payable to or by the respondent, and matters incidental thereto. Between them these two clauses would appear to cover a very wide field and, relevantly, all the items in the passage -- 19 of 65 -- 15 under discussion following the word "prescribed" . As the Act with its schedule anticipates that all these matters may be prescribed, then it is fitting that, where the word "prescribed" is used, it encompasses all such anticipated fees and charges because those that follow are co-ordinate in description with the contents of the anticipated prescription. Conversely, there is no reason why the example should refer only to the payment of the prescribed licence fee and not to all the other fees which may be prescribed. As all of the indicia support the conclusion that it does refer to all of them, it should so be found. This limitation of the charges specified in the example does not of itself limit the discretion of the Commissioner to insert further terms in the licence providing for the payment: of other fees and charges. For example, s. 10.13 empowers the making and levying by the respondent of a minimum water charge in particular cases although the amount of them may be and have been prescribed. These will be more fully discussed later. For the moment it is the respondent's power to levy them which is relevant. So too where the owner of a holding in respect of which a nominal allocation has been granted surrenders it or a part of it granted in respect of that holding, under s. 10.16, the respondent may make and levy on that owner a charge determined by him consisting of a contribution towards the. costs and expenses incurred by the respondent in the operation and maintenance of the works of the Commission that supply water to or otherwise benefit the holding, capitalised in respect of a period of time determined by him and a proportion of the capital costs of the headworks in question determined by him. -- 20 of 65 -- 16 Accordingly the Commissioner may insert in the licence terms for the payment of these fees and charges other than those prescribed which he is expressly authorised to levy. This accords with the express provision of the section itself, which says that the example is not to limit the generality of the provision. But this does not mean that the general discretion to determine the terms which are to be inserted in the lease authorises the respondent to make a charge which he is not otherwise authorised by the Act to make. If such an authorisation were intended it might have been expected to have been specially mentioned in the section in the same way as the prescribed fees and charges are mentioned. This expectation is generated by.;,-the extensive range of fees and charges for which the Act and Second Schedule specifically enables regulation, and the further identified charges which the respondent is specifically empowered to levy in those other cases where the prescription of fees by regulation would be unsuitable. The respondent argues that the discretion reposed by s. 4.19(1) (a) and defined by the words, "such terms as the Commissioner determines" is absolute, and that to support any limitation it would be necessary to read into it words of limitation which would be contrary to principle. Reference was made to Thompson v. Goold & Co. [1910] A.C. 409 at 420 where Lord Mersey said, "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". Reference was also made to Cooper Brookes (Wollongong) Ptv. Ltd, v. Federal Commissioner of Taxation (1981 ) 1 47 C.L.R. 297 and Mills v. Meekinq (1990) 169 -- 21 of 65 -- 17 C.L.R. 214 which are authority for the respondent's complementary proposition that where the language of a statute is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended. Whilst the reference to those authorities is undoubtedly correct, that principle of construction is not determinative of the issue in this case. The section, including the words conferring the apparently unlimited discretion on the Commissioner, must be construed in the context of the Act as a whole. There is another basic principle of statutory construction, namely that clear and unambiguous language.in a statute is required to authorise the imposition of charges upon a subject. In this sense it can be said that the principle to be applied to statutes which impose or authorise the imposition of charges is analogous to that which applies in relation to taxing statutes . In Davmond v. Plymouth Council [1976] A.C. 609 at 657 Lord Edmund-Davies said: "it is well established that all charges upon the subject must be imposed by clear and unambiguous language. So unbridled on the face of it is the remarkable language of s. 30(1) that its literal application would render chargeable almost anybody on the basis that: 'if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be' (per Lord Cairns, Partington v. Attorney-General (1869) L.R. 4 H.L. 100, 122)." His Lordship was dealing with a section which reposed an even wider discretion in the water authority than s. 4.19. Section 30 -- 22 of 65 -- 18 of the Water Act 1973 (U.K.) provides: "(1) Subject to the provisions of this Act, a water authority shall have power to fix and to demand, take and recover such charges for the services performed, facilities provided or rights made available by them (including separate charges for separate services, facilities or rights or combined charges for a number of services, facilities or rights) as they think fit". Similarly, a literal interpretation of s. 4.19 would lead to the conclusion the respondent could impose a term in the licence for the payment of whatever charge he liked, but such a proposition cannot be supported as a clear and unambiguous interpretation of that provision. By contrast the section manifestly empowers the Commissioner to impose as a term of a licence the payment of the prescribed licence fee, etc. It is probably this rule of construction that led to the insertion of this specific mention in the section, while on the respondent's argument it would have been tautologous . This construction is also supported by the decision of the Full Court of the Tasmanian Supreme Court in The Lord Mayor , Aldermen & Citizens of the City of Hobart v. Baker [1969] Tas. S.R. 34 where Crisp J. at p. 40 said:- "I have already alluded to the fact that the charges and obligations which may be created under the statute do not arise under contract. They arise pursuant to . a statutory power given to the corporation to ..impose them. It would be in accordance with general principle that such statutes are to be strictly construed ( In re Bowman [1932] 2 K.B. 621; Maxwell Interpretation of Statutes 11th ed. p. 278 and cases there cited) and in case of ambiguity or doubt against the authority which seeks to rely on them in derogation of the proprietary rights of citizens." -- 23 of 65 -- 19 Some distinction may be suggested of this authority in that it related merely to the imposition of a form of tax whereas in the present case the charge bears some relation to services provided; but it is not a good distinction because the respondent claims that the words give an unlimited discretion. This defies reasonable acceptance in this context and as soon as it is conceded that there must be some limitation upon its absoluteness, the question might be asked as to why it should not be limited to charges which are clearly authorised. Besides Davmond v. Plymouth Council cannot be subjected to any such distinction, and so it is not suitable to draw it against the Tasmanian authority. It is useful also to refer once again to > Cooper Brookes (supra) which was cited by the respondent. At p. 321, Mason J. (as he then was) and Wilson J. said:- "On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational 1 or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions ." See also Hardy v. Motor Insurers ' Bureau [1964] 2 Q.B. 766. If this is applied to the present case it is not difficult to discern in the Act as a whole a limitation upon the discretion of the respondent to determine the terms to be in licences by way of restricting it to the requirement of payment of charges authorised by the Act or Regulations. The most obvious reason -- 24 of 65 -- 20 is that there are express provisions authorising the imposition of certain charges both by regulation and by the respondent ' s determination. It would be odd indeed if then the legislature were to intend to grant an unfettered discretion upon the respondent to impose other charges by the oblique device of a general power to insert terms in licences. In non-trading public instrumentalities, except in specific areas where the need for some flexibility is apparent, it would be very unusual to invest a departmental officer with an unfettered discretion as to charges to be imposed in relation to its dealings. There is a very good reason for this. As in this case charges can be very substantial and policy decisions as to the rate of charges should in the hands of the Executive who are in turn answerable Parliament. That of course is why ell. 23 and 33 of the Second Schedule are so wide in their combined enumeration of the charges which may be prescribed under s. 10.35 of the Act, but only by the Governor-in-Council, with all the safeguards by way of parliamentary supervision which that procedure provides. rln all these circumstances, it is reasonable to construe s. 4; 19 as investing a discretion in the respondent to impose terms for the payment of charges assessed and levied by him, but only those which he is authorised to impose by other provisions of the Act or Regulations. Indeed, this constraint may. well apply equally to other matters. For example, by para. 5 of the Second Schedule, the subject-matter for regulations may include "the terms subject to which licences ... may be granted, issued ... If, for example, terms were prescribed, it is unlikely that -- 25 of 65 -- 21 the Commissioner's discretion would extend to the insertion of terms contrary to those prescribed. It is easy to understand the true purpose of the section in accordance with this interpretation. While other provisions allow the imposition of various fees and charges, this section authorises the respondent to make the payment of them a condition of the licence, with the added power of enforcement which that entails. This is a much more realistic view than that which reads into it an absolute discretion to impose any charge whatever. Learned counsel for the respondent then invoked s. 10.13 of the Act as an alternative source of the respondent's power. It is difficult to understand why reference has been made to that section. It relates only to the making and levying of a minimum water charge. Whilst that term, and even the term "water charge", are nowhere defined, it is quite obvious that that section has no reference whatever to the type of charge sought to be imposed here. Paragraph 23 of the Second Schedule of the Act enables regulations in respect of water charges and indeed the Water Resources Regulations 1990 prescribe what are called "Water Charges". Part C of the Schedule containing them is headed "Minimum Charge" and its contents set the amounts of / minimum charges in various districts at a proportion-ofnominal allocation with a stipulated base figure. So it seems that s. 10.13 empowers the respondent at his discretion to make and. levy the prescribed minimum charge that is to be paid in respect of each allocation of water when the licensee uses insufficient of the allocated quantity of water to bring the water charge -- 26 of 65 -- 22 above the prescribed minimum amount- Presumably this decision is not capable of prescription in respect of each individual case because of a variety of circumstances that may obtain and so that part of the determination is left in the respondent's discretion. However the point is that the subject-matter of the power has nothing to do with the present case and it should be disregarded. Before departing from it, it is useful to make one small digression. That the making and levying of a specific charge such as this is expressly put within the respondent's discretion when it could have been left to his discretion to have included it as a term of the licence under s. 4.19(1) (a), as he contends, is a seductive argumescfc against his proposition that the latter discretion includes the unfettered power to make charges. However such an implication cannot be drawn because the discretion extends only to the making and levying of the charge the amount of which is prescribed and outside his control. Because of this complexity the legislature probably wished to invest such a power expressly and in detail, and so no inference can be drawn by its specific mention. It is also difficult to see what support the respondent can derive from cl. 23 of the Second Schedule which is the last of / the sources of the relevant power advanced by his counsel in argument. It establishes the fixing of water charges as a subject for prescriptive regulations, which has nothing to do with the respondent's powers. In any case the charge in the present case is not a water charge and if it were to be prescribed it would come within the subject-matter of cl. 33. -- 27 of 65 -- 23 The argument seems to be that as it could be prescribed, but is not, this means that it is a valid charge that can be properly- imposed, and that in the absence of any prescription its imposition is within the power of the respondent under s. 4.19(1)(a). Although he would have been empowered to include a term of the lease for the payment of this charge if it had been prescribed, for the section explicitly says so, there is no authority for such a charge which is not prescribed. The reasons are those given above and because a clearer vesting of power is necessary to authorise a charge than in the convoluted style suggested by the respondent. Accordingly, he had no power to impose the charge unless and until it were prescribed by the Regulations. 3 The result is that for all the reasons stated the charge was unauthorised. It implies no criticism of the policy behind it nor does it suggest that it would not be possible under s. 10.35 of the Act and para. 33 of the Second Schedule thereto to invest such a power in the respondent in a suitable case by the prescription of a charge of this nature. It means only that the Act and Regulations as they now stand do not do so because, while the paragraph in the Second Schedule makes provision for matters of this kind, no step has been taken to implement it in respect of this particular charge. The respondent has been obliged to fall back, unsuccessfully as it turns out, upon a general power to import terms into a licence, but the present case itself, in which he seeks to levy a charge of $141,000.00 without any more specific authorisation by the Act.or Regulations, demonstrates the unlikelihood of any legislative intention to empower by means -- 28 of 65 -- 24 of this provision the making of such charges not otherwise authorised. Some concern should also be expressed at the respondent's conduct in trying to avoid the benefit which was won by a successful appellant to the Land Court by imposing a charge in this way. The appeal was properly launched against his refusal to grant a licence in respect of the free water allocation and it was contested in the Land Court by both parties upon that basis. It is true that by the time the Land Court's decision was handed down there had been a change in policy in favour of the "user pays" principle. It is not however in derogation of that policy to say that the appellants' failure to obtain a licence before that change was the result of the error ..of the Commissioner in not granting it in the first place, as the Land Court found, and the successful appellants should have been placed in the same position as if they had been successful in the first instance. The subsequent imposition of the charge in these circumstances has some appearance of an attempt to subvert the judgment of the Land Court. If it were so it should not be tolerated. The appeal should be upheld. It is declared that the respondent is not entitled to charge the appellants $141,000.00 being a "nominal allocation" at the rate of $300.00 per megalitre for 470 Ml of water in respect of waterworks licence No. A49130 issued pursuant to the Water Resources Act 1989. The respondent is to pay the appellants' costs of and incidental to the appeal and of the action to be taxed. -- 29 of 65 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Derrington Mr. Justice Ambrose Mr. Justice Dowsett Appeal No. 1993 of 1990 BETWEEN AND: PHILIP JOHN DOWLING and SALLY ROSEMARY DOWLING (Plaintiffs) Appellants THE COMMISSIONER FOR WATER RESOURCES (Defendant) Respondent REASONS FOR JUDGMENT - B.W. AMBROSE J. Delivered the 17th day of October, 1991 CATCHWORDS : Water Resources act, Power of commissioner, allocation of water licences. Land Court decision disregarded by Commissioner. Counsel: Mr. Lennon Q.C. and Mr. Stewart for the Appellants. y Mr Douglas Q.C. and Mr. Lane for the Respondent . Solicitors: Cannan & Peterson t/a for D.R. Coutts & Sons. Mr. K.M. O'Shea, Crown Solicitor for the Respondent . Hearing date 30th August, 1991. -- 30 of 65 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 1993 of 1990 BETWEEN : AND: PHILIP JOHN DOWLING and SALLY ROSEMARY DOWLING (Plaintiffs) Appellants THE COMMISSIONER OF WATER RESOURCES (Defendant) Respondent REASONS FOR JUDGMENT - B.W. AMBROSE J. Delivered the 17th day of October, 1991 This is a appeal against the refusal of relief which the appellants sought under R.S.C. O. 57 r. 2 against the respondent by way of mandamus and/or declaration. The appellants are the registered proprietors and occupiers of dry farming land at St. George with an area of a little over 1100 hectares. The land is locally known as "The Bore". The male appellant is also the owner of an irrigation farm in the St. George district called "Andermatt", . The- male appellant acquired this irrigation farm together with water rights for irrigation purposes in 1970. It was not until 1979 that the appellants acquired "The Bore". They have used "The Bore" for dry farming purposes but have found it not economical to do so. The appellants are of the view that it -- 31 of 65 -- 2 can really only be used for farming purposes if it is irrigated. In February 1985 the appellants applied for a water works licence to permit them to irrigate part of "The Bore". At that time they sought a water allocation for "The Bore" of 375ML of water. That was application number 43286 but for reasons which do not emerge clearly the application seems not ever to have been finalised. Both "Andermatt" and "The Bore" are properties within the St. George irrigation area and with respect to the "Andermatt" property the male appellant has water rights. In November 1987 the Commissioner of Water Resources made r public proposals to increase the' availability of water in .the St. George irrigation area. This proposal included the incurring of capital costs for the installation of a water pump to be used for irrigation purposes. It was proposed that the capital cost of this equipment should be recovered "through special additional water charges". The Commissioner called for applications for additional nominal allocations from "Thuraggi" water course and the "Balonne River". The proposal was to provide additional nominal allocations of water to persons within the district to the extent of 1 2, 500ML. ; In fact however 46 land owners within the St. George irrigation area made all told 67 applications. The total additional water allocations sought amounted to 32,244ML. In addition to this additional nominal allocation of 12,500ML to be available to persons within the St. George -- 32 of 65 -- 3 district it was also proposed to auction 3,000ML of irrigation allocation for the purpose of using the funds obtained to construct a proposed pumping station to which I have referred. In fact the auction was held on 16 November 1989 and as it happens the appellants purchased at that auction a 45ML nominal water allocation. The Commissioner however was faced with the task of sharing the additional 12,500ML of water allocation between the 46 land owners who had together applied for about two and a half times the additional allocation available. Mr. Barry the President of the Land Court dealing with this matter succinctly explained the way in which the Commissioner dealt with this problem - "Because the volume of additional nominal allocation applied for by the various parties significantly exceeded the volume of about 12,500ML of additional nominal allocation proposed to be granted from the regulated sections of "Thuraggi" water course and "Balonne River" it was felt necessary for the Commissioner to fulfil his responsibilities to fairly and equitably distribute and manage the water supplies available from the project. In the result the Commissioner decided to grant additional nominal irrigation allocations from the project based on the maximum - (a) 125% of pre-existing nominal irrigation allocations; (b) 470 megalitres; (c) the" volume applied for if that volume was. less: than 470ML per irrigator irrespective of property ownership or partnership." On 7th July 1988 the appellants made another application for a water works licence for the purpose of water harvesting and irrigating their dry farming land. They sought an annual nominal water allocation of 1,000ML and their application -- 33 of 65 -- 4 makes it clear that they sought in effect to have it considered in lieu of their earlier application number 43286 in which 375ML had been sought. This water application of 7th July 1998 was numbered 49130. The application was duly advertised and no objections were received from other persons within the St. George irrigation area against the granting of it. In evidence given before the Land Court the Commissioner's district engineer Mr. Claydon said that investigations show that subject to the requirements of the Commission and Balonne Shire Council water could be pumped to vrhe Bore". On 14th November 1989 Water Works Licence number 49130 did issue giving the appellants a right to install a pump on the "Thuraggi" water course and thereby to "harvest water for the growing of specified crops". However no nominal water allocation was granted. The Water Resources Commission advised the reason for not granting an allocation of water in the following terms - "A separate irrigation allocation has not been granted under licence no. 49130 on the grounds that P.J. Dowling owns an irrigation holding in the St.% Geoirge irrigation area with register of lands no. 22 which previously had been granted an annual water allocation of 960ML being in excess of 470ML and which was recently granted a 25% increase in annual nominal allocation ." In the same letter the appellants were advised - "If you are dissatisfied with the Commissioner's decision not to grant the licence as applied for you may appeal to the Land Court in accordance with the provisions of s. 12 of the Water Act." -- 34 of 65 -- 5 It seems clear that the right to "harvest" water merely gives persons holding that right the legal capacity to withdraw for the purpose of storage quantities of water from the irrigation system in times of excess capacity, such as might exist in periods of heavy rainfall resulting in really an over abundance of water in the irrigation system. To benefit from this right to any significant extent it is necessary for the person exercising it to construct water storage facilities - such as tanks, dams, etc on his land. The expense involved in significantly utilising water harvesting rights therefore generally speaking is very significant. The appellants in this case are of the view that the water harvesting rights given to them are really of an illusory value keeping in mind the very great capital costs that would have to be incurred to establish facilities necessary to harvest water in times of abnormally high flows of water in the system. As invited by the terms of the letter from the Water Resources Commission of 14th November 1989 the appellants did appeal to the Land Court. A number of grounds were ventilated upon the appeal but in essence it seems to have been the contention of the appellants that the water available from the scheme within the St. George district exceeded : the requirements of the existing licensees and other riparian land owners; that there were no objections from other such people to the appellant's application; that the appellants if granted the application would be able to make beneficial use of "The Bore" for the growing of crops which otherwise would not be -- 35 of 65 -- 6 viable economically; and that there was no other practicable alternative source of irrigation water for "The Bore" . Under s. 12(4) of the Water Act 1926-1981 upon receipt of an application for a licence for water works of the sort made by the appellants the Commissioner or his nominee is obliged to make enquiries of the sort detailed in that section. The section inter alia provides - "Upon the completion of enquiry made the Commissioner may subject to this section grant or refuse the application and if he grants it cause to be issued to the applicant a licence in respect of - (a) so much of the land water course ... as he thinks fit; (b) the use of so much of the water specified in the application as he thinks fit; (c) the referable dam specified in the application; (d) the work specified in the application. Then under s. 12(4A) it is provided - "If any applicant or objector is dissatisfied with the decision of the Commissioner upon an application under this section other than a decision that concerns the safety of a referable dam or the protection of life or property in connection with a referable dam that person may appeal therefrom to the Land Court and that court shall hear and determine the matter and may confirm vary or revoke the decision of the Minister." Under s. 12(4C) the determination of the Land Court upon an appeal against the Commissioner's decision is final. Under s. 12(4D) it is provided - "The court shall cause its decision upon an appeal to be certified in writing by the Registrar of the Court to the Commissioner and the Commissioner shall give effect thereto." \ -- 36 of 65 -- 7 The Land Court in this case allowed the appeal against the decision of the Commissioner. The President's reasons delivered on 6th April 1990 placed before us read as follows - "I have considered all the documents and the evidence in this matter and am satisfied on the evidence that had the appellants here arranged a lease of these lands to another party that party would have received a water allocation of 470ML. The land could then have been sublet back to them to derive the beneficial use of the water. They are disadvantaged against others who gain an allocation by devious means. They should not be penalised because they have presented the truthful picture in making an application themselves. An allocation to them will take no more water than an allocation to a lessee from them. I agree that it is proper for the Commissioner to "fairly and equitably distribute and manage the water supplies available from the project" as stated by Mr. Claydon but as was said by Mr. Dodds a then member ^of this Court in L .-P . Shooter & Ors v. The Commissioner of Irrigation and Water Supply (1972) 39 C.L.L.R. 11 at p. 17; 'To me there is no suggestion in these provisions that the legislature is simply concerned with over appropriation so much as ensuring that each applicant is fully considered with the balances held fairly and adjusted equitably as between the applicant and other riparian owners who may be affected.' In the circumstances therefore I find that the appeal should succeed to the extent of the grant of an allocation of 470ML being the amount of water which would have been allocated had a lessee/occupier from them made the application. In the result the appeal is allowed. The decision of the Commissioner is revoked. I order that.Water Works Licence number 49130 be amended as necessary to provide for an annual allocation of 470ML in lieu of the provisions contained in the licence concerning diversion of water as therein stated but otherwise subject to the usual conditions attaching to such licences in that area." I presume the Land Court Registrar under s. 4E of the Water Act duly certified the decision of the Land Court to the -- 37 of 65 -- 8 Commissioner who was* then required to give effect to it. Apparently nothing Was done for some time and the appellants' solicitors on 14th September 1990 drew the attention of the Commission to this delay. By letter of 18th September 1990 the District Engineer replied that - "Receipt is awaited of additional advice requested from the Crown Solicitor, following which the licence shall be issued without further undue delay ." Under cover of letter dated 25th September 1990 the District Engineer of the Water Resources Commission forwarded to the appellants Water Works Licence number 49130 observing that that licence "has been amended as directed". However also enclosed with the'licence was an invoice described in the letter as "being the fees for tne nominal allocation of water" . The attention of the appellants was drawn to the fact that "such fees must be paid within 30 days after the date listed on the invoice". The appellants were also informed that "an invoice for annual water charges will be issued in due course". Comparison of the Water Works Licence dated 14th November 1989 against the terms of which the appellants successfully appealed and the Water Works Licence dated 25th September 1990 issued after that appeal indicates that the only significant difference on the face of the licences was that on the licence against which the appellants appealed there was no nominal allocation of water whereas on the licence dated 25th September 199.0 purporting to give effect to the decision of the Land Court there is included the words "nominal allocation 470ML". -- 38 of 65 -- 9 There is a schedule of conditions attached to the licence against the terms of which the appellants successfully appealed. Condition 1.004 provides - "The holder of this licence shall pay such fees and charges as are determined by the Commissioner from time to time, such fees and charges being payable at any place specified by the Commissioner on or before a date 30 days after notification by the Commissioner of such fees or charges." There is a similar clause under the licence purportedly issued after the appellants ' successful appeal which requires fees and charges to be paid "on the due date and must be paid within 30 days of the date of issue of the invoice". Accompanying the Water Works Licence number 49130 purporting to "give effect to" the order of the Land Court there was an invoice for a "nominal allocation" of "470MLS X $300 per megalitre - $141,000.00". It was conceded that none of the other applicants for an increase in their nominal allocation of water had been charged such a fee with respect to any increase in allocation given to them out of the available 12,500 megalitres for which applications had been called. Not surprisingly the appellants have taken the view that their victory in the Land Court will prove illusory all other things being equal if it is within the power of the Commissioner as a matter of discretion to impose a charge of $141,000.00 upon the appellants as a consequence of their benefiting from the allocation which the Land Court determined they should have when as the evidence discloses none of the other applicants who received an increase in their nominal allocation of water rights had been so charged. -- 39 of 65 -- 10 For the Commissioner it is contended that the charge is clearly justified under condition 1.004 of the water works licence whether in the terms challenged in the Land Court or in the terms as expressed in the most recently "amended" water works licence of the same number challenged in this Court. As I understood the contention of the Commissioner upon its plain wording condition 1.004 gives him the right at any time to impose any charge or fee which he deems expedient upon the holder of any water works licence. It is contended that he is not constrained in the imposition of such charges or fees by the content of various schedules of fees which are to be found or "specified" in the legislation or regulations etc made under it. For the appellants of course it is contended that the Commissioner's discretion under condition 1.004 is limited to the imposition of fees which are prescribed by relevant legislative procedures and he is not given a statutory carte blanche to impose on any licensee whatever fees he considers a good idea at any time he see fit. It seems clear that it was never suggested at any stage in the course of appeal to the Land Court against the Commissioner's refusal to give a nominal water allocation as part of the licence which he issued to the appellants in November 1989 that any nominal allocation that might be granted by the Land Court upon appeal could at the whim of the Commissioner attract a fee calculated by multiplying each megalitre of water allocated by $300.00. -- 40 of 65 -- 11 Indeed the evidence 1 placed before this Court indicates that it was between the grant of the licence in November 1989 and the coming into effect of the provisions of the current Water Resources Act 1989 that there was a "change in Government policy". By affidavit the Commissioner of Water Resources stated as follows - "In recent times there has been change in Government policy regarding the levying of charges from applicants for water allocations in order to reflect the value of water supplied with the money raised from charges representing a contribution towards the capital cost of providing water. Such funds are used to construct new works to improve the future availability of water and also to offset the costs in maintenance and refurbishment of existing works. In effect this policy implements a 'user pays' principle." * The Commissioner then gives as an example of the "new policy" the auction of "excess water allocation rights" at St. George on 16th November 1989 where as I have already indicated the appellants purchased 45ML of the "excess water allocation rights" at $375.00 per megalitre. The Commissioner in fact deposes to the fact that the lowest auction price paid in respect of the water allocations auction was $300.00 per megalitre while the average was $386.00 per megalitre. The Land Court hearing of the appellants' appeal against the Commissioner's decision took place at St. George on 20th February 1990. The decision was handed down on ,6th April 1990. Apparently nothing was said of the alleged "change of policy" implementing a "user pays" principle at any time during that hearing. It is plain that various allocations of the 12,500 megalitres were made to other persons in the St. George district prior to the hearing of the appeal. -- 41 of 65 -- The respondent dbes not seek to rely upon any change of statutory power or upon any regulation that came into effect between the granting of the licence initially to the appellants in November 1989 and the subsequent issue of the "amended" licence in September 1990 upon their successful appeal. As I understood the contention for the Commissioner even if the water licence in the terms granted in September 1990 had been granted in November 1989 it would still have been within the discretion of the Commissioner to impose upon the appellants precisely the same charge for the nominal allocation of water rights in November 1989 and he purported to do in September 1990. This power it is said is derived from the express terms of condition 1.004. It was contended in argument that the Commissioner has precisely the same power at any time in the future with respect to all the other persons in the St. George district who have received additional nominal allocations of water with respect to the 12,500 megalitres made available for application in 1989. Indeed as I understood the argument advanced for the Commissioner even in respect of water licences they have held for many years persons in the St. George area will be liable at the "discretion" of the Commissioner - provided that discretion is motivated by "policy considerations" - to pay large sums of money when and if "determined" in some fashion by the Commissioner. Non-compliance with a demand of that kind would constitute a breach of condition of the water licence. I hasten to add that it was not 1 suggested that it is within the present 12 -- 42 of 65 -- 13 contemplation of the Commissioner to impose such charges on the users of irrigation water. It is contended simply that it is clearly within his capacity to do so under condition 1.004 although doubtless "policy considerations" at Government level might be a factor in the exercise of any such discretion. Such contentions on behalf of the Commissioner seem to me supportable if his basic contentions as to the effect of condition 1.004 are valid. The learned trial Judge in effect upheld those contentions and dismissed the appellants' claim for relief against the Commissioner's imposition of a charge of $141,000.00 when ultimately he "gave effect to" the decision of the Land Court. His Honour referred to s. 12.5 of the Water Act (now repealed) which provides - "(5) Issue of Licences. The licence if granted shall be in the form prescribed and shall be subject to such terms, limitations and conditions as the Commissioner may determine or consider expedient .." His Honour summarising the argument for the appellants continued - "The plaintiff's case is simply that s. 12(5) does not permit any exaction other than fees (i) prescribed on the issue of the licence - a charge mentioned in s. 12(9) and (ii) prescribed by regulation "fixing the price for water rights" - charges anticipated by cl. 25 of Part II of the Schedule to the Act. According to the plaintiffs unless the liability to pay it is imposed by regulation the Commissioner cannot demand any sum on the grant of a licence. If however the. Commissioner's powers are not so -- 43 of 65 -- 14 restricted then as the case was argued the charge made by the invoice is within power." _In dismissing the appellant's arguments the learned trial Judge said - "In, my opinion s. 12(5) shows that the Parliament considers that the Act's effective administration and the adjustment of competing demands on the State's water resources justify reposing in the Commissioner significant discretions to fix appropriate conditions for water licences. The contention that those ample powers are impliedly restricted so that no term may require a money payment that is not prescribed by regulation derives no support from the language of s. 12(5). Nor do more general considerations favour according such a narrow operation to the section. Water Licences may relate to a wide range of activities throughout Queensland ...... The variety of situations in which a licence is needed makes it unlikely the Parliament intended that the Commissioner could not condition a licence on a payment not provided for by regulation His Honour referred to specific provisions under the Act and Regulations relating to fees - s. 12(9) and cl. 25 of Part II of the Schedule to the Act - but observed "in my opinion these specific provisions do not carry with them any implication that the Commissioner may not selectively levy by an appropriate condition. It is not clear to me that in fact the point was ever addressed that whether in purporting to issue to the appellants a water licence which "gave effect to" the judgment of the Land Court allowing their appeal against : the Commissioner's refusal to grant them a nominal allocation of water the Commissioner in purporting to impose in respect of that grant of nominal allocation a capital charge of $141,000.00 did in law really give effect to the order of the Land Court allowing the appeal and the direction given to him. -- 44 of 65 -- 15 It must be kept in mind that the formal order made by the Land Court was for the amendment of licence number 49130 to provide for an allocation of 470ML "in lieu of the provisions contained in the licence concerning diversion of water as therein stated". On my understanding of that order it directed the inclusion of an annual allocation of water in lieu of the "water harvesting" permitted under the licence under appeal which the President referred to as "diversion of water" . The formal order made by the Land Court that the water works licence issue "subject to the usual conditions attaching to such licences in that area", to my mind requires the Commissioner to impose only those conditions upon the appellants' licence as are the' usual conditions imposed on water licences granted in the St. George area generally. As I understand the respondent's argument however the imposition upon the appellants of the $141,000.00 "head works" charge was not indeed itself a condition of the licence granted pursuant to the direction of the Land Court. It is contended that it is condition 1 .004 which is the source of the Commissioner's power to impose this charge upon the appellants and indeed it is contended that condition 1.004 whether in the licence dated 14th November 1989 or that dated 25th September 1990 are on the face of those licences pro forma and obviously contain "the usual conditions attaching to such licences in that area" . To my mind the evidence was not really directed towards establishing whether the conditions attached to either of the water licences to which I have referred were those "usually -- 45 of 65 -- 16 attaching" to water licences in the St. George district. I rather suspect that the water licences are in common form and I will assume for the purpose of this judgment that the various other holders of water works licences in the St. George district hold them subject to conditions which appear on Licence 49130 and can be said to be the "usual conditions" imposed on licences in the St. George district. It is therefore the contention of the respondent that condition 1.004 of the Water Licences in the district of St. George gives to him a discretion exercisable presumably at any time he thinks it might be appropriate to impose a "charge" or "fee" upon a holder of a water works licence designed to meet |he cost of "head works" charges incurred or to be incurred or any other expenditure presumably in the St. George water district connected with the provision of water for irrigation. It is said that the assessment of the charge at $300.00 per megalitre is simply one of any number of methods that might be used to quantify and collect from the appellants a contribution towards "head works" or capital cost charges in the St. George district. The problem with such a contention however is that upon the evidence the charge of $300.00 per megalitre sefems to be . justified not by reference to any capital costs but by reference to what farmers in the St. George irrigation district were prepared to pay at public auction for various nominal water allocations out of the 3,000 megalitres found to be in excess of requirements for that -- 46 of 65 -- 17 district. It will be recalled that auction was held in November 1989. There is nothing in the material to suggest that the charge which the Commissioner purports to impose upon the appellants is related in any way to the capital cost of equipment etc related to water supplied for irrigation purposes in the St. George irrigation district. On the contrary in his affidavit used before the trial Judge on the application the Commissioner said - "Since the auction conducted at St. George on 16th November 1989 with respect to the sale of water allocations the plaintiffs have been the only party in the St. George irrigation area to receive an additional allocation of water and hence no other person has been required to pay any capital charge in respect of any such allocation. At this stage all water reserves in the St. George area are fully committed and it is not envisaged that any additional water allocations will become available in the immediate future such that any recipients thereof will be required to pay any capital charge." Mr. Fenwick then goes on to depose to the fact that the moneys obtained from the auction of the 3,000 megalitres of water "excess to requirements" is to be spent on a new pump station proposed to augment the supply of irrigation water for the St. George irrigation area. He then deposes - "If the cost of the pump station exceeds the proceeds from the aforesaid auction then I would recommend to the Treasurer that the sum of $141,000.00 be applied towards defraying the cos.t of installing the pump station." It might fairly be inferred from the terms of the Commissioner's affidavit that it is not yet known what the cost of the new pump station will be or more importantly whether the moneys already recovered from the auction of excess water allocation rights in November 1989 will either -- 47 of 65 -- 18 exceed or fall short of the expenditure needed to meet that cost. It is only if the proceeds of that sale fall short of the cost of the new pump installation that the Commissioner proposes to "recommend to the Treasurer" that the fees or charges sought to be imposed upon the appellants be made available for the purposes of irrigation facilities for the St. George district. Moreover from the terms of the affidavit it would clearly be a matter for the Treasurer or for other persons unconnected with the Water Resources Commission whether any part of that $141,000.00 was used for the purposes of irrigation works in St. George. I would infer from the content of the affidavit that in fact it is proposed that the so-called' "capital charge" simply be placed in Consolidated & Revenue although the evidence is silent on the notional "fund" to "which it might be allocated for essentially bookkeeping purposes. It is abundantly clear to my mind upon the whole of the evidence that of all of the persons in the St. George irrigation area to whom an increased nominal allocation of water rights was granted - apart from those who purchased at the auction sale in November 1989 - it is only the appellants against to whom the respondent has purported to or intends to levy a charge in respect of any part of the 12, 500ML of nominal allocation of water per annum offered to farmers in the St. George district which they succeeded in obtaining upon appeal to the Land Court. I am of the view that the order made by the President of the Land Court must be considered in the context of the -- 48 of 65 -- 19 reasons for his decision and also in the context of the affidavit of the Commissioner to the effect that the only matter in issue upon appeal was whether the appellants as one of 46 applicants for 12,500 megalitres of water then available in the St. George irrigation area should receive any and what nominal water allocation in the sharing of the allocation available between persons in the district interested in obtaining an increase in their nominal allocation rights. In this respect I refer to Australian Energy Ltd v. Lennard Oil N.L . No . 2 [1988] 2 Qd . R. 230 at p. 232 per Andrews C.J. and p. 243 per Thomas J. I am satisfied on the material that it was never at any time suggested that there would be any,payment required of the appellants for the 470 megalitres which the President of the Land Court said ought be allocated to them. Indeed looking at the delay in amendment of the water works licence to include the grant of the allocation of water rights to the appellants "as directed" by the President of the Land Court and at the terms of the letter from the respondent's engineer in the St. George irrigation district some 5 months later, one might suspect that the charge was imposed only after the Commissioner had received legal advice on the matter probably after April 1990. That would really seem to have been the explanation for nothing having happened for 5 months after the appellants succeeded in the Land Court. Had it been contended in the Land Court that the imposition of the charge of $141,000.00 upon the appellants whereas no such charge had been imposed upon any of the other -- 49 of 65 -- 20 persons receiving nominal allocations of water rights in the district involved a "fair and equitable distribution and management of the water supplies available from the project" to use the terminology of the respondent's district engineer Mr. Claydon I cannot believe that the President of the Land Court would have been persuaded to that view. In my view if instead of the inclusion of condition 1.004 in the Water Works Licence of 25th September 1990 purportedly issued in compliance with the direction of the Land Court there had been a special condition imposed to the effect that it was a condition of the granting of the licence that the appellants pay to the Commission $141,000.00 towards the cost it of "head works" or capital works I have little douhte that there would have been a failure to comply with the direction of the Land Court and that such failure could have been corrected by appropriate court process. Indeed one must suspect that it was for this very reason that it was contended for the Commissioner that he has a very wide and unfettered discretion to impose fees and charges under condition 1.004 of the water works licence issued to the appellants. As I understand the argument advanced for him a licensee upon whom such a charge is imposed really has no right of appeal against it to anybody - certainly not to the Land Court. The learned trial Judge observed towards the end of his judgment - "The plaintiffs' disclaimed a case of bad faith in the determination evidenced by their invoice. And they did not suggest that the $141,000.00 was exacted for some ulterior purpose or through -- 50 of 65 -- 21 improper motives. Nor was the Land Court's order that the licence issue 'subject to the usual conditions attaching to such licence in that area' coupled with the fact that no other holder of a similar licence was subjected to a similar charge relied upon." While of course the actual argument addressed to the learned trial Judge is not before us it is clear that in para. 20 of the male appellant's affidavit used upon the hearing he did refer to the fact that other persons in the district had not been subjected to a similar charge. Part of para. 20 of his affidavit reads - "It is also my understanding that there are at least another 31 land owners in the St. George district who were given increased allocations or new allocations without the imposition of a capital charge so far as the 1989 allocations are concerned. In.none of the cases referred to in the schedule was an invoice raised respecting the nominal allocation which was later raised in our case." In Schedule R to which reference is made described as "Schedule of water allocations 1989" there is a list of 10 land holders in the district to each of whom an increased allocation was granted. Those allocations vary between 95ML and 470ML and together total 2,535ML. The male appellant swore that in addition to those 10 persons described in his schedule R there were "at least another 31" who were given allocations or new allocations of water without" the imposition of a capital charge. > - These assertions are not contradicted by any material from the respondent and indeed it emerges clearly enough from the affidavit of Mr. Fenwick that the appellants are the only persons against whom he seeks to recover this capital charge and indeed it seems on his view unlikely that it will be -- 51 of 65 -- 22 sought to recover a similar capital charge against other persons in the St. George district in the foreseeable future. To my mind if the respondent's argument based upon the discretionary power to impose charges alleged to be derived from condition 1.004 of the licence is not sound then clearly any steps that the Commissioner might take to impose a special condition for a capital charge on the appellants involves a failure to comply with the judgment of the President of the Land Court and to that extent is contrary to and indeed inconsistent with the grant directed by the President of the Land Court and is unenforceable. I find it hard to conceive of any argument that could support the issue of the licence of S <$; >tember 1990 containing a specified condition that a capita'* works charge of $141,000.00 be paid amounting to a compliance by the Commissioner with the direction of the President of the Land Court given on 6th April 1990. The only way then which the charge purportedly imposed can stand is if it is imposed as a valid exercise of discretionary power under condition 1.004 of the water licence dated 25th September 1990. If the Commissioner in purporting to charge the appellants $141,000.00 payable as licensees under the Water Works Licence granted to them on 25th September 1990' acted within his discretion under condition 1.004 then that is the end of the matter and the appellants must pay the fee. Indeed the same obligation will be imposed upon persons in the St. George district generally. If at any time in the future the Commissioner upon consideration of "policy matters" decides to -- 52 of 65 -- 23 exercise power under condition 1.004 against any licensees selected at random then those licensees will be obliged to pay the amount charged. It is possible that under s. 4.26 of the Water Resources Act 1989 a licensee aggrieved by such a decision - "... with respect to ... (a) ... (b) ... (c) any amendment, variation, cancellation, revocation, or suspension of the licence" may appeal therefrom to the Land Court. While perhaps licensees with sufficient fortitude and courage may be prepared to decline to pay such a charge on the basis that it is jiot within the power of the Commissioner to impose it and then challenge in appropriate proceedings any "cancellation or revocation" of that licence purportedly effected for non-payment of the charge, ultimately the question will have to be determined as to whether the imposition of such a charge is within the power of the Commissioner relying only upon condition 1.004. In my view the matter litigated in this appeal can be determined on the short point as to whether the imposition of the "capital charge" of $141,000.00 upon the appellants by invoice dated '25th September 1990 which apparently accompanied the licence of the same date which the appellants presently hold is supportable upon a valid exercise of discretionary power by the Commissioner under condition 1.004 of that licence. -- 53 of 65 -- 24 In my view this is not an appropriate case for the grant of prerogative relief. I take the view that it will be sufficient to resolve the issue between the appellants and the respondent simply to make a declaration concerning - (a) The power of the Commissioner to impose the charge of $141,000.00 as a "fee for the nominal allocation of water" under condition 1.004 of the water works licence, or (b) Whether he is empowered to impose a charge upon the appellants - in the circumstances of this case not having imposed a similar charge on any other water user in the St. George irrigation district. The legislation relevant to these proceedings changed between the institution of the appeal against the Commissioner's decision to refuse the appellants a nominal allocation of water in the licence he granted and the allowing of that appeal against that refusal in April 1990. The repealed act was the Water Act 1926-1981 . The Act which replaced it is the Water Resources Act 1989 the substantive provisions of which had legislative effect from the sixth day of April, 1990. Upon trial there was argument concerning which of the Acts governed the power of the Commissioner to issue a water / , works licence containing condition 1.004 in the terms of the licence which he purported to grant in September 1990 after the appellants had succeeded upon appeal. Reference to s. 1.3(2) (a) in my view makes barren any consideration of what rights the Commissioner may have had -- 54 of 65 -- 25 under the licence which he granted to the appellants in 1989 the terms of which they successfully appealed against. In my judgment when considering the power of the Commissioner to impose upon the appellants a charge of $141,000.00 with respect to their obtaining a water works licence pursuant to the direction of the Land Court one is obliged to consider only the powers that the Commissioner exercised under the Water Resources Act 1989 and I shall confine my attention to the legislative scheme founded upon that legislation. Section 4.19(1) (a) of the Act provides - "(1) A licence under this Act - (a) is subject to such terms as the Commissioner determines endorsed thereon or attached thereto including without limiting the generality of this provision payment of the prescribed licence fee and other fees and charges together with interest thereon in respect of water allocated or taken and water taken in excess of the quantity of water authorised to be taken." I refer also to s . 8.13 which relates to the grant of a water allocation to an irrigation holding which in relevant respects is in the same terms . That section provides inter alia - " (1) Upon the grant by him under s . 8.12 of a nominal allocation to each holding determined by him under s . 8.11 the Commissioner must without lodgment of any application in . that; behalf by the owner of that holding grant and issue to that owner a licence. (2) A licence under subs. (1) - (a) must set forth .... (b) is subject to terms with respect to the irrigation area in question and generally such terms including without limiting the generality of this provision terms for -- 55 of 65 -- 26 payment of the prescribed licence fee and other fees and charges together with interest thereon in respect of water allocated or taken and water taken in excess of the quantity of water authorised to be taken." Under s. 10.14(1) it is provided - "(1) A minimum water charge and every other charge payable under this Act is a debt due and owing to the Commissioner and may be recovered by him from the person to whom water is allocated or as the case may be supplied by action in a court of competent jurisdiction." Under s. 10.35 it is provided - "(1) The Governor-in-Council may make regulations not inconsistent with this Act for or with respect to all matters and things that are necessary or convenient for the administration of this Act or with respect to the powers, authorities, functions and duties conferred or imposed on the Commission or Commissioner t!or the purposes of this Act or for carrying ^.his Act into effect." and - "(5) Without limiting the generality of the power conferred on the Governor-in-Council by subs . (1 ) regulations may be made for or with respect to the matters and things set forth in the second schedule." The Second Schedule to the Act sets forth the subject matter for regulations to be made under the Act and cl. 23 provides - "23. Charges for Water. The fixing of the scale of charges to be. paid , for water allocated, supplied to or taken by consumers under a licence permit, contract or agreement' or water allocation or otherwise allocated or supplied including without limiting the generality of this provision a fixing of a minimum amount to be paid in specified cases and different charges for water according to the purpose for which it is allocated, supplied or taken; providing for a variation in the price of water supplied in excess of a specified quantity; determination -- 56 of 65 -- 27 of the times at which charges for water are payable whether in advance or otherwise." Clause 33 of the Second Schedule provides - "33. Fees and the like. Fees, charges, allowances, royalty costs and expenses payable to or to be paid by the Commissioner by the Commission or Commissioner or other persons under or for the purposes of this Act and the fixing thereof; matters and things in respect of which they are payable or to be paid; methods of collection thereof; manner, time and place of payment thereof; persons by whom and to whom they are payable; all matters and things with respect to the recovery thereof ." On 23rd August 1990 regulations were proclaimed substituting for repealed regulations irrigation charges for the supply of water in irrigation areas - including the St. George irrigation area. On 29th November 1990 Water Resources Regulations of 1990 were proclaimed and under cl. 3 there is published a schedule setting out "prescribed charges for" inter alia water allocated, supplied or taken from a water course or weir, barrage or dam vested in the Commission or under the control of the Commission or Commissioner. As well as this charges are fixed for water harvesting. On their face these regulations specifically prescribe charges payable with respect to the St. George district. All the charges in both schedules set forth in the regulations passed in 1.990 specify the rate of charge per megalitre with respect to specified periods . In my view there is nothing under the regulations made under the Act which could justify the charge or fee of -- 57 of 65 -- 28 $141,000.00 demanded of the appellants by the Commissioner in this case. For the Crown however it is argued that the scope of the power given to the Commissioner under the Act to levy the charge of $141,000.00 is not to be deduced from the content of regulations proclaimed under the Act and that legislative intent in the enactment of the Water Resources Act is not to be ascertained merely by reference to the terms in which delegated power has been exercised. In support of this proposition which I think hardly needs support reference is made to Jackson v. Hall [1980] A.C. 584 and particularly at pp. 884, 886, 887 and 896, and also to Webster v. McIntosh (198,*' 49 F.L.R. 317 at p. 321. No doubt it is not permissible when construing s. 4.19(1 )(a) to deduce from the fact that regulations have been proclaimed fixing "other fees and charges" payable by persons for what might broadly be described as water rights, that it necessarily follows that the "other fees and charges" referred to s. 4.19 can only refer to those fees and charges which have been prescribed by regulation. On the other hand it seems to me that the contention of the respondent that the term "prescribed" used in s. 4.19(a) refers only to "licence fee" and does not qualify as well the words "and other: fees and charges" unduly restricts the application of the word "prescribed". The effect of s. 4.19(1) is to make a licence issued by the Commissioner "subject to" inter alia payment of "the prescribed licence fee and other fees and charges The -- 58 of 65 -- 29 construction for which the respondent contends would make the licence under the Act "subject to" not merely payment of the prescribed licence fee but also "subject to" the payment of whatever other fee or charge that the Commissioner thought appropriate from time to time. In my view the imposition of the "charge" in respect of the allocation of water he was directed by the Land Court to make to the appellants in essence and upon the evidence amounts merely to the imposition of a tax. It is clear from the evidence that the calculation of the "charge" bears no relationship to the cost either of supplying water or of establishing, maintaining or improving the Commissioner's facilities in the St. George district connected with the supply to the appellants of the 470ML water allocation. It seems clear from the evidence from the Commissioner himself that it is quite uncertain whether any and what part of that sum of $141,000.00 will be needed for the installation of a pump at Beardmore Dam. It seems clear that it is the intention of the Commissioner to recommend that some of that money be used for that purpose if it be found that funds already in hand for the installation of that pump are insufficient. To my mind it is clear beyond argument that the sum of '$300.00 per megalitre has been fixed ia the exercise of a purely administrative discretion on the part of the executive government having regard merely to the fact that as the Commissioner observed that was the lowest price received at public auction in November 1989 when the "excess" -- 59 of 65 -- 30 3,000 megalitres were auctioned to produce funds for capital works . It is also clear beyond argument that in imposing the charge of $141,000.00 upon the appellants the Commissioner proceeded upon the basis that that sum would "reflect the value of the water supplied" . It is equally clear that at present the charge is asserted to be a once only charge which is to be used as "a contribution towards the capital cost of providing the water" . In my view the propositions need only be stated to demonstrate the lack of any logical connection between them. Although the issue was not argued upon trial it seems highly unlikely to my way of thinking that any proper analysis of the sums realised upon auction for «illocations of water at prices ranging between $300.00 per megalitre and $600.00 per megalitre of allocation could by any recognised principle or valuation lead to the conclusion that the value of water, which will be supplied to the appellants under their 470ML allocation for some indeterminate time in the future, and subject of their paying the prescribed charges for water actually supplied, can lead to the conclusion that the value of that entitlement to them is $141,000.00. In any event I have searched in vain through the legislation for an indication that the respondent is entitled in his unfettered discretion to impose upon the appellants (and only the appellants in the St. George district) what in essence is a head works charge. The sole statutory authority advanced for the proposition that the Commissioner is entitled to impose such a head work -- 60 of 65 -- 31 charge on the appellants - though no similar charge has been imposed on any other water user in the St. George district - is the provisions of s. 4.19(1) (a). It is said that the terms of condition 1.004 in the Schedule of terms to the licence issued to the appellants on 25th September 1990 pursuant to the direction of the Land Court really only reflects the power given to the Commissioner under s. 4.19(1) (a). It is contended however that condition 1.004 is drafted to give effect to or uses the power given under s. 4.19(1) (a) if that section is read as it is contended for the Commissioner it ought be read - that is that the word "prescribed" qualifies only "licence fee" and does not qualify "other fees and charges". It is said that if s. 4.19(1) (a) is so construed then the Commissioner is empowered to impose condition 1.004 as a term of the licence and read according to the plain meaning of the words in it the Commissioner has imposed a term on the appellants that they "shall pay such fees and charges as are determined by the Commissioner from time to time". If the statutory construction contended for by the respondent is correct then the respondent in my view ought succeed. On the other hand if the "other fees and charges" referred to in s. 4.19(1)(a) relate only to those which are "prescribed" then obviously the very wide effect for which the respondent contends in condition 1.004 must be rejected and the "such fees and charges" referred to in it must be construed as "such prescribed fees and charges" made by regulation pursuant to s. 10.35(5) of the Act. -- 61 of 65 -- 32 As I have indicated it seems clear from the evidence of the Commissioner that payment of the sum demanded from the appellants is not in any way related to payment by measurement for water actually supplied to and used by the appellants . Should the sum be paid its destination it would seem will be into Consolidated Revenue although there may well be some nominated fund in which for bookkeeping purposes it will be recorded. The authorities demonstrate that generally speaking the imposition of a financial burden upon a person at the instance of the Executive is not lawful in the absence of legislative authority unambiguous in its terms. I refer to A.G.V. Wilts United Dairies {1922] 91 .g-.j.'K.B. 897 where at p. 885 Scrutton L.J. observed - "It is conceivable that Parliament which may pass legislation requiring the subject to pay money to the Crown may also delegate its powers of imposing such payments to the Executive but in my view the clearest words should be required before the Courts hold that such an unusual delegation has taken place. As Wilde C.J. said in Gosling v. Velev [1847] 7 Q.B. 406 at p. 407; ' The rule of law that no pecuniary burden can be imposed upon the subject of this country by whatever name it may be called whether tax, due, rate, or toll except upon clear and distinct authority established by those who seek to impose the burden has been so often the subject of legal decision that it may be deemed a V ; legal axiom and requires no authority to be cited in support of it. 1 Particularly where the sums to be paid to the Crown are to be paid as a condition of obtaining a licence to exercise the ordinary rights of a subject should the clearest words be required. In practice legislation protecting certain acts except on licence duly state the pecuniary terms on which licences can be obtained." -- 62 of 65 -- 33 Upon appeal in A.G.V. Wilts United Dairies [1922] 91 L.J.K.B. 897 Lord Buckmaster delivering a judgment with which the other Lords concurred briefly outlined the relevant facts which were that a food controller appointed under legislation to control food supplies in war time was empowered "to regulate the supply and consumption of food in such manner as he thinks best for maintaining a proper supply of food and to take such steps as he thinks best for encouraging the production of food" . The food controller in purported exercise of his powers made an order restricting the sale of milk in certain areas except under his licence which was conditional upon the vendors paying tuppence per gallon of milk^distributed. At p. 900 Lord Buckmaster observed - "There are only 2 sources from which those powers can possibly be derived. One is the Act creating the Ministry and the other the regulations under the Defence of the Realm Act. Neither of these either directly or in my opinion by inference enabled the food controller to levy the payment of any sums of money from any of His Majesty's subjects . ...... The powers so given are no doubt very extensive and very drastic but they do not include the power of levying upon any man payment of money which the food controller must receive as part of a national fund and can only apply under proper sanction for national purposes. However the character of this payment may be clothed by asking your Lordships to consider the necessity for its imposition in the end it must remain a payment which certain classes of people were called upon to make for the purpose of exercising certain privileges and the result is that the money so raised can only be described as a tax the levying of which can never be imposed upon subjects of this country by anything except a plain and direct statutory means ." Lord Wrenbury in the same case agreed with the judgment of Lord Buckmaster and concluded - \ ....... -- 63 of 65 -- 34 "At any rate in the absence of express words giving the executive power to make such a demand this is the assertion of a right in the executive to impose taxation." In Liverpool Corporation v. Maiden Ltd. [1938] 4 All E.R. 200 at pp. 205-206 Croom Johnson J. held that a section which enabled a corporation to grant licences "under and. subject to such terms and conditions" as it thought proper did not upon the true construction of the Act authorise the inclusion of a term in the licence requiring payment of a fee. I n The Commonwealth and The Central Wool Committee v. The Colonial Combing Spinning and Weaving Company Limited (1921) 31 C.L.R. 421 the High Court considered the validity of an agreement between the Commonwealth and a commercial company under which the company was obliged in consideration of receiving a Commonwealth licence, to pay to the Commonwealth a percentage of its profit. At p. 444 Isaacs J. adopted the words of Lord Buckmaster in the Wilts case (supra) and said that they "were exactly applicable" to the case before him. It was contended in that case that the Commonwealth's claim was merely for a "licence fee" and therefore ought not be regarded as "taxation". At p. 465 Isaacs J. observed - "It is clear to me that the expression 'fees for licences' cannot extend to cover what on the facts of this case is in essence a direct and positive impost on capital or income of this company rand in- no way a mere ' fee for a licence ' as that is commonly understood and regarded as a necessary or effective means of executing some general and ancillary object of legislation not being in itself taxation ." In my judgment the charge of $141,000.00 imposed by the respondent upon the appellants was imposed without statutory authority. Section 4.19(1) (a) in my view empowers the -- 64 of 65 -- 35 imposition of only prescribed charges for the nominal allocation of water and no prescription exists for an arbitrary charge determined in the exercise of an unfettered discretion to be used to defray capital costs if necessary on the occasion of the granting of a nominal allocation of water. I would allow the appeal and declare - The purported imposition by the Water Resources Commission of the fee or charge upon the appellants in the sum of $141,000.00 by invoice number B39740 dated 25th September 1990 for a nominal allocation of 470 megalitres of water was beyond the power of the Commissioner and ineffective to impose upon the appellants legal liability to pay that sum or any part of it to the Commissioner. I would order that the respondent pay to the appellants their costs of and incidental to the action and appeal to be taxed. -- 65 of 65 --