Arnold v Minister Administering the Water Management Act 2000 (No 5) [2013] NSWLEC 42

Land and Environment Court New South Wales

Medium Neutral Citation: Arnold v Minister Administering the Water Management Act 2000 (No 5) [2013] NSWLEC 42 Decision date: 10 April 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The applicants' claim of ineffectual cancellation of conjunctive water use rights because of non-compliance with ss 116C and 117H of the Water Act 1912 and consequential judicial review grounds were not pleaded or properly particularised and the Court declines to entertain them. (2) The decision of the question whether the Court should entertain the unpleaded discretionary defence that relief not be granted on the ground that it works disproportionate injustice to third parties, and, if so, the question whether that defence should be upheld, be determined separately from and after any other question in the present trial at a further trial in the proceedings if the applicants are adjudged to be otherwise entitled to the declaratory relief as to invalidity that they seek. Catchwords: PRACTICE AND PROCEDURE:- judicial review proceedings - respondents' objection at trial that whether a claim that the applicants' conjunctive water use rights were ineffectually cancelled because of non-compliance with ss 116C and 117H of the Water Act 1912 and consequential judicial review grounds were not pleaded or properly particularised and that the Court should entertain them - applicants' objection at trial that discretionary defence that relief not be granted on ground that it would work disproportionate injustice to third parties was not pleaded and that the Court should not entertain it. Legislation Cited: Civil Procedure Act 2005 s 56 Water Act 1912 ss 116C, 117H Water Management Act 2000 Division 2, Part 2, ss 47(2)(a), 50 Lower Murray Groundwater Source (Plan) Water Management (General) Amendment (Lower Murray) Regulation 2006 Cases Cited: Arnold v Minister Administering the Water Management Act 2000 [2007] NSWLEC 531, (2007) 157 LGERA 379 Arnold v Minister Administering Water Management Act [2008] NSWCA 338, (2008) 73 NSWLR 196 Arnold v Minister Administering the Water Management Act [2010] HCA 3, (2010) 240 CLR 242 Harvey v Minister Administering the Water Management Act 2000; Tubbo v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165, (2008) 160 LGERA 50 ICM Agriculture Pty Ltd v The Commonwealth of Australia [2009] HCA 51, (2009) 240 CLR 140 NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act [2011] NSWLEC 51, (2011) 181 LGERA 166 NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act (No 2) [2011] NSWLEC 115 NA & J Investments Pty Limited v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act (No 3) [2011] NSWLEC 171 NA &J Investments Pty Limited v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act (No 4) [2012] NSWLEC 120 Category: Procedural and other rulings Parties: Alan Arnold & Ors (Applicants) Minister Administering the Water Management Act 2000 (First Respondent) State of New South Wales (Second Respondent) Representation: COUNSEL: F Corsaro SC and P E King (Applicants) S Lloyd SC, J Hutton and J Lucy (Respondents) SOLICITORS: Taylor & Whitty (Applicants) Crown Solicitor's Office (Respondents) File Number(s): 40049/07