Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 3

Land and Environment Court New South Wales

Medium Neutral Citation: Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 3 Hearing dates: 16 December 2016 Date of orders: 23 January 2017 Decision date: 23 January 2017 Jurisdiction: Class 4 Before: Sheahan J Decision: Question separated for preliminary determination. See paragraph [32] Catchwords: PRACTICE AND PROCEDURE: whether a specific question of statutory construction should be dealt with separately and before any residual factual issues requiring expert evidence – principles to be applied. Legislation Cited: Uniform Civil Procedure Rules 2005 Water Act 1912 Water Management Act 2000 Cases Cited: Principal Healthcare Finance Pty Limited v Council of the City of Ryde [2016] NSWLEC 88 Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 Category: Procedural and other rulings Parties: Clive Conrad Sharkey (Applicant) The Minister Administering the Water Management Act 2000 (Respondent) Representation: Counsel: Mr C Sharkey, solicitor/applicant in person Mr P Herzfeld, barrister (Respondent)

Solicitors: Litigant in person (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2016/189771

Judgment

Introduction 1. The issue before the Court at present is whether a question in the applicant's case should be separately determined, prior to a full hearing of the matter. 2. The Minister, by Notice of Motion ("NOM") filed 1 December 2016, and heard by me on 16 December 2016, seeks separation of a particular question, but the applicant opposes such a course. 3. In his summons filed on 20 June 2016, Mr Sharkey provides very detailed particulars of his claim, and seeks an order that: ... the Minister issue a licence under the NSW Murray and Lower Darling Regulated River Water Sources Sharing Plan in substitution for licence WAL29881 issued under the NSW Murray Unregulated and Alluvial Water Source Sharing Plan subject otherwise to the same terms and conditions. 1. He set out his argument in further detail in his affidavit filed on 10 November 2016. 2. In the NOM, the Minister seeks (1) an order that: ... pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005, the proper construction of the expression "the upper limit of the storage of the Hume Dam" be determined as a preliminary question. and (2) directions for the hearing and determination of that preliminary question. 1. Rule 28.2 provides: The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.