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

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

The alleged breach of ss 116C and 117H of the Water Act 1912 and consequential judicial review grounds were not pleaded, did not fall within the existing pleading or the May 2012 particulars, were inadequately particularised because the basis of the alleged ineffectual cancellation was not identified, and were disclosed too late, causing prejudice to the respondents and conflicting with the overriding purpose in s 56 of the Civil Procedure Act 2005. The Court therefore declined to entertain that claim. The respondents' unpleaded discretionary defence concerning disproportionate injustice to third parties raised an obvious potential third party impact, but procedural fairness required that...

Jurisdiction
Australia
Judgment Date
10 April 2013
Procedural Posture
Class 4 Judicial Review Proceedings / Procedural and Other Rulings During Hearing
Outcome
The Court declined to entertain the applicants' unpleaded claim concerning ineffectual cancellation of conjunctive water use rights and deferred the respondents' unpleaded discretionary defence for separate determination if necessary.
Legal Topics
['pleadings and Particulars' 'judicial Review' 'procedural Fairness' 'discretionary Relief' 'water Sharing Plans' 'conjunctive Water Use Rights' 'third Party Prejudice']
['practice and Procedure' 'administrative Law' 'water Law'] ['pleadings and Particulars' 'judicial Review' 'procedural Fairness' 'discretionary Relief' 'water Sharing Plans' 'conjunctive Water Use Rights' 'third Party Prejudice']

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Procedural Posture

Class 4 Judicial Review Proceedings / Procedural and Other Rulings During Hearing

Legal Issues

  1. 1 ['Whether the applicants should be permitted to raise a claim that 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, when the respondents contended the claim was not pleaded or properly particularised.' "Whether the Court should entertain the respondents' unpleaded discretionary defence that declaratory relief should not be granted because it would work disproportionate injustice to third parties." 'If entertained, whether the discretionary defence should be determined during the present trial or separately after other questions.']

Ratio Decidendi

The alleged breach of ss 116C and 117H of the Water Act 1912 and consequential judicial review grounds were not pleaded, did not fall within the existing pleading or the May 2012 particulars, were inadequately particularised because the basis of the alleged ineffectual cancellation was not identified, and were disclosed too late, causing prejudice to the respondents and conflicting with the overriding purpose in s 56 of the Civil Procedure Act 2005. The Court therefore declined to entertain that claim. The respondents' unpleaded discretionary defence concerning disproportionate injustice to third parties raised an obvious potential third party impact, but procedural fairness required that...

Court Disposition

The Court declined to entertain the applicants' unpleaded claim concerning ineffectual cancellation of conjunctive water use rights and deferred the respondents' unpleaded discretionary defence for separate determination if necessary.

Orders

  • ["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." 'The decision of the question...