Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW)

1. [1]

   Peter Harris and Jane Harris (the plaintiffs) operate farms called 'Janbeth' and 'Latoka' in the general vicinity of Bourke in New South Wales. Mr and Mrs Harris hold water approvals for water supply works and water use at those properties.

2. [2]

   On 2 January 2019 the defendant on behalf of the National Resources Access Regulator (“NRAR”) issued notices requiring Mr and Mrs Harris to provide information and records in relation to the two properties. The Notices were said to have been issued under s 338A(2) of the Water Management Act 2000 (NSW). The Notices stated that the express purpose for which the Notices were issued was to determine whether there had been compliance with or contravention of certain provisions of the Act.

3. [3]

   On 1 February 2019 the solicitors for Mr and Mrs Harris wrote to NRAR alleging that the scope of the Notices went beyond the power conferred to NRAR under the Act. It was not asserted that the Notices were wholly misconceived but that certain identified paragraphs in the Notices were not relevant to any investigation of the identified potential offences. The solicitors proposed that NRAR re-issue notices which were confined to the matters properly within the scope of the investigation.

4. [4]

   On 8 February 2019 NRAR rejected the proposal put on behalf of Mr and Mrs Harris. NRAR contended that all of the documents sought in the Notices were properly within the scope of the investigation. NRAR issued varied notices on that date but the only variation was to extend the deadline for compliance to 22 February 2019.

5. [5]

   On 22 February 2019, Mr and Mrs Harris commenced proceedings by summons in the Administrative Law List of this Court. They sought the following orders:

6. [6]

   In the statement pursuant to r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) the plaintiffs identified the paragraphs in each Notice in respect of which they said relief should be granted. They asserted that the request for information or records described in the impugned paragraphs of each of the Notices did not amount to a valid exercise of NRAR’s power pursuant to s 338A(2) to require information or records which were required for the purposes of the Act. The purposes were said to be identified in s 337 of the Act.

7. [7]

   In his response to the summons, the defendant said that by reason of s 338A(2) of the Act it was a condition of the validity of each of the Notices that any information or records required by each Notice be required for the purposes of the Act. The defendant said that the information and records required were required for a purpose contained in s 337 of the Act. He said that a statement of reasons for the issue of the Notices was served by him on the plaintiffs with the response to the summons. That statement of reasons said that the Notices were issued in relation to water access and use at the premises and to determine if there had been compliance with or contravention of identified conditions of the access licence for each of the properties. The reasons also identified the purposes set out in s 337 of the Act.

Legislative provisions

1. [8]

   The following provisions of the Act are relevant for the purposes of the present proceedings:

2. [9]

   The words water allocation are defined in the Dictionary to the Act as meaning the water to which the holder of an access licence is entitled from time to time under the licence, as recorded in the water allocation account for the licence. The words water allocation account are defined in respect of an access licence as meaning the account for the licence referred to in s 85(1). Finally, the words water supply work are defined as meaning, inter alia, a work (such as a water pump or water bore) for the purpose of taking water from a water source or a work (such as tank or dam) for the purpose of capturing or storing water.

3. [10]

   The issue in the present proceedings is whether the defendant is entitled to require the plaintiffs to furnish the information and records stipulated by reason of their being required for the purpose set out in s 337(1)(a), that is:

The Notices

1. [11]

   The relevant facts relating to the Latoka Notice are these:

2. [12]

   The Notice then went on to provide as follows:

3. [13]

   The Notice first set out a series of facts under the heading “Background”. Relevant facts for present purposes are these:

4. [14]

   The Notice then went on to provide as follows:

5. [15]

   In the summons, the plaintiffs objected to a number of paragraphs in the Notices. At the hearing, the plaintiffs produced a schedule (marked MFI1) summarising their objections to the paragraphs objected to. However, some of the paragraphs identified in the schedule were additional to those identified in the summons. This took the defendant by surprise. The defendant had also prepared a schedule (marked MFI 2) summarising the reasons why the paragraphs objected to in the summons were said to be within the powers under the Act to issue notices.

6. [16]

   I gave leave to the defendant to file a further schedule to deal with the added paragraphs. That was done. I marked that schedule as MFI 3. I thereafter relisted the proceedings to enable any further oral submissions to be made. In the result, the defendant indicated that it did not press certain specified paragraphs in the Notices.

7. [17]

   The final position is, therefore, that the following paragraphs of the Notices are in dispute:

   1. (1)

      In relation to the Latoka Notice, paragraphs 1A, 1B, 1C, 1M, 1N, 1P, 1Q, 1Z, 1AA, 1BB, 1CC, 1DD, 1EE and 1FF and the documents requested in paragraphs 2A, 2B, and 2E.

   2. (2)

      In relation to the Janbeth Notice, paragraphs 1A, 1B, 1C, 1I, 1J, 1K, 1L, 1M, 1N, 1P, 1Q, 1Z, 1AA, 1BB, 1CC, 1DD, 1EE and 1FF and the documents requested in paragraphs 2A, 2B and 2E.

Legal principles

1. [18]

   Both parties agreed that the relevant principles are to be found in a series of cases, principally in the Federal Court of Australia concerning notices under s 155 of the Trade Practices Act 1974 (Cth). It does not appear that there are any cases that directly concern notices such as the ones in dispute issued under the Water Management Act.

2. [19]

   Section 155 of the Trade Practices Act provided:

3. [20]

   In Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No. 3) (1980) 31 ALR 519; 47 FLR 163, the Full Court of the Federal Court said (at 529-531; 172-175):

4. [21]

   In A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414 Basten JA (with whom Bathurst CJ agreed) said at [34]:

5. [22]

   In Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565; 57 FLR 368, the Full Court of the Federal Court said (at 568-572; 371-377):

6. [23]

   In SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357; 89 ALR 105, the Full Court of the Federal Court said (at 369-370; 115-116):

7. [24]

   The principles that I derive from these cases are these:

Submissions

1. [25]

   I will first set out the general submissions that were made in relation to the Notices. I will then deal with the specific paragraphs in the Notices that are objected to. The schedules to which I have referred in each case set out the basis for the resistance to providing the stipulated information and producing the stipulated documents by the plaintiffs and why, on the defendant’s part, the requirement to provide the information and produce the documents is said to be appropriate. The plaintiff has helpfully linked the records which are sought to be produced to the information sought to be provided. I will summarise the competing contentions and then determine whether or not the information and documents are legitimately required.

2. [26]

   The plaintiffs submitted that the Notices are beyond power because they fail to comply with principles derived from the cases, in particular, that for the Notices to be valid:

3. [27]

   The plaintiffs submitted that certain of the documents sought to be produced are not sought for the purposes stated in the Notices. By way of example, the plaintiffs submitted that the defendant seeks information or documents which relate to:

4. [28]

   The plaintiffs submitted that those documents are wholly unconnected with the identified potential contraventions of the Act, and that the Notices fail to disclose the relationship between those matters and the potential contraventions.

5. [29]

   The defendant submitted that each of the matters about which information and documents are sought is capable of proving:

6. [30]

   In that way, the defendant submitted that information as to the economic activities conducted at the properties over a period of time could shed light upon whether water was, in fact, taken in a manner which contravened the access licences over that time. If the economic activities conducted at the properties were such that they would necessarily have required water in excess of the entitlement under the access licenses, then this would tend to prove circumstances from which an inference can be drawn that the relevant access conditions were breached.

7. [31]

   The defendant submitted that information as to the crops grown at the properties and the quantities of those crops could shed light upon whether water was taken in a manner which contravened the access licences. If the crops grown, and the quantities in which they were grown, were such that they would necessarily have required water in excess of the entitlement under the access licenses, then this would tend to prove circumstances from which an inference can be drawn that the relevant access conditions were breached.

8. [32]

   The defendant submitted that the size and location of the land used for economic activity and farm, business, and property plans are capable of shedding light upon whether water was, in fact, taken in a manner which contravened the relevant access licences. The defendant submitted that information as to these matters could be used, either by itself, or in combination with other information sought (for example, the quantity of the crops grown, the economic activities conducted), to prove that it was not possible to conduct certain activities without taking water in excess of the entitlements provided for.

9. [33]

   The defendant submitted that he is not to be confined to seeking information and documents concerning only the matters stipulated in the Latoka Notice at Background paragraphs L & M, and in the Janbeth Notice at Background paragraphs M & N. The defendant submitted in particular that he is entitled to information that may show further contraventions regarding Latoka during the 2015/2016 water year in addition to the contraventions identified in paragraph M.

The Latoka Notice

1. [34]

   The Notice was issued for the purposes of determining whether, in relation to water access and use at the premises, there had been compliance with or contravention of identified provisions of the Act. The first matter concerned the alleged contravention of terms and conditions of the access licence, as governed by s 60B of the Act. The three conditions identified were as follows:

2. [35]

   The allegations are set out in Background paragraph M of the Notice. First, it was alleged that during the 2015/16 water year 290 mega litres was extracted outside of the specified flow conditions from 1-2 March 2016. Secondly, a negative flow totalling 343 mega litres was recorded from a pump site over a 27 day period from 28 January 2016 to 27 February 2016.

3. [36]

   The second matter concerned taking water when metering equipment was not working during the 2015/2016 water year. This is referred to in Background paragraph L.

4. [37]

   The plaintiffs submitted that the identity of the property manager for the premises relevant to the approvals at times other than the particular periods under investigation is irrelevant. In addition, the plaintiffs submitted that the documentary call is far too broad, and would capture a vast amount of unnecessary and utterly irrelevant materials. It would require the production of every email, letter or other document which identified who the property manager was from time to time. The plaintiffs submitted that there is no justification for this.

5. [38]

   The defendant submitted that the facts sought can be used to ascertain another line of enquiry (see Melbourne Home of Ford at 174). It was submitted, in other words, that those persons can be questioned about what occurred at the property during that water year. This could conceivably shed light upon whether the offences under investigation indeed occurred (in particular, whether there was a significant overuse of water allocations associated with the relevant water access licence).

6. [39]

   The defendant also submitted that what was contained in Background paragraph M might be an instance of a contravention that has occurred in the context of what the defendant knows as is set out in Background paragraph L. In that way, the defendant submitted that it ought not to be confined to the specific periods identified in paragraph M.

7. [40]

   It is not made clear in the Notice whether the contraventions identified as (i) and (ii) under the heading “Purpose for which this Notice is Issued” (see at [12] above) are separate and distinct contraventions or related. Paragraphs L & M in the Background section do not resolve that matter. Nor does a reading of Background paragraph E clarify the matter. The defendant, in submissions, suggested that the various contraventions are part of the one contravention. However, the matter must be judged in terms of what the Notice says. In that regard, principles (a), (b) and (c) (at [24] above) are relevant.

8. [41]

   It is not self-evident whether the alleged breach of condition number MW0089-00008 of 85AL753202, which concerns when water can be taken from the identified place in the river, has occurred because the meter was not working, or whether the wrongly taken water was taken (and is alleged by the defendant to have been taken) at a time when the meter was working. One available inference is that the meter registered the wrongful taking in the two specified periods. On that latter basis, the two contraventions would be unrelated.

9. [42]

   If the two contraventions (the breaches of the conditions on the one hand and the breach of s 91I on the other) are related, in the sense that what is contained in Background paragraph M arose from the fact that the meter was not working, the defendant would be entitled to enquire about relevant matters throughout the 2015/16 water year. If there is no connection, requests for periods other than those identified (being 28 January 2016 to 27 February 2016 and 1 March 2016 to 3 March 2016) are not related to the alleged contraventions.

10. [43]

    This lack of clarity flows through all aspects of the Latoka Notice. On that basis alone it should be set aside. However, I shall consider, as far as is possible, other issues which arise in subsequent paragraphs in an attempt to minimise further disputation.

11. [44]

    The plaintiffs submitted that the identity of every single person who carried out any duty at the premises at any time during the 2015/16 water year, regardless of whether the person was someone who had any involvement in the taking of the water, is irrelevant. The plaintiffs submitted that the category would include persons who might have carried out casual work or work quite unrelated to the water supply.

12. [45]

    The defendant made the same submissions as were made in respect of paragraph 1A.

13. [46]

    The extent of what can be sought here depends on the clarification of the matters discussed in the preceding paragraphs. However, the contraventions involve the taking of water when flows were insufficient and the taking of water when the meter was not working. The only relevant employees are those involved in activities related to the water supply including relevant supervisors and managers. Similarly, the only documents which can be required to be produced involve the employment contracts, job descriptions and time sheets of those persons, and any written reports relating to the matters alleged to be contraventions.

14. [47]

    The plaintiffs made similar submissions to those made in respect of paragraph 1B. The defendant made similar submissions as were made in relation to 1A whilst adding that it might be said that not all of the information sought would be relevant to the ultimate investigation. However, the defendant submitted that that was no basis for setting aside the Notice, citing the aforementioned passage from Basten JA’s judgment in A v Independent Commission Against Corruption at [34].

15. [48]

    Again, what must be provided depends on the clarification of the relationship between the alleged contraventions. Even taking a wide view about any investigation of the alleged contraventions, it is only employees including supervisors and managers connected with water supply to the property that are relevant. Further, nothing has been put forward to show the relationship between the alleged contraventions and the requirement to produce emails, calendars, letters or invoices. This is not a conclusion based on the fact that it would be burdensome for the plaintiffs to produce the material, but because the necessary relationship of the material to the alleged contraventions has not been shown.

16. [49]

    The plaintiffs submitted that the information and documentation required under paragraphs 1M and 1N are irrelevant to contraventions alleged in the Latoka Notice, namely that water was extracted outside of specified flow conditions for a 2 day period, and that a negative flow was recorded for a period of one month. The plaintiffs submitted that the Latoka Notice is not concerned with taking more water than the licence allows. The plaintiffs suggested that this requirement for production has arisen from an erroneous duplication of the Janbeth Notice where the contravention in that Notice is said to be taking more water than is allowed. Paragraph 1N is merely a subsidiary demand reliant on 1M being appropriate.

17. [50]

    The defendant submitted that the contraventions being investigated were whether water was taken outside of flow conditions. The defendant submitted that whether the plaintiffs had other sources of water supply was relevant to an assessment of the likelihood of excess water being taken from the river system.

18. [51]

    At the time of an investigation of a complaint of alleged contravention concerning excess water extraction, a relevant enquiry is what other sources of water supply the plaintiffs can draw upon. Section 53 of the Act contemplates that a holder may have such other supply. A licence holder who has abundant other sources of water is, on a common sense view, less likely to take water improperly from the regulated system than one who has little or no other supply. The information and documents should be provided.

19. [52]

    However, I can see no basis for the plaintiffs to provide information or produce documents about repairs to any such facility, nor who carried out any work of renewing or expanding the facilities, nor why the work was carried out. Those matters do not relate to the alleged contraventions. Question 1G deals with repairs to the water meters.

20. [53]

    The plaintiff submitted that this has no connection with the specific matters said to be the subject of the investigation. It also might require the plaintiffs to incriminate themselves.

21. [54]

    The defendant pointed to s 60B of the Act and particularly to the defence in s 60B(3), and submitted that the documents were relevant to see whether the offence in that section had been committed and whether the holder could avail himself/herself of that defence. The defendant submitted that the contraventions included a breach of condition MW0655-00001 which required compliance with the conditions of the access licence. In that way, the defendant submitted that information could be sought about potential breaches of other conditions.

22. [55]

    The demand reflects a very broad brush approach to ascertaining breaches of conditions generally. In my opinion, condition MW0655-00001 cannot be used to require admissions generally in that way. It offends the principles in the cases which require the existence of a necessary relationship between the alleged contraventions and the information sought. The alleged breach of that condition must be read against the background of what appears in Background paragraphs L and M.

23. [56]

    Otherwise, the questions appear only to be an attempt to obtain an admission from the plaintiffs which might result in them incriminating themselves in relation to the alleged contraventions. Section 60B(2) creates an offence in respect of the holder of the licence. On any view, the defence provided in subs (3) would need to be proved by the holder of the licence. The defendant has no need to know the matters in subs (3) in order to prove the offence in subs (2).

24. [57]

    I note that the defendant does not relate the request to s 60C and, subject to obtaining an admission which the privilege against self-incrimination is likely to protect, it is not clear what information will be obtained as a result of this question. However, the power in s 338A is a wide one, and the questions relate to the alleged contraventions.

25. [58]

    Despite the width of the power in s 338A of the Act, there is nothing to suggest that it overrides the right of persons not to incriminate themselves. Nor did the defendant submit that s 338A has that effect. Subject to that right being preserved, the information and documents should be provided in relation to the alleged contraventions as detailed in Background paragraphs L and M in the Notice.

26. [59]

    The defendant accepts that the information sought in these paragraphs is not relevant.

27. [60]

    I have earlier set out a number of general submissions made by the parties in relation to this aspect of the Notices. In addition, the plaintiffs submitted that there is no evidence to justify the defendant’s suggestion that knowing what the land was used for could assist in the determination of whether excess water was taken. There was no evidence to suggest that knowledge of what crops were grown on the property would enable an accurate calculation of water usage and, therefore, the likelihood of excess water being taken. The plaintiffs submitted that there were too many variables including rainfall during the periods. The plaintiffs submitted that, as the defendant accepts, the documents sought must be capable of being properly regarded as related to the alleged contravention, and the Notice must disclose the relationship between the information sought and the matter in respect of which the information is sought. The plaintiffs submitted that neither of these essential requirements has been satisfied.

28. [61]

    The plaintiffs submitted that these demands appear to be the product of an erroneous duplication from the Janbeth Notice where the contraventions involved taking excess water over a number of years.

29. [62]

    The defendant first pointed to what was said in Melbourne Home of Ford at 174 about ascertaining facts which may indicate another line of enquiry. The defendant submitted that the information sought, mediated through the opinion of an expert, would provide at least an approximation of how much water might have been applied to the property. Inferences could then be drawn about whether it was likely that water was wrongly taken. The defendant submitted that the nexus between the information sought and the matter under investigation was sufficiently demonstrated in the Notice.

30. [63]

    I accept that the defendant can enquire about facts which, when ascertained, may indicate another line of enquiry. However, it is not apparent on the face of the Notice, what the relationship is between the matters being investigated and the information sought. Whilst the defendant through his counsel has asserted that an appropriate expert may be able to estimate how much water may have been applied to the land if she/he knew what crops were grown and for what periods, such expertise is not self-evident. The plaintiffs are correct to point to the issue of variables which would not only include rainfall, but also water from water storage facilities available to the plaintiffs and the quantities used from them.

31. [64]

    I cannot accept a submission regarding an expert without some evidence that such expertise is available. Nothing in the Notice relates the information sought to the matters under investigation. The matters under investigation simply concern taking water when water meters were not working, and when flows were not at an appropriate rate in two narrow periods in the 2015/2016 water year. It is not shown how the following water year is relevant.

32. [65]

    A connection between the matters under investigation and the information sought could only be made if there was evidence to show that an expert could make such a connection. Whilst the Notice itself would not need to set out the investigations that could be made, there would need to be some evidence from the defendant, or on his behalf, to show that the information sought could be relevantly used to pursue the line of enquiry indicated. Nothing was said by the defendant in his Statement of Reasons for the issue of the Notices. It otherwise appears to be a speculative basis for requiring the information and documents stipulated.

The Janbeth Notice

1. [66]

   This Notice was issued for the purpose of determining whether in relation to water access and use at the premises there had been compliance with or contravention of identified provisions of the Act. This was on the basis that during February 2018 the NRAR had received information alleging a significant overuse of water allocations associated with water access licence 85AL753372 during the 2012/13, 2013/14, 2014/15, 2015/16 and 2016/17 water years, and pumping outside of flow conditions between 28 July 2016 and 13 December 2016, and 3–7 May 2017. These were said to involve breaches of ss 60B and 60C of the Act.

2. [67]

   In relation to s 60B there were said to be a contravention of three conditions of the access licence. The first was condition number MW0605-00001 of 85AL753372. That condition provided that water must be taken in compliance with the conditions of the approval for the nominated work on the access licence through which water is to be taken.

3. [68]

   The second condition was condition number MW0915-00001 of 85AL753372. That condition provided:

4. [69]

   The third condition was condition number MW5946-00001 of 85CA753373. That condition provided:

5. [70]

   The plaintiffs accepted that the enquiry about the identity of the property manager(s) for the years concerned is relevant to the alleged contraventions. The plaintiffs submitted that the requirement for the stipulated documents constituted a significant overreach. The plaintiffs submitted that the requirement is burdensome.

6. [71]

   The defendant made similar submissions to those made in respect of the Latoka Notice for similar paragraphs.

7. [72]

   The identity of the property manager(s) should be disclosed. Documents relating to the employment contracts, job descriptions and time sheets concerning the property manager(s) should be disclosed. Written reports concerning water usage for the stipulated years should be disclosed. The defendant does not make clear the relationship between emails, calendars, letters or invoices on the one hand and the alleged contraventions on the other. The defendant cannot, in the circumstances, require production of these.

8. [73]

   The plaintiffs submitted that the requirement goes well beyond what could be relevant to the investigation of the alleged contraventions which involve excessive extraction of water. The defendant made similar submissions to those made for the corresponding paragraphs of the Latoka Notice.

9. [74]

   The alleged contraventions concern taking water in excess of what the plaintiffs were entitled to. Information and documents that relate to water use or storage at the property relate to those alleged contraventions. The defendant does not demonstrate how information and documents which concern employees or workers not concerned with water matters relate to the alleged contraventions.

10. [75]

    The authorities make clear that the fact that it would be burdensome to search for and produce documents or information is no answer to the demand. The alleged contraventions in relation to Janbeth are wide ranging in time and extent, and may be compared in that regard to the narrow contraventions in the case of Latoka. A more liberal approach to the requirements of the Notice is justified.

11. [76]

    The plaintiffs submitted that the requirements in this paragraph demonstrate that the two Notices have simply been prepared on a cut-and-paste basis, because the two years identified are the years relevant to the Latoka breaches and not the Janbeth breaches. The plaintiffs submitted that this is also apparent from paragraph 16 of the defendant’s affidavit which refers to the taking of water when metering equipment was not working; that is an allegation which relates to Latoka and not to Janbeth.

12. [77]

    The defendant submitted that the Janbeth approval (contained in Exhibit 1) enabled the construction of six pumps of 610mm in diameter. The defendant submitted that the request was directed at determining whether the pumps had been altered or enlarged to enable more water to be taken. The defendant submitted that such information could plainly throw light upon whether there had been an over-extraction of water during the relevant water years.

13. [78]

    Question 1I is unusually expressed. The alleged contraventions relate to the 2012/2013, 2013/2014, 2014/2015, 2015/2016 and 2016/2017 water years. Some other questions (1A, 1B, 1C, 1D, 1H, 1K, 1O, 1P, 1R, 1Z, 1AA and 1BB) omit the 2014/2015 water year, although it is included in 1M, 1T, 1U, 1V, 1X, 1CC, 1DD and 1FF. I rather suspect that the Notice was not checked carefully enough before being sent out. Then, however, questions 1I, 1M, 1T, 1CC-1FF refer to the 2017/2018 water year, although it is not apparent why that year is relevant. I have interpreted question 1I as being a reference to the period commencing with the 2012/2013 water year and concluding with the 2017/2018 water year.

14. [79]

    With the exception of the 2017/2018 water year, the defendant’s submissions should be accepted. A modification to the pumps, especially the size, could well impact on the likelihood of water being taken in excess of entitlements.

15. [80]

    The plaintiffs submitted that this was another question which was related to the alleged Latoka contraventions. There is nothing in the Janbeth conditions in dispute which refers to a proviso relating to a runoff harvesting dam.

16. [81]

    The defendant submitted that s 53 of the Act provides an exception for a landholder in relation to harvestable rights. In that way the question concerning whether water was taken from a runoff harvesting dam is relevant where the alleged contravention is the taking of water in excess of allowances.

17. [82]

    In reply, the plaintiffs submitted that reliance on s 53 is inappropriate as a basis for requiring this information as s 53 concerns harvestable rights areas, and, the plaintiffs submitted, harvestable rights areas have no factual or apparent connection with the subject matter of question 1K which is concerned with a runoff harvesting dam.

18. [83]

    I accept that s 53 is relevant to the position in relation to Janbeth. The terms of that section appear to make unnecessary the proviso to condition MW0089-00008 in the Latoka Licence. However, the fact that the Latoka licence contains such a provision does not derogate from the right of the defendant to rely on s 53 in relation to Janbeth where no such condition applies in the licence. The alleged contraventions being investigated concern taking water in excess of the allowed amount of water allocations. The existence or otherwise of a harvesting dam and water use from such a dam are obviously relevant to such an investigation. The definition of water supply work in the Dictionary to the Act includes a dam for the purpose of capturing or storing water. Even if, as the plaintiffs assert, the defendant has not, hitherto, relied on s 53 to justify this question, it is difficult to see why the defendant may not do so in circumstances that suggest that s 53 is a relevant matter to the alleged contraventions.

19. [84]

    The plaintiffs submitted that there is no evidence to justify the suggestion by the defendant that knowledge of water surface storage would assist in determining whether the alleged contraventions had occurred. However, the plaintiff accepted that if they did not have such facilities, an inference was available that there would be a greater likelihood that excess water may have been taken. They submitted that if the answer was in the affirmative, no further information about the surface storage facilities would assist the defendant.

20. [85]

    The defendant submitted that information about these matters was relevant in the same way that information about the harvesting dam was relevant.

21. [86]

    For similar reasons to those in respect of paragraphs 1K and 1L, I consider that the information is relevant to the investigation. An affirmative answer to 1M does not end the enquiry. Size, storage and location are obviously relevant enquiries.

22. [87]

    The plaintiffs and the defendant made similar submissions to those made in respect of the same questions in the Latoka Notice. Subject to the right of the plaintiffs not to incriminate themselves, the information and documents should be provided in relation to the alleged contraventions as detailed in Background paragraphs M and N in the Janbeth Notice.

23. [88]

    The result is the same as for the Latoka Notice.

24. [89]

    The parties relied on the submissions they made for the corresponding paragraphs in the Latoka Notice.

25. [90]

    This matter has been determined in relation to the Latoka Notice. Although the contraventions in relation to Janbeth are alleged to be far more expansive than those concerning Latoka, the determining matter is the lack of evidence concerning how this information could relevantly be used.

Conclusion

1. [91]

   The Latoka Notice must be set aside because the lack of clarity about the interrelationship of the contraventions is confusing and has an impact upon the appropriateness of what is required of the plaintiffs.

2. [92]

   On one level, it would be possible to excise from the Janbeth Notice the questions I have deemed to be beyond power. However, the Notice would have to be re-issued to give a further period of time for compliance. Further, there are some unresolved issues about the appropriateness of referencing the 2017/2018 water year in some but not all of the questions. In addition, there is the question of the 2014/2015 water year that does not appear consistently. For those reasons, the better course is also to set aside the Janbeth Notice.

3. [93]

   The Notices are not wholly void. The plaintiffs accepted that. On the other hand, the defendant accepted that he could not pursue a number of paragraphs in the Latoka Notice. The better course is to set them both aside on the basis that, as a whole, the information and documents sought are not sought for the purposes of the Act in accordance with the authorities. I have attempted to give some guidance for what any further Notices may require with a view to minimising further disputation.

4. [94]

   The plaintiffs have been successful in challenging the Notices, albeit all of their arguments were not accepted. In the circumstances, the defendant should pay the plaintiffs’ costs of the proceedings.

5. [95]

   I make the following orders:

   1. (1)

      I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Latoka be set aside;

   2. (2)

      I order that the Notice issued by the defendant on 8 February 2019 purportedly pursuant to s 338A of the Water Management Act 2000 (NSW) in respect of the property known as Janbeth be set aside;

   3. (3)

      The defendant is to pay the plaintiffs’ costs of the proceedings.