SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
DELIVERED ON: | 21 August 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 May 2014 |
JUDGE: | Jackson J |
ORDERS: | The order of the Court is as follows: 1. The application is dismissed. 2. The applicant is ordered to pay the first and second respondents’ costs of the application. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – APPLICATIONS – where the applicant applies for judicial review of a decision of the first and second respondents to direct the third respondent to set water prices at a particular rate – where the first respondent made an application for an interlocutory injunction restraining the third respondent from issuing invoices for charges set in accordance with the direction – whether the balance of convenience favoured the grant of the injunction |
COUNSEL: | M Black for the applicant J Horton for the respondents |
SOLICITORS: | Irish Bentley Lawyers for the applicant Crown Law for the respondents |
[1] Jackson J: On 18 December 2013, the first respondent, the Minister administering the Water Act 2000 (Qld) (“WA”), and the second respondent, the Treasurer (“the Water Act Ministers”), gave a written joint direction to the third respondent, Seqwater. The direction (“the Water Act Ministers’ direction”) provided that:
“As the responsible Ministers, we direct Seqwater to comply with the attached Rural Water Pricing Direction Notice (No 1) 2013 in setting rural irrigation water prices for Seqwater water supply schemes and terminations fees for the Pie Creek tariff group from 1 January 2014 to 30 June 2017. This direction is given pursuant to s 1013D(3) of the Water Act 2000 (Qld) …”
[2] The originating application in this proceeding is for judicial review of the decision to make the direction. The applicant, Mid Brisbane Irrigators Inc (“MBRI”) applies for an order in the nature of certiorari pursuant to s 41(2) of the Judicial Review Act 1991 (Qld) (“JRA”) setting aside the decision of the Water Act Ministers to make the direction.
[3] The first ground of the originating application is that the decision to make the direction involved a denial of procedural fairness constituting a breach of the rules of natural justice. MBRI submits that the Queensland Competition Authority’s (“the QCA”) report entitled “Final Report – SEQ Water Irrigation Price Review 2013-17” (“the QCA Report”) was relied upon by the Water Act Ministers to issue the Water Act Ministers’ direction. It further submits that the QCA Report was flawed and not based on evidence. The other grounds are that the Water Act Ministers failed to observe procedures that they were required by law to observe in making their decision, or that the decision was made taking irrelevant considerations into account or failing to take into account relevant considerations.
[4] The present application is made by MBRI for an interlocutory injunction restraining Seqwater from issuing any invoices or requiring payment of invoices for charges set in accordance with the Water Act Ministers’ direction, until the hearing of the originating application.
[5] MBRI relies on s 43(2) of the JRA as a source of power for the grant of the interlocutory injunction applied for.
[6] As Mackenzie J observed on a similar application for an interlocutory injunction in EIE Ocean BV v Commissioner of Stamp Duties,[1] “there is no specific provision in the Judicial Review Act authorising the making of an interlocutory injunction. However, … s 8 of the Judicature Act 1876 provides a general power to grant an injunction by an interlocutory order.” Section 8 of the Judicature Act 1876 (Qld) was consolidated into and became s 246 of the Supreme Court of Queensland Act 1995 (Qld). That Act was repealed by s 211 of the Civil Proceedings Act 2011 (Qld). The corresponding power to grant interlocutory injunctions is now reposed in s 9 of the Civil Proceedings Act 2011 (Qld).
[7] An application for an interlocutory injunction to preserve the status quo in respect of an application or claim for a prerogative order brought under s 43(1) of the JRA is thus brought in the usual jurisdiction of the Court to grant an interlocutory injunction. The usual principles relating to the grant or dismissal of an application for interlocutory injunction apply, as discussed in Australian Broadcasting Commission v O'Neill,[2] having regard to the particular context. The applicant must show that there is a serious question to be tried or a prima facie case of entitlement to the final relief it seeks, that it will suffer harm that cannot be compensated by damages and that the balance of convenience favours granting the interlocutory injunction sought until the final hearing.
Serious question to be tried or prima facie case
[8] MBRI submits that it need only establish a serious question to be tried. It is unnecessary to explore any difference between a serious question to be tried and a prima facie case in this case.
[9] The background to the originating application includes that, in originating application 10325 of 2013 (“the other proceeding”), MBRI applies for judicial review of another decision, made on 4 October 2013, by the Treasurer and Minister for Trade of the State of Queensland and Attorney-General and the Minister for Justice of the State of Queensland (“the QCAA Ministers”) accepting the recommendations of the QCA Report (“the QCAA Ministers’ decision”).
[10] The respondents submit that there is no serious question to be tried in the present proceeding because there is no serious question to be tried in the other proceeding. Because of that submission, my discussion of MBRI’s claim against the first respondent and others of the questions raised on the applications brought in the other proceeding[3] is peripherally relevant to the disposition of the present application.
[11] MBRI submits that the invalidity of the QCAA Ministers’ decision also invalidated the decision of the Water Act Ministers’ to make the Water Act Ministers’ direction. MBRI submits that it is illogical to suggest that a direction to Seqwater could be made without the decision of the QCAA Ministers to accept the recommendations in the QCA report.
[12] However, MBRI’s submissions did not develop why, in law, the validity of the Water Act Ministers’ direction depends on the validity of the QCAA Ministers’ decision to accept the recommendations of the QCA Report. Nor did MBRI’s submissions address the question whether any right which Seqwater may have to recover charges for the supply to irrigators of a water service or other facility depends on the validity of the Water Act Ministers’ direction.
[13] Thus, even if the QCAA Ministers’ decision was invalid, MBRI may be facing an insurmountable hurdle in the present proceeding because the validity of the Water Act Ministers’ decision does not turn on the validity of the QCAA Ministers’ decision.
[14] Further, the validity of Seqwater’s charges may also not depend on the validity of the Water Act Ministers’ direction. I note that Seqwater has all the powers of an individual and may fix charges and other terms for services and other facilities it supplies.[4] Also, I note that the effect of a valid direction under s 1013D of the Water Act 2000 (Qld) is that Seqwater must comply with the direction.[5] However, in my view, the fact that Seqwater complies with a direction given under s 1013D(1) does not mean that Seqwater’s power to fix a charge for a water service or a facility is sourced in the direction. Accordingly, the validity of any charge fixed may not depend on the validity of the Water Act Ministers’ direction.
[15] However, the submissions of the parties on the present application were primarily directed to the question of the balance of convenience. In those circumstances, it is not appropriate to resolve whether there is a serious question to be tried that the validity of Seqwater’s charges to irrigators who are members of the applicant depends on whether or not the Water Act Ministers’ direction was a valid decision or whether or not the validity of the direction, in turn, depends on whether or not the QCAA Ministers’ decision to accept the recommendations made in the final report was a valid decision.
Balance of convenience
[16] It is also not necessary in the circumstances of this case to further consider the strength of MBRI’s claim on the originating application as against Seqwater in determining the balance of convenience.
[17] The relevant circumstances are that the implementation of Rural Pricing Direction Notice (No 1) 2013 will result in the collection of a fixed tariff (“Part A charge”) based on a price per megalitre of water availability regardless of actual water used and a volumetric tariff (“Part B charge”) based on a price per megalitre of actual water used. For the period from 1 January 2014 to 30 June 2014, the aggregate of the Part A and Part B charges intended to be invoiced and collected by Seqwater was approximately $64,000. For the following six months the amount expected to be invoiced and collected is approximately $73,000. Those charges will be recoverable across the whole of the relevant user group which is not necessarily limited to MBRI’s membership of approximately 130 irrigators. MBRI’s counsel was unable to say how much an individual irrigator who was a member would be required to pay.
[18] MBRI submits that the payment of Seqwater’s charges in accordance with Rural Pricing Direction Notice (No 1) 2013 or the payment of any price greater than zero could cause certain producers that are dependant on paying the “price of zero” to cease farming altogether. The evidence in support of that contention was unsatisfactory. First, it consisted of a couple of generalised statements made in the submissions to the QCA before its final report, which were neither specific nor directed to any particular price level, or user, or group of users. Apart from that, the only relevant evidence was a statement in an affidavit made by the Chair of MBRI in the other proceeding that:
“Generally, the combination of the existing infrastructure costs, the installation of water meters and the payment of the charges proposed by the QCA [sic] are such that their impact on some members of MBRI will likely leave them with no option but to cease operations completely.”
[19] That was a statement of opinion put forward without any particularisation of the facts on which it depends. From the sums of money mentioned above, and the number of people involved, it is not a statement which can be accepted at face value on the present application.
[20] MBRI did not submit that if its members are required to pay Seqwater’s charges pending the determination of the validity of the Water Act Ministers’ direction, and it is successful in setting aside that decision in a way that invalidates Seqwater’s charges, its members would be unable to recover any invalid charges from Seqwater or set off any overpaid amounts against future charges. I note, however, that the scope of restitutionary recovery against a statutorily based charge for a service or facility is not settled in the common law of Australia. In Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3),[6] the NSW Land and Environment Court recognised the development of the common law of England and Wales on recovery of overpayments from the Crown in Woolwich Equitable Building Society v Inland Revenue Commissioners,[7] and continued:
“In Australia, the principle in Woolwich has not been recognised by the High Court, although I note that it is the view of the learned authors of Mason & Carter’s Restitution Law in Australia 2nd ed (2008) LexisNexis Butterworths, Australia that it will be (at [2020]–[2032]). They also offer the opinion that the principle espoused in Woolwich extends to local government bodies, such as councils (at [2034]). Having said this, the authors go on to note that even if Woolwich is applicable in Australia, not all unlawful imposts will be recoverable, and more significantly, as is discussed below, some imposts will readily attract defences obviating repayment irrespective of their invalidity.”
[21] Further, MBRI also did not submit that if an interlocutory injunction is granted, but it should transpire that the injunction is wrongly granted because the Water Act Ministers’ direction is valid or otherwise, Seqwater would be entitled to recover charges for the water services or facilities which it provides during the period of operation of the interlocutory injunction. The basis of Seqwater’s right to recover charges was not dealt with in submissions. However, the evidence shows that there is a “standard supply contract” within the meaning of s 122A of the WA which applies to the Central Brisbane River Water Supply Scheme administered by Seqwater as the resource operations licence holder. I infer that its terms apply to MBRI’s members. Clause 9 of the terms provides that the customer will pay for a variety of services within 30 days after invoice. Seqwater may invoice at intervals notified from time to time or published in a set of rules. The effect on Seqwater’s ability to recover charges, if an interlocutory injunction is granted, was not dealt with in evidence or submissions.
[22] Ordinarily, the risk of injury to a party restrained by an interlocutory injunction is met by an applicant’s undertaking as to damages. For example, Uniform Civil Procedure Rules, r 264(1), requires that the Court must not grant a search order or a freezing order until the trial or hearing or until a stated date without the usual undertakings as to damages having been given, unless there is a good reason.
[23] In National Australia Bank Ltd & Ors v Bond Brewing Holding Ltd & Ors (“Bond Brewing”)[8] the High Court described the giving of an undertaking as to damages as usually being an “essential condition” to the making of an order by way of appointment of an interlocutory injunction or receiver. It is unnecessary to canvas the scope of possible exceptions to the rule in this case. None was relied upon by the applicant, MBRI. Bond Brewing was a case of ex parte appointment of a receiver. Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd[9] was a case involving an interlocutory injunction. In Air Express, the High Court described the undertaking as to damages as being one “which has been in use since about the middle of the nineteenth century in cases where an injunction is granted either ex parte or on motion on notice to operate until the determination of the action or further order”.[10] See also Mansfield v Director of Public Prosecutions for Western Australia.[11]
Conclusion
[24] In my view, the dispositive factors in the present case are:
[25] Those factors lead to the conclusion that the balance of convenience does not favour the grant of an interlocutory injunction. The application for an interlocutory injunction pending the trial of the originating application should be refused.
[26] There is no reason, in the circumstances, why the applicant should not pay the costs of the application for an interlocutory injunction. Those costs should follow the event, in accordance with the usual rule under Uniform Civil Procedure Rules r 681(1).
[1] (unreported, Supreme court of Queensland, OS 5/1993, 26 Feb 1993, Mackenzie J).
[2] (2006) 227 CLR 57, 81-84 [65]-[72].
[3] [2014] QSC 196.
[4] Southeast Queensland Water (Restructuring) Act 2007 (Qld), s 7(1)(f).
[5] Water Act 2000 (Qld), s 1013D(2).
[6] (2011) 80 NSWLR 541, 570 [157]; Compare Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51.
[7] [1993] AC 70.
[8] (1990) 169 CLR 271.
[9] (1979-1981) 146 CLR 249; on appeal 309.
[10] (1979-1981) 146 CLR 249, 260.
[11] (2006) 226 CLR 486, 497-498.
