McKenzie v New South Wales [2017] NSWSC 661

The Department of Primary Industries served a direction pursuant to section 329 of the Water Management Act 2000 (NSW), concerning two dams on the plaintiffs’ property, alleging that the dams did not have a water management work approval in force, and required the removal of the dams and certain consequential earthworks. The plaintiffs served unilateral foisted contracts on the Department imposing a fee schedule if the claims were not rebutted within 7 days.

The claims included demands that they provide a certified copy of the proclamation certificate for every act relied upon, proof that the Water Management Act 2000 and associated regulations are exempt from complying with Section 100 of the Constitution (“Nor abridge right to use water”), section 117 regarding water rights in Victoria (“Rights of residents in States”), section 109 (“Inconsistency of laws”), section 12 of the Imperial Act Application Acts 1980 (Vic) which states “All promises of fines and forfeitures of particular persons before conviction are illegal and void” and proof that they are exempt from the terms and conditions of the Trespass Notice clearly displayed on the boundary of the property. 

There was no response to this document from the Department, and similar further documents styled “Notice of Fault” and “Notice of Irrevocable Estoppel by Acquiescence” were sent to the Department, stating: 

“I hereby serve Notice that your failure to provide your full disclosure, full legal and lawful verification, full legal and lawful validation, and full legal and lawful proof to our own full satisfaction as detailed in paragraph 7 herein has created a permanent and irrevocable estoppel by acquiescence, forevermore barring you from bringing any and all claims, legal actions, orders, demands, lawsuits, costs, levies, penalties, damages, interest, liens and expenses whatsoever, against us.”

The plaintiffs commenced proceedings by Statement of Claim in McKenzie v New South Wales [2017] NSWSC 661, seeking a declaration that the three Notices have a valid legal basis, that the Departments failure to refute the claims constitutes an admission of agreeance and binds them to cease to exercise any claimed powers under Notice Quo Warranto, and that all fees are agreed to, due and payable by the Department. 

In regard to the unilateral foisted contract, Parker J held that the State has no obligation to explain, or to justify to the plaintiffs, the legal basis for the direction in question, concluding that:


Regarding section 100 of the Constitution, it was noted:

“The fundamental problem is that s 100 is a restriction on the power of the Commonwealth government. What it does is prevent the Commonwealth government, in relation to certain laws, from abridging rights of the States, or ordinary citizens. No action of the Commonwealth government is in issue in this case; what is in issue is a direction issued by the State. I cannot see any plausible basis on which it could be contended that the Water Management Act is invalidated by s 100 of the Constitution.”

Parker J was satisfied that the claims as pleaded were hopeless and that the Statement of Claim needed to be struck out.