Brown v Chief Executive, Primary Industries Corporation

[1995] QLC 19

[1995] QLC 19

 

  LAND COURT

BRISBANE

31 March 1995

(A94-73)

Re: Appeal under Section 4.26 of Water Resources Act 1989

J.R. Brown
  v.
  Chief Executive, Primary Industries Corporation

Matter of Jurisdiction

(Hearing at Atherton)

DECISION

Being aggrieved by a decision of the chief executive with respect to an application for Waterworks Licence No G56831 Mr J.R. Brown appealed to the Land Court under s.4.26 of the Act.  The Notice of Appeal was signed on 12th September, 1994 and was received in the Land Court registry the following day.
           The procedure in respect to filing of an appeal is set out in s.4.26 of the Act and more particularly in s.s.(3), (3A) and (3B) as follows:

"(3)An appeal under this section is instituted by filing in the land Court registry within 30 days after the date of the notification of the decision in question and no later, a notice of appeal.

(3A) The notice of appeal must state the grounds upon which the appellant intends to rely and the appellant is not entitled to raise on the appeal a ground not stated in the notice.

(3B) The appellant must, within 14 days after filing it, serve on the chief executive a copy of the notice of appeal.   "

Mr Brown did not serve on the chief executive "a copy of the notice of appeal" as was required under s.s.(3B).  Instead, and what ordinarily may have been seen to be an effective notice, Mr Brown, by letter dated 12th September, and received by the addressee on 14th September, 1994, advised the chief executive that an appeal had been lodged with the Land Court.  The letter purported to advise the grounds of appeal, although the actual grounds were somewhat different. 
           When the matter was called on for hearing, counsel for the Chief Executive made application for the appeal to be struck out on the grounds that the mandatory instructions in s.4.26(3B) of the Act had not been followed and, as a consequence, the Court did not have jurisdiction to hear and determine the appeal. 
           Mr Brown had been made aware that the point would be raised and was represented at the hearing by his solicitor.  It was submitted on his behalf that the chief executive had not been prejudiced in the defence of the appeal.  That was not disputed.  It was not suggested by the appellant that "a copy of the notice of appeal" had in fact been served, but that the written advice given to the chief executive substituted for that copy.
           There is also no suggestion that the appellant was unaware of the requirements of the legislation.  The Notice lodged with the Court was a standard form, with clear information relevant to the procedure involved in the filing of an appeal. 
           While, in a practical sense, it would have been desirable to allow the hearing to proceed, all parties being in attendance, the wording of the legislation is accepted as being mandatory rather than allowing the Court the indulgence of discretion.
           The finding therefore, as indicated verbally to the parties, is that the Court does not have jurisdiction to hear the appeal as the requirements of s.4.26(3B) have not been met.  The appeal is struck out for want of jurisdiction.
           It should be mentioned that the Court was also made aware that it had been intended to make application to amend the Notice of Appeal to include additional grounds.  While the matter was not argued, it has been held that the wording of s.4.26(3A) is mandatory in its terms.  If, as was suggested as a course of action which the appellant might follow, a fresh waterworks application was made, then the importance of compliance with the legislation has been demonstrated.

(RE Wenck)          

Member of the Land Court