Dawson v Department of Natural Resources and Mines - [2002] QLAC 89

LAND APPEAL COURT OF QUEENSLAND
CITATION: Dawson v Department of Natural Resources and Mines [2002] QLAC 89

PARTIES: Aubrey Wood Dawson
(appellant)
v
Chief Executive, Department of Natural Resources and Mines
(respondent)

FILE NO: LAC2002/0048

DIVISION: Land Appeal Court of Queensland

PROCEEDING: Application to strike out appeal

ORIGINATING COURT: Land Court of Queensland

DELIVERED ON: 11 November 2002

DELIVERED AT: Brisbane

HEARD AT: Brisbane

JUDGE:  Justice Jones
                 MEMBERS:  Mr JJ Trickett, President
  Dr NG Divett, Member

ORDER: 1. The application to strike out the appeal is dismissed.
2.The matter is adjourned to 29 November 2002 for the hearing of all issues associated with the appeal.
3.Costs reserved.

CATCHWORDS: Application to strike out Appeal – Jurisdiction - Failure to serve copy of Notice of Appeal – Land Court Act 2000 – Water Resources Act 1989 – Uniform Civil Procedure Rules 1999.

APPEARANCES: Mr A Wrenn for the appellant
Mr K Fisher for the respondent

This is an application by the Chief Executive, Department of Natural Resources and Mines that the appeal to the Land Appeal Court by Mr AW Dawson be struck out for want of jurisdiction as the appellant had not served a Notice of Appeal on the respondent as required by s.65(1) of the Land Court Act 2000.
Section 65 of the Land Court Act 2000 provides:
“(1) A party intending to appeal against a decision of the Land Court must, within 42 days after the court’s decision is given to the party, serve notice of appeal against a decision on –
(a) all other parties to the proceeding on which the decision was made; and
(b) the registrar of the Land Appeal Court.
(2) The period of 42 days applies whether the decision appealed against is the original decision of the Land Court, the decision on the application for rehearing or the decision on the rehearing.
(3) The notice of appeal must state the grounds on which the decision is appealed against.”
Mr AW Dawson (the appellant) appealed to the Land Court against certain terms and conditions in Licence No. 55345K issued to him on 29 September 2000 under the Water Resources Act 1989 by the Chief Executive, Department of Natural Resources and Mines (the respondent). On 21 January 2002 submissions were heard by the Land Court in Atherton. On 10 April 2002, the Land Court decided those preliminary matters finding –
·The Land Court has no power to allow the appellant to amend the Notice of Appeal (paragraph [24] of the decision of the Land Court).
·The Notice of Appeal does not disclose any reasonable grounds of appeal and the appeal must therefore be struck out. (paragraph [55] of the decision of the Land Court).
On 20 May 2002, a Notice of Appeal of the same date signed by the appellant was received by facsimile transmission in the Land Appeal Court registry. (The last day for appeal was 22 May 2002). On 22 May 2002, three signed copies of the Notice of Appeal were received in the Land Appeal Court registry. On 20 May 2002, following the receipt of the facsimile appeal, the Registrar of the Land Appeal Court had advised the respondent of receipt of the Notice of Appeal.
By letter dated 4 July 2002, counsel for the respondent advised the Registrar that no copy of the Notice of Appeal was served on the respondent. On 17 September 2002 the Registrar notified the parties that the Land Appeal Court would deal with that preliminary matter. Prior to the hearing of that preliminary matter, submissions and affidavits were received from the parties. By telephone hearing on 3 October 2002, the Land Appeal Court heard the application by the respondent that the appeal be struck out for want of jurisdiction. However, at the request of counsel for the appellant, the Court gave the parties a further 14 days to file further affidavits and submissions as to the question of jurisdiction. A further affidavit from the appellant was filed and submissions were received from counsel for the parties.
The affidavits of the appellant are to the effect that on 20 May 2002 the appellant faxed a Notice of Appeal to the Land Appeal Court registry. On the same day he contends that he sent a copy of the signed Notice of Appeal to the respondent’s Mareeba office and that he also sent three signed copies of the Notice of Appeal to the Land Appeal Court registry. His contentions are evidenced by a copy of the appellant’s diary for Monday 20 May 2002.
On the other hand, on behalf of the respondent there are affidavits of four officers of the Department of Natural Resources and Mines in Brisbane and Mareeba to the effect that no copy of the Notice of Appeal in this matter has been served by the appellant on the respondent.
There is no dispute that following the faxing of the Notice of Appeal on 20 May 2002, the appellant posted three “signed originals” of the Notice of Appeal to the Land Court registry, which were received on 22 May 2002. The appellant’s affidavit of 20 May 2002 states in part “I was of the belief that the Land Court would have passed on one copy to Mr Fisher, one to NR head office, keeping the remaining copy. Because of this I did not register the copy sent to Mareeba NR office, and as same has as yet not been returned I assume it was delivered.”
The respondent argues that it is not the role of the registry to conduct service on or filing of copies of court documents with parties to proceedings. This is obviously correct. However, the appellant has consistently asserted that he posted a copy of the Notice of Appeal to the respondent’s Mareeba office on the same day that he faxed the Notice of Appeal to the Land Appeal Court registry.
The respondent further argues that the appellant could have easily personally served a copy of the Notice of Appeal on the respondent, or posted by registered mail, or faxed to the Mareeba office a copy, so as to deliver some form of proof to the Court. However, in our view, the appellant has explained why he did not register the copy sent to the respondent’s Mareeba office.
The material filed on behalf of the appellant is somewhat confusing and contains much extraneous material, including some thirteen pages faxed to the Court on 9 September 2002. However, we have formed the view that sufficient evidence has been provided for us to give the appellant the benefit of the doubt that he posted a copy of the Notice of Appeal to the respondent’s Mareeba office on the same day that he faxed the Notice of Appeal to the Land Appeal Court. (Diary entry for Monday 20 May 2002). The respondent argues that the appellant could have effected service by other means, but we are prepared to accept that he complied with the requirements of service: Rule 112(1)(d) of the Uniform Civil Procedure Rules 1999.
Counsel for the respondent has raised what he calls “a secondary threshold jurisdictional issue” that the appellant’s grounds of appeal do not demonstrate sufficient merit to invoke this Court’s jurisdiction. However, we consider that the respondent can argue that matter when the appeal comes on for hearing.

Orders

The application by the respondent to have the matter struck out for want of jurisdiction is dismissed.
The matter is adjourned to Friday 29 November 2002 in Cairns for the hearing of all issues associated with the appeal.
Costs reserved.

JONES J
JUDGE OF THE SUPREME COURT
JJ TRICKETT
PRESIDENT OF THE LAND COURT
NG DIVETT
MEMBER OF THE LAND COURT