Melville v Townsville CC

SUPREME COURT OF QUEENSLAND

CITATION:

Melville & Ors  v Townsville CC [2003] QCA 456

PARTIES:

PATRICIA MELVILLE AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF MERCIA ELIZABETH BOYLE (DECEASED) AND WILLIAM FRANCIS POWER AND ELIZABETH RUTH POWER AS THE PERSONAL REPRESENTATIVES OF THE ESTATE OF ADA IRENE POWER (DECEASED)
(applicants/appellants)
v
TOWNSVILLE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 5272 of 2003

LAC No 9 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Land Appeal Court

ORIGINATING COURT:

Land Appeal Court

DELIVERED ON:

24 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2003

JUDGES:

Jerrard JA, Dutney and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow leave to appeal

2. Set aside the order of the Land Appeal Court and in lieu thereof order that the Notice of Appeal was within the time prescribed by s 65(1) of the Land Court Act 2000 (Qld)

3.   The respondent pay the applicant's costs of the hearing before the Land Appeal Court and of the appeal

CATCHWORDS:

STATUTORY INTERPRETATION – GENERAL RULES FOR INTERPRETATION OF INSTRUMENTS – where legislation repealed and replacing section uses different language – where new section requires service “within 42 days after the Court’s decision is given to the party” – meaning of the words “given to the party”

SECTION 65(1) OF THE LAND COURT ACT 2000 (QLD) – whether Notice of Appeal served by the applicant on 31 January 2003 was out of time

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11
Acts Interpretation Act 1954 (Qld) s 14C, s 39, s 39A
Land Act 1962 (Qld) s 44(11)(a)
Land Court Act 2000 (Qld) s 74(2), s 65(1)

Land Court Rules 2000 (Qld) r 5, r 41, r 42

Australian Foremen Stevedores Association v Crone (1989) 20 FCR 377, considered

COUNSEL:

G J Gibson QC for the applicants/appellants
C L Hughes SC for the respondent

SOLICITORS:

Russell & Co for the applicants/appellants
Suthers Taylor for the respondent

1. JERRARD JA: In this matter I have had the advantage of reading the reasons of Philippides J, and I agree with those and the orders her Honour proposes.  I think it is significant that Rule 41 of the Land Court Rules 2000 describes how an order of the Land Court is made, and Rule 42 describes how the court's reasons for making an order may be published.  No provision of either the Land Court Act 2000 or the Land Court Rules specifically describes how an order is “given to a party”.

1. Rule 42(1)(b) and (c) will define how that result is achieved whenever the reasons so published include, describe, or are accompanied by, the order of the Court.  Rule 42(1)(a) will define how that result is achieved whenever a party is present in court and the Registrar or Deputy Registrar gives a copy to that party.

1. Rule 42(1)(a) does not imply by its terms that an order is “given to a party”…