Mepham v Chief Executive, Department of Natural Resources
[2001] QLAC 91
•4 September 2001
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Re: A00-03
An appeal against the finding of the Judicial Registrar that the Land Court has no jurisdiction to hear the appeal against a decision of the Chief Executive, Department of Natural Resources in respect of a proposal to approve a property plan under the Soil Conservation Act 1986
BETWEEN:
NFA, MA and DJA Mepham
AND:
Chief Executive, Department of Natural Resources
(Hearing at Rockhampton) JUDGEMENT
Delivered at Rockhampton this 4th day of September 2001
This appeal is from the decision of the judicial registrar who ruled that the Court had no jurisdiction to hear an appeal against a decision of the Chief Executive with respect to a proposal to approve a property plan under the Soil Conservation Act 1986 (“the Act”) on “West Wolfang”, Clermont.
The provision of the Act governing the judicial registrar’s determination was s22. That provision is in these terms:
(1)An objector may, within a period of 21 days of the issue of a notification pursuant to section 21(5), appeal to the Land Court and the Land Court shall hear and determine the matter and may confirm or vary the chief executive’s determination.
(2)An appeal under subsection (1) shall be instituted by filing in the Land Court registry a notice of appeal.
(3)The notice of appeal shall state the grounds of appeal and the appeal shall be limited to the grounds stated.
(4)The burden of proving any ground stated in an appeal shall be upon the appellant.
(5)After filing the notice of appeal, the appellant shall, within 7 days, serve a copy of it on the chief executive.”
[3] In this case the notice of appeal was filed in the Land Court registry by facsimile on 25 January 2000. The 7 day period prescribed by s22(5) of the Act for service of notice on the Chief Executive expired on 1 February 2000. That day was a Tuesday. The notice of appeal was in fact served on the Chief Executive on 4 February 2000, the following Friday. The explanation for the failure to serve the Chief Executive within the prescribed time is set out in the affidavit of Damon Lawrence King at p29 of the record and is not challenged. Mr King deposes to service of the notice of appeal by facsimile on 25 January. Two days later (27 January) Mr King sent the original and service copies of the notice of appeal to the Land Court by post for endorsement for the purpose of service. The endorsed copies were not received back from the Land Court until 2 February. On 3 February a copy was sent by post to the Chief Executive who received it the following day.
The essence of the argument is whether the requirement of service in s22(5) of the Act is essential and mandatory such that the failure to strictly comply will render the appeal invalid and deprive the Land Court of jurisdiction to hear the matter.
[5] No direct authority in support of the argument of either side from the Land Appeal Court or higher tribunal has been cited except for the dictum of the Land Appeal Court in Schirmer v The Valuer-General (1974) 1 QLCR 144.
Schirmer was a decision under s21 of the Valuation of Land Act 1944-1974. The appellants there had failed to nominate in the notice of appeal the value for which they were contending. Section 21(3) of the Valuation of Land Act provided:
“ An appeal under this section shall be instituted by filing in the Land Court registry a notice of appeal.
Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated, and the burden of proving any and every such ground shall be upon the owner.
Such notice shall also state the amount which in the opinion of the appellant should be the valuation of the subject land.
The appellant shall forthwith , after filing such notice in the Land Court registry, serve a copy thereof on the Valuer-General.”
[7] The Land Appeal Court in Schirmer dealt with the deficiency in the appellants’ notice of appeal at p146 in these terms:
“Having regard to the whole scope of the appeal provisions in the statute with which we are here concerned and considering in combination sections 21, 21A and 22 it is our view that the legislature in framing section 21(3) in mandatory terms intended that its provisions should be obligatory. The sub-section contains four separate provisions relating to the notice of appeal and in order that an appeal may be properly instituted all four provisions must be complied with. There is no doubt that the failure to comply with any of the requirements of the sub-section other than that contained in the third paragraph, namely, the filing of the notice of appeal in the Land Court registry, the statement in the notice of the grounds of appeal and the service of a copy of the notice on the Valuer-General would have the consequence that the appeal was not properly instituted and there is no reason to suppose that the legislature intended that any different consequence should ensue in the event of non-compliance with the requirements of the third paragraph of the sub-section.”
[8] The decision on the issue before the Court in Schirmer can hardly be questioned. If one has regard to the other provisions to which the Court referred in the passage set out above it is clear that the requirement to include a nominated value in the notice of appeal is of more than technical interest and has a real practical consequence.
[9] It may well be that where there is a requirement that the notice of appeal contain particular information the absence of such material might lead to the conclusion that the notice filed was not by reason of the deficiency a notice of the type required to institute the appeal. We do not think it necessarily follows that all non-compliances with any sub-section (including as to service) must be similarly treated at least in relation to the somewhat similar provision in the Soil Conservation Act.
[10] Some support for the submission that all time limits in the appeal provisions are mandatory and go to the jurisdiction of the Court to entertain an appeal was sought from Stubberfield v The Valuer-General (1992) 14 QLCR 490. Again we do not consider that that decision assists. The issue with which that case was concerned was whether an appeal lodged out of time was valid where there was no statutory provision authorising the Court to relieve against the failure. Again, we agree that
where there is a time limit on the institution of an appeal an appeal lodged outside that time has no statutory authority and would be a nullity.
[11] In our view this matter falls to be determined without the assistance of binding authority. We accept that the approach to be taken in those circumstances is to look at the ordinary and natural meaning of the words and construe the legislative intention in that light: Marshall v Director-General of Transport [2001] HCA 37 paragraph [62] per McHugh J.
[12] In our view the words of sub-section 22(2) of the Act are clear. An appeal is deemed to have been instituted by the filing of a compliant notice of appeal within the time prescribed. We accept what was said in Stubberfield albeit in relation to a different legislative scheme in relation to the need to file the notice of appeal within time. The appeal having been instituted we do not accept, without clear legislative words to the contrary, that it may cease to be instituted if after 7 days a copy of the notice is not served. It seems to us that had the legislative intention been to achieve the end contended for by the respondent the obvious way to achieve it would be to require that an appeal should be instituted by filing the notice of appeal and serving a copy of it within 7 days. Such statements of legislative purpose are not unusual: see for example Corporations Law s459G.
[13] It cannot be the case that all of the matters listed in the various sub-sections of s22 of the Act go to the validity of the appeal purportedly instituted. Sub-section (4) clearly does not. If one of the sub-sections does not go to jurisdiction one wonders why, logically, all of the others must where that position is not expressly stated.
The scheme of s22 of the Act makes sense if one looks at the logical progression of the sub-sections. Sub-section (1) deals with the time within which an appeal must be instituted. Sub-section (2) deals with the institution of the appeal. Sub-section (3) deals with the contents of a notice of appeal. Sub-section (4) deals with the conduct of the appeal and sub-section (5) deals with what is to happen after the appeal is instituted, ie notice must be given to the other party.
[15] A guide to the approach to be adopted is to be found in Tasker v Fullwood [1978] 1 NSWLR 20. The decision in Tasker was approved by this Court in Stubberfield. In Tasker at pp23-24 the New South Wales Court of Appeal gave this assistance:
“…we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance…(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute…(4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement…(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid unless substantial performance is demonstrated… (7) A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms…”
[16] Applying those principles in the light of the discussion above leads us to the conclusion that a failure to comply with the requirements of sub-section 22(5) does not lead necessarily to the result for which the respondent submits. The purpose of the statute and the ordinary and natural meaning of the words can be accommodated by construing s22 as if the requirement as to service following the proper institution of the appeal is treated as directory in the sense that failure to comply does not render the appeal invalid so as to deprive the Court of jurisdiction to consider the matter but merely reserves to the Court a discretion as to whether or not to excuse the non- compliance.
[17] It follows that the appeal was validly instituted and the failure to serve the Chief Executive within time did not affect that position. The appellant was entitled to have the Court consider whether in the circumstances of the particular case the failure to serve within time was a matter which ought to have been excused. We consider in the circumstances of the matter before us the failure to serve within time is a
procedural irregularity from which the appellant should be relieved. The Chief Executive has not submitted that the respondent is prejudiced in any respect by the late service.
[17] In the result, we allow the appeal and set aside the order of the Judicial Registrar
(Dutney J) JUSTICE OF THE SUPREME COURT
(JJ Trickett) PRESIDENT OF THE LAND COURT
(RE Wenck MEMBER OF THE LAND COURT
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