Rogers v The Commissioner of Water Resources
[1993] QLC 8
•6 April 1993
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BRISBANE.
6TH APRIL, 1993.
Re: Appeal under Water Resources Act. 1989 -
S.4.26
Ross G. Rogers and Nora D. Rogers
v.
The Commissioner of Water Resources
(Application for leave to amend grounds of appeal)
D E C I S I O N
Leave is sought to amend the grounds of an appeal made under S.4.26 of the Water Resources Act 1989 (The Act) against a decision of the Commissioner of Water Resources to issue Waterworks Licence No. G-55345 for works comprising an earth and rockfill dam on the Johnstone River, parish Malanda. The appellants objected to the application for the licence. Being dissatisfied with the decision they have appealed to the Court. The appeal in made on 19 grounds. Following lodgement of the appeal on 7th October, 1992, proceedings were instituted in the Supreme Court under Judicial Review Act 1991 for declarations covering numerous matters which if granted would render the decision of the Commissioner void, with the result that an inquiry into the application under the authority of S.4.18 of the Act would have to commence de novo. This matter was heard by Thomas J. The application was stayed until further order. On P.3 of the judgment His Honour summarised the claim before him as follows:-
"They claim that they did not receive the benefit of natural justice in relation to the proceedings and their counsel summarises the basic matters of complaint which underlie the application for review as: (a) the applicants were wrongly denied a right to a hearing and access to relevant documents; (b) the decision maker failed to take relevant considerations into account and took irrelevant considerations into account; (c) the decision maker had no jurisdiction or was not empowered to make the decision."
Among the considerations which led to the proceedings being stayed was the fact that proceedings had been instituted in this Court by way of appeal which it seemed to His Honour "is potentially the more satisfactory course "since" the jurisdiction of the Land Court would enable a review on the merits which is a process not available to this Court. The Land Court plainly has wider powers of review and correction than this Court has in the present proceedings." This Court has the power to confirm, vary or revoke the decision (s4.26(4)). Assuming that the hearing of the appeal proceeds as a hearing de novo (a matter which will be discussed later) the claims made before the Supreme Court may be dealt with by this Court.
Included in the evidence put before this Court in support of the application is a copy of a statement of reasons furnished to MacDonnells, Solicitors for the applicants under the Judicial Review Act which was received by Solicitors on 22nd September, 1992, in reply to a request made by them dated 21st August, 1992. It is noted in the judgment of Thomas J. that certain documentation was being sought under the Freedom of Information Act 1992. I assume that this action was taken in order to obtain in addition to the reasons furnished under the Judicial Review Act the documentary evidence supporting the reasons. The appeal was filed in Court on 7th October. The substance of the application is to enable the appellants to insert grounds in the appeal covering allegations that 1) the "decision maker" did not have jurisdiction or was not empowered to make the decision 2) the rules of natural justice were breached in that the objectors (appellants) were denied the opportunity to appear and be heard in support of the grounds of their objection and 3) the exercise of the power was an improper exercise in that irrelevant considerations was taken into account and relevant considerations ignored.
Whether leave should or should not be granted is the matter of general consideration. S.4.26 of the Act in so far as is relevant provides:-
(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.
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.
The appellant must, within 14 days after filing it, serve on the Commissioner a copy of the notice of appeal.
(4) The Land Court must hear and determine the appeal and may confirm, vary or revoke the decision of the Commissioner the subject of the appeal.
So far as they may be made applicable, the rules and practice of the Land Court apply to an appeal under this section and the court may, where it considers it necessary to do so in a particular case, give directions as to the procedure, practice and other matters and things with respect to the appeal.
The burden of proof of a ground stated in the notice of appeal lies on the appellant.
(5) The jurisdiction of the Land Court to hear and determine an appeal under this section is vested in one Member only and the decision upon the appeal is final and is not further justiciable.
(6) The decision on an appeal under this section is to be certified by the registrar of the Land Court and a copy thereof furnished to the appellant and the Commissioner.
The parties to the appeal must give effect to the decision.
The second paragraph of Sub S.(3) in its plain and literal meaning would confine the appeal to the grounds stated. The wording is mandatory in its terms. Sub S.(4) second paragraph, speaks about practice and procedure. That paragraph and Rule 18 of the Rules of the Land Court are submitted as authority enabling an amendment. Rule 18 provides -
"The Land Court may allow all such amendments as are necessary for determining the real question in depute between the parties upon such terms as to costs or otherwise as the Court thinks fit."
Rules however cannot be used to override the provisions of a statute. In the case re: R J Bradshaw (1984-85) 10 QLCR 261 the Land Appeal Court had before it a notice of motion applying for an extension of time in which to comply with service of a notice of appeal under the provisions of S.44.(11) of the Land Act of 1962. The applicants sought to invoke the provisions of Rule 18 (4) of the Rules of the Land Appeal Court which provide inter alia that -
"18.Matters of the following kind may be brought before the Land Appeal Court by motion :-
(4)Any application to postpone any matter or further time to comply with any provision of the Act.............."
At page 263 Derrington J. said:-
The question is whether the terms of Rule 18 (4) have application to the provisions of section 44(11)(d)(i)(A). The authorities clearly indicate that subordinate legislation cannot be used to extend, vary or depart from the provisions of the Statute. Those cases cited by counsel for both parties indicated that.
The Act itself prescribes certain limited periods during which the appeal may be brought. The Act does not empower this Court to extend the time other than during the period of 28 days after the expiration of the original period of 42 days and then only on certain prescribed conditions. These prescribed periods are clearly intended by the legislature to establish limits during which an appeal may be brought. The purpose obviously being so that the party who is to be the respondent may after that time regard the matter as having been concluded.
It would seem to me then that the provisions of Rule 18(4) would not in any way be complementary to such an imposition of limits but would be, indeed, quite contrary to the imposition of them and consequently it would be ultra vires if it were intended that the rule should apply to the section.
It is suggested by way of argument that in some way Rule 18(4) constitutes complementary subordinate provisions better to effectuate the provisions of the Act, insofar as it is said it provides a further indulgence to a party who may be out of time and thus in this way effectuates the terms of the Act. The provisions of the rules according to section 383 are simply to give effect to the Act itself.
Insofar as the Legislature in the Act has expressly set down limited periods for the bringing of an appeal either by right or by the discretion of the Court it occurs to me to suggest that there is superimposed upon that a further discretion of the Court to extend the period for appeal is contrary to and not giving effect to the terms of the Act. It therefore is not even a variation of the terms of the Act but, indeed, is a provision which is contrary to the very purpose of the Statute itself and in my view is not intended to have application to the Act or if it were to have application to the Act, it would be ultra vires.
Similar wording to that found in Sub S.(3) of the Act is found in other legislation conferring jurisdiction on the Court. The interpretation given to like provisions may be taken from the judgment of the Land Appeal Court in SAG Pratt v The Valuer-General (1981-82) 8 QLCR 145 where at pp 148-9 for the Land Appeal Court said:-
The law is well established but appears to have been overlooked by both parties in this appeal and we feel it appropriate to restate it in this judgment. The matter was discussed at length by the Land Appeal Court in Townsville in G. Franklin and Others v. The Valuer-General - Shire of Johnstone (1978) 5 Q.L.C.R. 181 where at page 184 the Court said:-
"The provisions of the Valuation of Land Act as to the appeal procedure are restricted in their operation, more especially to an appellant who has made his appeal on narrow and particular ground rather than on a broad general ground such as 'the valuation is excessive and contrary to the law'. The language used by the legislature is mandatory and thus binding not only on the parties but also on this Court and the Land Court. The relevant part of Section 21(3) states:-
'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.'
This Court is constituted pursuant to section 44 of the Land Act 1962-1981 and all appeals are brought by way of rehearing.
It seems to us that it is not competent for an appellant before us to add to his grounds of appeal as initially contained in his Notice of Appeal to the Land Court. If he were permitted to do so he would be flouting the mandatory provisions of the Valuation of Land Act previously enumerated. In simple terms, in the conduct of his appeal before us an appellant remains limited to the grounds of his original Notice of Appeal to the Land Court.".
The Land Appeal Court in Rockhampton expressed itself in similar terms in Gibson Investments Pty Ltd v. The Valuer-General - Shire of Jericho (1978) 5 Q.L.C.R. 223 at page 227. It is referred to by the High Court in Brisbane City Council v. The Valuer-General - Shire of Esk - Somerset Dam Land (1978) 5 Q.L.C.R. 283 when Gibbs J. (as he then was) at page 304 said:-
"Since, under section 21(5), an appeal to the Land Appeal Court is a rehearing, the same burden of proof must apply.... The effect of these provisions is that an owner on appeal to the Land Appeal Court has the burden of proving the grounds of his appeal but not the burden of proving that the amount which in his opinion should be the valuation is correct"
Neither this Court nor the Land Court has the power to permit the landowner to enlarge or add to his grounds of appeal as set out in his Notice of Appeal against the determination of the Valuer-General. In Molloy v. The Federal Commissioner of Land Tax 59. C.L.R. 609 the High Court held that a provision similar to the provisions of section 21(3) were an imperative direction to the Court and not as a provision merely for the benefit of the Commissioner which he is in a position to waive.
I accordingly hold that for the purpose of an appeal under S.4.26 of the Act an appellant is limited to the grounds stated in the Notice of Appeal. The ramifications of such finding in the circumstances of the subject case seem to me to be of little moment in that an appeal under the section in my opinion must be conducted as a hearing de novo for a number of reasons. The inquiry which led to the decision is not a proceeding in the sense of proceedings before a court of record, the record of which may be admitted as part of the record of the appellate court. The Commissioner was not required by law to conduct "a hearing" at which parties may be represented, involving the giving of oral evidence on oath which is subject to cross examination, to keep a transcript of the record, to apply the rules of evidence and to give reasons for the decision. The decision is administrative in character. S.4.26 leaves the method of conduct of the appeal in the discretion of the Court. Refer Builders Licencing Board v. Sperway Constructions (Sydney) Pty Ltd and Another (1975-76) 135 C.L.R. 616; R v. The Land Court ex parte Kennecott Explorations (1989) 1 Qd R335.
It follows that questions of whether relevant or irrelevant considerations were misplaced by the respondent in making the decision need not be argued as grounds of appeal (although they may be stated as grounds in the appeal) but rather fall to be determined on the evidence and submissions made to the Court in the hearing of the appeal. The procedures offer the opportunity to cure a denial of natural justice if one has been made. Lastly there is the matter of whether a failure to raise a question of jurisdiction (the power in the delegate of the respondent to conduct the inquiry and make the decision) in the Notice of Appeal precludes the appellant from raising the matter in the hearing of the appeal. I think not. In
Kynigalakis v. The Crown (1956-57) 26 C.L.L.R. at 27, the Land Appeal Court at page 31 - in dealing with an objection as to jurisdiction which was not raised in the Court below said:-"The point had not been taken before the Commissioner's Court nor before the Land Court nor indeed has it been taken in the grounds of appeal before us.
However, as the point goes to jurisdiction we are satisfied that it may be raised at any time and the fact that it has not been raised previously is immaterial."
The application for leave to amend is refused.
MEMBER OF THE LAND COURT
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