Sargood v Chief Executive, Department of Natural Resources
[1998] QLC 143
•24 November 1998
|
BRISBANE
24 November 1998
IN THE MATTER OF an appeal under Section 51 of the Water Resources Act 1989 by Leonard E and Helen G Sargood, the owners/occupiers of Lot 4 on Plan NV72 and Lot 20 on Plan NV70, Parish of Handsworth, County of Nive, against the decision of the Chief Executive, Department of Natural Resources, to grant Waterworks Licence No G 43994. (A97-82)
Leonard Edwin Sargood and Helen Georgina Sargood
Appellants
v.
Chief Executive, Department of Natural Resources
Respondent
DECISION ON JURISDICTION
Introduction
The appellants, Leonard and Helen Sargood, have appealed against a decision by the respondent Chief Executive to grant Waterworks Licence G 43994 to CD and JA Clift in respect of a compacted earth and rock embankment on a dry gully known as Gumholes Creek. The licensees are not a party to these proceedings.
The parties have sought a decision of this Court in relation to two preliminary issues, namely, whether the Land Court has jurisdiction to hear and determine the appeal and, if it has jurisdiction, whether the appellants should be permitted to amend the notice of appeal by substituting more detailed grounds of appeal.
The events leading to these proceedings, although not strictly proven, are not in dispute. The following summary draws on a chronology provided to the Court by the appellants, which was, it seems, prepared by reference to various documents provided to them under the Freedom of Information Act 1992.
On 16 September 1996, an officer or officers of the Department of Natural Resources (“DNR”) inspected the site for the proposed Waterworks Licence at “Yandarlo”, Tambo. The local drainage feature known as Gumholes Creek was categorised as not constituting a watercourse.
On 14 November 1996, CD and JA Clift of “Yandarlo” made Waterworks Licence Application No 43994. A notice of the Waterworks Licence Application was published in a newspaper, the “Western Times”, on 12 December 1996. Written objections to the Application were to be made to the Chief Executive by 19 December 1996.
By letter dated 19 December 1996 and delivered by hand to the DNR office in Charleville on 20 December 1996, the appellants objected to “the application to extend the earthworks of a dam on Gumholes Creek at Yandarlo” which, it is clear from the objection, is the Waterworks Licence Application No 43994. The appellants’ grazing property “Drensmaine” adjoins “Yandarlo”.
Following various assessments and other actions by DNR officers, CD and JA Clift were notified by letter in November 1997 that Waterworks Licence No G 43994 had been approved. The appellants were also advised by letter in November 1997 of the Chief Executive’s approval of the Waterworks Licence Application and of the rights to appeal to the Land Court.
On 19 December 1997 the Land Court received by post the appellants’ notice of appeal.
The appellants are concerned not to lose the opportunity to have the Chief Executive’s decision considered (and possibly varied or revoked) by the Land Court. They argue that they are “persons aggrieved” by that decision and they point to circumstances which, they seem to suggest, are relevant to the resolution of the issues in these proceedings.
First, it was submitted that the time between the date of publishing the notice and the date by which objections were to be lodged was “impossibly short … in a remote part of Queensland”. Apparently there was an authorized request from DNR on or about 19 November 1996 for the placement of the notice in a newspaper. For some reason the notice was not published until 12 December 1996, with the consequence that objectors had one week to communicate their views to the Chief Executive.
Second, the appellants note that they had orally communicated to DNR their objections about the earthworks which had been undertaken. They consider that, at least as a matter of courtesy, DNR should have informed them directly about the Waterworks Licence Application.
In their letter of objection dated 19 December 1996 they wrote:
“Some months ago we made a complaint to Mr Guy Bignell of the Hood Street office, voicing our concern on two points. Namely, that in the event of the river being full and the dam bursting we would be severely at risk. And that if rain up-river did not fall, with no local water coming into the Nive we would be without good water for our household use. We have one bore, but the water is not suitable for domestic use.
We understand that Mr Bignell investigated our complaint and as a result advised Mr Clift to make the application for a Licence to cover the extensions he had already carried out. This was done, and a notice calling for objection was lodged in the local paper.
We would like to make the observation that as we had lodged a formal complaint, we expected that, as a matter of courtesy we would be advised of the progress of the matter, especially that Mr Clift had made the application and we would normally be expected to lodge another objection, in writing. As we do not get the local paper, we had no idea of Mr Clift’s action, until advised by a friend, on the day that the objections lodgement closed.” (Exhibit 2).
Third, it seems that an officer of DNR wrote to Mrs Sargood stating that, when the matter came on for hearing, DNR would not rely on the possible lack of jurisdiction of the Land Court to hear and determine the matter. Although the appellants did not rely on that letter, Mr Paterson, appearing for the Chief Executive, addressed the point. He submitted that statutory provisions confer jurisdiction for the hearing of appeals of this type and no party can waive compliance with those provisions. Put another way, no party can permit the Court to exercise a jurisdiction that it does not have. Second, he submitted, the Chief Executive is not estopped by the officer’s conduct from taking the jurisdiction point. As no argument about estoppel was raised, that matter need not be considered further. Third, Mr Paterson referred to the decision of the Land Appeal Court in CG Kynigalakis v The Crown ((1956-57) 26 CLLR 27 at 31) that a point going to jurisdiction may be raised at any time and the fact that it has not been raised previously is immaterial.
I am satisfied that the question of whether the Land Court has jurisdiction to hear and determine the appeal is properly before the Court. It should be resolved as a preliminary issue in these proceedings and must be resolved by reference to the relevant statutory provisions.
Dr Christie, counsel for the appellants, also relied on section 41(5) of the Land Act 1962 (preserved by section 521 of the Land Act 1994) as providing guidance to the Court in deciding the preliminary issues. That subsection provides, in part:
“Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law –
(a)the Court in the exercise of any jurisdiction, duty, power or function conferred or imposed upon it shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of the other courts; …”.
Some observations should be made at the outset about the scope and operation of section 41(5).
First, it should be noted that section 41(5) operates on the Court “in the exercise of any jurisdiction”. Any jurisdiction which the Court has must be conferred by a statute (see section 37). Subsection 41(5) is not a source of jurisdiction or power. It does not empower the Court to exercise jurisdiction that it does not have even if, in light of what are thought to be the substantial merits of a case, the Court might otherwise be disposed to hear and determine the matter (see Cox v Commissioner of Water Resources (1992) 14 QLCR 304 at 309-310, 311 (LAC)).
Second, section 41(5) operates in relation to the procedure and the decisions of the Land Court. The operation of the subsection in relation to decisions was discussed in detail by the Land Appeal Court in Cox v Commissioner of Water Resources. The following passage from the judgment in that case (citations omitted) is apposite to the present applications.“Whatever flexibility section 41(5)(a) of the Land Act 1962 gives to the Land Court in making its decisions, it is clear that the paragraph does not give the Court power to deal with matters according to some arbitrary concept which is unknown to or unascertainable by the parties. The provisions of the relevant statutes must be observed. The Court cannot ignore or act contrary to statutory requirements or basic principles of natural justice. In that sense, at least, section 41(5)(a) does not empower the Court to depart from established principles of law nor does it give it power to dispense justice otherwise than according to law. … The Land Court is not like a tribunal which is to be ‘guided by equity and good conscience only’ and not to be ‘bound by the strict rules of law or equity in any case’, that is, a tribunal which is ‘exonerated from all rules of law and equity, and all legal forms’. … So, for example, when construing a statute, the Land Court must apply the same rules of construction as a court. A section such as section 41(5)(a) relaxes the rules of evidence which would otherwise govern the Tribunal in the exercise of its function, but it does not enable the Tribunal to give a statute any meaning other than that which a court of law would place upon it.
The degree of flexibility in its decision making is to be determined by reference to the statute under which the matter in issue is to be resolved. The test to be applied, was set out by Olsson J in HG Collett Pty Ltd v Alsop and Alsop ((1982) 49 SAIR 309, at 328) and adopted by Lee J in Taylor v Walter Fashions Pty Ltd (1987) 23 IR 108, at 112) in the following terms:
‘That test is being applied by first asking what is the strict legal situation and secondly posing the subsequent question as to whether, on the totality of the evidence, an application of the concepts of equity, good conscience and the substantial merits of the case demands some variation of or departure from an application of strict legal principles. In some cases equity will demand an adherence to the strict legal position established by the evidence. In other instances equity, good conscience and the substantial merits of the case will compel the Court to a different final conclusion.’” ((1992) 14 QLCR 304 at 320-1).
Bearing in mind those propositions and the factual background to these proceedings, I turn to the issue of whether the Land Court has jurisdiction to hear and determine the appeal.
Jurisdiction
The statutory provisions in relation to an appeal of the type purported to be made in this case are found in sections 51 and 42 of the Water Resources Act 1989. The relevant subsections of section 51 state:
“Appeal to Land Court
51.(1)A dissatisfied person may appeal to the Land Court against a decision of the chief executive with respect to –
(a) an application for –
(i) a licence;
…
(4) An appeal under this section is instituted by filing a notice of appeal in the registry of the Land Court within 30 days after –
…
(b)the day notification of the decision is first published in the newspaper.
(5) The notice of appeal must state the grounds upon which the appellant intends to rely and the appellant is not entitled to raised on the appeal a ground not stated in the notice.
(6) The appellant must, within 14 days after filing it, serve on the chief executive a copy of the notice of appeal.
(7) The Land Court must hear and determine the appeal and may confirm, vary or revoke the decision of the chief executive the subject of the appeal.
…
(9) The burden of proof of a ground stated in the notice of appeal lies on the appellant.
…”
The expression “dissatisfied person” is defined in section 51(13) to mean, to the extent relevant in these proceedings, “a person who, on or before the date specified in a notice under section 42(8), had a right to object, and objected, to an application” (emphasis added).
The definition of “dissatisfied person” and the changes to section 51(1) were inserted by the Natural Resources Legislation Amendment Act 1996, Act 68 of 1996, which was introduced into the Legislative Assembly on 30 October 1996 and was passed on 29 November 1996. It received the Royal Assent on 9 December 1996 and took effect from that date.
To determine whether the appellants were “dissatisfied persons” it is necessary to consider relevant provisions in section 42 and the chronology of events. Section 42(6) provides that, subject to certain exceptional circumstances, the Chief Executive must, upon receipt of an application for a licence, cause notice of the application to be published in a newspaper circulating in the locality in which the land the subject of the application is situated. Section 42(8) states:“The notice must specify –
(a) the place at which;
(b)the time and date, being a date not more than 60 days after the date on which the notice was last published, before which;
objections to the application may be lodged.”
A notice published in the “Western Times” on Thursday 12 December 1996 stated:
DEPARTMENT OF NATURAL RESOURCES
RESOURCE MANAGEMENT
PO BOX 224, CHARLEVILLE Q 4470
WATERWORKS LICENCE
APPLICATION NO. 43994
C D & J A CLIFT ‘YANDARLO’ TAMBO – The abovementioned Waterworks Licence application is for an existing 300ML storage with a 6.5m high by 400m long compacted earth and rock embankment situated on a dry gully on Portion 10V, Parish of Manning County of Nive.
Written objections to the application are to be made to the Chief Executive at the above address. Closing date for written objections from landholders within a radius of 8km upstream and 24km downstream is 19.12.96. Objectors must state their property descrip-
tion, grounds for objection and quote relevant application No.
Enquiries (078) 54 4200
This was, apparently, the only notice published in relation to the Waterworks Licence Application.
It should be noted that subsections (1) and (13) of section 51, as amended on 9 December 1996, were operative on the date on which the notice was published and on the date by which written objections were to be made.
There was no dispute that the “Western Times” is a newspaper circulating in the locality in which the land the subject of the application is situated. The notice specified the place at which, and the date before which objections to the application were to be made. That date was not more than 60 days after the date on which the notice was last published. Although the notice did not specify a time, and although the appellants consider that the objection period was inadequate, no challenge was made to the legal adequacy of the published notice, and the case was argued on the assumption that it complied with the requirements of section 42(8).
Section 42(9) states that, on or before the date specified in the notice, “an owner of land situated as prescribed … may, by signed notice and addressed to the chief executive, object to the granting of the application and submit to the chief executive the grounds of his or her objection”. There was no dispute that the appellants’ land is “situated as prescribed” as that expression is defined in section 42(10), that is, it is within a radius of 8 kilometres upstream or 24 kilometres downstream of the relevant land. It is clear that the appellants did not make their objection to the Chief Executive on or before the date specified in the notice.
In summary, it would appear from the words of section 51 that the Land Court can only hear an appeal against the Chief Executive’s decision with respect to the Waterworks Licence Application if a “dissatisfied person” (as defined in section 51(13)) made the appeal. To obtain the right to appeal the appellants must, on or before 19 December 1996, have had the right to object about the Waterworks Licence Application and must have objected on or before that date. Because they objected after that date, it is apparent that they were not “dissatisfied persons”. It would seem to follow, the Land Court cannot hear their purported appeal.
Dr Christie submitted, however, that the appellants were “persons aggrieved” by the Chief Executive’s decision to grant the licence and hence the Court has jurisdiction to hear and determine their appeal. His submission depends on a reading, favourable to them, of section 51 of the Water Resources Act as it was immediately before it was amended in December 1996, and on the continuing operation of the section in those terms in respect of the appellants’ interests despite the 1996 amendments.
The relevant part of section 51 stated:
“Appeal to the Land Court
51.(1) A person aggrieved by a decision of the chief executive with respect to –
(a) an application for –
(i) a licence;
…
may appeal therefrom to the Land Court.
…
(4) 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.”
Subsections (5)-(7) and (9) were not changed and are as quoted earlier. Subsection (4) was amended in December 1997 to read as quoted earlier.
There was no definition of “person aggrieved” in the Water Resources Act. In the absence of a statutory definition, reference was made to the decision of the Court of Appeal in Stevenson v Wenck [1996] 2 QdR 84, a case involving the interpretation of section 4.26(1) of the Water Resources Act, which was the differently numbered equivalent of section 51(1) just quoted. The Court reviewed the history of English authority on the meaning of “person aggrieved” and quoted from the judgment in Attorney-General of the Gambia v N’jie where it was stated:
“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.” ([1961] AC 617 at 634).
The Court of Appeal also quoted with approval the statement of Viscount Dilhorne in Arsenal Football Club Ltd v Ende that, in the context of the statute which he was considering, there was nothing to warrant “giving to the word ‘aggrieved’ any meaning other than its ordinary natural meaning. To be ‘aggrieved’ a person must be affected by the matter of which he complains” ([1979] AC 1 at 27).
In Stevenson v Wenck the Court of Appeal held that the expression “aggrieved by a decision” should be “given its natural meaning in section 4.26 and not read down so as to confine the right to appeal against a grant of a licence to persons who have duly objected” (at 91).
Dr Christie submitted that the appellants were “persons aggrieved” for the purposes of section 51(1)(a)(i), as judicially interpreted, because of the consequences of the Chief Executive’s decision. Their status flowed from that, not from whether they lodged their written objection within the period specified in the newspaper notice.
There was no suggestion that the appellants are not “persons aggrieved” as that term has been interpreted. Their property is apparently downstream of the embankment. The wall has been increased in height from about 2 or 2.5 metres to about 6.5 metres and the volume of water which can be held behind the embankment has increased considerably. The appellants apparently fear the consequences for their property if there is a breach of the earth wall, and they complain that the dam may affect the quality and quantity of water available to their property.
Mr Paterson submitted that the decision in Stevenson v Wenck was not applicable once section 51 was amended to insert, and define, the expression “dissatisfied person” in place of “person aggrieved”. The test at the relevant date, 19 December 1996, was not whether the appellants were “persons aggrieved” but whether they were “dissatisfied persons”.
Dr Christie submitted, however, that:(a)section 51 should not be read so narrowly; and
(b)if it has that narrow an operation, the appellants’ rights before the amendments to section 51 were protected by the Legislative Standards Act 1992; or
(c)if section 51 has that narrow an operation, the appellants’ rights before the amendments were preserved by section 20 of the Acts Interpretation Act 1954.
I will consider each of the submissions:
Interpretation of section 51: Dr Christie submitted that section 51(1) of the Water Resources Act 1989 should not be read down by reference to section 51(13), because subsection (13) looks at the rights of parties who have objected. Section 51 is broader than that and allows other rights of appeal to the Land Court.
An argument for a broad reading of section 51 in these proceedings is not sustainable in light of the clear wording of the section, as amended in 1996, and its legislative history.
As noted earlier, section 51 creates the right of a “dissatisfied person” to appeal to the Land Court against specified types of decisions by the Chief Executive. Subsection (13) provides the dictionary for subsection (1) (and only subsection (1)) when it states: “In subsection (1) – ‘dissatisfied person’ means -” what is stated in paragraphs (a) to (f). The use of “means” in this context indicates that the Parliament intended the definition to be exhaustive (see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 4th edn, para 6.36; AI MacAdam and TM Smith, Statutes: Rules and Examples, 3rd edn, page 198).
The form of subsection (1) as amended is different from its immediate predecessor. Whereas subsection (1) previously conferred the right to appeal on persons aggrieved by a specified type of decision, subsection (1) now confers the right to appeal only on those who satisfy the criteria set out in a paragraph of subsection (13). The appellants could only appeal to the Land Court if each was:“(e) a person who, on or before the date specified in a notice under section 42(8), had a right to object, and objected, to an application”. (emphasis added).
The appellants did not satisfy both those criteria.
In my opinion, it is clear in its own terms that section 51, as operating at 19 December 1996, limited the right to appeal to persons to whom subsection (13) applied.
If it be thought that the meaning of section 51 is ambiguous or obscure, recourse to extrinsic material leads to the same conclusion (see Acts Interpretation Act 1954 section 14B). The Explanatory Notes relating to the Natural Resources Legislation Amendment Bill 1996 state that the main objectives of the Bill include to “clarify the original intent of section 51 of the Water Resources Act 1989 in relation to appeals”. Later the Explanatory Notes recited the history and intent of section 51 as follows:“The Water Act 1926 which was repealed by the Water Resources Act1989 specified that only applicants and those with a statutory right to object were eligible to appeal a decision to issue a licence. While the provisions concerning appeals were rewritten from the Water Act 1926, it was not intended to provide appeal rights to persons other than applicants and persons entitled to object under the Act.
Section 51 is amended to accord with that intent and will allow a person directly affected by a decision to appeal against a decision as prescribed.
…
The amendment of section 51 of the Water Resources Act 1989 will provide a right of appeal for a person directly affected, a ‘dissatisfied person’, by a decision as prescribed. However, the amendment may limit potential for some third party appeals in respect of those decisions which are appealable.
The term ‘dissatisfied person’ replaces the term ‘person aggrieved’ which was considered by the Court of Appeal in Stevenson v. Wenck and Others (Appeal No. 224 of 1994) and the Court was of the view that the term should be given its natural meaning. The natural meaning went beyond what was intended.”
The second reading speech by the Minister for Natural Resources in relation to the 1996 Bill contains statements to the same effect as those just quoted from the Explanatory Notes.
“The Bill amends section 51(1) and replaces the term ‘person aggrieved’ with ‘dissatisfied person’. That term is defined in the Bill and clearly identifies persons who may appeal the decisions. The term ‘person aggrieved’ was considered by the Court of Appeal in its decision in Stevenson v. Wenck and Others (Appeal No. 224 of 1994) and the court was of the view that the term should be given its natural meaning. The natural meaning of the words gave a meaning not intended by the Water Resources Act 1989.
The new definition of ‘dissatisfied person’ will provide for appeals by persons directly affected by a decision. The term will also provide for a person who purchases property from a person who was entitled to object to an application made under section 42. The amendment puts beyond doubt the persons who may appeal to the Land Court under section 51(1) and (2).” (Legislative Assembly, Debates, 30 October 1996, pages 3661-3662.)
The words of the Act and the extrinsic materials demonstrate that a significant change was made to section 51 in 1996. The intention to overcome the effect of the decision in Stevenson v Wenck was apparent, and that result was achieved. The extrinsic material states that the intention was to provide a right of appeal for a person “directly affected” by the decision. It might be thought that the appellants are such persons. But the words used to achieve that result are clear and those words were in operation at 12 and 19 December 1996.
In conclusion, section 51 of the Water Resources Act 1989, as operating at all material times, provided that the Land Court could hear an appeal against the Chief Executive’s decision with respect to the Waterworks Licence Application if a “dissatisfied person” made the appeal. A dissatisfied person was one who, on or before the date specified in the notice under section 42(8), had a right to object and objected to the Application. As the appellants did not give their objection to the Chief Executive’s representative until after the date specified, they were not dissatisfied persons. Unless there is some legal basis for proceeding despite the wording of section 51 as amended in December 1996, the Land Court lacks jurisdiction to hear and determine the appeal.
Protection of rights by the Legislative Standards Act 1992: Dr Christie sought to rely on section 4 of the Legislative Standards Act 1992 which states, in part:
“Meaning of ‘fundamental legislative principles’
4. (1) For the purposes of this Act, ‘fundamental legislative principles’ are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.
(2) The principles include requiring that legislation has sufficient regard to –
(a) rights and liberties of individuals; and
(b) the institution of Parliament.
(3) Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation –
…
(b) is consistent with principles of natural justice; and
…
(g)does not adversely affect rights and liberties, or impose obligations, retrospectively; …”.
Two issues are raised by the submission – whether the Legislative Standards Act can be used as a tool of statutory interpretation and, if it may be so used, whether section 4(3)(b) and (g) assists the appellants in the way submitted.
Section 4 must be read in context. The definitions of terms in the Act are contained in section 2. Section 3(1) states that the purposes of the Act “include ensuring that –
(a) Queensland legislation is of the highest standard; and(b)an effective and efficient legislative drafting service is provided for Queensland legislation; and
(c)Queensland legislation, and information relating to Queensland legislation, is readily available in both printed and electronic form.”
Section 3(2) states that the purposes of the Act “are primarily to be achieved” by establishing the Office of the Queensland Parliamentary Counsel with specified functions. Sections 5-21 deal with the establishment, staffing, functions and operations of the Office of Parliamentary Counsel and the role of Parliamentary Counsel. Sections 22-25 deal with the requirements for and contents of explanatory notes in relation to Bills and significant subordinate legislation. Sections 26 and 27 concern miscellaneous matters, such as the making of regulations.
The Act sets out steps to be taken in an attempt to ensure that legislation is drafted to accord with the fundamental legislative principles (see sections 7(g) and (h), 9(2), 23(f), 24(1)(i)), but the Act expressly recognises that legislation may be inconsistent with those principles (section 23(f)).
Apart from section 4, there is nothing in the Legislative Standards Act which suggests that the Act can provide any assistance in the interpretation of other legislation. Section 4 may be read as doing no more than providing guidance to Ministers, Members of the Legislative Assembly, government entities and Parliamentary Counsel about what have been identified as fundamental legislative principles so that each can perform the appropriate function in an informed manner. In other words, the Act provides some guidance as to how legislation should be framed but provides no direct guidance as to how legislation, once enacted, is to be interpreted.
Support for that analysis is found in the second reading speech on the Bill delivered by the responsible Minister, the then Premier, who said:
“Secondly, the Bill sets out a list of fundamental legislative principles which should be observed in drafting legislation. The Office of Parliamentary Counsel is required to advise its clients on these principles. … Providing a statutory basis for fundamental legislative principles is a significant step in the preservation and enhancement of individual rights and liberties. … These principles … are widely recognised in all democratic societies. Honourable members should note, however, that these principles are not absolute because in Westminster jurisdictions, these are governed, for example, by parliamentary convention, common law rules and presumptions, evolving doctrines associated with the field of administrative law, and international conventions and treaties on human rights. As EARC noted, there may be circumstances where public interest requires that a principle be displaced. … However, the decision to displace one of these principles is a policy decision properly to be taken by the Government and ultimately by Parliament, and it is their responsibility to bear criticism for disregarding them.” (Legislative Assembly, Debates, 6 May 1992, page 5008).
No authorities were cited, and I have not found any, to support the proposition that the Legislative Standards Act is to be used in the interpretation of other legislation, and I have not gleaned such a use from the terms or scheme of the Act.
Even if section 4 can be invoked in these proceedings for statutory interpretation purposes, it is difficult to see how it assists the appellants. Dr Christie submitted that section 4 exists to ensure that people’s rights and liberties are not reduced or lost by legislation. The argument seems to be that section 51 of the Water Resources Act (as amended in 1996) is inconsistent with principles of natural justice, or adversely and retrospectively affects rights and liberties.
Section 51, rather than adversely affecting rights, creates legal rights. In the absence of the right of appeal created by section 51 there would be no equivalent statutory right. Any right to have the Chief Executive’s decision judicially reviewed would have to be found elsewhere, perhaps under the Judicial Review Act 1991. Section 51 is not inconsistent with the principles of natural justice. It creates a right to be heard in relation to appeals against decisions of the Chief Executive whilst specifying who can exercise that right.
Dr Christie submitted that, before the 1996 amendments, the appellants, as “persons aggrieved”, had a legal right to be heard under section 51(1)(a). Any removal of that right, particularly the right to appeal, would be contrary to the fundamental legislative principle contained in section 4(3)(g) of the Legislative Standards Act.The submission reads far too much into the potential legal effect of the Legislative Standards Act. That statute is not a Bill of Rights on which litigants can rely to resolve justiciable issues. It has the limited operation already described. Further, the legislative principles which are described as “fundamental” are not exhaustively stated nor are they expressed in absolute terms. Indeed the aspiration of the Legislature in enacting the Act was to ensure that, ordinarily speaking, legislation has “sufficient regard to … rights and liberties of individuals”. What is sufficient is a question for the Parliament, guided by the examples listed in section 4(3).
The amendments to section 51 were intended to limit the categories of people who could appeal against the decisions of the Chief Executive. They may be seen as illustrating the proposition that what the Parliament may enact it can also amend or repeal (see for example Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 729 per Brennan CJ and McHugh J, 737 per Gaudron J, 738 per Gummow and Hayne JJ, 750 per Kirby J).
In summary, the Legislative Standards Act 1992 does not assist in the interpretation of section 51 of the Water Resources Act 1989. Furthermore, if a “person aggrieved” had a right to appeal under section 51 immediately prior to the amendment of that section, and if that person lost the right because the person was not a “dissatisfied person” for the purposes of section 51 from 9 December 1996, that right was not protected by the Legislative Standards Act.
In this case, the issue is whether the appellants had any rights at the date on which the amendments to section 51 commenced to operate. That issue is central to dealing with the remaining submission made on behalf of the appellants.
Protection of rights by the Acts Interpretation Act 1954: Dr Christie submitted that section 20(1)(b), (c) and (e) of the Acts Interpretation Act 1954 operates to preserve the appellants’ rights as “persons aggrieved” under the Water Resources Act before that Act was amended in 1996.
Those parts of the paragraphs said to be relevant to these proceedings state:
“20. (1) The … amendment of an Act or a provision of an Act does not –
…
(b)affect the previous operation of the Act or provision or anything suffered, done or begun under the Act or provision; or
(c) affect a right … acquired … under the Act or provision; or
…
(e) affect an investigation, proceeding or remedy in relation to a right … mentioned in paragraph (c) …”.
(That section was amended by Act No 58 of 1995 and was subsequently renumbered: see Reprint No 10. The provisions quoted are now, in essence, contained in section 20(2)(b), (c) and (e). For present purposes nothing turns on the amendments and it is convenient to retain the numbering to which Dr Christie referred.)
In support of the appellants’ submission, reference was made to a passage in the judgment of de Jersey J (as he then was) in McLean v James Cook University of North Queensland [1994] 1 QdR 399. That case concerned, among other things, which set of Exclusion Rules applied to a student who was excluded from a course at the University. The rules were of a procedural character and the process of exclusion was begun under the old rules. Decisions to exclude were made under the new rules. It was submitted, in reliance on section 20(1) of the Acts Interpretation Act, that the student was entitled to have the exclusion dealt with under the old rules which were in operation when the process was begun. Particular reference was made to section 20(1)(c). His Honour did not need to make a final decision on the point but suggested “it may be that one should look at this word ‘right’ a little more broadly and include within its purview the right to be dealt with in accordance with the rules under which the process was begun” (at 401). He cited Esber v The Commonwealth ((1992) 174 CLR 430 at 440-1), and said that the decision in that case “does strengthen me in the view that the word ‘right’ should be construed in that broad way for the purposes of s. 20(1)(c) and (e) of the Act” (at 401).
As will become apparent, the facts in that case are distinguishable from the circumstances in this case. If, however, that interpretation of section 20(1) is adopted in the present case, the question becomes what right, acquired under the Water Resources Act before the 9 December 1996 amendments, was affected by the amendments.
As I understand it, the thrust of Dr Christie’s submission was that the appellants had a legitimate or reasonable expectation that if an inquiry was made into a range of matters (as it was on 16 September 1996), and if those matters were then also subject to advertisement and objection, the appellants would have the right to object to the grant of the Waterworks Licence Application and to appeal against the Chief Executive’s decision.
In my opinion, the resolution of the issue is not that straightforward. The paragraphs from the Acts Interpretation Act quoted earlier refer to statutory rights and related things. Unless the amendment of section 51 affected anything “done or begun under” the Water Resources Act, or “a right acquired … under the Act” or “an investigation, proceeding or remedy in relation to” such a right, the appellants’ argument must fail.
The first right that the appellants acquired under the Water Resources Act was the right to object to the Waterworks Licence Application. Section 42(13) of the Act provides that a “right under this section to lodge an objection does not arise unless the application for a licence is one that is required to be advertised in accordance with subsection (6) and has been so advertised” (emphasis added). Thus, the right to object was not acquired when the Waterworks Licence Application was made on 14 November 1996. The existence of the right and the duration of its exercise were dependent on the notice published in a newspaper in accordance with section 42(6) and (8). The Chief Executive was obliged “upon receipt” of the Waterworks Licence Application to “cause” notice of it to be published. As noted earlier, it seems that DNR took reasonably prompt steps upon receipt of the application to cause the notice to be published. No reason for the delay in publication was given. Whatever the reason, the notice was published on 12 December 1996. The right to object arose on that date and had to be exercised on or before the date specified in the notice.
Between 14 November and 12 December 1996, the law relating to the right to object was unchanged, but the law relating to the right to appeal was amended. Between 14 November and 9 December 1996, sections 42 and 51 provided separate rights, namely:
(a)the right to object between the date when an application for a licence was advertised and the date specified in the notice; and
(b)the right of persons aggrieved by a decision of the Chief Executive with respect to the application to appeal from that decision to the Land Court.
The two rights were not linked. One person may exercise either or both, but it was not necessary to have objected to the Waterworks Licence Application in order to acquire the right to appeal.
The situation changed on 9 December 1996. Between then and 19 December 1996 the right to object continued, but the right to appeal depended on having had the right to object and having objected. What were previously separate rights became linked so that, although a person could exercise the former without exercising the latter, it was not possible to exercise the latter unless the former had been exercised by the date specified in the notice.
Consequently, it may be thought that on 9 December 1996 the appellants lost the separate right to appeal unless they exercised their right to object on or before 19 December. But neither right existed as at 9 December. The right to object arose on 12 December 1996, and the right to appeal arose when the Chief Executive made a decision in relation to the Waterworks Licence Application, in about November 1997. Any inquiry by the Chief Executive under section 43 had to take place, irrespective of any objection. Thus the amendments did not affect “anything … done or begun under the Act”, or “a right … acquired … under the Act”, by the appellants. Consequently, the amendment to section 51 cannot be characterised as having affected an investigation, proceeding or remedy in relation to such a right.
In summary, the appellants had no right to object to the Waterworks Licence Application until after section 51 was amended, and could not have objected to the Chief Executive’s decision about the Application before that date. Accordingly I must reject the argument that the appellant’s rights as persons aggrieved were preserved by the operation of section 20 of the Acts Interpretation Act despite the 1996 amendments to the Water Resources Act.
Concluding comments on jurisdiction: The Land Court has consistently taken a strict approach to jurisdictional questions. For the reasons given, I can see no legally convincing reason for concluding that the Land Court has jurisdiction to hear and determine the appellants’ appeal. Although the appellants are critical of the way in which the matter was handled by DNR in November and December 1996, section 41(5) of the Land Act 1962, as discussed earlier in these reasons, does not empower the Court to decide that it has jurisdiction.
There were suggestions that, even if the Court ruled in favour of the appellants in relation to the lodgment of their objection, there was an issue about whether their notice of appeal had been filed in the registry of the Land Court by the relevant date. That matter was not pursued and, in light of my conclusion about the effect of the late lodgment of the objection, it is not necessary to make a finding about it.
The application to amend the notice of appeal
Because of the conclusion that the Land Court lacks jurisdiction to hear and determine the appellants’ appeal, it is not necessary to decide whether to grant their application to, among other things, amend the grounds of appeal. I will, however, make some observations about the formal requirements in respect of the application.
Rule 21 of the Land Court Rules states:
“Not less than seven days’ notice of any application under the last preceding Rule shall be given to the Registrar and to the other parties concerned, and the grounds on which the application is based shall be stated in such notice, and shall be supported by affidavit.”
The application did not comply with Rule 21 in two significant respects. First, notice of the application was dated 12 November 1998 and was received by the representative of the Chief Executive on Friday 13 November 1998. The matter was listed for hearing by the Land Court on the morning of Monday 16 November 1998. Second, the notice was not accompanied by an affidavit.
The Land Appeal Court seems to have accepted that, in certain circumstances, the fact that notice was given to a party six clear days before the matter came before the Land Court may not be fatal (Sargent v Powerlink and SEQEB, A96-56, unreported decision dated 1 August 1997). In this case, however, notice was given fewer days in advance of the matter coming before the Court and without an affidavit. I am satisfied that, because of those two defects in relation to the application, the application would have been set aside as irregular.
Rule 31 would not have saved the application at that point. The Rule provides:
“Non-compliance with any of these Rules shall not render any proceedings void unless the Land Court or the Land Appeal Court, as the case may be, so directs; but such proceedings may be set aside either wholly or in part as irregular, or amended or otherwise dealt with in such manner and upon such terms as the Land Court or Land Appeal Court, as the case may be, may think fit.”
If the Court had jurisdiction to hear and determine the appeal it could have given directions about the future conduct of the proceedings. Had the appellants wished to proceed, they may have considered making a fresh application in a form which complied with the requirements of Rule 21. They would have been able to reconsider the contents of the application in light of the submissions made by Mr Paterson about each of the matters raised by the application.
As it is not necessary, and of no practical benefit, to consider the matter further, I will not do so.
Order
The appeal is struck out for want of jurisdiction.
GJ NEATE
MEMBER
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