The State v Pajares

[2004] QLAC 7

LAND APPEAL COURT OF QUEENSLAND

CITATION:

The State v Pajares  [2004] QLAC 0007

PARTIES:

The State
(applicant)

v.

Luis James Pajares
(respondent)

FILE NOS:

LAC2003/0472 and LAC2003/0473

DIVISION:

Land Appeal Court

PROCEEDING:

Application for Dismissal of Appeals

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

13 February 2004

DELIVERED AT:

Brisbane

HEARD BY:

Written Submissions

JUDGE:
MEMBERS:

Jones J
Mr RE Wenck
Mr RP Scott

ORDERS:

1.        The application is dismissed.

2. The applicant is to pay the respondent's costs of this application such costs to be decided by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court pursuant to s.34(5) of the Land Court Act 2000.

CATCHWORDS:

To be inserted

APPEARANCES:

Mr DR Gore QC with him Mr RS Jones for the applicant
Mr C Hughes SC with him Mr RM Needham for the respondent

SOLICITORS:

Crown Solicitor, Crown Law for the applicant
Suthers Taylor for the respondent

REASONS OF JUSTICE JONES AND MR RP SCOTT

1. By this application the State of Queensland (hereinafter "the applicant") challenges the validity of the notices of appeal filed by the respondent. The respondent seeks to appeal against decisions of the Land Court pursuant to s 64 of the Land Court Act 2000 (hereinafter "the Act"). The applicant seeks the dismissal of the appeals on the ground that they were not instituted in accordance with s 65 of the Act. That section relevantly provides:-

   "Notice of appeal
   65.(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 the decision on –
   all other parties to the proceeding on which the decision was made; and
   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."

1. The Land Court decisions in question were given to the parties on 23 June 2003.  It is common ground that the 42 days within which the appeal had to be commenced expired on 4 August 2003.  On that day the Notices of Appeal were  "served" on the Registrar of the Land Appeal Court at approximately 9.15 am.  The service of those Notices attracted the payment of an appropriate fee as required by Regulation 3 of the Land Court Regulations 2000.  In other words, the service on the registrar is akin to the filing of the document.

2. At approximately 6.40 pm on 4 August 2003 the Notices of Appeal were forwarded by facsimile transmission to the office of the applicant. No issue is taken that the mode of service was by facsimile but the applicant contends that for service to have been effective the transmission had to be completed before 4.00 pm on that day. In this contention the applicant relies upon the provisions of r 103 of Uniform Civil Procedure Rules (UCPR) which states:-

   "If a document is served on a person after 4.00 pm., the document is taken to have been served on the next day."

3. The UCPR, where appropriate, has application to proceedings in the Land Court and Land Appeal Court by virtue of r 4(1) of Land Court Rules 2000 which is in the following terms:-

   "If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the 'uniform rules') would provide for the matter, the uniform rules apply in relation to the matter with necessary changes."

4. The respondent/appellant argues that r 103 does not (and cannot) operate to qualify or limit the provisions of ss.64 and 65 of the Land Court Act.  The principle relied upon is that subordinate legislation cannot vary statutory provisions.  This principle is described by Kirby P (as he then was) in State of New South Wales v The Macquarie Bank Ltd[1] in the following terms:-

   "6. The normal purpose of subordinate legislation such as regulations, is to give effect to the provisions of the parent statute.  It is not a normal purpose to afford a power to vary statutory provisions so as to authorise the departure from those provisions…Regulations are conventionally subsidiary to the statute.  They are typically designed to carry into effect the expressed intention of the legislature in ways incidental to the execution of the statute itself…

   7. Where a statute specifically deals with a particular subject matter and makes the exercise of a power subject to conditions or limitations, it normally thereby excludes the use of general provisions to make regulations which would avoid those conditions or subvert the operation of the statutory limitations …These rules are variants of the general principle that subordinate legislation may not be made which is repugnant to a provision of the statute under which it is made or to fundamental principles of the general law."

   [1](1992) 30 NSWLR 307 at 320/1

5. Not only are the UCPR subordinate legislation but their application to the provisions of the Land Court Act arises only when there is a procedural gap in the Land Court Rules.

6. The plain meaning of s 65 of the Act in conjunction with s 38 of the Acts Interpretation Act 1954 suggests that the terms of the section will be complied if service occurs before midnight on a relevant day. That is reinforced by the meaning of "midnight" provided in s.36 of that Act and by Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 441 and 452. The question is whether r 103 of the UCPR can limit the time to 4.00 pm on that day.  This involves a consideration of the status and the applicability of such a rule, which is procedural only.

7. Section 64 of the Act confers a right on the party to institute an appeal against the decision of the Land Court. It is a substantive right. Section 65 sets out the requirements for such an appeal – service within the stated time on the Registrar and on the collective opposite parties. Service on the Registrar, which, as we have mentioned, requires the payment of a prescribed fee, would be effected only if the registry was open for business, be that between the prescribed hours of 9.00 am and 5.00 pm or such other time as may be arranged. The order in which the parties or the Registrar are to be served does not seem to matter but it is necessary for both to be served within the stated time. Unless this is done the Land Appeal Court would not, in our view, have jurisdiction. There is no provision in the Act for extending the time within which an appeal may be instituted.

8. In O'Sullivanv Young[2] the Full Court of Queensland considered whether r 16 of the Local Government Court rules made pursuant to s 33 of the Local Government Act, had the effect of limiting a right of appeal granted by s 22 of the City of Brisbane Town Planning Act.  The majority (Hoare and W B Campbell JJ) held that such rules could not enlarge or restrict the time within which an appeal should be instituted.  At p 49-50, W B Campbell J said:-

   "I agree with the view expressed by Hoare J and his reasons for so holding, that the word 'instituted' in s 22(3) means 'commenced' or 'initiated'.  The Act itself says nothing about the need for the appeal to be instituted by a written notice, or about the terms of such notice or the time within which it should be served on a respondent.  I consider that the rule maker may properly deal with such matters and prescribe the method by which an appeal should be instituted under the powers given by s 33, but any rule which purported to enlarge or restrict the time within which an appeal should be instituted would be, to that extent, contrary to the Act and invalid." (our emphasis)

   [2](1972) QdR 39

9. The terms of s 65 provide strictly the manner in which the appeal is instituted and the time within which it is instituted.  Recourse to the rules is not available to vary those statutory requirements in accordance with ordinary principles. 

10. The statutory provisions thus expressed are similar to those under the Corporations Act 2000 for the setting aside, pursuant to s 459G, of a statutory demand. In David Grant and Co Pty Limited v Westpac Banking Corporation[3]. Gummow J (with whom other members of the Court agreed) had to determine whether a general provision in the Act permitting extension of time had application to the specific provisions of s 459G. He first cited a passage from the joint judgment of Gavin Duffy CJ and Dixon J in Anthony Hordon & Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia[4] to the effect:-

    "When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise be relied upon for the same power."

He then went on (at p 278) after discussing the scheme and purpose of Part 5.4 of the Corporations Act to determine that the general provisions did not "confer a power to extend the period within which the application may be made under s 459G".

[3](1994-5) 184 CLR 265

[4](1932) 47 CLR 1 at 7

1. In submissions before us the parties have referred to two first instance decisions in the Supreme Court of Queensland in which it was argued that r 103 of UCPR had the effect of requiring the application to set aside a statutory demand to be filed and served before 4.00 pm on the relevant day.  In the first of these, Koppens Investments Pty Ltd vKern Consulting Group Pty Ltd[5] Dutney J held that the "rules of court cannot apply to affect a substantive right created by statute which is to bring an application within a certain number of days specified in the statute".  In the second, Parkland Blue Metal Pty Ltd v Kowari Motors Pty Ltd[6], Helman J held that time for service was limited by r 103. From a perusal of his carefully worded reasons, it appears that no issue was taken as to the applicability of r 103 to the calculation of time nor was there any reference to the earlier decision of Dutney J. There was an issue about the mode of service and its effectiveness being by way of facsimile transmission. The parties appear to have proceeded on the basis that r 103 did apply.

   [5](2001) QSC 184

   [6](2003) QSC 98

2. Neither decision provides binding authority to this court, though from what we have already said the decision in Koppens is consistent with general principle referred to in David Grant and Co.  If general provisions of the same enactment did not allow an extension of time, subordinate legislation which simply imported procedural matters would not be seen to do so. 

3. Reference is made also to the Court of Appeal decision In Re Northbuild Construction Pty Ltd[7] where Thomas JA in dissent made reference to a well established general rule that regulations may not be used to determine the proper construction of a principal act.[8]  The basis of the decision of the majority (Davies JA and Wilson J) was not in conflict with that general proposition.  Their recourse to the regulation was for the purpose of the definition of "building work" and the exclusion from the ambit of that definition provided by clause 3A(1)(g) of the relevant regulations.  The decision of the majority does not, in any way, give support for the proposition that subordinate legislation can be relied upon to enlarge or to restrict a statutory provision.

   [7](2000) 2 QdR 600

   [8]Ibid at p 611 para 24; see also the Great Fingall Consolidated Limited v Sheehan (1905) 3 CLR 176

4. The applicant raises an alternative argument by reference to s 4 of the Acts Interpretation Act which states that the application of that Act may be displaced, wholly or partly, by a contrary intention appearing in any Act. The argument then continues that the Land Court rules are treated as part of the Land Court Act and the adoption by those rules of the provisions of UCPR where appropriate reveals an intention to limit the time for service of the Notice of Appeal pursuant to s 65 of the Act to 4.00 pm.

5. We do not accept that any such intention can be inferred from those provisions.  The logical consequence of that argument would be the importation of other parts of the rules which might conceivably allow an extension of time which on the construction we adopt is not available.

6. In our view the clear principle that subordinate legislation cannot vary the statutory provisions applies here. On the ordinary principles of construction, aided by s 38 of the Acts Interpretation Act, the respondent was entitled to serve the Notice of Appeal on the other party at any time until midnight on 4 August 2003. 

7. In our view the appeal was properly instituted and the application should be dismissed with costs.

JONES J

JUSTICE OF THE SUPREME COURT

RP SCOTT

MEMBER OF THE LAND COURT

REASONS OF MR RE WENCK

1. I have had the benefit of reading the reasons of Jones J and Mr Scott.  The facts have been fully explained therein.

2. Section 38(1)(b) of the Acts Interpretation Act 1954 provides for the reckoning of the day on which serving of the notices of appeal was to be effected.  That day was 4 August 2003.

3. There is no dispute between the parties that, in common law, a "day" ends at midnight. In s.36 of the Acts Interpretation Act - "in relation to a particular day", midnight "means the point of time at which the day ends".

4. It is argued by the applicant that Rule 103 of the Uniform Civil Procedure Rules 1999 abrogates the common law rule. Rule 103 provides that if a document is served on a person after 4.00 p.m., the document is taken to have been served on the next day. It follows in the applicant's argument that as the notices were served by facsimile after 4.00 p.m. on 4 August 2003 they were not served until 5 August 2003 and therefore out of time.

5. The Land Court Rules 2000 are a statutory instrument having been made under the power conferred by the Land Court Act 2000.  Section 21(3) provides that the procedures of the Court are governed by the Rules.

6. Section 4 of the Acts Interpretation Act provides that that Act's application may be displaced, wholly or partly by a contrary intention appearing in any Act.

7. The Land Court Act provides that the relevant notices of appeal were to be served "within 42 days".  There is no provision in the Act for "the point of time" on the final day by which the notices were to be served.  It is contended by the respondent/appellant that the clear and unambiguous meaning of the time within which the notices were to be served was midnight on 4 August 2003.  That contention is supported by reference to the Acts Interpretation Act (and the definition therein of midnight).  The applicant argues that the intention of the statute is revealed by the Land Court Rules through importation of Rule 103 of the UCPR and the time of midnight is contrary to the intention as indicated in Rule 103.

8. It is my view that 4.00 p.m. was intended, by reference to the Rules, to displace midnight as the point of time at which the period of 42 days expired in terms of s.65 of the Land Court Act.

9. I do not accept however that the argument ends there.  Although the Court received no submissions in this regard and it is unnecessary in the circumstances relating to the reasons for the decision of the majority, for the parties to be provided with that opportunity, the provisions of Rule 6 of the Land Court Rules are considered to be relevant.  That rule deals with compliance with the Rules and provides:

   "The court may waive compliance with a rule, or excuse non-compliance with a rule, if the court considers compliance would be likely to cause injustice or unreasonable expense or inconvenience."

10. The period of days within which the notices were to be served cannot be extended.  However, in the particular circumstances of this matter it is my view that extension of the "point of time" on the final day of the statutory period by which the notices of appeal were to be served on the applicant was a discretion open to the Court and one which, in my opinion, should be exercised.

11. The effect of the exercise of that discretion would be that the application be dismissed with costs.

RE WENCK

MEMBER OF THE LAND COURT