Valerie Punch & Ors (Yulluna People)/Queensland/Krucible Metals Limited
[2011] NNTTA 187
•20 October 2011
NATIONAL NATIVE TITLE TRIBUNAL
Valerie Punch & Ors (Yulluna People)/Queensland/Krucible Metals Limited, [2011] NNTTA 187 (20 October 2011)
Application No: QO11/145
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Valerie Punch, Brian Sullivan, Hazel Sullivan, Stan Sullivan and Allan Naumann on behalf of the Yulluna People
(native title party)
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The State of Queensland (government party)
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Krucible Metals Limited (grantee party)
DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date of dismissal: 18 October 2011
Date of reasons: 20 October 2011
Catchwords: Native title – future act – proposed grant of exploration permit – expedited procedure objection application – definition of “lodge” – application not lodged within four months - non-compliant documentation – expedited procedure objection application not accepted.
Legislation:Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 28, 29, 32, 76, 77
Electronic Transaction Act 1999 (Cth) s 14A
Cases:Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477
Gordon & Ors on behalf of Kariyarra & Ors/Western Australia/ Young & Ors [2008] NNTTA 135 (3 October 2008)
Francis v City of Ringwood (1978) 54 LGRA 323
Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468
Neowarra v Western Australia (2004) 189 FLR 249
Northern Territory v Ward (2001) 167 FLR 398
Re Kent and Repatriation Commission (2009) 107 ALD 157
Re Kiss and Repatriation Commission (1995) 38 ALD 443
St Regis – ACI Pty Ltd and Assistant Registrar of Trade Marks [1977] AATA 6 (16 May 1977)
REASONS FOR DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION
On 13 May 2011 the State of Queensland (“government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) (‘the Act”) of its intention to grant, inter alia, Exploration Permit for Mineral, EPM 18105, to Krucible Metals Limited (“grantee party”) and included a statement, pursuant to s. 29(7), that it considered that the proposed future act attracted the expedited procedure. Pursuant to s. 29(4), 8 June 2011 was specified as the notification day.
Section 32 of the Act deals with proposed future acts where the government party asserts the expedited procedure. Subsection 32(3) provides that a native title party may, within a period of four months after the notification day, lodge an objection with the National Native Title Tribunal (“the Tribunal”) against the inclusion of the statement.
If the native title parties do not lodge an objection with the Tribunal in accordance with s. 32(3), the government party may do the act.
An expedited procedure objection application must, pursuant to s. 76, be in the prescribed form, be given to the Native Title Registrar, contain the prescribed information and be accompanied by the prescribed documents and fee. If the application complies with the requirements of s. 76, the Tribunal must accept the application – s. 77.
The Acts Interpretation Act 1901 (Cth) provides that where, in reckoning any period of time specified in a Commonwealth Act, the last day of the period prescribed or allowed falls on a Saturday or Sunday, the thing may be done on the next working day – s. 36(2). Accordingly, the four month period for lodging an expedited procedure objection application concluded on Monday 10 October 2011.
[6] The proposed tenement overlaps the Yulluna People native title determination application. This application was accepted for registration and entered on the Register of Native Title Claims on 16 July 2010.
At 11.47 am on Tuesday 11 October 2011, Ms. Theresa Joyce of p & e Law, the legal representatives of the Yulluna People, emailed Ms. Nathalie Mlynarik of the Tribunal as follows:
“I have tried sending our objection to EPM 18105 since yesterday afternoon. I just received the notification that it has been received. I am concerned that the objection may not be accepted due to a syncing issue. Can you please advise if there are any problems at your end?”
Ms. Mlynarik responded at 1.04 pm on that day, informing Ms. Joyce that her query had been forwarded to the Tribunal’s IT section to ascertain if there had been a problem in receiving the email attaching the expedited procedure objection application. At 1.43 pm Ms. Joyce responded to Ms. Mlynarik in the following terms:
“It appears my computer is not recording date and time accurately and there are issues with my outlook. This appears to have occurred over our systems over the last few days.
On review of my email log, even though I have a receipt date and time of yesterday afternoon, it appears that my email and documents were not sent until late this morning.
My apologies for this.”
At 9.55 am on 12 October 2011 Ms. Mlynarik emailed Ms. Joyce asking if she was able to send a copy of the email log showing when the email was sent or any other information that would support having lodged the expedited procedure objection within time, and indicating that the matter would be brought to my attention.
[10] Ms. Joyce responded on the same day stating that her computer system was “problematic” and that she “did not have supporting evidence”. She concluded: “please provide DP Sosso information and request he make a discretionary decision as to whether to accept the objection.”
[11] The Tribunal received on 11 October 2011 the Form 4 expedited procedure objection application lodged on behalf of the native title party and an accompanying letter from Ms. Joyce which was dated 10 October 2011.
[12] Mr. Coley of the Tribunal’s IT section provided an analysis on 11 October 2011 of the email message from Ms. Joyce “Form 4 Objection EPM 18105 Krucible Metals Limited and Yulluna People” and concluded that it appeared the email was received by the Tribunal in Brisbane at 11.37:56 Brisbane time on 11 October 2011.
[13] The issue in this matter is whether it is open to accept the expedited procedure objection application pursuant to s. 77. In Northern Territory v Ward (2001) 167 FLR 398 the Tribunal determined (406-407/[25]): “as a matter of statutory interpretation, when s 77 refers to the Tribunal accepting expedited procedure objection applications, it is referring to the member presiding over that inquiry. It is not a reference to the registrar or staff of the Tribunal...” I was appointed on 14 October 2011 as the Member to conduct this expedited procedure objection inquiry.
[14] The Tribunal in Neowarra v Western Australia (2004) 189 FLR 249 considered what constituted lodgment of an expedited procedure objection application as required by s. 32(3). In that matter, Deputy President Sumner referred to the decision of the Full Federal Court in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477. Northrop J gave the following interpretation to the word “lodge” in the relevant provision in the Administrative Appeals Tribunal Act 1975 (Cth) (at 489):
“Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the Registry. Thus, if an application is posted but not delivered to a Registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the Registry. Similarly, a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.”
[15] In Neowarra the concluding day for lodging an expedited procedure objection application was 10 July 2004. By letter dated 25 June 2004 the native title party made an expedited procedure objection application. The application was not received and opened by the Tribunal until 22 July 2004. The native title party contended that as application had been posted on or around 25 June 2004, this satisfied the time requirements of s. 32(3).
[16] Deputy President Sumner determined that for an expedited procedure objection application to be “lodged” pursuant to s. 32(3), it must be physically accepted by a Tribunal officer, and that it will not have been validly lodged if it is posted but not received by the Tribunal. In that matter, Deputy President Sumner determined that the application was not lodged until 22 July 2004 when it had been received and processed.
[17] In addition, Deputy President Sumner determined that there is no discretion to extend the time in which an expedited procedure objection application can be lodged pursuant to s. 32(3). He made the following observation (254/[19]):
“The next issue is whether there is any discretion in the tribunal to extend the time within which an objection application can be lodged. There is nothing in the Act, regulations or procedures of the tribunal to suggest any such power…Unlike a Court of record there can be no argument that the tribunal has an inherent power to exercise its discretion in this way and even if it did have, it could not dos o if it contravened the terms of a statute...”
[18] The requirement that there be some form of physical acceptance to constitute lodgment of a document has been endorsed on numerous occasions by Courts and Tribunals. Although there have been some suggestions that a “control” rather than a “physical acceptance” test should be adopted (see Re Kiss and Repatriation Commission (1995) 38 ALD 443), the very clear weight of judicial authority focuses attention on the actual receipt of a document in the relevant registry. For example, the Full Federal Court (Burchett, Lehane and Finkelstein JJ) in Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 specifically quoted and endorsed the above quotation of Northrop J and said (471):
“an application to review will be “lodged” when it comes into the possession of a registry or the staff of a registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the registry the application will be in possession of the registry when the transmission is complete…”
The same conclusion was reached by the Supreme Court of Victoria in Francis v City of Ringwood (1978) 54 LGRA 323. McInerney J said (at 327):
“I am unable to take the view that the word ‘lodging’, which in my view is correctly defined in the judgment of the appeals tribunal, is to be regarded as satisfied when a letter is placed in the post addressed to the registrar with the consequence that the document would be deemed to have been lodged with the registrar, although it never arrived and never was received by him into his physical custody. In my view, a document is lodged when it comes into the hand of the registrar or his staff when it is received in the registry.
[19] The conclusion reached by Deputy President Sumner, that mere posting of a document does not constitute its lodging, was independently reached recently by the Administrative Appeals Tribunal – Re Kent and Repatriation Commission (2009) 107 ALD 157 at 160.
[20] The other conclusion of Deputy President Sumner, that the Tribunal does not have any inherent discretion to extend time for the lodgment of an application, is also consistent with judicial authority. When the Administrative Appeals Tribunal Act 1975 was first enacted there was no provision enabling that Tribunal to extend time within which an application for review could be lodged. Provisions allowing an extension of time to apply were only inserted in 1977. In the interim the question arose whether the AAT had an inherent discretion to extend time for lodgment. This was answered in the negative by Brennan J in St Regis – ACI Pty Ltd and Assistant Registrar of Trade Marks [1977] AATA 6. His Honour said:
“the mandatory language of sub-section 29(1) appears to require compliance with its terms if the jurisdiction of the Tribunal is to be invoked. If the prescribed time can be exceeded and yet the jurisdiction of the Tribunal arises what effect can be attributed to paragraph 29(1)(c)? To suggest that a small excess may be disregarded as de minimis denies the operation of the statutory phrase ‘within the prescribed period’ and attributes to the Tribunal a discretionary power to extend time. The Tribunal has no power under the existing legislation, to extend time or to determine the extent to which the prescribed time may be exceeded without loss of the Tribunal’s jurisdiction.”
[21] There is, however, one difference, between the above cases and the matter currently before the Tribunal. The above cases mostly concerned the lodgment of documents by post. In 2008 the Tribunal formalised electronic lodgment of expedited procedure objection applications. The Tribunal’s electronic lodgment system allows for the receipt of applications until midnight of the closing day. Upon receipt by the Tribunal, an automatically generated receipt is forwarded to the lodger in the following terms: “Your application has been received. If the application is accepted all parties will be notified within 21 days.”
[22] Of relevance in this regard are the provisions of the Electronic Transmissions Act 1999 (Cth), which statute is aimed at enabling individuals and organisations to use electronic transactions in the course of satisfying their legal obligations. This statute was extensively amended in 2011 to allow Australia to accede to the United Nations Convention on the Use of Electronic Communications in International Contracts. Section 14 of the 1999 Act was repealed and replaced with more specific provisions dealing with time of dispatch (s. 14), time of receipt (s. 14A) and place of dispatch and receipt (s. 14B). Section 14A provides as follows:
“(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been retrieved under section 14B.”
[23] Prior to these amendments, the default rule was the time of receipt of an electronic communication was when it came to the attention of the addressee – s. 14(3). This provision was considered by Deputy President Sumner in Gordon & Ors on behalf of Kariyarra & Ors/Western Australia/Young & Ors [2008] NNTTA 135. However, under the new provision, time of receipt of an electronic communication is the time when it becomes capable of being retrieved by the addressee at the addressee’s designated address. In short, electronic lodgment of a Form 4 is effected, pursuant to s. 14A, when the email message sent to the Tribunal is capable of being retrieved by the Tribunal, and not when it actually comes to the attention of the Tribunal.
[24] It would appear that the new s. 14A liberalises the law somewhat. The authorities previously cited are not displaced by the new provision, in that lodgment still requires that the Form 4 be physically received by the Tribunal. However, a new standard of diligence is imposed on the receiver (the Tribunal) of the information. In almost all instances this should be an academic issue. Unlike domestic situations where consumers may not regularly physically check their emails, the Tribunal has a much more sophisticated information technology system which automatically generates receipts.
[25] Accordingly, the law governing the lodgment of expedited procedure objection applications can be stated as follows. The obligation for lodging, pursuant to s. 32(3), an expedited procedure objection application, lies with the objector. The application is lodged with the Tribunal when it is physically received. If the application is sent by post or electronically prior to the closing date, and for whatever reason, the mail is not received by the Tribunal until after the closing date, then the application is lodged when it is actually received. When the application is sent electronically, it is lodged when it is capable of being retrieved by the Tribunal, even if it is not retrieved until a later time, or that the automatically generated receipt is not sent. The situation is somewhat different when documents are hand delivered or posted; lodgment is effected only when the document is received and accepted by, or is in the possession of, the Registrar or staff of the Tribunal. The element of physical acceptance or possession is a key aspect of “lodgment” by means of post or hand delivery.
[26] In this matter the expedited procedure objection application was lodged with the Tribunal after the closing date. There is no record of the electronic communication being received by the Tribunal until 11 October 2011. It is not generally relevant to the question of “lodgment” why the Tribunal failed to receive the communications until that time. The authorities quoted, focus the attention of the Member, when determining whether to accept an expedited procedure objection application, on the sole question of when the document was physically received by the Tribunal. There could, perhaps, be an exception to this strict rule, if, due to the fault of the Tribunal, an objector was unable to lodge an application, however, there is no suggestion of such a scenario in this matter.
[27] Moreover, there is no discretion vested in a Member to grant an extension of time. The wording of s. 32(3) is clear and strict. There is a mandatory requirement to lodge within a specified time; and there is no scope to insert into the clear words of the statute any discretion by a Member to avoid the operation of the law by granting an extension of time.
Decision
[28] I am satisfied that the expedited procedure objection application in relation to EPM 18105 lodged on behalf of the Yulluna People was not lodged with the Tribunal within the time required by subsection 32(3) and, accordingly, is not accepted.
John Sosso
Deputy President
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