Waite v Chief Executive, Department of Primary Industries

[1994] QLC 31

[1994] QLC 31

 

  LAND COURT

BRISBANE

12 July, 1994

Re: Appeals under Soil Conservation Act 1986.

A.R. and D.D. Waite - A93-81

and

J.H. Waite - A93-82

v.

Chief Executive, Department of Primary Industries

DECISION ON POINT OF JURISDICTION

These are appeals under s.22 of the Soil Conservation Act 1986 (the Act) against determinations of the Chief Executive, Department of Primary Industries (the respondent), upon objections lodged by the appellants to a proposed soil conservation plan (Plan JD-A1-5569) which covers 8 properties situated within the Ashall Creek catchment on the Darling Downs, 8 kms west of Mt Tyson. The appellants' lands (Lots 1 and 2 on RP 94769) are adjoining lots bounded on the south by Waites Road with Lot 1 owned by AR and DD Waite also having a frontage on the east to Redings Road. It would appear that in order to effectively spread the flow of flood waters across this area of the plain, certain works are required in the area of Waites Road and on the land of the appellants. They duly objected to the plan. By letters dated 31 May, 1993, the objectors were notified of the determinations of the respondent. Appeals were filed in Court by post on 18 June, 1993. On the matters being called on for hearing, the Court was advised by Counsel for the respondent that copies of the Notices of Appeal had not been served on the respondent. He said that the respondent was not disadvantaged by the failure to receive copies of such notices and was prepared to proceed with the hearing of the appeals. However, he was duty bound to inform the Court of the failure to comply with the provisions of the section, since the Court must be satisfied that it has jurisdiction to entertain the appeals. The relevant section provides -

"22.  Appeal against chief executive's determination.

(1)An objector may, within a period of 21 days of the issue of a notification pursuant to section 21(4)(b), appeal to the Land Court and the Land Court shall hear and determine the matter and may confirm  or vary the chief executive's determination.

(2)An appeal under subsection (1) shall be instituted by filing in the Land Court registry a notice of appeal.

(3)(a)  The notice of appeal shall state the grounds of appeal and the appeal shall be limited to the grounds stated.

(b)The burden of proving any ground stated in an appeal shall be upon the appellant.

(c)After filing the notice of appeal, the appellant shall, within 7 days, serve a copy of it on the chief executive.  "

The question thus arises whether these provisions are mandatory with the result that failure to comply therewith is fatal to jurisdiction or directory in which case non-compliance may be waived by the respondent. 
In considering these issues it may be accepted that this Court is a creature of statute with its jurisdiction functions and powers conferred by statute. The Court possesses no natural or inherent jurisdiction. The provisions of s.22 of the Act are identical in terms with provisions found in other statutes which vest jurisdiction in this Court. Unless the statute otherwise provides such provisions have been held to be obligatory. Without traversing the authorities covering every Act which vests jurisdiction in the Court, I refer to two authorities which are judgments of the Land Appeal Court covering provisions of similar nature. In Schirmer v. The Valuer-General (1974) 1 QLCR 144, the Land Appeal Court held that similar procedures contained in the Valuation of Land Act 1944 were obligatory -

"The sub-section contains four separate provisions relating to the notice of appeal and in order that an appeal may be properly instituted all four provisions must be complied with".  (p 146).

In Re Niall Preferential Pastoral Holding (1974) 1 QLCR 180, the Land Appeal Court in considering appeal provisions under the Land Act 1962 held that jurisdiction is dependent upon strict compliance with the statutory requirements of the Land Act. The Court also held that the equity and good conscience provisions of the Act (s.41(5)) did not enable the Court to assume jurisdiction - that is that the equity and good conscience provisions "operate only during the exercising of lawful jurisdiction" (p. 183).
Provisions such as are contained in s.22 and in other legislation have a common thread in that they are designed to achieve finality of an issue with all convenient speed. In the scheme of legislation covering the subject matters, it is obvious that the objectors and the respondent have had ample scope for airing issues and in exchanging views before the determinations are made on the objections. Having made a determination, the respondent is entitled to know within a reasonable time whether the determination is final or subject to appeal. If subjected to an appeal, it follows that he should be informed of the points (grounds) which will be taken on appeal in order that he may prepare his case to answer them. The onus in these respects is one which rests upon the objector/appellant. I see no problem in that onus in the circumstances having the weight which has been given to it over the years by the Land Appeal Court.
In perusing the provisions of s.22, I am left with the conclusion that they are intended to be mandatory and not directory. In the circumstances I find that the Court has no jurisdiction to hear the appeals. However, I would suggest that in future the respondent, when issuing his determination on objection, attach for the benefit of any prospective objector/appellant a copy of the statutory provisions governing the institution of an appeal.
           The appeals are struck out for want of jurisdiction.

(D.M. White)        
  President of the Land Court