Zink v Chief Executive, Primary Industries Corporation (now Department of Natural Resources)

[1997] QLC 136

[1997] QLC 136

 

  LAND COURT

BRISBANE

10 September 1997

Re: Appeals (2) under Section 51(1) of the
Water Resources Act of 1989 -
  Refs.  A95-04 and A95-31.

Evelyn Betty Zink
  v.
  Chief Executive, Primary Industries Corporation
  (now Department of Natural Resources)

D E C I S I O N

Two appeals have been filed against the decisions of the Chief Executive, Primary Industries Corporation.  The notices of appeal contain the following grounds:
           Ref A95-04.

"I applied for 50 mg litres and was given 45 mg litres which was to water 5 hct for watering small crops.  Then later in the year the mill let out old and increase of assignment which I applied to have the 14 hct assigned which was granted 14.1 hct.  The original land assigned was 9.35 hct.  The 50 mg litres that I applied for is not enough to water 14.1 hct.  "

Ref A95-31.

"The application was approved with the 45 ML allocation. 

Since then I have a cane assignment of thirty-five acres in hectares is 14.1.  I am applying for another 23 ML.  "

These decisions result from applications made by Mrs Zink for waterworks licences to benefit Lot 1 on RP 7331, Parish of Barolin.
           There is a preliminary point calling for a decision from this Court in respect of the second appeal (Ref. A95-31).  It is whether the Court is seized of jurisdiction to hear the matter as it is submitted by counsel representing the respondent Chief Executive that the appellant failed to serve upon him a copy of the notice of appeal which was filed in the Land Court registry on 26 April 1995.
Section 51 of the Water Resources Act 1989 provides for the procedures to be complied with for filing appeals in the Land Court. Relevantly Sub-Sections (4), (5), and (6) read:

"(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.

(5)  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.

(6)  The appellant must, within 14 days after filing it, serve on the chief executive a copy of the notice of appeal.   "

The appellant was represented in the cases by Leonard Arthur Rethamel who is the working manager of the land for which the Waterworks Licence applications were made. Mr Rethamel informed the Court that he personally lodged the notice of appeal in Appeal Ref. A95-31 in the Land Court registry on behalf of Mrs Zink. He told us that an officer of the registry informed him that the Court would send a copy of the notice of appeal to the Water Resources Commission. As a result, Mr Rethamel did not file a copy of the notice of appeal with the respondent Chief Executive as the appellant is required to do in accordance with Section 51(6) of the Water Resources Act. Mr Rethamel also told us that Mrs Zink would not have served a copy of the notice of appeal upon the Chief Executive.
           It is not perhaps surprising, then, that subsequent evidence led by the Chief Executive in the case, through David James Dempster who is a hydrologist in his employ, was to the effect that he had caused to be made a search of the records of the Department with respect to Appeal Ref A95-31.  Searches were made in both the Brisbane and the Bundaberg offices of the Department.  The searches did not reveal any evidence of the lodgment of an appeal with the Chief Executive.
           In Re: Appeal by H Masen under Section 51 of the Water Resources Act against a decision of the Chief Executive, Department of Natural Resources (incorporating the former Primary Industries Corporation) - Ref. A96-41 (not yet reported) - the learned President of this Court had before him precisely the same jurisdictional point in that it was claimed by the respondent Chief Executive that a copy of the notice of appeal was not served upon him within the prescribed period, nor indeed had it ever been served. The learned President held that the provisions of Sub-section (6) of Section 51 of the Water Resources Act are mandatory, and that the Court had no discretion in the matter.

It is indeed unfortunate that Mr Rethamel either received inappropriate advice from the Land Court registry, or perhaps he misconstrued the advice.  But in any event I cannot but agree with the finding and remarks made by the learned President in Re:  Masen.  Accordingly I must find that the Court has no jurisdiction to entertain Appeal Ref. A95-31 on merit.  It is struck out for lack of jurisdiction.
With respect to Appeal Ref. A95-04, the Court was informed by Mr Rethamel during the proceedings that Mrs Zink did not wish to continue with its litigation. Accordingly, this appeal is struck out for want of prosecution. Further, and in accordance with the provisions of Section 51(7) of the Water Resources Act 1989, the decision of the respondent Chief Executive to approve an application for an irrigation bore to Mrs EB Zink on property Lot 1 on RP 7331, Parish of Barolin, with a nominal allocation of 45 megalitres per year is confirmed.

Member of the Land Court