2PL Superannuation Pty Ltd v Skilton [2020] QLAC 5

1 LAND APPEAL COURT OF QUEENSLAND CITATION: PARTIES: 2PL Superannuation Pty Ltd v Skilton [2020] QLAC 5 2PL Superannuation Pty Ltd (applicant) v Gerald Skilton (respondent) FILE NOs: LAC001-20 Land Court No MRA201-19 DIVISION: Land Appeal Court of Queensland PROCEEDING: Application for leave to appeal ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 9 September 2020 DELIVERED AT: Brisbane HEARD ON: HEARD AT: Not applicable Not applicable THE COURT: Crow J FY Kingham, President of the Land Court WA Isdale, Member of the Land Court ORDER: Application refused. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – whether the applicant can reasonably explain delay – where the delay is one (1) business day – where the applicant held genuine belief appeal could be lodged electronically – where the applicant did not provide reasonable explanation for the delay. APPEAL – APPLICATION FOR LEAVE TO APPEAL – Whether the respondent could reasonably consider an appeal unlikely after appeal period finished – whether the respondent suffered prejudice as a result of the delay – where the Court has power to extend the time to bring an appeal. -- 1 of 12 -- 2 APPEAL – APPLICATION FOR LEAVE TO APPEAL – whether the application has any prospects of success on appeal – whether the submissions on the prospects of success were competently made – where the applicant did not demonstrate a prospect of success if leave granted – where the respondent’s submissions did not address the prospect of success – where the Court found no indication of a prospect of success if leave granted. APPEARANCES: Not applicable [1] CROW J: I agree with the reasons and order proposed by Member Isdale. [2] KINGHAM P: I agree with the reasons and order proposed by Member Isdale. [3] MEMBER ISDALE: Mr Gerald David George Skilton has a 15-year mining lease on “Rolfe Creek,” a rural property located to the west of Clermont. It is an aggregation of two lots, one owned by 2PL Superannuation Pty Ltd and the other by Patrick and Prue Lonergan, the directors of that company. The miner and the owners were unable to agree on the compensation payable to the owners, so the matter was decided by the Land Court pursuant to s 281 of the Mineral Resources Act 1989 (Qld).1 [4] The Land Court heard the matter on the papers and delivered its decision on 14 February 2020.2 [5] The Land Court determined what compensation should be paid to the company.3 Orders were made in favour of the company only. No issue has been raised in relation to this. [6] An appeal from the decision of the Land Court may be brought as provided by s 282 of the Mineral Resources Act 1989 (Qld). The materially relevant parts of that section are in the following terms: “282 Appeal against Land Court’s determination upon compensation 1. A party aggrieved by a determination of the Land Court made under section 281 may, within 20 business days of the date of that determination or within 1 Skilton v 2PL Superannuation (No 2) [2020] QLC 8 [2]. 2 Skilton v 2PL Superannuation (No 2) [2020] QLC 8. 3 Above n 1. -- 2 of 12 -- 3 such further period as the Land Appeal Court, on the application of that party in that behalf prior to the lodgement of the appeal, considers appropriate in any particular circumstances, appeal against the determination to the Land Appeal Court. 2. The appeal shall be instituted by, within the time and in the manner prescribed— a) lodging in the Land Court, written notice of appeal which shall include the grounds of appeal; and b) serving copies of the notice of appeal on the chief executive and each other party.” [7] It is not in dispute between the parties that the prescribed time for lodging an appeal expired on Friday 13 March 2020. [8] The Registry is open until 4pm for such business as is presently relevant, absent any direction to the contrary.4 No such direction occurred here. [9] At 3.59pm on that day, a notice of appeal with an annexure was emailed to the Registry. [10] At 4.22pm, the Senior Registrar, Court Management, sent a reply email pointing out that the appeal could not be filed by email and that a filing fee was required.5 [11] The prospective appellant, presently the applicant, is stated in the Notice of Appeal to be the company and Ms Prue Lonergan has signed as a director. [12] The appeal was not lodged as required by section 282. [13] The applicant then engaged another agent to lodge the appeal, which was accomplished on the next business day, Monday 16 March 2020. 4 Land Court Rules 200 r 50. 5 Land Court Regulation 2010. Schedule 1, Fees. The prescribed fee is $188.10. -- 3 of 12 -- 4 [14] The Court made orders on 18 March 2020 for the progress of the matter, requiring the applicant to lodge an application to extend the date for filing of the appeal. It is that application which is now before the Court. [15] The Court orders provided for the matter to be determined on the filed materials without an oral hearing. The submissions of the applicant [16] The applicant submits that leave to extend the date for filing the appeal should be granted. The Court notes that it would only be necessary to extend the time by one business day, to 16 March 2020. [17] The applicant asserts that the respondent has not been disadvantaged. The applicant has filed an affidavit and exhibits “explaining the reasons for failing to file the Notice of Appeal in time”.6 [18] The two-page affidavit of Prue Madelaine Lonergan, sworn and filed on 19 March 2020 contains only 9 clauses. It sets out that she is self-represented, acting as an agent for the company 2PL Superannuation Pty Ltd. The delay [19] In clause 2, Ms Lonergan states: “It was very challenging to complete the complex Notice of Appeal and Annexure within the timeframe and I was working on it up until the last day. I have been able to file all other material in the original matter via email and expected to be able to do the same for this.” [20] The affidavit goes on to set out the sending of the email at 3.59pm on 13 March 2020, the reply from the Registry to the effect that the appeal could not be lodged by email and that a filing fee was required. 6 Applicant’s written submissions, filed 26 March 2020, para 4. -- 4 of 12 -- 5 [21] It goes on to state that as the applicant lives in Clermont it was not possible to remedy the shortcomings and to achieve the required timeframe. The Court notes that the Registry was open until 4pm for the business involved so the defect could not have been remedied in the time required since the original email was sent one minute before the Registry closing time. [22] The affidavit goes on to describe the filing of the Notice of Appeal and payment of the fee “at the earliest opportunity” which was the next business day, Monday 16 March 2020. [23] The steps taken to serve Mr Skilton are set out. It is pointed out that he responded by email at 9.51 am on 17 March 2020. It is claimed that he has not been disadvantaged by the lateness of the process, the email to him having been sent at 12.51pm on 16 March 2020. It is noted that Mr Skilton, is his email, objected to the appeal on the basis that it was not lodged within the time required.7 The explanation of the delay [24] In her affidavit, Ms Lonergan states at clause 8: “8. I made every effort to file the application in time and genuinely held the mistaken belief that I could file the Application via email on the day it was due.” [25] Clauses 2 and 8 of the affidavit sworn by Ms Lonergan on 19 March 2020 contain the bulk of what is submitted on behalf of the applicant. In essence it is said that: • It was very challenging • Ms Lonergan was working on it up until the last day • As she had been able to file material in the Land Court matter by email, she “expected” to be able to do the same for an appeal to the Land Appeal Court. • She believed that what she did was sufficient (clause 3 of the affidavit) 7 Exhibit “PML-04” to the affidavit of Prue Madeline Lonergan sworn 19 March 2020. -- 5 of 12 -- 6 • She first learned of the incorrectness of her belief from the Registry’s email at 4.22pm on 13 March 2020. • She then acted promptly to address to problems • Mr Skilton was not disadvantaged by the delay of one business day. [26] The essence of the situation is that the applicant’s agent, Ms Lonergan, had an expectation that an appeal could be lodged by email and genuinely held this mistaken belief. The original defects were rapidly responded to. [27] This puts the case for the applicant as favourably as possible. The Court must act fairly to both parties and notes that this is a simple error of law. The relevant legal requirements for lodging an appeal were published and knowable to all, including Ms Lonergan. [28] The operative requirements were ascertainable by anyone in the position of the prospective appellant. The 20-day time limit set by s 282 of the Act was never in doubt, Ms Lonergan was well aware of it and working to achieve that requirement. Equally, the prescribed fee was a matter of public record as was the fact that no provision for lodging a Notice of Appeal by email has been made. [29] The Court accepts the uncontradicted statements of Ms Lonergan in her affidavit of the existence of her expectation and belief, genuine but mistaken. [30] The subjective holding of an erroneous belief as was the case here is not the end of the matter. In order to secure fairness to both parties, the Court must look at the circumstances objectively. [31] In this regard it is observed that, in relation to the requirement to pay a filing fee, there is nothing in the material provided which asserts that there was any belief held, far less any basis for doing so, that there was either no fee to be paid or it could somehow be paid electronically. At best, it might be inferred from the material that the matter of a filing fee was simply not considered. [32] This however, like all aspects of the matter under consideration, must be looked at objectively to see how reasonable such a belief would be in the present case. -- 6 of 12 -- 7 [33] Ms Lonergan’s signature appears on page 3 of the Notice of Appeal, the document which she “was working on”.8 On the same page as her signature, the following words appear: “SECTION 8 – PROCEDURE FOR FILING The Notice of Appeal may be filed, together with the prescribed fee: In Person: By Post: The Registry Land Court and Tribunal Registry Level 8, 363 George Street BRISBANE The Registrar Land Court and Tribunal Registry GPO Box 5266 BRISBANE 4001 The Notice of Appeal must then be served on the Respondent to the appeal.” [34] Viewed objectively, a person in the position of the appellant’s agent could be expected to apply reasonable skill and attention. Doing so, however, could not reasonably lead to holding and maintaining a belief as set out in the affidavit of Ms Lonergan. The clear words of section 8 of the Notice of Appeal leave no room for it. Conclusion regarding the delay [35] The Court is not persuaded that there is a reasonable explanation for the delay. This conclusion exists independently of the length of the delay which, while brief, does not operate to remove the failure to comply with the time provision. [36] Also, the inferred belief that no fees would be payable is not reasonably explained. Simple inattention to the wording of section 8 of the Notice of Appeal form does not provide a reasonable explanation for failure to meet the requirements for an appeal. The question of prejudice [37] As has already been referred to, there was prompt action by the applicant’s agent once the deficiencies were pointed out by the Senior Registrar in the email of 4.22pm on 13 8 Affidavit of Prue Madelaine Lonergan, March 19 2020, Clause 2 of 9. -- 7 of 12 -- 8 March 2020. Subsequently, Mr Skilton was sent an email by “Pat and Prue Lonergan” at 12.51pm on Monday 16 March 2020. It attached the Notice of Appeal and an annexure with the grounds of appeal and the orders sought. Mr Skilton’s email sent at 9.51am on Tuesday 17 March 2020 shows that he was aware of the situation by that time at the latest. [38] There is, effectively, one business day of delay and this is, in itself, minor. It must be considered in view of the relatively brief 20 business-day period allowed for bringing an appeal. The submissions of the respondent [39] Mr Skilton claims that he has suffered prejudice. His email of 9.51am on 17 March 2020 objects that the applicant failed to lodge the appeal within the 20 business days allowed. He was keenly aware of the appeal period. He referred to other appeals and alleged the current action to be an abuse of process and vexatious. [40] The Court must also consider this submission objectively. The applicant claims that Mr Skilton has not been disadvantaged. For his part, he claims the applicant has delayed and frustrated the progress of the case. [41] The opposing claims must be looked at in view of the factual material provided to the Court and the relatively brief delay of one business day. [42] Mr Skilton submits that: “On numerous occasions the applicants have continually left things to the very last minute to offer argument or prosecute their case. I truly believe they did that to delay and frustrate the progress of this whole case. This time however they had a clear time frame of 20 days to appeal according to the MRA. They failed to appeal in that time frame. For this reason alone I request the appeal now before your honours be dismissed. In their affidavit they claim the lateness does not disadvantage me … in fact this and every other appeal has disadvantaged me in loss of time and ability to plan and get on with my life.”9 9 Affidavit of Mr Gerald David George Skilton, sworn or affirmed on 14 April 2020. Clause 1. -- 8 of 12 -- 9 [43] Like the applicant, Mr Skilton is not legally represented. His belief concerning the motives of the applicant is no doubt genuinely held. The Court is however required to consider objectively the material before it. The conclusion of deliberate delay drawn by Mr Skilton has not been sufficiently supported by factual material to be capable of being drawn by the Court. Mr Skilton sets out some chronological information which shows his dealings relating to his mining activity, but this does not provide a sound basis for the Court to arrive at the same conclusions which he has. [44] Mr Skilton’s submissions are not of assistance in deciding whether a reasonable explanation was provided for the delay. For that reason, his submissions did not need to be addressed prior to drawing that conclusion, which was made inevitable by the fundamental deficiency in the applicant’s material. [45] Likewise, Mr Skilton’s material does not demonstrate the existence of conduct calculated to delay and frustrate the progress of the case. Nor does it support a conclusion that he has suffered prejudice by the delay beyond the irritation caused by it.10 [46] The wording of s 282(1), which allows the Court to extend the time period for an appeal, precludes a person in Mr Skilton’s position from holding a reasonable expectation that no appeal within the 20 days means no appeal. It does mean that an appeal will become less likely. [47] This Court has so far considered: (a) the extent of the delay – one business day (b) the question of whether the applicant has a reasonable explanation for the delay – it has concluded that the applicant has not got such an explanation. (c) the aspect of prejudice to the respondent – there is limited prejudice which has been identified. [48] The Court must also consider the prospects of success on appeal.11 10 Ibid. clause 7 Mr Skilton “I want to get on with my life!” 11 Buttcroft Pty Ltd v Edgar (2011) 32 QLCR 278, 279. -- 9 of 12 -- 10 [49] Were the parties legally represented, their failure to address this consideration would justify a conclusion that there was no wish to urge anything in respect of it. In this case, however, both parties are not legally represented. [50] In order to provide the fullest opportunity to both parties, the Court made orders on 15 July 2020, providing them an opportunity to address this aspect. [51] The applicant was required to file, and serve on the respondent “it’s written submissions on its prospects of succeeding in the appeal.”12 [52] The submissions made on behalf of the applicant by its agent, Mrs Lonergan, are brief, containing 11 clauses. Reference is made to a decision of the Land Court in support of the concept of the entitlement of a land owner to be compensated fully and fairly for loss.13 Reference is provided to paragraph [8] of the judgment of his Honour Member Cochrane in support of that proposition. [53] That paragraph is in the following form: “The application does not identify in any summary way the length of the access but the attachment which gives a metes and bounds description of the access can be calculated to show a distance of 12570.64 m and the access way is described as being 10 m wide.” [54] Paragraph 8 provides no support for the proposition which is submitted to be found there. Additionally, it does not assist in addressing the purpose for which submissions were required, the applicant’s prospects of succeeding in the appeal. The reference may have been intended to be to paragraph 48 of his Honour’s judgement, where there is a passage quoted from the speech of Lord Nicholls in Director of Buildings v Shun Fung Ironworks Ltd [1995] 1 All ER 846. There his Lordship stated that a claimant is entitled to be compensated fairly and fully for his loss (at 852). If this is the intended reference, it still fails to address the purpose of the submissions. 12 Order 1 of the Land Appeal Court orders made 15 July 2020. 13 Shimrad Pty Ltd and Anor v Collins & Ors [2017] QLC 17. -- 10 of 12 -- 11 [55] The submissions refer to the entitlement to compensation and how the Court will approach its task. It is submitted that the principles of s 281 have not been applied “holistically” and that no value was determined for the land.14 No submissions have been provided concerning why, for instance, these comments might be supported and could, if successfully demonstrated, provide prospects of succeeding in the appeal. [56] It is submitted that: “The Grounds of appeal are not the Applicant’s Submissions in the Appeal and the Appeal cannot be decided on the basis of them, however they provide sufficient detail and breadth to show reasonable prospects of success.”15 [57] It is concluded that: “10. The Grounds for Appeal are detailed and reasonable and provide more than adequate support for reasonable prospects of success 11. The Appeal Application is bona fide and in the absence of evidence to the contrary, the court should proceed on the basis that the claim has a reasonable prospect of success.”16 [58] The assertion that grounds of appeal are detailed, reasonable and provide the support claimed does not make this so. The submissions made do not provide any sufficient basis upon which this Court could be satisfied that prospects of success have been shown, or even that the matter has been properly addressed. [59] The respondent’s written submissions on the applicant’s prospects of success in the appeal were filed on 10 August 2020. They provide no support for the applicant and focus on failure to lodge the appeal within the time allowed and the submission that no error has been shown in the decision of the Land Court.17 14 Applicant’s submissions dated 28 July 2020, clause 5. 15 Ibid, clause 8. 16 Ibid, clauses 10, 11. 17 Respondent’s submissions filed 10 August 2020, clause 10. -- 11 of 12 -- 12 [60] The respondent also states a desire to “make a cross appeal”18 and contends that compensation should be reduced from the level found by the Land Court.19 It is not necessary to consider this for present purposes. [61] The submissions made by the respondent in the matter of the applicant’s prospects of success in the appeal do nothing to assist the applicant. Neither do they weigh against the applicant’s submissions. The applicant’s submissions themselves fail to provide any effective support for the view that the applicant has shown prospects of success in the appeal, were it to proceed. [62] The decision of the learned Member is logical and comprehensive. Quite apart from the shortcomings of the applicant’s material, a consideration of everything that is before the Court does not indicate the existence of any realistic prospects of success of the proposed appeal. [63] The Court must conclude that the applicant has not demonstrated prospects of success in the appeal. Conclusion [64] The delay, brief though it is, and causing only limited prejudice to the respondent, has not been the subject of a reasonable explanation. Additionally, the applicant has not demonstrated prospects of success on appeal if it were to proceed. For the reasons which have been given, the application to grant leave must be refused. [65] As neither party was legally represented, no issue of professional costs arises. Order: Application refused. 18 Ibid, page 6 of 8, clause 1. 19 Ibid, Page 8. Conclusion. The last sentence. -- 12 of 12 --