Broad & Salmond v Anglo Coal (Moura) Ltd & Anor [2005] QLRT 45

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Broad & Salmond v Anglo Coal (Moura) Ltd & Anor [2005] QLRT 45 PARTIES: Re Gary Lester Broad & Kerrilyn Salmond (Appellants/Respondents) v Anglo Coal (Moura) Ltd & Mitsui Moura Investment Pty Ltd (Respondents/Applicants) FILE NO: APTP47/05 PROCEEDING: Preliminary point as to whether appeal duly instituted DELIVERED ON: 22 April 2005 DELIVERED AT: Brisbane HEARING DATE: 20 April 2005 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Notice of appeal struck out. (at [16]) 2. Appellants to pay respondents’ party and party costs of and incidental to the purported appeal, with such costs to be agreed between the parties or (failing agreement) assessed by the registrar of the Tribunal. (at [20]) CATCHWORDS: APPEAL – MINING – DETERMINATION OF COMPENSATION – ORDERS LATER AMENDED – whether time for appeal runs from date of original determination or when later amended – whether failure to serve mining registrar occurred out of time – whether appeal duly instituted Land and Resources Tribunal Act 1999, ss 50, 65(1) Mineral Resources Act 1989, ss 281, 282(1), (2) Uniform Civil Procedure Rules 1999, r 388(1)(b) Thiess Peabody Coal Pty Ltd Agreement 1962, s. 30 Denmeade v Stingray Boats [2004] FCA 1503, followed Qld Pork P/L v Lott [2003] QCA 271, applied -- 1 of 5 -- COUNSEL: Mr A. Preston, for Appellants SOLICITORS: Macrossan & Amiet, Mackay, for Appellants Swanwick Murray Roche, Rockhampton, for Respondents AGENT/S: N/A Background [1] Following a referral to the Tribunal by the mining registrar Rockhampton under section 281 (Determination of compensation by tribunal) of the Mineral Resources Act 1989 (MRA), the Tribunal’s mining referee made orders on 16 March 2005 which determined compensation (for the effect upon the appellants’ land of the respondents’ proposed mining operation) at $247,550.1 He also ordered that (a) payment was to be made by the respondents to the appellants “within 30 days of notification of the grant by the Mining Registrar” and (b) prescribed interest would accrue and be payable if that sum were not paid “within 30 days of that date”. [2] On 4 April 2005, the mining referee amended those orders so as to provide that (a) payment was to be made “on or before 1 May 2005” and (b) prescribed interest would accrue and be payable if the $247,550 were not paid “on or before 1 May 2005”. [3] I apprehend that the amendments concerned were made under the “slip rule”,2 in circumstances where it may initially not have been appreciated that the grant of the subject additional mining surface area (to which the mining referee referred) was made under the Thiess Peabody Coal Pty Ltd Agreement 1962,3 under which there is no provision for the mining registrar to give notification of the grant. [4] It was not submitted that the content of the amended orders was a contentious issue or one upon which the mining referee should have sought submissions from the parties prior to amending the orders. [5] On 6 April 2005, the appellants’ solicitors filed in the Tribunal a notice of appeal against the mining referee’s decision “given on 16 March 2005 (as amended on 4 April 2005)”. [6] On 20 April 2005, the mining registrar at Rockhampton advised the Tribunal that the notice of appeal had not been served on him, as required by section 282(2)(b) of the MRA. The Tribunal then informed the parties of that and the appellants’ solicitors immediately served the mining registrar with a copy of the notice of appeal. 1 [2005] QLRT 34. 2 Uniform Civil Procedure Rules 1999, r 388(1)(b); Land and Resources Tribunal Act 1999, s.65(1); Qld Pork P/L v Lott [2003] QCA 271, at [19]: “… [a] judgment … based upon a plain misunderstanding of what the position was … meets the language of the slip rule”. 3 Section 30. The agreement was authorised by the Thiess Peabody Coal Pty Ltd Agreement Act 1962, which Act was referred to in the mining registrar’s compensation referral to the Tribunal. -- 2 of 5 -- The Question [7] A question has now arisen as to whether, in the circumstances which have occurred, the appeal was duly instituted. [8] Section 282(1) and (2) of the MRA provides as follows: “282 Appeal against tribunal’s determination upon compensation (1) A party aggrieved by a determination of the tribunal (the tribunal at first instance) made under section 281 may, within 20 business days of the date of that determination or within such further period as the tribunal (appeal), on the application of that party in that behalf prior to the lodgment of the appeal, considers appropriate in any particular circumstances, appeal against the determination to the tribunal (appeal). (2) The appeal shall be instituted by, within the time and in the manner prescribed— (a) lodging in the tribunal, written notice of appeal which shall include the grounds of appeal; and (b) serving copies of the notice of appeal on the mining registrar and each other party; and (c) giving security (approved by the registrar of the tribunal) for the costs of the appeal. … .” [9] As will be observed, the necessity to serve the mining registrar within time (20 business days)4 is a statutory prerequisite to the due institution of an appeal. Mr Preston, counsel for the appellants, submitted that the provisions of section 282(2) were not obligatory requirements. I do not accept that contention. It seems quite clear that Parliament’s choice of words in the first line of section 282(2) strongly indicates that each of the steps set out in paragraphs (a), (b) and (c) must be complied with “within the time prescribed” by section 282(1) before it can be said that the appeal has been duly instituted. Further, I did not understand Mr Preston to have disputed comments that I made at the hearing that there is no at large or discretionary judicial power to extend statutory time limits and that the MRA does not contain a power authorising an extension of time in a case like this. The question of whether any person was prejudiced by the late service upon the mining registrar does not then arise. Arguments [10] Mr Preston’s principal point was that because the determination was amended, the time for appeal ran from the date of the amendment and not from the original date. If that were so, the provisions of section 282(2) would have been satisfied. Mr Beaumont, solicitor for the respondents, submitted that time ran from the date of the original determination, and that as service upon the mining registrar had occurred out of time, the appeal was incompetent and should be dismissed. Analysis [11] I was not referred to any authority but my researches have revealed one recent case on the point. In Denmeade v Stingray Boats,5 the Federal Court (Spender J) made certain orders in a matter on 15 September 2004 and amended them (pursuant to the 4 Section 282(1), until amended with effect from 18 March 2005, provided “28 days” within which to appeal. That period would have expired on 13 April 2005—2 days earlier than under the current “20 business days” provision. 5 [2004] FCA 1503. -- 3 of 5 -- slip rule) on 24 September 2004. The question for decision was whether the time for filing of the notice of appeal ran from the original date or the amended date. If the original date was the operative one, the appeal was out of time. [12] Spender J said as follows: “[22] In respect of the operation of the amendments that I made to the orders that I had made on 15 September 2004, in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, Lockhart J said at 211: ‘... the later order corrects the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected.’ [23] In L. Shaddock and Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590, the High Court was concerned with whether an amendment to allow an amount for interest from the date of judgment at the trial, to the date on which judgment upon a successful appeal took effect, should be added by way of correction to the Orders of the High Court. That case is also authority for the proposition that the correction speaks from the date of the original judgment or order. [24] Thus, the twenty-one days for the filing of the notice of appeal began to run from 15 September 2004, notwithstanding that amendments were made to the first of those orders on 24 September. The making of the amending order has no effect on the time for filing the notice of appeal. The fact that amendment has occurred may be a relevant consideration on whether to grant an extension of time within which to appeal, but it does not affect the time within which a notice of appeal should be filed and served. … ” [13] His Honour held that the time for appeal ran from the date of the original orders and not from the date they were amended. Disposition [14] I respectfully agree with Spender J’s approach. It follows that in the present case, I regard the time for appeal as having commenced on the date of the mining referee’s original determination on 16 March 2005 and having expired on 15 April 2005. Service of the notice on the mining registrar on 20 April 2005 was therefore out of time. [15] Because that service did not occur within the time referred to in and prescribed by section 282(1) and (2) of the MRA, and because there is no facility for an extension of time, it follows that the subject appeal was not duly instituted and is therefore incompetent. [16] There will therefore be an order that the notice of appeal be struck out. Costs [17] Mr Beaumont for the respondents sought costs on the basis that the appellants’ actions had caused the respondents to incur expenses that would not otherwise have been incurred. Mr Preston opposed that submission, arguing that the circumstances here did not amount to the “special circumstances” which are required under section 50 of the Land and Resources Tribunal Act 1999 before costs can be awarded. -- 4 of 5 -- [18] I reject Mr Preston’s submission that it was somehow incumbent upon the respondents or the mining registrar to have alerted the appellants by 15 April 2005 (the day time expired) of their failure to serve the notice of appeal upon the mining registrar. There is also no evidence that either of those parties knew of that failure by that date, or that the mining registrar was even aware by 15 April 2005 that an appeal had been filed. The appellants’ solicitors must have known that they were required to serve the mining registrar because the last page of the notice of appeal which they filed expressly stated that a copy of that notice was intended to be served on the mining registrar. [19] In all the circumstances, I regard the appellants’ failure to duly institute the appeal within the time prescribed, which caused the respondents to incur expenses that would not otherwise have been incurred, as conduct amounting to special circumstances under section 50. [20] I therefore order the appellants to pay the respondents’ party and party costs of and incidental to the purported appeal, with such costs to be agreed between the parties or (failing agreement) assessed by the registrar of the Tribunal. -- 5 of 5 --