Ferguson v Joachim, Department of Natural Resources, Mines & Energy & McIntosh, Re [2004] QLRT 27

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: P.R. Ferguson v D. Joachim, Department of Natural Resources, Mines & Energy & N. McIntosh [2004] QLRT 27 PARTIES: In the Matter of Mining Claim No. 70891 – Application by Paul Ronald Ferguson for mining lease and objections by Denise Joachim and others to its grant. FILE NO: MCA00005/2004 PROCEEDING: Determination of a preliminary point – supplementary reasons to those delivered on 10 March 2004 DELIVERED ON: 11 March 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Kingham DP ORDER/S: N/A CATCHWORDS: MINING – APPLICATION FOR MINING LEASE – OBJECTION – WHETHER LODGED WITHIN TIME – SUPPLEMENTARY REASONS Mineral Resources Act 1989, ss 71 & 77 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] KINGHAM DP: On 10 March 2004, I delivered my decision on a preliminary point relating to whether Mr McIntosh’s objection to Mr Ferguson’s application for this mining claim was duly lodged (s. 71 Mineral Resources Act 1989). In my reasons I stated that Mr Ferguson had “made no submission that the objection was “out of time”” and “had not filed any material to that effect”. He had, in fact, filed a statutory declaration by registered post correctly addressed to the Tribunal. Ironically, given the circumstances of this case, I was not aware of the document because notice of it had not been given to the Tribunal by Australia Post until today. It appears that it was received by Australia Post in Brisbane on 1 March 2004 but -- 1 of 2 -- notice of it was not in the Tribunal’s post box until this morning. It amply demonstrates how the best efforts of an individual to comply with a time requirement can be thwarted by events outside their control. [2] I have now reviewed my decision in light of Mr Ferguson’s statutory declaration. If I considered that his evidence affected the conclusion I previously reached I would have vacated my decision and delivered a new one. However, Mr Ferguson’s evidence does not affect my conclusion. These supplementary reasons address my view of that evidence. [3] Mr Ferguson assumed the objection was sent from Rubyvale not Beenleigh, as deposed to my Mr McIntosh. Mr Ferguson’s enquiries led him to the same conclusion that I reached; that the objection should have been delivered to the Mining Registrar’s Office on 31 December 2003, in the ordinary course of post. He does not appear to be aware that the Office was closed from 24 December 2003 until 2 January 2004. [4] Mr Ferguson raised a further issue regarding the service of the objection. He argued that, because it was not served on him on or before 2 January 2004, it is invalid. Mr Ferguson did not say when and how the objection was served on him, although I note from the Certificate of Public Notice that his address for service is c/- the post office at Sapphire. Nor do I have any evidence from Mr McIntosh about service on Mr Ferguson. I am not in a position to determine when and how the objection was served on Mr Ferguson. [5] In any case, I do not consider it necessary for me to do so as the preliminary point I considered was whether I could entertain the objection at the hearing in Emerald next week. I can only do so if the objection has been “duly lodged” (s77(3)). I do not accept that whether an objection is properly served is relevant to whether it has been “duly lodged”. The requirement to lodge relates to providing the document to the Mining Registrar. Once it has been lodged, a copy of the lodged objection must be served on the applicant. That is, service is a step that occurs after the requirement to lodge the objection has been fulfilled. For this reason, I do not consider it necessary to decide whether the objection was served as required by s. 71(4) in order to decide whether I can entertain Mr McIntosh’s objection at the hearing. It is not necessary, therefore, to alter the order made yesterday. -- 2 of 2 --