Ferguson v Joachim, Department of Natural Resources, Mines & Energy & McIntosh, Re [2004] QLRT 26

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: P.R. Ferguson v D. Joachim, Department of Natural Resources, Mines & Energy & N. McIntosh [2004] QLRT 26 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 DELIVERED ON: 10 March 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Kingham DP ORDER/S: The Tribunal will consider the objection by Neal McIntosh at the hearing scheduled to commence in Emerald on Wednesday 17 March 2004. (at [6]) CATCHWORDS: MINING – APPLICATION FOR MINING LEASE – OBJECTION - WHETHER LODGED WITHIN TIME Mineral Resources Act 1989, ss 71 & 72 Papillon Mining & Exploration Pty Ltd & Ors v Brough & Ors [2002] QLRT 50 applied COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] KINGHAM DP: Mr Ferguson’s application for this mining claim was referred to the Tribunal because a number of objections were lodged in relation to it (s.72 Mineral Resources Act 1989). One of those objections was lodged by Mr McIntosh. When the application was referred, information supplied by the Mining Registrar raised the question whether Mr McIntosh’s objection was duly lodged. The objection was stamped as received by the Mining Registrar’s Office on 5 January -- 1 of 2 -- 2004 and the objection period concluded on 2 January 2004 (s. 71). Mr McIntosh and Mr Ferguson were both given the opportunity to lodge statutory declarations and to make written submissions about the validity of Mr McIntosh’s objection. [2] Mr McIntosh initially sought to lodge an objection by sending a letter dated 3 December to the Mining Registrar. The Act requires the objection to be lodged in the “approved form” (s. 71). The Mining Registrar wrote in those terms to Mr McIntosh and enclosed a copy of the approved form. Mr McIntosh completed and sent that form from the Beenleigh Post Office on 28 December 2003. The objection form was stamped as received by the Office of the Mining Registrar on 5 January 2004. The objection period concluded on 2 January 2004. The envelope in which the objection form was sent was not retained and there is no evidence about how it was addressed or the date upon which it was postmarked. [3] The Act does not specify where the objection form must be lodged. The Certificate of Public Notice for this application and the letter from the Mining Registrar referred to above, both stated that the objection should be lodged at the Office of the Mining Registrar but neither specified an address for service on the Office. The Mining Registrar’s letterhead included both the street and the post office box addresses for the Office. [4] The Mining Registrar stated that his Office was closed between 4.30pm on 24 December 2003 and 8.30am on 2 January 2004. No evidence was led as to whether mail was delivered during that period. There is no evidence that Mr McIntosh was advised the office would be closed during that period. Had Mr McIntosh sought to hand deliver the objection to the Office street address during that period, he would not have been able to do so. [5] The Mining Registrar also stated that no mail was delivered to his office on 2 January 2004 because of an Australia Post public holiday in Emerald on 2 January 2004. The next business day was 5 January 2004, the day on which the Mining Registrar’s Office stamped the objection as received. Mr McIntosh should not be penalised for any arrangements the Mining Registrar made during the public objection period, or any other postal arrangements outside his control.1 [6] The objection was posted from Beenleigh 5 days before the objection period expired, only one day of which was a public holiday. There is no evidence to indicate that it would not have been received in Emerald in the ordinary course of post within that time. To the contrary, the letter Mr McIntosh sent on 3 December 2003 from the Beenleigh Post Office arrived at the Mining Registrar’s Office on 5 December 2003, only two days after it was sent. [7] Mr Ferguson made no submission that the objection was “out of time”, nor did he file any material to that effect. In all the circumstances of this case, I do not accept the Mining Registrar’s Office receipt stamp establishes the date the objection was “lodged”. In the absence of any other evidence to establish that the objection was “out of time”, I will consider Mr McIntosh’s objection to Mr Ferguson’s application at the hearing scheduled to commence in Emerald on Wednesday 17 March 2004. 1 Papillon Mining, Exploration Pty Ltd & Ors v Brough & Ors [2002] QLRT 50 at [7]. -- 2 of 2 --