Dawson v Chief Executive, Department of Natural Resources [2002] QLC 27

[2002] QLC 27 LAND COURT BRISBANE 10 April 2002 Re: Appeal against Water Resources Act 1989 (A2001-0188) Aubrey W DAWSON v. Chief Executive, Department of Natural Resources Background and Issues (1) The originating proceedings in this matter were instituted by the appellant, Mr AW Dawson as an appeal against certain of the terms and conditions in a licence issued to him under the Water Resources Act 1989 (the Act) by the Chief Executive, Department of Natural Resources and Mines. (2) The licence, No 55345K, was issued on 29 September 2000 to expire on 31 March 2005. It replaced an earlier licence, No 55345 issued on 18 February 1997 which in turn had replaced the original licence G 55345 issued on 24 August 1992. As described in licence No 55345K, the works allowed were the construction of a rockfill dam on the Johnstone River located at Lot 7, RP 865120 (which is owned by the appellant), for the purpose of conserving water. The terms of the licence are set out in Schedules A and B to the licence document. Broadly speaking, the Schedule A terms are concerned with change in ownership of the relevant land, maintenance of the works and the bed and banks of the watercourse adjacent to the works, and control of the water in and flowing from the water storage area. They are not an issue in this matter. (3) The major issues between the parties arise out of the terms of the licence set out in Schedule B of the document. Those terms are: SPEC01 The works authorised by this Licence consist of a 25 metre long unconsolidated gravel and rock overshot weir within the Johnstone River and include a “childrens swimming pool” which consists of a rockfill quadrant attached to the upstream end of the dam wall having a radius of 9 metres. SPEC02 -- 1 of 19 -- 2 2 The datum is the top of a steel star picket driven to ground level and located as shown on Form SS2 held in the Mareeba District Office. The Bench Mark is numbered 923234 and has an assumed elevation of 105.970 metres. SPEC03 The crest level of the overshot weir exclusive of the children’s pool is not to exceed 99.12 metres and shall not be less than 16.0 metres in length. SPEC04 The crest level of the concrete capping surrounding the “childrens swimming pool” is not to exceed 99.73 metres. SPEC05 Because of the method of construction the Chief Executive will adjudicate any disputes relating to the uncapped crest level of the unconsolidated gravel and rock weir. SPEC06 On completion of the works no alterations other than those necessary for repairs or maintenance are permitted. SPEC07 The location of any part of the dam axis is to be no closer than thirty-three (33) metres to the centre-line of the Glen Allyn road bridge crossing of the Johnstone River. (4) It appears that Mr Dawson’s major objection is to SPEC03, that is the requirement that the crest level of the overshot weir is not to exceed 99.12 metres. Allied with this, there may be an issue as to the datum from which the measurement is to be taken (SPEC02). (5) The appeal by Mr Dawson follows various other actions concerning the weir, including some litigation to which Mr Dawson was not a party. It is probably fair to say that Mr Dawson and the Department of Natural Resources and Mines (and its predecessors) have been in dispute over the weir since 1992. It is unnecessary to detail all of the dispute, but items that are particularly relevant are:  The appellant originally applied for a licence for a weir having a maximum height of 1.5 metres above bed level of the river. The licence issued on 24 August 1992. It provided that the crest level of the dam was not to exceed 99.52 m (assumed datum). The datum was a bolt on the south-west corner of the [Glen Allyn] bridge having an assumed level of 99.89 m.  Following an appeal by RG and ND Rogers against the decision to issue that licence, Mr White, the President of the Land Court ordered that the height of -- 2 of 19 -- 3 3 the weir be reduced by 300 mm from 99.52 m to 99.22 m. (See Rogers v Chief Executive, Department of Primary Industries, unreported, Land Court, 25 March 1994).  In July 1994 the Department in the course of amending the licence to reflect that decision, established that an erroneous elevation had been assigned to the datum, and corrected that error also.  In October 1994, Mr Dawson appealed against the latter correction. In April 1996, Land Court member Mr Wenck found that an error had been made and that the datum should have been a sawn off pipe on the deck level of the bridge which had an assumed level of 99.99 m. He also found that the surveyor had subsequently established another more permanent benchmark, the top of a steel star picket driven to ground level, which had an assumed elevation of 105.970m. The height of the weir was confirmed by the Court at 99.22 m. In the course of that decision, Mr Wenck considered and rejected Mr Dawson’s submissions that the original levels for the crest of the dam and the reduced level of 99.22 m previously ordered by the Court (Mr White) were inaccurate. (See Dawson v Chief Executive, Primary Industries Corporation, (A94-86) unreported, Land Court, 23 April, 1996).  In 1996 Mr Dawson applied for a new licence (following the expiry of the original licence) and sought to increase the weir height by up to .9 metre.  The new licence issued in February 1997, subject to various special conditions, including SPEC03 that the crest level of the weir was not to exceed 99.22 m.  Both Mr Dawson and Mr and Mrs Rogers appealed against that decision, and subsequently entered into mediation with the Department. On 12 June 1998 a mediation agreement was signed by all the parties. One of the terms of that agreement was that the weir crest was to be lowered to 99. 12 m.  In February, 2000, Mr Dawson applied for another licence for a weir 1.5 m in height from the “solid rock base” of the stream, that is with a crest elevation of 100.0 m and adjoining abutments of 100.1 m. This application was prompted by the fact that the licence issued in February 1997 was due to expire on 31 March 2000.  The new licence issued on 29 September 2000. It specified that the crest of the weir was not to exceed 99.12 metres. It appears that this height was -- 3 of 19 -- 4 4 specified in accordance with the terms of the mediation agreement referred to above. It is this licence which is the subject of the appeal in this matter. (6) The appeal was initiated by Mr Dawson lodging by post a notice of appeal in the Land Court under s.51 of the Water Resources Act 1989. The Notice of Appeal was received in the Land Court registry on 7 June 2001. On page 3 of the Notice of Appeal, the appellant described the decision appealed against as: “Refusal to application to being weir (old bullock crossing) to correct height of 1.5 mtrs. as document state. & would be if done correctly according to Base R.L’s given by five qualified people including Judge (Dr) Divett.” (7) In the space provided on the form against the heading “Grounds of appeal”, the appellant wrote “Three (3) pages attached.” The content of the three pages is set out later in this decision. At this point, it is sufficient to say that it is difficult to discern from those 3 pages precisely what the grounds of appeal are. It should be noted that the Notice of Appeal and the grounds were prepared and lodged by the appellant himself. (8) On 7 November 2001, the matter came on for mention before me in Atherton. The appellant was represented by Mr A Wrenn of Counsel. Mr R Walsh, an officer in the Department of Natural Resources and Mines appeared on behalf of the respondent. By consent, I issued a number of directions which established a timetable for the exchange of information between the parties with a view to the hearing of the Appeal proceeding on a date to be fixed, which was subsequently set as 21 January 2002. The first step in the exchange, as ordered, was that the parties were to file and serve on each other affidavits of all other material intended to be used in the proceedings, no later than 21 days before the hearing date. This material should therefore have been filed and served on or before 31 December 2001. The appellant filed some material in the Land Court by facsimile, which was received on 3 December 2001. However a facsimile was received in the Land Court registry on 24 December 2001, in which the respondent’s counsel sought a variation of the directions for the reasons set out in the letter. Subsequently, by letter received by facsimile in the Land Court Registry on 3 January 2002 the respondent made a formal application for a new Directions Hearing so that various matters raised in the letter could be dealt with. Briefly, the grounds for the application were that the appeal should be struck out because it was frivolous and vexatious and an abuse of process, and because the appeal disclosed no substantive cause of action. -- 4 of 19 -- 5 5 (9) On 4 January 2002, certain documents were faxed to the Registry of this Court by or on behalf of the appellant. They included a document described as an Amended Notice of Appeal. The status of that document is in some doubt and one of the issues to be determined is whether, and on what basis, the appellant is able to amend the Notice of Appeal. A Directions Hearing was held by telephone on 10 January 2002, and as a result I ordered that the proposed amendments to the Notice of Appeal, and the application to strike out the appeal should be dealt with as preliminary matters, separate from the hearing of the appeal. At the Directions Hearing, counsel for the appellant objected to the form and the timing of the respondent’s application to strike out the Notice of Appeal. These objections were repeated in the appellant’s submission to the Court on the hearing of the application. I do not consider that the appellant has been disadvantaged by the form of the respondent’s application. Although the application to strike out was filed a relatively long time after the filing of the Notice of Appeal, the appellant had notice of the application some three weeks before the hearing in Atherton. It is noted that Rule 171(2) of the Uniform Civil Procedure Rules provides that the court, at any stage of the proceeding, may strike out a pleading. (10) On 21 January 2002 I heard the parties submissions on the preliminary matters, in Atherton. (11) This decision is, therefore, concerned with these issues: 1. Whether the Notice of Appeal lodged by the appellant on 7 June 2001 is able to be amended, and if so, whether leave to amend should be granted. 2. If the Notice of Appeal cannot be amended, whether the appeal should be struck out for the reasons identified by the respondent. 3. If the Notice of Appeal is amended, as requested by the appellant, whether, nevertheless, the appeal should be struck out for the same reasons. Amending the Notice of Appeal (12) Section 51(1) of the Water Resources Act 1989 provides that: A dissatisfied person may appeal to the Land Court against a decision of the chief executive with respect to - (a) an application for - (i) a licence. (13) Subsection (5) provides that: -- 5 of 19 -- 6 6 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. (14) For the purpose of these proceedings, the document entitled “Amended Notice of Appeal” lodged on 4 January 2002 has been treated as an application for leave to amend the original Notice of Appeal. (15) Counsel for the appellant submitted that s.51(5) should be interpreted to mean that an appellant is not permitted to raise a new ground on the hearing of an appeal, because to allow an amendment at that late stage would prejudice the respondent. The section does not prevent amendments being made before the hearing of the appeal, counsel submitted. In this case the proposed amendments were sought to be made well before the hearing, they are directly relevant to the matters to be considered by the Court and therefore the respondent would not be prejudiced if the amendments were allowed. It was also submitted that denial of the amendments would prejudice the appellant and be contrary to procedural fairness. (16) Counsel for the appellant supported his submissions with reference to the decision of the Land Court in an appeal relating to the first licence issued to the appellant, AW Dawson v Chief Executive, Primary Industries Corporation (A94-86), unreported, Land Court, 23 April 1996, and the decision of Thomas J in Rogers v Sadler, unreported, Supreme Court of Queensland, 4 February 1993. The latter was a decision relating to proceedings under the Judicial Review Act 1991, also connected to the earlier history of this dispute. (17) In the Dawson case, the Member observed (at pp 5 and 6) that, since the then licence was due to expire, (on 30 March 1996), Mr Dawson would be able to seek a new licence. Such an application would have to be investigated, and the decision made by the chief executive would be open to appeal to the Land Court by “a person aggrieved” by that decision. (The requirement that an appellant be a person aggrieved by the decision, was amended in 1996, to the current wording in s.51(1) of the Act, that a “dissatisfied person” may appeal). The appellant’s reference to this statement in Dawson v Chief Executive, Primary Industries Corporation does not advance his submission. There is no doubt that under s.51(1), a dissatisfied person may appeal against a decision of the chief executive in relation to an application for a licence. The issue here is whether the Notice of Appeal can be amended, and the decision in Dawson v Chief Executive, Primary Industries Corporation does not deal with that question. -- 6 of 19 -- 7 7 (18) In Rogers v Sadler, Thomas J said (at 5 and 6) in relation to s.4.26(3) of the Water Resources Act 1989, which was in identical terms to the existing s.51(5): “That certainly discloses that the appellant has no right to insist upon or be heard upon grounds not stated in the notice, but it does not say that the Court is precluded from permitting any amendment to the grounds stated in the notice and it does not say that the Court is not entitled to do so. I have not had the opportunity of considering the operation of this section in the context of Land Court procedure, but I am as at present advised by no means satisfied that a notice of appeal could not be amended.” (19) The learned judge appears to be saying that the effect of the section is that an appellant has no right to amend a Notice of Appeal, but, subject to the fact that the judge had not had the opportunity to consider the operation of the section in the context of the Land Court procedure, he is of the view that it might be possible for the Court to permit an amendment. (20) Another possible interpretation of s.51(5) is that a distinction can be drawn between amendments which seek to alter the existing grounds and those which seek to add to the original grounds. If so, the former type of amendment may be possible. However, the latter type of amendment (that is, an amendment which adds to the original grounds of appeal) is one which an appellant cannot be permitted to make. In this case, the appellant is seeking to replace the grounds in the original Notice of Appeal with a new set of grounds. That is precluded on this alternative analysis. (21) In either case, reference to the decisions of the Land Court interpreting s.51(5) and its predecessors shows that, without exception, the Court has refused to allow any amendment or addition to the grounds set out in the Notice of Appeal. In Litschner v The Commissioner of Water Resources (A85-80) unreported, Land Court, 20 November 1985) and English v The Commissioner of Water Resources (A87-55) unreported, Land Court, 30 October 1987) the Court considered s.12(4B) of the Water Act 1926 which provided that “the notice of appeal shall state the grounds of appeal and the appeal shall be limited to the grounds stated.” Although the wording is not identical with the wording of s.51(5) of the Act, it is considered that the difference is not significant and therefore the decisions in those cases are applicable to the interpretation of s.51(5). In both cases it was held that the Court had no power to allow the appellant to amend the grounds of appeal. The same conclusion was reached in Rogers v The Commissioner of Water Resources (A92-52) unreported, Land Court, 6 April 1993), a decision interpreting s.4.26 of the Water Resources Act 1989. That section is identical with s.51(5). A similar conclusion was reached in -- 7 of 19 -- 8 8 Molloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608. The High Court was interpreting S44M(3) of the Land Tax Assessment Act 1910 (Cth) which provided that “a taxpayer shall be limited, on the hearing of the appeal, to the grounds stated in his objection”. The Court held that this provision precluded the taxpayer from relying on an additional ground, not stated in the objections to the assessment. The Court said that S44M(3) “is a positive statutory provision that upon appeal the taxpayer is limited to the grounds set out in the notice of objection. This we regard as an imperative direction to the court, not as a provision merely for the benefit of the Commissioner which he is in a position to waive.” It is considered that no significant distinction can be drawn between S44M(3) of the Land Tax Assessment Act and s.51(5) of the Act and that, therefore, the appellant cannot substitute new grounds of appeal for those set out in the Notice of Appeal.. (22) As noted earlier, Mr Wrenn submitted that the purpose of s.51(5) was to prevent an appellant from raising new grounds of appeal on the hearing of the appeal and thus taking the respondent by surprise. He submitted, therefore, that the section did not prevent an appellant adding new grounds prior to the hearing. I have come to the conclusion that this is not the correct construction of s.51(5). In the case of Rogers v The Chief Executive, Primary Industries Corporation (unreported, Land Court, 6 April 1993), the application for leave to amend the Notice of Appeal was heard and decided before the hearing of the appeal. The Court refused to allow the proposed amendments. It would appear, however, that the interpretation contended for by Counsel for the appellant in the present case was not put forward in Rogers. Nevertheless there was no suggestion that there are any circumstances in which the Court may allow an amendment to the grounds of appeal. (23) This conclusion is confirmed by the decision in Molloy. In that case, following an unsuccessful objection to the Federal Commissioner of Land Tax against land tax assessments, the taxpayer appealed to the High Court in its original jurisdiction and then to the High Court sitting as an appellate court. The appeals contained a ground not included in the original notice of objection. In the second appeal it was expressly argued by counsel for the taxpayer that the Federal Commissioner for Land Tax had not been taken by surprise by the new ground. The Court held, as noted above, that the new ground could not be added, because the terms of the legislation were imperative. The same conclusion must be reached in this case. -- 8 of 19 -- 9 9 (24) Since I have no power to allow the appellant to amend the Notice of Appeal, these proceedings must continue on the basis of the grounds set out in the original Notice of Appeal. The original Grounds of Appeal (25) The grounds of appeal as originally filed by the appellant were: “Grounds of Appeal Re Waterworks License 55345K Reply to letter of 26th April 2001 “ Statement of Reason” Re Par (1) “Park” I advised that I would only build the “Park” (restore large area of river bank) only if permit granted to build weir as applied for, as I believe my License covers, but I wanted both applications done jointly. – Refer Councils letter 29th April 1996 based on River Protection Guidelines Page 6 General Exemption. Paragraph (1) (b) My belief my license 55345K authorises 1.5 mt. Weir is incorrect. Refer to decision of Comm. R. E. Wenck 23rd April 1996, Page (1) Par (3) 1.5 mtre. High weir….measurements means …. Toe of barrier to Top of barrier, Refer also Judge Divetts mediation plan Toe R.L. 98.6 add to this 1.5 mtr = 100.10 when done correctly for first time. Par (2) Same Decision Permission given to re instate old causeway. I wish to bring to the court Possibly five (5) persons all 75-85 yrs. (If still alive) two sons of previous owners. Two full blood aboriginals, & one “Lady” Lady Pearl Logan all of whom have crossed over the old “Battles Crossing” hundreds of times. Estimates (guess-timates) of height around height of my application 99.7 to 100.00 R>L. With the above I wish to use document obtained from F.O.I. written by R. Walsh and severely altered I believe by J. McKenna. “Works not required to be licensed under Water Resources Act etc. Re par (1) (3) No Application Made for Pool Refer letter of 18th Aug 1998 written by myself to R & D Rogers copies of which were sent to Dept. Natural Resources. Refer last paragraph page (7).Comm. Wenck decision re “Safe Water Activity”. No I would never place the childrens activities near the bridge than it’s present, sometimes water-less position. I knew the councils attitude to any such suggestion, when signing the mediation agreement and asked Judge Divett if by signing would I be prohibited from making a fresh application, to which he replied no. As stated in previous correspondenced what I did want from mediation was the signatures of both D. Divett & J. McKenna showing R.L. toe of weir at 98.6 – first time from such officials. -- 9 of 19 -- 10 10 Would making such an application cost me a further $75.00 and if so shouldn’t the same apply to the Rogers for placing the 200m of rocks at there end?. Par (2) Allegations Rapids never existed. Not usually apparent etc. Video taken by S. Smart & R. Walsh 5th Feb. 1992 clearly shows this not to be the truth, rocks – bed of river crossing show clearly under approx. 300m of clear slowly flowing water. Conversation at same time Walsh to Rogers – “river 600mm lower than normal – Rogers pump etc., dog lift it’s leg etc., intend to shift pump – (N.B) letter from Rogers to Dept. 12th Feb 1992 one week after tape pump flooded etc., seeks removal of weir. Submission to Mr. T. Fenwick from R&D Rogers 17th Feb 1997 resolution Etc., “mention rapids” 4 times. Any correspondence written to either parties Since mediation. Any correspondence that may come as a result of Rogers “Confidential” objection – refused copy of same irrespective of Legislation – now before F.O.I. – Rogers objection 12th July 1996. Especially paragraph (4) not fit proper person etc., R. Laits Report etc., if necessary. Video taken for myself after weir breached lowering river etc., no signs of “rapids” same video offered R. Lait which he states otherwise bit rough but contains nothing I would want hidden. Also any letters of support it found to be necessary. I deny that water level raised by 700mm – use both videos, photos etc., to prove same. Re remainder of letter “Statement of Reasons” plan to consult further with Professor Pearson etc., such report to be included. I would request if possible claim be heard in Atherton court as more convenient for elderly witnesses & that the Judge allow sufficient time to inspect the area in question. I also wish to use in support of my “Ground of Appeal” any surveying information from either Robbin Trotter, John Wise, John Charles or myself and any associated correspondence. Also any correspondence that may be obtained from supporters of the project whether private or departmental which could include Statutory Declaration from Mr. Don Fry whose firm made and installed water wheel at Rogers which he Mr. Rogers lied about and which the Department has refused to investigate. Also transcript and documents from any previous court action.,” (26) The respondent has submitted in respect of this Notice of Appeal, that  The appellant is not a “dissatisfied person” within the meaning of s.51(1) and (13) of the Act.  The appeal is frivolous and vexatious and an abuse of process and should be struck out. -- 10 of 19 -- 11 11  The appeal on its face fails to demonstrate any substantive basis on which the jurisdiction of this court should be invoked to further consider any of the matters raised on the papers.  The respondent is prejudiced in this appeal by virtue of the paucity of, and lack of clarity of the grounds of appeal. Is the appellant a “dissatisfied person” within the meaning of s.51(1) and (13) of the Act? (27) Section 51(1)(a)(i) provides that a dissatisfied person may appeal to the Land Court against a decision of the chief executive with respect to an application for a licence. Subsection 13(a) says that “dissatisfied person” means, for a decision about an application for a licence or for the renewal of a licence, the applicant. On the face of it, therefore, the appellant is a “dissatisfied person” as he was the applicant for the licence. Counsel for the respondent has submitted, however, that the mere fact that the appellant has a statutory right to appeal does not mean that he is entitled to invoke the jurisdiction of the court without just cause. There were various reasons advanced by counsel in support of this submission. (28) First of all, counsel referred to a number of authorities which considered the meaning of the words “person aggrieved” as used in s.51 of the Water Resources Act 1989 until the section was amended in 1996. These authorities indicate that the meaning of those words is dependent on the context in which the words are used (Betts v Chief Executive, Primary Industries Corporation, (1993) 15 QLCR 84; that a person who lodges no objection under the Water Resources Act is not a person aggrieved (Boully v Chief Executive, Primary Industries Corporation, (1993) 15 QLCR 84; that the words “person aggrieved” should be given their natural meaning (Stephenson v Wenck); that a person who has been granted a licence in the terms requested by him or her is not a person aggrieved (Cahill v Chief Executive, Primary Industries Corporation, (A95-45) unreported, Land Court, 22 March 1996, at 10), and that a “person aggrieved” must be someone against whom a decision has been pronounced which has wrongfully refused that person something which he or she has a right to demand (Mundy v Brisbane City Council [1966] Qd R 609). Counsel for the respondent also referred to a number of authorities from other Australian jurisdictions which discuss the meaning of the words “person aggrieved”. (29) None of the cases referred to deal with the definition of “dissatisfied person” in s.51(13)(1)(a). The term “dissatisfied person” was substituted for the term “aggrieved person” in s.51 in 1996 by the Natural Resources Legislation Amendment -- 11 of 19 -- 12 12 Act 1996 (No 68 of 1996). The amendments were introduced with the intention of changing the law as to who might appeal to the Land Court. The Second Reading Speech by the Minister for Natural Resources in relation to the legislation points out that the new term “dissatisfied person” is defined in the Bill and clearly identifies persons who may appeal the decisions. It was also stated that the new definition of “dissatisfied person” provides for appeals by persons directly affected by a decision. (30) Section 51(13)(1)(a) provides that a dissatisfied person means an applicant for a licence. The use of the word “means” in this context indicates that Parliament intended the definition to be exhaustive (Sargood v Chief Executive, Department of Natural Resources, (A97-82) unreported, Land Court, 24 November 1995, at 11). It is considered therefore that it is not appropriate to rely on the decisions concerning the meaning of a “person aggrieved” to interpret that provision. (31) Counsel for the respondent also submitted that even though the appellant might have a statutory right of appeal, it is necessary for the appellant to establish that, objectively speaking, he deserves a hearing. It is not sufficient that the appellant be disappointed, in a subjective sense. Again, this submission appears to be based on the proposition that the appellant must be an aggrieved person, and for the reasons explained above, this submission must be rejected. Power to strike out the appeal (32) Before dealing with the other grounds on which the respondent seeks to strike out these proceedings, it is necessary to consider whether the Land Court has power to strike out an appeal on the grounds claimed by the respondent. (33) Neither the Land Court Act 2000 nor the Land Court Rules 2000 (the Rules) deal with the issue of whether the Land Court has power to strike out proceedings as sought by the respondent. However, r. 4 of the Land Court Rules provides that: (1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the “uniform rules”) would provide for the matter, the uniform rules apply in relation to the matter with necessary charges. (2) For subrule (1), an originating application under these rules is to be treated as if it were a claim under the uniform rules. (34) This part of the respondent’s application appears to be covered by r. 784 of the Uniform Civil Procedure Rules which deals with the procedure for appeals to a court from other entities. Rule 785 provides that Part 1 of Chapter 18 of the Uniform Civil Procedure Rules applies (with some exceptions, not presently relevant) to appeals -- 12 of 19 -- 13 13 under r. 784, with necessary changes. Part 1 of Chapter 18 deals with appeals to the Court of Appeal and r. 766(1)(a) provides that the Court of Appeal has all the powers and duties of the court that made the decision appealed from. In this case it is considered therefore that the Land Court has the power given to the Supreme Court in r. 171 to strike out a pleading. (35) Rule 171 provides that “(1) This rule applies if a pleading or part of a pleading – (a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or delay the fair trial of the proceeding; or (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or (e) is otherwise an abuse of the process of the court. (2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis. (3) …” Does the appeal disclose a reasonable cause of action? (36) Counsel for the respondent has submitted that:  the appeal on its face fails to demonstrate any substantive basis on which the jurisdiction of the court should be invoked;  the respondent was prejudiced in the appeal by virtue of the paucity of a lack of clarity of the grounds of appeal;  there is no merit in the appeal;  it is not the role of the court to patch up the case for the appellant;  there is no reasonable basis on which the respondent can respond;  the grounds of appeal are unintelligible and that there would be a miscarriage of justice if the respondent were expected to prepare a case in response. (37) In general terms, a notice of appeal must state specifically and concisely the grounds of complaint. (B.C. Cairns, Australian Civil Procedure, 1992 at 522). In H.R. Lancey Shipping Co Pty Ltd v Federal Commissioner of Taxation (1951) 25 ALJR 145 at 147, Williams J said “The grounds of objection need not be stated in -- 13 of 19 -- 14 14 legal form, they can be expressed in ordinary language, but they should be sufficiently explicit to direct the attention of the respondent to the particular respects in which the taxpayer contends that the assessment is erroneous and his reasons for this contention. In each case the sufficiency of the grounds is a matter for the court.” (38) It is clear that the power to strike out a pleading on the grounds that it discloses no reasonable cause of action should only be exercised in plain and obvious cases (Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 at 1101, 1105). “… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action … is clearly demonstrated.” (Central Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). (39) It is pointed out in Cairns, Australian Civil Procedure at 172 that the ground that no reasonable course of action is disclosed can be resorted to in two situations, that is when the facts themselves fail to reveal a cause of action or defence and, secondly, where the pleading contravenes the rules or fails to state the facts in proper form. Applying these approaches to the current proceedings, the questions are whether the Notice of Appeal fails to disclose any valid ground of appeal and/or whether it fails to state the grounds in proper form. (40) I propose to deal with each of the paragraphs of the appellant’s grounds of appeal in turn. By way of explanation of the form of the grounds, it appears that the appellant is responding to a letter from an officer of the Department of Natural Resources which set out the reasons supporting the issue of the current licence. Bearing in mind the fact that the appellant drafted the Notice of Appeal himself, that the authorities state that a pleading should only be struck out in the clearest case, and also that in this case no amendments can be made to the notice of appeal, I have read the letter from the Department of Natural Resources and Mines dated 26 April 2001 in conjunction with the grounds of appeal. This affords a great deal of latitude to the appellant, perhaps more than should normally be conceded, but the reason I have done this is to endeavour to determine whether there are any valid grounds of appeal. 1. Re Par (1) “Park” I advised that I would only build the “Park” (restore large area of river bank) only if permit granted to build weir as applied for, as I believe my License covers, but I wanted both applications done jointly. – Refer Councils letter 29th April 1996 based on River Protection Guidelines Page 6 General Exemption.” -- 14 of 19 -- 15 15 (41) This amounts to a response to a matter raised by the respondent in the letter from the respondent to the appellant dated 26 April 2001. It does not establish a ground of appeal and must be regarded as being irrelevant to these proceedings. “Paragraph (1) (b) My belief my license 55345K authorises 1.5 mt. Weir is incorrect. Refer to decision of Comm. R. E. Wenck 23rd April 1996, Page (1) Par (3) 1.5 mtre. High weir….measurements means …. Toe of barrier to Top of barrier, Refer also Judge Divetts mediation plan Toe R.L. 98.6 add to this 1.5 mtr = 100.10 when done correctly for first time.” (42) In an endeavour to understand the Notice of Appeal I have read the decision of Mr Wenck in the matter of Dawson v Chief Executive, Primary Industries Corporation, unreported, Land Court, 23 April 1996 and I have also examined the sketch plan referred to which is attached to an agreement entered into by all the relevant parties on 12 June 1998, as a result of mediation. Piecing this material together as best I can, my conclusion is that the appellant is asserting that the “correct” height of the wall of the weir should be 100.10 metres and that the measurements undertaken by the respondent are incorrect. The paragraph may also be read as a statement of the evidence on which the appellant intends to rely, to establish that proposition. In so far as the paragraph states the evidence on which the appellant intends to rely, it does not constitute a ground of appeal. (43) The appellant may also be asserting here that he is entitled to a weir 1.5 m high. Certainly in the section of the Notice of Appeal which outlines the decision appealed against, Mr Dawson makes it clear that he is appealing against the refusal of the Chief Executive to bring the weir to its correct height of 1.5 m. While it is correct that Mr Dawson originally sought a licence for a weir 1.5 m high, and that in his most recent application he re-applied for approval of a weir of that height, it is also true that the original licence and the two succeeding licences have measured the height of the weir by reference to a fixed datum point, not by measuring from the toe of the weir to the top. Mr Dawson refers to paragraph 3 of the decision of Mr Wenck Dawson v Chief Executive, Primary Industries Corporation (supra) in support of his claim that he is entitled to a weir 1.5 m high. That paragraph is part of a letter written by an officer of the Primary Industries Corporation, which the member is quoting. Mr Wenck did not hold that the weir should be 1.5 m high. Rather he accepted that the appropriate methodology to be used was to adopt a fixed datum against which the elevation could be measured. Mr Dawson has not set up a ground of appeal by stating -- 15 of 19 -- 16 16 that the correct height of the weir is 1.5 m, or that he is entitled to raise the height of the weir to 1.5 m. (44) Similarly, the appellant reaches the conclusion that the top of the weir should be 100.1 m by assigning a measurement, RL 98.6, taken from the plan attached to the mediation agreement, to the toe of the weir. He then adds 1.5 m being the height of the weir to which he says he is entitled. Again this approach uses a methodology for measuring the height of the weir which is different from that used in all the licences, and previously accepted by this Court. Mr Dawson has not at any stage stated the particular respects in which he says that the respondent’s methodology is erroneous (if that is his contention) nor does he provide any reasons. (45) In any event in Dawson v Chief Executive, Primary Industries Corporation, issues as to the measurement of the height of the weir and the accuracy of the measurements were ventilated fully. Mr Wenck found (at 6) that, on the evidence, Mr Dawson’s fears as to incorrect levels having been adopted in the earlier litigation Rogers v Chief Executive, Department of Primary Industries, (unreported, Land Court, 25 March 1994), potentially influencing the future level of the structure, had no substance. The material that Mr Dawson has supplied in this paragraph does not identify any ground of appeal. “Par (2) Same Decision Permission given to re instate old causeway. I wish to bring to the court Possibly five (5) persons all 75-85 yrs. (If still alive) two sons of previous owners. Two full blood aboriginals, & one “Lady” Lady Pearl Logan all of whom have crossed over the old “Battles Crossing” hundreds of times. Estimates (guess-timates) of height around height of my application 99.7 to 100.00 R>L. With the above I wish to use document obtained from F.O.I. written by R. Walsh and severely altered I believe by J. McKenna. “Works not required to be licensed under Water Resources Act etc.” (46) This is a list of witnesses whom the appellant intends to call, and an indication of other evidence on which he intends to rely. It does not constitute a ground of appeal. “Re par (1) (3) No Application Made for Pool Refer letter of 18th Aug 1998 written by myself to R & D Rogers copies of which were sent to Dept. Natural Resources. Refer last paragraph page (7).Comm. Wenck decision re “Safe Water Activity”. No I would never place the childrens activities near the bridge than it’s present, sometimes water-less position. I knew the councils attitude to any such suggestion, when signing the mediation agreement and asked Judge Divett if by signing would I be prohibited from making a fresh application, to which he replied no. As stated -- 16 of 19 -- 17 17 in previous correspondenced what I did want from mediation was the signatures of both D. Divett & J. McKenna showing R.L. toe of weir at 98.6 – first time from such officials. Would making such an application cost me a further $75.00 and if so shouldn’t the same apply to the Rogers for placing the 200m of rocks at there end?. (47) The first two sentences also appear to indicate the material on which the appellant intends to rely. The rest of the paragraph deals with some of the history of the matter. (48) Mr Dawson refers to the mediation agreement signed on 12 June 1998 by all the parties and Dr Divett, the Member of the Land Court who acted as mediator. One of the terms of the agreement was that Mr Dawson would apply to the Council for permission to relocate the children’s swimming pool which is presently located upstream of the weir, to a point below the weir. Mr Dawson has not made that application because he believes that such a relocation would create safety problems for the children using the pool. He also believes that the Council would not approve such an application. Mr Dawson has not sought to set aside the mediation agreement on the basis that the pool cannot be relocated. Rather, he says that he was aware, at the time he entered into the agreement, that the Council would not approve such an application. None of this constitutes a ground of appeal. (49) Mr Dawson then repeats an earlier assertion that the plan attached to the agreement shows the RL at the toe of the weir as 98.6. This appears to be a statement of evidence on which he intends to rely and as such it does not constitute a ground of appeal. Par (2) Allegations Rapids never existed. Not usually apparent etc. Video taken by S. Smart & R. Walsh 5th Feb. 1992 clearly shows this not to be the truth, rocks – bed of river crossing show clearly under approx. 300m of clear slowly flowing water. Conversation at same time Walsh to Rogers – “river 600mm lower than normal – Rogers pump etc., dog lift it’s leg etc., intend to shift pump – (N.B) letter from Rogers to Dept. 12th Feb 1992 one week after tape pump flooded etc., seeks removal of weir. Submission to Mr. T. Fenwick from R&D Rogers 17th Feb 1997 resolution Etc., “mention rapids” 4 times. Any correspondence written to either parties Since mediation. Any correspondence that may come as a result of Rogers “Confidential” objection – refused copy of same irrespective of Legislation – now before F.O.I. – Rogers objection 12th July 1996. Especially paragraph (4) not fit proper person etc., R. Laits Report etc., if necessary. -- 17 of 19 -- 18 18 Video taken for myself after weir breached lowering river etc., no signs of “rapids” same video offered R. Lait which he states otherwise bit rough but contains nothing I would want hidden. Also any letters of support it found to be necessary. I would request if possible claim be heard in Atherton court as more convenient for elderly witnesses & that the Judge allow sufficient time to inspect the area in question. I also wish to use in support of my “Ground of Appeal” any surveying information from either Robbin Trotter, John Wise, John Charles or myself and any associated correspondence. Also any correspondence that may be obtained from supporters of the project whether private or departmental which could include Statutory Declaration from Mr. Don Fry whose firm made and installed water wheel at Rogers which he Mr. Rogers lied about and which the Department has refused to investigate. Also transcript and documents from any previous court action.,” (50) The first paragraph of this section of the notice of appeal appears to be disputing evidence which was presented in one of the earlier proceedings, Rogers v Chief Executive, Department of Primary Industries, unreported, Land Court, 25 March 1994. It is not open to this Court to reopen those proceedings. In any event, this material does not constitute a ground of appeal. (51) The second, fourth, fifth, sixth, seventh and eighth paragraphs are outlines of the evidence on which the appellant intends to rely. They do not constitute grounds of appeal. (52) The third paragraph also appears to be a statement of some evidence which the respondent is seeking to gather to enable respond his appeal. Again it does not constitute a ground of appeal. (53) Mr Wrenn sought to supplement the grounds of appeal with an affidavit signed by Mr Dawson to establish that the appeal had substance. That material cannot be used for the purpose of establishing that there are valid grounds of appeal. Section 51(5) of the Water Resources Act 1989 has the effect that the appellant is confined to the grounds stated in the Notice of Appeal. (54) The respondent also submitted that the Notice of Appeal be struck out on the grounds that it is frivolous and vexatious and an abuse of process. Given that I have decided that the appeal should be struck out because it discloses no reasonable grounds of appeal, it is not necessary to deal with these aspects of the respondent’s application. Since the Notice of Appeal does not disclose what the appellant’s -- 18 of 19 -- 19 19 grounds of appeal are, it is not appropriate to discuss whether the appeal is frivolous and vexatious or an abuse of process. (55) My conclusion is that, for the reasons set out above, the Notice of Appeal does not disclose any reasonable grounds of appeal. The Notice of Appeal must therefore be struck out. Application for costs of adjournment (56) As stated above, on 4 January 2002 the respondent filed in the Land Court Registry an application to have the appeal struck out. On receipt of this application, I decided that it was desirable to conduct a Direction Hearings by telephone/teleconference, to enable the future conduct of the proceedings to be determined. (57) The teleconference was set down for Wednesday 9 January 2002 at 2.30pm. However, counsel for the appellant, Mr A Wrenn did not attend at the teleconference and could not be contacted by the Deputy Registrar of the Land Court. The teleconference was therefore adjourned until Thursday 10 January 2002 at 2.30pm. (58) On that day, Mr Wrenn was present, and the respondent was represented by Mr K Fisher. Mr Wrenn apologised to the court for his absence on the previous day. He said that when he and the Deputy Registrar had discussed Wednesday 9 January, at 2.30 pm as a possible time for the Directions Hearing, he had understood that the time would be confirmed after the Deputy Registrar had ascertained that it was suitable to the respondent. Mr Wrenn heard nothing further. (59) On Thursday, 10 January, 2002, Mr Fisher made an application that the appellant pay costs fixed at $250.00 of the respondent for preparation and attendance by himself and his client at the original teleconference. (60) It appears that there was a genuine misunderstanding by Mr Wrenn as to the nature of the arrangement made with him by the Deputy Registrar. The Deputy Registrar regarded the time as confirmed, Mr Wrenn thought that it was to be confirmed. The Court has a discretion as to whether to order costs. Given the circumstances described above, I have decided that there should be no order as to costs in respect of the teleconference arranged for Wednesday, 9 January at 2.30 pm. CAC MacDONALD MEMBER OF THE LAND COURT -- 19 of 19 --