ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc [2000] QLRT 7

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re ACI Operations Pty Ltd (Applicant) and Friends of Stradbroke Island Association Inc (Objector) [2000] QLRT 7 PARTIES: ACI Operations Pty Ltd v. Friends of Stradbroke Island Association Inc FILE NO/S: LXX40043/2000/1 PROCEEDING: Application to strike out objection to mining lease application DELIVERED ON: 16 November 2000 DELIVERED AT: Brisbane HEARING DATE: 9 November 2000 PRESIDING MEMBER: Koppenol P ORDER/S: Subject objection dated 1 October 2000 struck out. (at [15]) CATCHWORDS: MINING – MINING LEASE APPLICATION – LATE OBJECTION – APPLICATION TO STRIKE OUT – whether duly lodged – whether substantial compliance with statutory requirements – whether invalid Mineral Resources Act 1989, ss. 252, 253, 260, 264(6)(a), 265, 268, 270, 392 Acts Interpretation Act 1954, s. 36 Project Blue Sky Inc v. Australian Broadcasting Authority (1998) 194 CLR 355, applied Brisbane City Council v. Mainsel Investments Pty Ltd [1989] 2 QdR 72, applied Fraser Island Defenders Organization v. Hervey Bay Town Council [1983] 2 QdR 72, followed Crismon v. United States, 550 F2d 1205 (1977), cert den 434 US 807 (1977), followed Carrasco v. Kleenmaid Pty Ltd (IRCA, Moore J, 15.11.96, Unreported), followed Edwards v. Commonwealth Bank of Australia (1997) 73 IR 409, followed Moxham v. McDonald (1874) 4 QSCR 41, applied -- 1 of 6 -- Fernando v. Minister for Immigration and Multicultral Affairs (2000) 97 FCR 407, followed Hatton v. Beaumont (1978) 52 ALJR 589, referred to David Grant & Co Pty Ltd (Receiver Appointed) v. Westpac Banking Corporation (1995) 184 CLR 265, referred to Hunter Resources Ltd v. Melville (1988) 164 CLR 234, considered Noble & McBride v. State of Victoria & State of Queensland (SC, Q, Helman J, 12.09.97, Unreported), followed COUNSEL: Mr S.J. Keim, for Quandamooka Land Council Aboriginal Corporation (Objector) Mr. A. Preston, instructed by Crown Law, for the State of Queensland SOLICITORS: Ms Z. Farmer (solicitor), for ACI Operations Pty Ltd (Applicant) Mr P. Smith (solicitor), Deacons Lawyers, for Redland Shire Council (Objector) Ms J. Haenke (agent), for Friends of Stradbroke Island Association Inc (Objector) Mr P. Heathwood (in person), (Objector) REASONS FOR JUDGMENT [1] KOPPENOL P: In this mining lease application, an issue has arisen as to the validity of a purported objection (the objection). The objection was lodged by the Friends of Stradbroke Island Association Inc (the objector) by letter dated 1 October 2000. It was addressed to (a particular officer in) the Department of Mines and Energy (the Department), which received it on 3 October 2000. The mining lease applicant (ACI Operations Pty Ltd) (ACI) contends that the objection is invalid and should be struck out. [2] The relevant provisions of the statute concerned (the Mineral Resources Act 1989 (MRA)) are as follows:  Section 252 requires the mining registrar to fix a day as the last objection day for the application, to endorse it on the certificate of application and to cause the certificate to be advertised at least 14 days prior to the last day for objections. -- 2 of 6 --  Section 260 enables an entity (which includes a person and an unincorporated body: Acts Interpretation Act 1954, s. 36), on or before the fixed last objection day, to lodge with the mining registrar, an objection in writing in the approved form. It must state the grounds of objection and the supporting facts and circumstances relied on.  Section 265 requires the mining registrar to fix a hearing date for the application and any objections duly lodged.  Section 268 requires the Land and Resources Tribunal to hear the application and any objections – but that the Tribunal: “… shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.” [3] On 25 July 2000, the mining registrar fixed 25 September 2000 as the last objection day. The 2-months objection period then commenced: s. 264(3)(c). On 1 August 2000, ACI published, pursuant to the requirement to do so in s. 264(6)(a) of the MRA, a public notice in The Courier-Mail newspaper which (amongst other things) gave notice that 25 September 2000 was the last objection day. The objection here was therefore lodged about 8 days late. The objector had previously expressed to the Department various concerns in respect of ACI’s draft environmental management overview strategy (EMOS) and as to the perceived negative effect upon Stradbroke Island of the proposed mining lease: see, e.g., its letter dated 1 June 2000 (Ex.2). The agent for the objector who appeared before the Tribunal on 9 November 2000 (and who also signed the objection) conceded that she was aware that 25 September 2000 was the closing date for objections and that the objection was late. [4] It was submitted by ACI that a late objection was not “duly lodged” for the purposes of ss. 265 and 268. Other complaints were also made concerning the form, content and service of the objection. In essence, the submission was that the objection was invalid due to noncompliance with the applicable statutory provisions. [5] Until 1998, the question of whether noncompliance with a statutory provision resulted in invalidity required an analysis of whether the provision was mandatory or directory – and if directory, whether there had been substantial compliance with the provision. That approach was rejected in Project Blue Sky Inc v. Australian Broadcasting Authority -- 3 of 6 -- (1998) 194 CLR 355 at 390-391: the majority (McHugh, Gummow, Kirby and Hayne JJ) expounded the new approach in the following terms: “A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” [6] Thus the test here is whether it was a purpose of the MRA that a late objection, or one which purportedly was defective in form, content and service, should be invalid – regard being had to the statutory language and the scope and object of the whole MRA. For present purposes, however, the complaints about form, content and service may be put to one side. [7] The essential provisions of the MRA are, relevantly, that an entity may lodge an objection on or before the fixed last objection day; that the mining registrar fixes a hearing date for the application and any objections duly lodged; and that the Tribunal shall not entertain an objection if it is not duly lodged. [8] In my view, the phrase “duly lodged” envisages that all applicable statutory requirements have been complied with: see Brisbane City Council v. Mainsel Investments Pty Ltd [1989] 2 QdR 204, 211-213 (FC); Fraser Island Defenders Organization Ltd v. Hervey Bay Town Council [1983] 2 QdR 72, 74 (Connolly J). Whilst a claim filed outside a statutory time limit would not be duly lodged (see Crismon v. United States, 550 F2d 1205, 1206 (1977), cert den 434 US 807 (1977)), it would be regarded as having been duly lodged if time had been extended: Carrasco v. Kleenmaid Pty Ltd (IRCA, Moore J, 15.11.96, Unreported), page 5; Edwards v. Commonwealth Bank of Australia (1997) 73 IR 409, 412 (IRCA, Moore J). [9] There is no at large or discretionary judicial power to extend statutory time limits: Moxham v. McDonald (1874) 4 QSCR 41, 42 (FC); see also Fernando v. Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, per Heerey J, with whom Dowsett J agreed, at 412. The MRA does not contain a power expressly authorising an extension of time in a case such as this: cf s. 253(2). [10] However, the MRA does contain in s. 392 a power to excuse non-compliance “in respect of any matter” that “has not been done in the prescribed way”, if (relevantly) -- 4 of 6 -- the Tribunal is satisfied that there has been “substantial compliance” with that prescribed way. [11] Depending upon the circumstances, matters of form, content and service in respect of a particular objection which had not been done in the prescribed way could doubtless be regarded as substantially complying with the prescribed statutory requirements. However, it is difficult to accept that an objection lodged after the prescribed last date could ever substantially comply with the requirement to lodge by that date: cf Hatton v. Beaumont (1978) 52 ALJR 589, 591; see also David Grant & Co Pty Ltd (Receiver Appointed) v. Westpac Banking Corporation (1995) 184 CLR 265, 276-277. In Hunter Resources Ltd v. Melville (1988) 164 CLR 234, Dawson J pointed out (at 249), when discussing the statutory provision (albeit not a time provision) in that case, that: “[S]ubstantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.” [12] In my view, the statutory obligation on the part of the objector to lodge the objection by a prescribed date and the prohibition upon the Tribunal’s entertaining an objection if it is not duly lodged militate strongly in favour of the view that a late objection is invalid, and that it cannot be saved by reliance upon the substantial compliance provision. That conclusion is reinforced, in my view, by the fact that the mining registrar is required by s. 265(1), immediately after the last day that objections may be lodged, to fix a hearing date – which cannot be sooner than 7 days after the last date for the receipt of objections – for the application and any objections duly lodged; and under s. 270(1), the Tribunal can dispense with the hearing of a mining lease application if (amongst other things) no objection to the grant of the mining lease has been duly lodged. These provisions enable a prompt hearing of an application and any duly lodged objections. Late objections would frustrate that capacity and introduce delay and uncertainty – contrary, in my view, to the statutory intention. [13] In Fernando v. Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, the Full Federal Court held that an application to the Refugee Review Tribunal made after the statutory time limit was invalid because compliance with the prescribed time was regarded as “an essential preliminary” to the exercise of the Tribunal’s function. Relevantly, Finkelstein J (with whom Dowsett J agreed) said (at 419) that: -- 5 of 6 -- “[51] The consequences of a contrary construction must also be taken into account. If an application can be made to the Tribunal after the prescribed period has elapsed then it can be made at any time thereafter. That is to say, if an application made beyond the prescribed period is a valid application, it will be valid if given one day or one year after that period. This result could not have been intended.” I respectfully agree with that analysis, which is equally applicable to the present case. [14] If substantial compliance were then thought to be sufficient to cure a late (otherwise invalid) objection, questions of degree would doubtless be involved. Thus would an objection which is 1 day late substantially comply? What if it were 8 days late (as here)? Or 28 days? Or 3 months? Or 1 year? These examples illustrate the improbability that Parliament intended any such exercise to be attempted. If Parliament had intended that late objections could be entertained, or that the Tribunal had a discretion to extend the time for lodgment, it could easily have made express provision to that effect in the MRA. The absence of any such provision is significant. [15] For the foregoing reasons and having regard to the purpose, language, scope and object of the MRA, it is my view that an objection which is lodged after the prescribed last day for lodgment is invalid. Accordingly I order the subject objection in the present case to be struck out. In the circumstances, it is not necessary for me to consider further the arguments about the form, content and service of the objection: cf Noble & McBride v. State of Victoria & State of Queensland (SC, Q, Helman J, 12.09.97, Unreported), page 8. -- 6 of 6 --