Dawson v Department of Natural Resources and Mines [2003] QLAC 23 (2003) 24 QLCR 70

LAND APPEAL COURT OF QUEENSLAND CITATION: Dawson v Department of Natural Resources and Mines [2002] QLAC 23 PARTIES: Aubrey Wood Dawson (appellant) v. Chief Executive. Department of Natural Resources and Mines (respondent) FILE NO: LAC2002/0048 DIVISION: Land Appeal Court of Queensland PROCEEDING: Application to Strike Out Appeal ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 31 March 2003 DELIVERED AT: Brisbane HEARD AT: Cairns JUDGE: Justice Jones MEMBERS: Mr JJ Trickett Mr RE Wenck ORDERS: The appeal is allowed. Leave is granted to amend the Notice of Appeal to the Land Court. The matter be remitted to the Land Court for determination. No order as to costs. CATCHWORDS: Practice and Procedure – appeal from decisions of Land Court – power to amend grounds of appeal – adequacy of grounds of appeal – application of Rules – difference between requirements of Valuation of Land Act 1944 and Water Resources Act 1989 – costs. Appeal – interpretation of statutes – Valuation of Land Act s.21(3) – Water Resources Act s.51(5) – Land Court Rules 2000 r.4 – Uniform Civil Procedure Rules 1999 rr. 171, 375, 386, 751, 766. -- 1 of 9 -- 2 COUNSEL: Mr A Wrenn for the appellant Mr K Fisher for the respondent [1] This is an appeal by Mr AW Dawson against the decisions of the Land Court on two preliminary matters that:  the Land Court had no power to amend the Notice of Appeal (paragraph [24] of the decision of the Land Court), and  the Notice of Appeal does not disclose any reasonable grounds of appeal and the appeal must therefore be struck out (paragraph [55] of the decision of the Land Court). [2] Mr AW Dawson (the appellant) appealed to the Land Court against certain terms and conditions in Licence No. 55345K issued to him on 29 September 2000 under the Water Resources Act 1989 by the Chief Executive, Department of Natural Resources and Mines (the respondent). That licence replaced an earlier licence, No. 55345 issued on 18 February 1997, which in turn had replaced the original licence G55345, issued on 24 August 1992. Those licences allowed for the construction of a rock filled dam on the Johnstone River for the purpose of conserving water. The terms of the licence are set out in Schedule A and Schedule B and it is against the special conditions in Schedule B which Mr Dawson has appealed. [3] There is a lengthy history to this matter. As set out in the decision of the learned Member of the Land Court, Mr Dawson and the Department of Natural Resources and Mines (and its predecessors) have been in dispute over the weir since 1992. The present appeal was initiated by Mr Dawson lodging by post a Notice of Appeal under s.51 of the Water Resources Act 1989 which was received in the Land Court Registry on 7 June 2001. [4] Following mention of the matter in Atherton on 7 November 2001, at which the learned Member issued a number of directions, the respondent made formal application on 3 January 2002 for a new directions hearing so that a number of matters could be dealt with. The grounds of the application were to the effect that the appeal should be struck out because it was frivolous and vexatious and an abuse of process, and secondly, because the appeal disclosed no substantive cause of action. On 4 January 2002, certain documents were faxed to the Land Court Registry by or on behalf of the appellant, which included a document described as “Amended Notice of Appeal”. [5] At a telephone directions hearing on 10 January 2002, the learned Member 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. Counsel for the appellant objected to the form and timing of the respondent’s application to strike out the appeal, but the learned Member did not consider the appellant -- 2 of 9 -- 3 to be disadvantaged, as the appellant had three weeks notice of the application before the hearing. [6] On 21 January 2002 the learned Member heard the parties' submissions on a number of preliminary matters including:  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; and  if the Notice of Appeal cannot be amended, whether the appeal should be struck out for the reasons identified by the respondent. It is against the learned Member’s decisions on those two matters that the present appeal to this Court was instituted. [7] The grounds of appeal to the Land Court were contained in three pages attached to the Notice of Appeal, in respect of which the learned Member of the Land Court remarked that "… it is difficult to discern from those three 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" (paragraph [7]). [8] The procedure for instituting an appeal to the Land Court as is relevant to this matter is contained in s.51 of the Water Resources Act 1989. Under s.51(1) a dissatisfied person may appeal against a decision of the Chief Executive in relation to an application for a licence. Sub-section (5) deals with the grounds of appeal and provides that "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." [9] The document entitled "Amended Notice of Appeal" had been filed in the Land Court Registry on 4 January 2002, well before the hearing by the learned Member of these preliminary matters. Counsel for the appellant argued that while s.51(5) precluded the appellant from raising a new ground on the hearing of the appeal, the sub-section did not prevent amendments being made before the hearing of the appeal. [10] However, on the reasoning that previous decisions of the Land Court refused to allow any amendment of or addition to the grounds of appeal, which reasoning was supported by other authorities, the learned Member held that the appellant could not amend the grounds of appeal. [11] The learned Member then proceeded to examine the respondent's second argument that the appeal on its face failed to demonstrate any substantive basis on which the jurisdiction of the Court should be invoked. Before us it was agreed that should the Court find that it has power to allow any amendment of the grounds of appeal, then the respondent's second argument would not be necessary. -- 3 of 9 -- 4 [12] As noted by the learned Member, neither the Land Court Act 2000 nor the Land Court Rules 2000 confer power on the Land Court to strike out proceedings as sought by the respondent. However, Rule 4 of the Land Court Rules is to the effect that if the 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) do so, then the Uniform Rules apply in relation to the matter with necessary changes. In these circumstances, the learned Member therefore considered that the Land Court has the power given to the Supreme Court in Rule 171 to strike out a pleading if the pleading discloses no reasonable cause of action. [13] After carefully considering each of the appellant's so-called "grounds of appeal", the learned Member concluded in respect of each one of them that they did not constitute a ground of appeal. On that basis, the learned Member concluded that the appeal should be struck out because it disclosed no reasonable grounds of appeal. [14] Before us, counsel for the appellant, Mr A Wrenn, argued that as the learned Member relied upon the Uniform Rules for power to strike out a pleading (in this case the Notice of Appeal), in considering whether she could allow amendment of the grounds of appeal, she should have applied Rules 751 and 766(6) of the Uniform Rules. Rule 751 allows a Notice of Appeal to the Court of Appeal to be amended. Rule 766 sets out the general powers of the Court of Appeal. [15] Rules 751 and 766 are contained in Part 1 of Chapter 18 of the Uniform Rules, which deals with appeals to the Court of Appeal. We agree with counsel for the respondent, Mr K Fisher, that if those rules in Part 1 are to be applied, they would apply to the appellate Court, the Land Appeal Court, rather than to the Land Court, the Court at first instance. The issue here does not relate to amendments to the Notice of Appeal to the Land Appeal Court, but to amendments to the Notice of Appeal to the Land Court. Therefore, neither Rule 751 nor Rule 766 are applicable. [16] Furthermore, in our view, the appeal by Mr Dawson to the Land Court is not an appeal to which Part 3 of Chapter 18 of the Uniform Rules applies. The rules in Part 3 provide for the procedure for an appeal to a Court where the legislation conferring the right of appeal is silent as to procedure. This does not apply to the Land Court. Rule 7 of the Land Court Rules states that a proceeding is started in the Land Court by filing an originating application with the Registrar of the Land Court. Rule 8 sets out those matters which must be contained in an originating application, but subrule (1) provides that an originating application must comply with any requirements of the Act giving jurisdiction -- 4 of 9 -- 5 for the proceeding in the Land Court. In the present case, the particular requirements are contained in s.51 of the Water Resources Act 1989. [17] As mentioned earlier, the learned Member relied on Rule 4 of the Land Court Rules, for authority to consider whether the Uniform Rules provided for a matter where the Land Court Rules did not. We note that subrule (2) of Rule 4 states that: "For subrule (1), an originating application under these rules is to be treated as if it were a claim under the uniform rules." [18] Although many Statutes which confer jurisdiction on the Land Court, including s.51 of the Water Resources Act 1989 in the present case, provide for “an appeal to the Land Court", the only means of starting proceedings in the Land Court is by filing an originating application: Rule 7. The precise form of originating application required in such circumstances is contained in Form 3 of the Land Court Forms. [19] It is our view that where Rule 4(1) of the Land Court Rules is applicable, under Rule 4(2) an originating application must be treated as if it were a claim under the Uniform Rules. Therefore, in our view, the appeal in this case is a "claim", not an "appeal", for the purposes of applying the Uniform Rules. If this is so, there is no doubt that at any stage in a proceeding, the Court may allow a party to amend a claim in the way and on conditions the Court considers appropriate: Rule 375. [20] In considering whether the Land Court had the power to allow amendments to the grounds of appeal, the learned Member referred to previous decisions of the Land Court, where the Court had held that it had no such power. These cases included Litschner v The Commissioner of Water Resources (A85-80), unreported, Land Court, 20 November 1985; English v The Commissioner of Water Resources (A87-55), unreported, Land Court, 30 October 1987; and Rogers v The Commissioner of Water Resources (A92-52), unreported, Land Court, 6 April 1993. [21] Support for the learned Member's conclusion was also drawn from the decision of the High Court in Molloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608. There the High Court was dealing with s.44M(3) of the Land Tax Assessment Act 1910, which provided that "a taxpayer shall be limited, on the hearing of the appeal, to the grounds stated in his objection." In respect of that provision, the Court held at 610: "Section 44M(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." -- 5 of 9 -- 6 [22] In that case, the taxpayer had relied on a ground not stated in his objection to his assessments. However, it appears from the reported judgment that the taxpayer did so on the hearing of the appeal, there being no suggestion that the taxpayer had sought leave to amend the grounds of objection before the hearing. [23] It seems that similar situations arose in Litschner and English, where the Land Court refused to allow any amendment of or addition to the grounds of appeal on the hearing of each of those appeals. In those cases, there was no suggestion that leave had been sought to amend the grounds of appeal prior to the hearing. [24] However, the situation is different in the case of Rogers v The Commissioner of Water Resources, where an application for leave to amend the grounds of appeal was heard by the Land Court before the hearing of the appeal. The Court refused the application, relying on a number of previous decisions of the Land Appeal Court concerning appeals under the Valuation of Land Act 1944, which were to the effect that neither the Land Court nor the Land Appeal Court had the power to permit a landowner to enlarge on or add to the grounds of appeal set out in the Notice of Appeal. [25] As pointed out by the learned Member below, the decisions of the Land Court interpreting s.51(5) and its predecessors show that without exception the Court has refused to allow any amendment of or addition to the grounds of appeal set out in the Notice of Appeal. [26] Against this view, are the observations of Thomas J of the Supreme Court of Queensland in Rogers v Sadler, an unreported decision delivered on 4 February 1993, which dealt with an application for judicial review of a decision of the Chief Executive under the Judicial Review Act 1991. In relation to s.4.26(3) of the Water Resources Act 1989 (which is the predecessor of and identical to s.51(5)), Thomas J said at pp.5-6 of that decision: "That certainly declares 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." [27] His Honour’s observations are contrary to the decision of the Land Court in Rogers v The Commissioner of Water Resources. In that case the learned Member pointed out that although Rule 18 of the then Land Court Rules enabled the Land Court to make such amendments as were necessary for determining the real question in dispute between the parties, that Rule could not be used to override the provisions of a statute. He followed previous decisions of the Land Appeal Court interpreting provisions of the Valuation of -- 6 of 9 -- 7 Land Act 1944 containing what he considered to be similar wording to that found in the Water Resources Act. [28] The learned Member in that case relied on the decision of the Land Appeal Court in Pratt v The Valuer-General (1981-82) 8 QLCR 145, where at 148-149, the Court referred to a previous decision of the Land Appeal Court in Franklin v The Valuer-General (1978) 5 QLCR 181, which in turn referred to the decision of the Land Appeal Court in Gibson Investments Pty Ltd v The Valuer-General (1978) 5 QLCR 223, interpreting the then s.21(3) of the Valuation of Land Act 1944. [29] In Franklin, the appellant attempted to rely on a ground of appeal which was not one of the grounds in the Notice of Appeal to the Land Court. In respect of that additional ground, the Land Appeal Court said at 184: “The provisions of the Valuation of Land Act as to the appeal procedure are restrictive in their operation, more especially to an appellant who has made his appeal on narrow and particular grounds rather than on a broad general ground such as ‘the valuation is excessive and contrary to law’. The language used by the Legislature is mandatory and binding not only on the parties but also on this Court and the Land Court.” [30] After setting out the provisions of s.21(3) of the Valuation of Land Act 1944, the Court continued: “It seems to us that it is not competent for an appellant before us to add to his grounds of appeal as initially contained in his notice of appeal to the Land Court. If he were permitted to do so he would be flouting the mandatory provisions of the Valuation of Land Act previously enumerated. In simple terms in the conduct of his appeal before us an appellant remains limited to the grounds of his original notice of appeal to the Land Court.” The Land Appeal Court reached a similar conclusion in Gibson Investments at 227. [31] In Pratt, after referring to those earlier cases, the Land Appeal Court concluded at 149: “Neither this Court nor the Land Court has the power to permit the land owner to enlarge or add to his grounds of appeal as set out in his Notice of Appeal against the determination of the Valuer-General.” The Land Appeal Court also referred to the decision of the High Court in Molloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608, where the High Court held that provisions similar to s.21(3) of the Valuation of Land Act were an imperative direction to the Court not a provision merely for the benefit of the Commissioner which he is in a position to waive. [32] However, while the law seems to be well established in this regard, we are of the opinion that there is a significant difference between s.21(3) of the Valuation of Land Act 1944 and s.51(5) of the Water Resources Act 1989. Section 21(3) provides: -- 7 of 9 -- 8 “An appeal under this section shall be instituted by filing in the Land Court registry a Notice of Appeal. Such Notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated, and the burden of proving any and every such ground shall be upon the owner.” [33] The words “so stated”, in our view, indicate that the intention of the Legislature was that the grounds of appeal be confined to the grounds contained in the Notice of Appeal as filed in the Land Court registry. No amendment of those grounds is contemplated before the hearing. [34] Similar circumstances applied in Molloy v The Federal Commissioner of Land Tax where s.44M(3) of the Land Tax Assessment Act 1910-1934 provided that: “A tax payer shall be limited, on the hearing of the appeal to the grounds stated in his objection.” (Emphasis added) [35] On the other hand, the provisions of s.51(5) state that: “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.” (Emphasis added) Unlike an appellant under the Valuation of Land Act, or an appellant under the Land Tax Assessment Act, an appellant under the Water Resources Act is not confined to the grounds so stated in the Notice of Appeal as filed. In this regard, the observations of Thomas J in Rogers v Sadler as set out in paragraph [26] are pertinent. While on the hearing of the appeal an appellant has no right to argue grounds not stated in the Notice of Appeal, we have come to the view that this would not prohibit amendment of the Notice before the hearing. [36] On this view of the matter, we consider that the originating application in this case is to be treated as if it were a claim under the Uniform Rules: Rule 4(2). The Uniform Rules give the Court power to allow a party to amend a claim in the way and on the conditions the Court considers appropriate: Rule 375(1). In matters such as the present, this power is confined to amendments before the hearing: s.51(5) of the Water Resources Act. [37] On behalf of the appellant, Mr Wrenn sought to substitute what was headed “Amended Notice of Appeal”, containing eight grounds of appeal. In our view, the Court may allow an appellant to amend the grounds of appeal prior to the hearing, which would extend to including some additional grounds to the original grounds of appeal. [38] The effect of our findings in this case is that we are of the view that the Land Court erred in deciding that the Court had no power to amend the Notice of Appeal. [39] As pointed out earlier, the learned Member below decided that as the Notice of Appeal as filed did not disclose any reasonable grounds of appeal the appeal must be struck out. -- 8 of 9 -- 9 Since we have found that the Notice of Appeal can be amended by including the eight additional grounds, this decision also must be overturned. [40] In addition to the grounds of appeal to this Court which we have dealt with, the appellant raised two additional grounds which were that the decision of the Member of the Land Court was  against procedural fairness, and  against the laws of natural justice. In view of our findings, these other grounds of appeal need not be considered. [41] For these reasons we are of the opinion that the appeal must succeed and therefore the appeal is allowed. Leave is therefore granted to amend the Notice of Appeal to the Land Court in accordance with the document headed “Amended Notice of Appeal” (Exhibit 1). We order that the matter be remitted to the Land Court for determination. [42] Costs: The appellant has been successful in this proceeding and, in the normal course of events, would be entitled to his costs. [43] However, the effect of his success is that the amendments to the “claim” are allowed. That success could bring with it, in terms similar to Rule 386 of the Uniform Rules, an order that the costs of and resulting from the amendments be paid by the appellant, being the party making the amendments. [44] In the circumstances we make no order as to costs of the appeal or costs of and resulting from the amendments. JUSTICE OF THE SUPREME COURT PRESIDENT OF THE LAND COURT MEMBER OF THE LAND COURT -- 9 of 9 --