LAND APPEAL COURT OF QUEENSLAND

THE COURT:   

1. [1]
   The substantive proceedings in this matter concern an application for the determination of compensation for the compulsory acquisition of land under the Acquisition of Land Act 1967.  Compensation was determined by the Land Court by decision delivered on 28 August 2012.  The applicants for compensation, Roy Hope and Delia Hope (the appellants), appealed against the determination of the Land Court by notice of appeal to the Land Appeal Court filed in the registry of the Land Appeal Court on 9 October 2012.  The notice of appeal was served on the solicitors for the respondent constructing authority, Brisbane City Legal Practice, on 10 October 2012. 
2. [2]
   Sections 64 and 65(1) of the Land Court Act 2000 (the Act) provide that -   

"64 Right of appeal to Land Appeal Court

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.

65 Notice of appeal

1. (1)
   A party intending to appeal against a decision of the Land Court must, within 42 days after the order containing the decision is made by the court, serve notice of appeal against the decision on -

1. (a)
   all other parties to the proceeding on which the decision was made;  and

2. (b)
   the registrar of the Land Appeal Court."

3. [3]
   It is not in contention that the notice of appeal to the Land Appeal Court was filed within 42 days after the order containing the decision under appeal was made by the Court, having been filed on the 42^nd day after delivery of that decision.  It is also not in contention that the notice of appeal was served on the respondent on the 43^rd day after the order was made by the Land Court. 
4. [4]
   This decision deals with an application by the respondent for the determination of a preliminary point as to whether the notice of appeal is competent having regard to s. 65 of the Act. 

Appellants' submissions

5. [5]
   Counsel for the appellants submitted that there are two issues for determination by the Court -  

   1. (a)
      whether failure to comply with the 42 day period for service of the notice of appeal in s. 65(1) rendered the appeal incompetent;  and
   2. (b)
      whether, in any event, this Court has power to excuse non-compliance with s. 65(1) of the Act.
6. [6]
   On the proper construction of the Act: 

   1. (a)
      the provision for service of notice of the appeal in s. 65(1) does not operate as a condition precedent to the commencement of an appeal in this Court;  and

1. (b)
   in any event, the power of this Court in s. 57(c) of the Act is not dependent upon there being a competent appeal within the jurisdiction of the Land Appeal Court.

7. [7]
   The right of appeal created by s. 64 of the Act is separate from the requirement for service of notice of the appeal.  Section 64 expressly confers a right of appeal to the Land Appeal Court upon a party to a proceeding in the Land Court.  That provision is not qualified in any respect. 
8. [8]
   Section 3(1) of the Land Court Rules 2000 provides that the Rules, other than Parts 6 and 9, apply to proceedings in the Land Court and, with necessary changes, to proceedings in the Land Appeal Court.  Section 7(1) of the Rules (located in Part 2) provides that a proceeding is started by filing an originating application with the registrar of the Court.  Accordingly, this appeal was started by filing the notice of appeal with the registrar of the Court.  The Land Appeal Court's general jurisdiction was enlivened by filing the notice of appeal.
9. [9]
   Section 65 of the Act then provides conditions with regard to the extent and timing of service of the notice of appeal.  The section requires that such notice be served within 42 days after the making of the order by the Land Court.  There is no reason that the requirement in s.65(1) must be, or should be, viewed as a condition precedent to the unqualified right of appeal granted by s. 64 of the Act.  
10. [10]
    Further, ss. 7 and 55 of the Act provide that the Land Court and the Land Appeal Court must, in the exercise of jurisdiction, act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.  The statutory provisions conferring rights of appeal should not be construed narrowly. 

Respondent's submissions

11. [11]
    The respondent submitted that because there has been non-compliance with s. 65(1)(a) of the Act the appeal is incompetent and the Land Appeal Court does not have jurisdiction to hear and determine the appeal.  Section 65(1) is in obligatory terms, and there is no provision authorising an extension of the time prescribed for serving a notice of appeal.
12. [12]
    The appellants' submission that s. 64 confers an unqualified right of appeal and s. 65 identifies a separate requirement for service of notice of appeal should not be accepted.  Rather s. 65 qualifies s. 64 in that s. 65(1) requires that there be a notice of appeal which must be served.  Starting an appeal by filing a notice of appeal with the registrar is a necessary but not sufficient act to give the Land Appeal Court jurisdiction to hear and determine an appeal.  It is necessary because required by the Rules.  However, filing alone is insufficient because s. 65(1) requires service of the notice of appeal within the prescribed time. 
13. [13]
    The Rules cannot and do not override or modify s. 65(1) of the Act such that the mere filing of a notice of appeal is sufficient to enliven the Land Appeal Court's jurisdiction to hear and determine an appeal.  On the proper construction of s. 65, service within time is a condition which is of the essence of the right of appeal. 
14. [14]
    There is no relevant discretion to extend time.  If there is, there could be no doubt that, in this matter, the discretion would be properly exercised to extend the time prescribed by s. 65(1) by one day. 

Whether Land Appeal Court has jurisdiction to hear the appeal

15. [15]
    Section 64 of the Act provides that a party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.  The effect of s. 7(1) of the Land Court Rules is that an appeal to the Land Appeal Court is started by filing a notice of appeal with the registrar of the Land Appeal Court.  Thus the appeal to this Court was commenced on 9 October 2012, that is on the 42^nd day after delivery of the Land Court's decision.  It is apparent that the relevant legislative provisions impose no time limit on the filing of the notice of appeal.
16. [16]
    However s. 65(1) of the Act provides that a party intending to appeal against a decision of the Land Court must, within 42 days, serve notice of appeal against the decision on all other parties to the proceeding and the registrar of the Land Appeal Court.  It is accepted that the appellants fulfilled the requirement to serve the notice of appeal on the registrar within 42 days by filing the notice of appeal in the Land Appeal Court registry on 9 October 2012.  However the appellant did not serve the notice of appeal on the respondent until the 43^rd day after delivery of the decision.
17. [17]
    This is the first occasion on which the effect of s. 65(1) has been considered by the Land Appeal Court although there are statements in earlier decisions of this Court relevant to the issue.  For example, in Melville v Townsville City Council Philippides J said that there is no provision in the Land Court Act to extend the appeal period.^[1]  And in YMCA v Chief Executive, Dept of Transport & Main Roads,^[2] the Land Appeal Court said, in relation to s. 65 -  

"The parties accepted the proposition that s 65 of the LC Act had the effect that if an appeal were not served as required by that section, this Court would lack jurisdiction to determine it. It is unnecessary to examine the correctness of this proposition."

18. [18]
    There are decisions of the Land Appeal Court in relation to earlier statutory provisions where it was held that the service requirements were mandatory and that, if not complied with, the Land Appeal Court had no jurisdiction to hear the appeal.  Thus, in Re Callaghan,^[3] the Land Appeal Court considered s. 39(3) of the Land Act 1897 which provided that -

"The appellant shall serve notice of [the] appeal upon all persons directly affected by the decision not later than one month after the pronouncing of the decision, …".

The notice of appeal was not served on the Under Secretary for Lands, nor on the Crown Solicitor, as provided in the Land Appeal Court Rules.  The Land Appeal Court decided that the objection raised by the Crown that the notice of appeal was ineffective because it was not served as prescribed by statute, must prevail and directed the appeal to be struck out.^[4]

19. [19]
    Similarly in Re Grazing Homestead No. 320, Boulia District,^[5] where the notice of appeal was served after the expiry of the time prescribed for service, the Land Appeal Court held that the notice of appeal was out of time and that the Court had no jurisdiction to hear the appeal.^[6] 
20. [20]
    In Brady v Redland Shire Council,^[7] the Land Appeal Court considered s. 44(11) of the Land Act 1962 which required service of the notice of appeal upon all parties directly affected by the decision not later than 42 days after the pronouncement of the decision and lodgment of a copy of such notice with the registrar within the same time.  The notice of appeal was lodged with the registrar after 42 days.  Stable J said that the provision was mandatory and inflexible and there was no room for anybody to set aside the provisions of the Act.  It was ordered that the appeal be struck out for want of jurisdiction.  At the time Brady was decided, s. 44(11) gave no discretion to the Land Appeal Court to extend the time for service of the notice of appeal. 
21. [21]
    The Land Appeal Court in Re Grazing Homestead referred to the High Court decision in E Ryan & Sons Ltd v Rounsevell.^[8]  In Rounsevell, O'Connor J rejected the proposition that the time for filing a notice of appeal to the High Court could be extended under the relevant Rules of Court saying^[9] -   

"The party who holds the judgment of the State Court has a vested right, which cannot be interfered with until the conditions which give the High Court jurisdiction to review it on appeal have been complied with.  The provisions of the Rule … relied on cannot on the face of them be brought into operation until there is an "appeal", that is to say, until the case has been brought within the cognizance of the High Court by the filing of the notice as required by the Rules.  Until it has been brought to the cognizance of the Court there is no "appeal" in the High Court in respect of the State Court judgment."

22. [22]
    In Australian Iron & Steel Ltd v Hoogland^[10] Windeyer J said -  

"Statutory provisions imposing time limits on actions take various forms and have different purposes.  … Some are incidents of rights created by statutes.  Some prevent actions being brought after, some before, a lapse of time.  It may be that there is a distinction between Statutes of Limitations, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it.  In the latter case the limitation does not bar an existing cause of action.  It imposes a condition which is of the essence of a new right.  … And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel..."

23. [23]
    Harding v Lithgow Municipal Council^[11] is an example of a case where the High Court held that the time limit was procedural.  Section 580 of the Local Government Act 1919 (NSW) required service of a notice on the Council one month prior to the issue of a writ in respect of damage or injury to a person.  Subsection (5) provided that, unless the required notice had been served, the plaintiff was not entitled to maintain the action, with a proviso that the Court may direct that non-compliance with the section should not be a bar to the maintenance of the action. 
24. [24]
    It was held that service of the notice of action was a necessary procedural step but it did not form part of the cause of action.  The test postulated by Dixon J was whether the imposition in favour of a particular defendant of a condition of suit, such as giving notice, is a procedural matter not going to the validity of the title to enforce the liability, but only to the mode of enforcing it, or the fulfilment of a preliminary procedural requirement.^[12] 
25. [25]
    On the other hand WACB v Minister for Immigration and Multicultural and Indigenous Affairs,^[13] is an example of a case where the High Court held that the relevant time limit imposed a condition which was of the essence of the new right.  Section 478 of the Migration Act 1958 (Cth) relevantly provided that -

1. "(1)
   An application under section 476 or 477 must:

1. (a)
   be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976;  and
2. (b)
   be lodged with the Registry of the Federal Court within 28 days of an applicant being notified of the decision.

1. (2)
   The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)."

26. [26]
    Gleeson CJ and McHugh, Gummow and Heydon JJ said^[14] -

"The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action.  They operate to bar the prosecution of actions otherwise not subject to such a time limit.  In that sense, statutes of limitation are preventative.  However, s 478 does not 'bar an existing cause of action';  rather, '[i]t imposes a condition which is of the essence of a new right'.  Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the Parliament under ss 76(ii) and 77(i) of the Constitution.  The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding…"  (Footnote omitted).

27. [27]
    It might be observed that the provisions of s 478 (2) would make it difficult to reach a different conclusion.
28. [28]
    Counsel for the appellants contended that the right of appeal conferred by s. 64 of the Land Court Act was unqualified and separate from the requirements for service of the notice of appeal.  Accordingly, the Land Appeal Court's jurisdiction in this case was enlivened by the filing of the notice of appeal with the registrar.  The requirements for service in s. 65(1) should not be viewed as a condition precedent to the unqualified right of appeal conferred by s. 64.
29. [29]
    Counsel also contended that cases such as Singh (Delph Singh v Karbowsky,^[15]) are distinguishable from the present matter because that case involved s. 37 of the High Court Procedure Act 1903 which provided that appeals to the High Court "shall be instituted within such time and in such manner as is prescribed by the Rules of Court".  The time limit there was expressed to be a limitation on the entitlement to institute proceedings.  Similarly in the WACB case, s. 478 of the Migration Act 1958 identified a time limit within which the application for judicial review "must … be lodged".  By contrast, s. 64 of the Land Court Act confers an unqualified right to appeal and s. 65 identifies the requirements with regard to service of such a notice. 
30. [30]
    In our opinion, the requirements of service in s. 65(1) of the Act cannot be considered to be procedural going only to the mode of enforcement of the right of appeal conferred by s. 64.  The effect of s. 64 is that a new right is created, that is a right of appeal to the Land Appeal Court, but that right is immediately limited by s. 65(1) which imposes a condition which is of the essence of the new right.  There is nothing in the Act to indicate that the s. 65(1) requirements are procedural only.  The section is in mandatory terms and there is no provision for the Court to extend the time limit or for the condition to be waived by the parties.  The section must be given a meaning and to hold that the time limit need not be observed would be contrary to the clear words of the section. 
31. [31]
    In a number of cases the limitation imposed is expressed to be a limitation on the entitlement to institute proceedings - see Delph Singh v Karbowsky,^[16] David Grant & Co Pty Ltd v Westpac Banking Corporation^[17] and Rudolphy v Lightfoot.^[18]  These cases deal with provisions which are differently expressed, and which occur in different legislative contexts.  However, they do not support the view that there is any discretion conferred as to the time limit in s. 65(1).
32. [32]
    The mandatory language used in s 65, together with its proximity to s 64 which creates the right of appeal, lead us to conclude that it is a condition of the institution of an appeal that there be compliance with s 65.  A failure to do so means that there is no valid appeal.

Sections 7 and 55 of the Land Court Act

33. [33]
    As stated above, there is no general power conferred on the Land Court in the Act or in any other relevant legislation to extend the time limit imposed in s. 65(1).  Nevertheless Counsel for the appellants has submitted that ss. 7 and 55 of the Act require the Land Court and the Land Appeal Court, in the exercise of jurisdiction, to "act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts".  Counsel submitted that it would be an odd result if the Land Court and the Land Appeal Court were to be unconstrained by legal technicalities in the exercise of jurisdiction, but provisions of the Act conferring that jurisdiction were to be construed in such a way as to give rise to such legal technicalities. 
34. [34]
    The short answer to that submission is that the power given to the Land Court and Land Appeal Court to act according to equity and good conscience is, by the terms of ss. 7 and 55, available only when the Court is acting "in the exercise of its jurisdiction".  Thus there is a threshold condition to be fulfilled, namely the establishment of jurisdiction, before the equity and good conscience provision is engaged.  As Keane JA said, in Townsville City Council v Chief Executive, Department of Main Roads^[19] -   

"The authorities suggest that a statutory obligation to have regard to the 'substantial merits of the case' means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion."

35. [35]
    In Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors,^[20] the Land Appeal Court said - 

"Correctly, in our view, the learned Member below held that s. 7 does not confer jurisdiction but relates to the manner in which jurisdiction is to be exercised. … [The section] provides guidance as to how the powers of the Court are to be exercised.  As this Court said in Cox v Commissioner of Water Resources when considering the then operative 'equity and good conscience' provisions which related to the Land Court (and which were worded in similar terms to s. 7):

'Any power which the Court has must be conferred by a statute.  It is only when a power is conferred that the phrase in issue in this case can operate.  In other words, it is only in the exercise of a power conferred on the Court that the Court "shall be governed in its procedure and its decisions by equity, good conscience, and the substantial merits of the case".  The words just quoted are not a source of power (or jurisdiction).  They offer guidance as to the exercise of a power already conferred …

Whatever flexibility section 41(5)(a) of the Land Act 1962 gives to the Land Court in making its decisions, it is clear that the paragraph does not give the Court power to deal with matters according to some arbitrary concept which is unknown to or unascertainable by the parties.  The provisions of the relevant statutes must be observed.  The Court cannot ignore or act contrary to statutory requirements or basic principles of natural justice.  In that sense, at least, section 41(5)(a) does not empower the Court to depart from established principles of law nor does it give it power to dispense justice otherwise than according to law.' "

36. [36]
    Accordingly we do not consider that s. 55 may be used to extend the time limit imposed by s. 65(1).  Nor may s 7 be so used.

Section 57(c) of the Land Court Act

37. [37]
    Counsel for the appellants submitted that, even if the Court were to conclude that the s. 65 requirements for service of the notice of appeal were to act as a limitation on the right of appeal conferred in s. 64, any such defect in the proceedings is capable of being cured by an order under s. 57(c) of the Act.  The failure to comply with the provisions of the legislation will not be fatal if the Act conferring general jurisdiction also confers powers upon the Land Appeal Court to deal with non-compliance.  Counsel also submitted that the power of this Court in s. 57(c) of the Act is not dependent on there being a competent appeal within the jurisdiction of the Land Appeal Court. 
38. [38]
    Section 57 of the Act provides -

"57 Powers of Land Appeal Court

The Land Appeal Court may do 1 or more of the following -

1. (a)
   suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;

2. (b)
   affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;

3. (c)
   make an order the Land Appeal Court considers appropriate."

39. [39]
    Section 57 must be read in the context of the Act as a whole.  The section is found in Division 2 of Part 3 of the Act.  Part 3 is headed "Land Appeal Court".  Division 1 of Part 3 is headed "Establishment and jurisdiction" and s. 54, which is contained in Division 1, provides that "The Land Appeal Court has the jurisdiction given to it under an Act".  Division 2 is headed "General powers" and contains s. 57 which is headed "Powers of Land Appeal Court". 
40. [40]
    For similar reasons to those set out in the discussion above as to the scope of s. 55 of the Act, s. 57(c) cannot be read to give the Land Appeal Court powers at large to make any order that it considers appropriate.  A prerequisite to the exercise of the powers in s. 57 is that the Land Appeal Court must have jurisdiction before it may exercise those powers.  The Land Appeal Court only has jurisdiction if a valid appeal is instituted, that is one which is filed and served in accordance with ss. 64 and 65 of the Act. 
41. [41]
    The version of s. 57 now found in the Act was introduced into the Act in 2005 by s. 122 of the Justice and Other Legislation Amendment Act 2005.  If it is considered necessary, reference may be made to the Explanatory Memorandum to the Justice and Other Legislation Amendment Bill 2005 which says that "[c]lause 122 replaces section 57 of the Act with a new section that specifies the powers of the Land Appeal Court upon an appeal".  It is apparent that it was the intention of the legislature that the powers granted to the Land Appeal Court were to be exercised "upon an appeal", that is, a necessary prerequisite for the exercise of the powers is that there be a valid appeal before the Land Appeal Court.
42. [42]
    We do not consider that the decision in McMahon v State of Queensland^[21] is relevant to the construction of s. 57(c) as that case was concerned with the grant of power to a court lacking jurisdiction to hear a matter, to transfer the matter to a court having jurisdiction to deal with the matter. 

Predecessor to s. 65

43. [43]
    Our conclusion that the service requirements in s. 65(1) of the Act are a necessary condition to be fulfilled for a valid exercise of the right of appeal is reinforced by a consideration of the historical antecedents of s. 65.  Prior to the enactment of the Land Court Act 2000 the statutory provisions governing the establishment, jurisdiction and powers of the Land Court and Land Appeal Court were to be found in Part 2, Divisions 5 to 7 of the Land Act 1962 which were continued in existence by s. 521 of the Land Act 1994.  Relevantly, s. 44(11) of the 1962 Act provided that -  

"(11) Appeals to Land Appeal Court.  (a) A party who desires to appeal to the Land Appeal Court from a decision of the Land Court shall serve notice of appeal on all other parties directly affected by the decision not later than 42 days after the pronouncement of the decision or, where an application for a rehearing is made pursuant to section 43 and refused, not later than 42 days after the pronouncement of the decision or not later than 14 days after the refusal of the Land Court to rehear the matter, whichever time is the later to expire.

2. (b)
   The appellant, within the time prescribed by paragraph (a) that is applicable to him for service of the notice of appeal, shall also lodge with the Registrar a copy of the notice of appeal and pay to the Registrar the prescribed fee.

3. (c)
   Where the Minister is the respondent party or one of the respondent parties to an appeal, service of the notice of appeal on the Minister shall be effected by serving it on the chief executive. 

4. (d)
   Where it appears to the Land Appeal Court that - 

1. (i)
   within the time prescribed by paragraph (a) that is applicable to the particular case -  

4. (A)
   the notice of appeal was not served on another party on whom it is required to be served;  

4. (B)
   a copy of the notice of appeal was not lodged with the Registrar;  or

4. (C)
   the prescribed fee was not paid to the Registrar,

but that the notice was served, the copy of the notice lodged or the fee paid not later than 28 days after the expiration of the time prescribed, and the appellant satisfies the Land Appeal Court that there is a reasonable cause or explanation for the lateness of the service, lodgment or payment;  or

2. (ii)
   the notice of appeal or the copy lodged with the Registrar is defective in any particular but that either -

4. (A)
   the defect is not of such a nature as to result in a detriment to another party on whom it is required to be served or to mislead the Registrar in a material way;  or

4. (B)
   the defect has been eliminated not later than 28 days after the expiration of the time prescribed, by notification of the defect by the appellant to the party concerned or to the Registrar in a manner satisfactory to the Land Appeal Court,

the appeal shall lie notwithstanding any Act, law or practice and, where the Land Appeal Court determines that the appeal so lies, such determination is final and not subject to appeal."

44. [44]
    It is noteworthy that s. 44(11)(d)(i) expressly provided that the Land Appeal Court could, in certain specified circumstances, determine that an appeal lay although the time limit prescribed for service of the notice of appeal had not been met. 
45. [45]
    In those circumstances, we consider that it is open to us to infer that the absence of a similar power to extend time in the Land Court Act 2000 reflects an intention on the part of the legislature that the time limit prescribed by s. 65(1) was to be mandatory for the commencement of a valid appeal. 
46. [46]
    Our conclusion is that the Land Appeal Court has no power to extend the time limit prescribed in s. 65 of the Act.  The notice of appeal filed on 9 October 2012 is not competent, and the appeal must be struck out.

ORDER

The appeal is struck out.

PETER LYONS J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

PA SMITH

MEMBER OF THE LAND COURT