Land and Resources Tribunal v Scmidt & Ors [2005] QCA 195

[1] THE COURT: The Land and Resources Tribunal ("the Tribunal") filed an originating application in the Court of Appeal on 24 March 2005 which stated that it was made pursuant to s 70(2) of the Land and Resources Tribunal Act 1999 ("LRTA") for referral to the Court of Appeal of the following question:

"If the Land and Resources Tribunal, constituted by the President sitting alone, makes a determination under s.281 of the Mineral Resources Act 1989 ("the MRA"):

(a) Does s.282 MRA provide an avenue of appeal to the "Tribunal (appeal)" constituted in accordance with s.39 of the Land and Resources Tribunal Act 1999 ("the LRT Act"); or

(b) Does s. 67 of the LRT Act provide the only avenue of appeal in these circumstances?"

[2] The application identified as the respondents to the application Michael Dolf Schmidt and Susan Joan Schmidt ("the first respondents") and Australis Mining Operations Qld Pty Ltd (formerly called Junior Mining (Operations) Pty Ltd) ("the second respondent").

[3] The second respondent had applied to the Tribunal under s 281 of the Mineral Resources Act 1989 ("MRA") for the determination of compensation for the effect upon the first respondents of the renewal of certain gem mining leases over land belonging to the first respondents. Those applications were heard by the President of the Tribunal who determined the compensation at $147,802.60. The reasons for the determination were published: Re Junior Mining (Operations) Pty Ltd (now called Australis Mining Operations Qld Pty Ltd) & Schmidt [2004] QLRT 131.

[4] By notice of appeal which the first respondents filed in the Tribunal on 26 November 2004 the first respondents sought to appeal to the Tribunal (Appeal) pursuant to s 282 of the MRA from the whole of the decision and order of the President given on 29 October 2004. The grounds of the appeal raised questions of fact and law and incorporated an application for admission of further evidence pursuant to s 282(6) of the MRA.

[5] By facsimile sent on 26 November 2004 the then Registrar of the Tribunal advised the solicitors for the first respondents that the "Tribunal is not the correct jurisdiction to lodge this appeal".

[6] The second respondent filed a response to the appeal on 10 December 2004 which included a statement to the effect that the response did not constitute in any way an admission that the appeal had been properly made or filed in the correct jurisdiction.

[7] On 14 December 2004 the President made an order setting the appeal down for a directions' hearing before the President on 27 January 2005 and requiring submissions in writing from the parties by 21 January 2005 on:

"(i) Why should this appeal be lodged in the Land and Resources Tribunal and not the Court of Appeal?

(ii) Does the Tribunal have the jurisdiction to hear this matter?"

[8] The first respondents' written submissions for the directions' hearing pointed out that the matters raised by the President were not an issue between the parties and that the matters raised by the President should be determined by the Tribunal (Appeal), as the President was functus officio after delivering judgment in the matter of determining the compensation. Submissions were made by the first respondents on the construction of s 67 of the LRTA and s 282 of the MRA and to the effect that a party to a compensation proceeding has alternative avenues of appeal under both provisions, if the appeal relates solely to a question of law. In the alternative, the submission was made that as s 282 of the MRA was more specific than s 67 of the LRTA, s 282 must prevail.

[9] The second respondent in its written submissions submitted that s 282 of the MRA provided a party with a right of appeal against a determination of compensation under s 281 of the MRA that was an alternative to the appeal provided by s 67 of the LRTA. In his subsequent written submissions and at the directions' hearing, Mr Barlow of Counsel on behalf of the second respondent took a different position from his initial written submissions and raised a jurisdictional issue, as to whether a decision of the President of the Tribunal sitting at first instance under s 281 of the MRA can be appealed to a panel which includes one or more of the Deputy Presidents of the Tribunal.

[10] During the course of the directions' hearing the President expressed his tentative view that he was not inclined to refer the issues that he had raised for directions to a Tribunal (Appeal) as it seemed to him to be an unusual situation that an appeal from the President would be to a Deputy President of the Tribunal in circumstances where the usual course was that appeals from a Deputy President were heard by the President. The President raised with the parties whether he should send the issue to the Court of Appeal, so that the Court could decide whether an appeal from the President in a compensation case went to the Court of Appeal or to a Tribunal panel. At that stage in the directions' hearing, after the President expressed his tentative view, neither party opposed the course of referral to the Court of Appeal of the question as to what statutory provision governed an appeal from the decision of the President under s 281 of the MRA. The President made the following order on 27 January 2005:

"Pursuant to section 70(2) of the Land and Resources Tribunal Act 1999 the Tribunal refers to the Court of Appeal for its opinion the issue of whether the Tribunal has jurisdiction to hear this appeal."

[11] The Tribunal was established by s 4 of the LRTA. Under s 54(1) of the LRTA, the Tribunal is a court of record. The members of the Tribunal are the presiding members and the non-presiding members: s 6 LRTA. The presiding members comprise the President and two or more Deputy Presidents: s 7 LRTA. There are currently two Deputy Presidents. For a proceeding before the Tribunal, the Tribunal is constituted by a single member or a panel as provided under Part 4: s 39(1) LRTA. Under s 51(1) of the LRTA, the Tribunal has the jurisdiction conferred on it under the LRTA and other Acts. The President must ensure that for a proceeding the Tribunal is constituted as required under an Act, including the LRTA, under which the Tribunal is given jurisdiction and schedule 1 of the LRTA: s 40(1) LRTA.

[12] Prior to the establishment of the Tribunal, s 281 of the MRA provided for the compensation to be determined by the Wardens Court or the Land Court on appeal and s 282 provided for the appeal against the Warden Court's determination upon compensation to the Land Court. These provisions were amended by the LRTA, so that s 281 provides for the determination of the compensation to be made to the Tribunal and s 282 of the MRA provides for the appeal from the determination of the Tribunal to be made to the Tribunal (Appeal). The full terms of s 282 of the MRA are:

"(1) A party aggrieved by a determination of the tribunal (the tribunal at first instance) made under section 281 may, within 20 business days of the date of that determination or within such further period as the tribunal (appeal), on the application of that party in that behalf prior to the lodgment of the appeal, considers appropriate in any particular circumstances, appeal against the determination to the tribunal (appeal).

(2) The appeal shall be instituted by, within the time and in the manner prescribed -

(a) lodging in the tribunal, written notice of appeal which shall include the grounds of appeal; and

(b) serving copies of the notice of appeal on the mining registrar and each other party; and

(c) giving security (approved by the registrar of the tribunal) for the costs of the appeal.

(3) The tribunal (appeal) shall have jurisdiction to hear and determine an appeal under this section.

(4) In deciding an appeal, the tribunal (appeal) must consider the things relevant to the appeal that the tribunal at first instance was required to consider when making the decision appealed against.

(5) Upon hearing an appeal under subsection (1) the tribunal (appeal) may -

(a) vary the determination of the tribunal at first instance in such way as it thinks just; or

(b) disallow the appeal and confirm the determination of the tribunal at first instance;

and may make such order as to costs of the appeal as it thinks fit.

(6) The tribunal (appeal) shall not admit further evidence upon an appeal from a determination of the tribunal at first instance under subsection (1) unless -

(a) it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is sufficient reason that the evidence was not previously adduced; or

(b) the appellant and respondent agree to its admission.

(7) The determination of the tribunal (appeal) on appeal shall be final and conclusive.

tribunal (appeal) means the tribunal constituted in the way required under the Land and Resources Tribunal Act 1999 for an appeal under this section."

[13] When the LRTA was first enacted, schedule 1 of the LRTA provided for the Tribunal to be constituted by a mining referee or a Land Court non-presiding member for a hearing about compensation under s 281 of the MRA and for the Tribunal to be constituted by a panel for an appeal about compensation under s 282 of the MRA. The LRTA was amended by the Land and Resources Tribunal Amendment Act 2000 ("the Amendment Act"). One of the amendments to schedule 1 of the LRTA was to provide for the Tribunal to be constituted by a presiding member for a hearing about compensation under s 281 of the MRA. No change was made by the Amendment Act to the requirement in schedule 1 of the LRTA that the appeal about compensation under s 282 of the MRA be heard by the Tribunal constituted by a panel.

[14] Analogous provisions to s 281 and s 282 of the MRA are found in s 85 and s 86 of the MRA in relation to the determination of compensation in relation to a mining claim and an appeal against such determination. A similar amendment to schedule 1 of the LRTA in respect of s 85 of the MRA was made by the Amendment Act, as was made to schedule 1 of the LRTA in respect of s 281 of the MRA.

[15] When the LRTA was first enacted, subsections (1) and (2) of s 67 provided:

"(1) A party to a proceeding before the tribunal may appeal against a decision of the tribunal, but only on a question of law.

(a) if the tribunal is constituted by a Land Court non-presiding member or a mining referee - the tribunal as constituted by the president sitting alone (the "appellate body"), but only with the president's leave; or

(b) if the tribunal is constituted by a panel or the president sitting alone - the Court of Appeal (also the "appellate body")."

[16] Another amendment made by the Amendment Act was to amend s 67(2) of the LRTA to provide for an appeal from the Tribunal constituted by a Deputy President, in circumstances specified in s 70A of the LRTA where the Tribunal is described as being constituted by a "presiding member (alternative)", to the Tribunal constituted by the President with the President's leave. The Deputy President constitutes the Tribunal as a presiding member (alternative) for the purpose of s 67(2), s 69(1) and 70(1) of the LRTA where under schedule 1 of the LRTA the Tribunal was to be constituted either by a presiding member or a mining referee or by a presiding member, a mining referee or a Land Court non-presiding member. After the Amendment Act, subsection (2) of s 67 of the LRTA provides:

"(a) if the tribunal is constituted by a presiding member (alternative), mining referee or Land Court non-presiding member - the tribunal as constituted by the president sitting alone (the "appellate body_"_), but only with the president's leave; or

(b) if the tribunal is not constituted by a presiding member (alternative), mining referee or Land Court non-presiding member - the Court of Appeal (also the "appellate body")."

[17] It appears that the expectation of the Legislature was that the jurisdiction of the Tribunal under s 281 of the MRA would be exercised by the Tribunal constituted by a Deputy President, as the policy objective of the Bill that resulted in the enactment of the Amendment Act was to expand the role of the Deputy Presidents of the Tribunal to include non-native title mining matters: see Explanatory Notes for the Land and Resources Tribunal Amendment Bill 2000. The amendment made by the Amendment Act to schedule 1 of the LRTA had the effect, however, of giving jurisdiction in various matters to presiding members of the Tribunal (which includes the President as well as the Deputy Presidents). There is no ambiguity in the term "presiding member" where that term was introduced into schedule 1 to the LRTA by the Amendment Act.

[18] Prior to the establishment of the Tribunal, s 282 of the MRA created a specific avenue of appeal in respect of the determination of compensation made under s 281 of the MRA. The only change effected to these provisions, as a result of the establishment of the Tribunal, is to substitute the Tribunal (both at first instance and on appeal) for the courts that were previously given the jurisdiction for determining the compensation and hearing the appeal from the determination of that compensation.

[19] The determination of compensation under s 281 of the MRA depends upon the evidence that is adduced on the factors that are relevant to the assessment of the compensation. It is consistent with the nature of that determination that s 282 of the MRA provides for an appeal from the determination of the compensation that enables both factual and legal matters to be considered on the appeal and provides for a limited opportunity for further evidence to be adduced on the appeal. The regime for an appeal under s 282 of the MRA extends to specifying in s 282 that the determination of the Tribunal (Appeal) on appeal shall be final and conclusive.

[20] The existence of the appeal under s 282 of the MRA is expressly acknowledged in schedule 1 to the LRTA. The provision in schedule 1 of the LRTA for the constitution of the Tribunal as a panel for an appeal under s 282 of the MRA is consistent with the definition of Tribunal (Appeal) in s 282 of the MRA. It is the only avenue of appeal against the determination of compensation under s 281 of the MRA which enables the party who appeals to pursue questions of fact.

[21] There is no dispute that the President had jurisdiction to determine compensation under s 281 of the MRA. The provision in schedule 1 of the LRTA for the constitution of the Tribunal for an appeal under s 282 of the MRA does not distinguish between an appeal against the determination of the President and an appeal against the determination of a Deputy President, mining referee or Land Court non-presiding member. In each case the appeal under s 282 of the MRA is to the Tribunal constituted as a panel which has to conform with one of the panels provided for in s 39(2) of the LRTA.

[22] The first respondents' notice of appeal expressly relied on s 282 of the MRA, as the first respondents are seeking to pursue questions of fact on the appeal. The fact that it was the President whose decision is the subject of the appeal does not deprive s 282 of the MRA of its operation. The existence of s 67(1) of the LRTA is irrelevant to the appeal filed by the first respondents, as the appeal is not confined to a question of law.

[23] It was the President in the first place who constituted himself as the Tribunal for the purpose of hearing the second respondent's applications under s 281 of the MRA. The concern that the President expressed at the directions' hearing on 27 January 2005 was that the appeal from his decision under s 281 of the MRA would, in effect, be determined by a Deputy President of the Tribunal. The constitution of the panel for an appeal under s 282 of the MRA is for the President to determine. Under s 39(2)(a) the panel could be constituted by one or more Deputy Presidents sitting with two or more non-presiding members. Under s 41(2) of the LRTA the decision on every question before the Tribunal constituted by a panel is to be made only by the presiding member or presiding members included in the panel. The role of each non-presiding member is specified by s 41(4) of the LRTA which includes advising the presiding member or presiding members about matters within the non-presiding member's knowledge or experience that are relevant to the question and to help the presiding member or presiding members in the conduct of the proceeding in a way that the presiding member or presiding members consider appropriate. If there are two or more presiding members included in the panel, the decision of the panel on a question is to be the opinion of the majority of the presiding members or, if they are equally divided, the opinion of the senior presiding member for the proceeding. The appeal is therefore not merely to a Deputy President. Although one Deputy President could effectively decide the question of the appeal, it will be in the context of advice and assistance from non-presiding members who will be chosen by the President, having regard to the nature of the issues likely to be involved in the appeal: s 39(4) LRTA. The fact that an appeal from the President will be decided under s 282 of the MRA by a panel constituted by one or more Deputy Presidents with the assistance of two or more non-presiding members is not a reason not to give effect to the unambiguous statutory provisions that provide for the constitution of the panel for an appeal under s 282 of the MRA.

[24] The notice of appeal filed by the first respondents with the Tribunal required the President to exercise the administrative power conferred on the President by s 39(1) of the LRTA to direct the constitution of the panel for the appeal in accordance with s 39(2) of the LRTA. The appeal that had been filed in the Tribunal was not a proceeding which could be heard by the President. His role in the proceeding had ceased with his determination of the compensation under s 281 of the MRA, apart from the direction that was required from the President to constitute the panel for the appeal.

[25] The question that was formulated for the opinion of the Court of Appeal relies on s 70(2) of the LRTA. Subsections (1) and (2) of s 70 of the LRTA provide:

"(1) This section applies if, for a proceeding, the tribunal is constituted other than by a presiding member (alternative), mining referee or Land Court non-presiding member.

(2) The tribunal may, on its own initiative or if asked by a party, refer a question of law arising in the proceeding to the Court of Appeal for an opinion."

[26] The power of the Tribunal to refer a question of law to the Court of Appeal for an opinion therefore depends upon the existence of a proceeding before the Tribunal. There was no proceeding as such before the President to enable the referral of any question by the Tribunal constituted by the President to the Court of Appeal. Any question about the jurisdiction of the Tribunal should have been raised before the panel that the President was required to direct to hear the appeal. The President could not embark upon a hearing on the jurisdictional issue relating to this appeal, as it was an appeal from his decision. As there was no power for the question to be referred in the circumstances in which the President sought to do so, the originating application should be dismissed.

[27] The LRTA does not specify any procedure for how the question of law arising in a proceeding is referred by the Tribunal to the Court of Appeal. The Uniform Civil Procedure Rules ("UCPR") do provide for how matters are initiated in the Court of Appeal. Apart from appeals, the process is either an application pursuant to r 778 of the UCPR or a case stated pursuant to r 781 of the UCPR. A case stated is a process by which a court or Tribunal in the course of proceedings before it submits to a superior court for its decision or opinion on a question of law that arises from facts as found by the court or Tribunal and stated in the case: Industrial Equity Ltd v Commissioner for Corporate Affairs (Vic) [1990] VicRp 68; [1990] VR 780, 782-3. This is reflected in the definition of "stated case" in schedule 2 to the Supreme Court of Queensland Act 1991. Where the Tribunal seeks to refer a question of law arising in a proceeding to the Court of Appeal for an opinion it would be an appropriate procedure for the referral of the question to be made in the form of a case stated. The parties to the case stated before the Court of Appeal would then be the same parties that were in the proceeding before the Tribunal which is also appropriate when the question of law must arise in a proceeding before the Tribunal. The process of settling a case stated is important in isolating the real question of law that should be referred for opinion to the Court of Appeal.

[28] It was an unusual course for the Tribunal to adopt in this case to make itself a party to the application to the Court of Appeal.

[29] The application to the Court of Appeal to pursue a question of law which did not arise in a proceeding before the Tribunal and where the answer, in any case, was patent has involved error on the part of the Tribunal. The issue was raised in the course of hearing the application of whether the costs of the respondents could be the subject of an indemnity certificate under the Appeal Costs Fund Act 1973. Although the use of the word "appeal" in s 15(1) of that Act is in the broad sense provided for in the definition of "appeal" under s 4 of that Act, an indemnity certificate in respect of the appeal can be granted only where there is an appeal "against the decision of a court". Although the definition of "court" in s 4 of that Act covers the Tribunal, the question that was referred by the Tribunal was not one that had been the subject of the decision of the Tribunal. In Mason v Mason (No 2) [1997] 1 VR 627 it was decided that an equivalent provision did not enable an indemnity certificate to be granted unless there was first a decision in the court below and then a question reserved for the court's opinion. It is therefore not possible to make an order under s 15(1) of the Appeal Costs Fund Act 1973.

[30] The first respondents should be compensated by an order of costs in their favour, as Ms Skennar of Counsel on their behalf had correctly put the position to the President of the Tribunal that he had no power to embark upon an inquiry into the jurisdiction of the Tribunal to entertain the appeal of the first respondents and should direct the constitution of the panel to hear the first respondents' appeal. The second respondent encouraged the President to embark upon the jurisdictional issue by making submissions that suggested that there was such an issue which should be determined. As the Tribunal made the application to the Court of Appeal and appeared by counsel and solicitors on the hearing of the application, it should bear the costs of the first respondents of the application. The second respondent should bear its own costs.

2. The applicant pay the first respondents' costs of the originating application to be assessed.

3. No order as to the second respondent's costs of the originating application.