Brodie Holdings Pty Ltd v Department of Environment and Resource Management [2009] QLC 96

LAND COURT OF QUEENSLAND CITATION: Brodie Holdings Pty Ltd v Department of Environment and Resource Management [2009] QLC 96 PARTIES: Brodie Holdings Pty Ltd (appellants) v. Chief Executive, Department of Environment and Resource Management (respondent) FILE NO: AV2009/0073 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation DELIVERED ON: 7 July 2009 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr BR O'Connor, Judicial Registrar ORDER: The Court has jurisdiction to decide this appeal. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr PT Walker of Counsel (instructed by Anderssen Lawyers) appeared on behalf of the appellants Mrs T Johnson, Principal Lawyer, Legal Services, Department of Environment and Resource Management appeared on behalf of the respondent [1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal which was lodged 6 days after the due date. Section 57 of the Valuation of Land Act 1944 (VLA) allows for "reasonable excuse" as a cause for such delay. “57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), the registrar of the court must notify the owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated. Example of reasonable excuse – The notice of the chief executive’s decision or the notice of appeal was lost or delayed in the ordinary course of post.” -- 1 of 4 -- 2 The question then is whether the explanation for the late lodgement advanced by the appellants falls within the term “reasonable excuse” as interpreted by the relevant authorities, particularly those since the introduction of s.57 as amended in 2000. [2] The authorities on the term “reasonable excuse” or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000. In essence, the authorities establish that the excuse must be “substantial” and “what one is looking for is some cause which a reasonable man would regard as sufficient a cause, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man”. Background [3] The appellant’s case for reasonable excuse essentially relies on the evidence tendered in an affidavit of Terrence Patrick Munn, a certified practising valuer with Herron Todd White (Australia’s largest independent property valuation firm). Mr Munn states he had conduct of the matter now before the Court on behalf of the appellant. [4] The chronology of events in Mr Munn’s affidavit is well outlined by Counsel for the appellant in his oral submissions to the Court: “… The day after they received the decision notice refusing the objection, Herron Todd White contacted the appellant’s managing director and were instructed by the appellant’s managing director to institute the appeal. … Herron Todd White, in their endeavours to comply with the appeal period, the director charged with the carriage of, he [sic] filled out by hand the Form 19 notice, gave it to his assistant, whom he trusted, to fax it and considered the matter complied with with respect to the time frames. So from that point onwards, the appellant’s agent was acting under a misapprehension as to a state of facts insofar as they believed that, from that point onwards, notice had been filed with the Land Court. It turned out that the director, not having received any response back from the Land Court, checked his file to see what was going on, whether there was a response from the Land Court on the 3rd of April, some three days after the deadline, realised that they hadn’t got a response from the Land Court and couldn’t see a confirmation of the fax being sent on the file – a confirmation sheet on the file. So he faxed off to the respondent a copy of the notice of appeal. That fax was sent on Friday the 3rd of April 2009. On the Monday the 6th of April 2009, some six days out of date, the agent for the appellant received a phone call from the respondent saying, ‘You sent the fax to us. You need to send it to the Land Court.’ The appellant’s agent then sent a fax to the Land Court, some six days out of time. So up until the 3rd of April, the appellant’s agent was acting under a mistaken apprehension as to the state of acts in that he believed that he had instructed his assistant valuer to fax it and believed it had been done. When he hadn’t received any correspondent back, he checked and found out that had not been the case. So it was a mistake on the part of Herron Todd White that this appeal wasn’t filed in time.” Issue [5] The specific issue in this case is whether the action of the appellant in placing the appeal in the hands of Herron Todd White, a large and reputable valuation firm, and instructing -- 2 of 4 -- 3 them to lodge the appeal well before the due date, constitutes reasonable excuse in terms of the legislation. Authorities [6] Cases where the appellant has relied on an agent to lodge an appeal and such being subsequently lodged out of time were recently reviewed by the Land Court President in Trust Company of Australia Limited v Department of Natural Resources and Water.1 The Court stated: “… it is clear that essentially the issue in this case is whether this Court should apply the relatively strict approach adopted by the Land Appeal Court in the Union Fidelity Trustee Company case or the more flexible approach adopted by a later Land Appeal Court in the Congress Community Development case. After considering these two cases in some detail, it further stated: Having regard to the circumstances of the present case and the authorities referred to above, I am of the view that the more flexible approach taken by the Land Appeal Court in the Congress Community Development case should be followed in the present case. Muir J found that there was reasonable excuse for the "slip" of the solicitor in that case. In my view, the same could be said for the "slip" of the solicitor in this case. (first limb) However, if that was not sufficient to constitute a reasonable excuse, I would adopt the reasoning of Mr Wenck and Dr Divett. As in that case, in the present case the fault lies with the solicitors, but the applicant has done everything that could be expected of a 'reasonable man' in entrusting the institution of the appeal to its solicitors. (second limb)” Consideration of Issue [7] The Trust Company case dealt with circumstances where the appeal was handled by solicitors rather than a valuation firm as is the case here. However, while solicitors may have greater familiarisation with Court procedures and have somewhat different responsibilities towards clients than valuers, I consider placing the appeal with a large and reputable valuation firm should attract similar protection for the client in current circumstances. It follows that Brodie can come within the second limb of the Trust Company decision and that reasonable excuse has been established. This conclusion is consistent with that in similar circumstances in Audad v Department of Natural Resources and Water.2 [8] While reasonable excuse has been established in the current circumstances it is appropriate to note the limitations expressed in the decision of Webb v Chief Executive, Department of Natural Resources and Water.3 The then Court President observed “… this should not be taken as a precedent for the proposition that it would be reasonable for a landowner in all circumstances to entrust the lodgement of an appeal to their professional advisors. There may be other circumstances in which the action of the appellants or the actions of their professional advisors would not be regarded as a 1 (2007) QLC 0045. 2 [2008] QLC 0037. 3 [2007] QLC 0082. -- 3 of 4 -- 4 reasonable excuse for the late lodgement of an appeal. Each case must be dealt with on its own merits.” Order The Court has jurisdiction to hear this appeal. BR O'CONNOR JUDICIAL REGISTRAR -- 4 of 4 --