Audad v Department of Natural Resources and Water [2008] QLC 37

LAND COURT OF QUEENSLAND CITATION: Audad v Department of Natural Resources and Water [2008] QLC 37 PARTIES: Audad Pty Ltd (appellants) v. Chief Executive, Department of Natural Resources and Water (respondent) FILE NO: AV2007/0696 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation DELIVERED ON: 11 February 2008 DELIVERED AT: Brisbane HEARD AT: Brisbane JUDICIAL REGISTRAR: Mr BR O'Connor ORDER: The Court has jurisdiction to decide this appeal. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr N Murphy of Savills for the appellant. Mr L Marshall Principal Lawyer, Department of Natural Resources and Water for the respondent. [1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal which was lodged 23 August 2007, 16 days after the due date (7 August 2007) 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 – -- 1 of 3 -- 2 The notice of the chief executive’s decision or the notice of appeal was lost or delayed in the ordinary course of post." 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] Mr Neil Murphy, a registered valuer with Savills swears in an affidavit tendered to the hearing as follows: "1. I received confirmation of instruction on the 22 July 2007 in time to proceed with lodging the appeal in the land court for the new annual valuation for Audad Pty Ltd for the aforementioned property. I sent the owner an email outlining the costs and cut off time for the appeal. Mr Witte who is the person with whom I had been dealing phoned me on the 22 July to instruct me to proceed with lodging the appeal. 2. I have had to arrange appeals for more than fifty properties as well as suggest that owners not take any further action for a further 70 properties. This property was accidentally filed away with the other files that were not proceeding. When Bernard (company director) phoned me on the 23 August I realised the mistake and I lodged the appeal on that day." [4] Mr Murphy in further oral evidence at the hearing provided further detail as to the circumstances surrounding the late lodgement of the appeal. However, in view of my subsequent findings, it not necessary to decide whether Mr Murphy's action in itself fell within the term "reasonable excuse". Issue [5] The specific issue in this case is whether the action of Mr Witte (for the appellant) in placing the appeal in the hands of Savills, a large and reputable valuation and real estate firm and instructing 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 -- 2 of 3 -- 3 Trust Company of Australia Limited v Department of Natural Resources and Water (2007) QLC 0045. 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 the placing of the appeal with a large and reputable real estate and valuation firm should attract similar protection for the client in current circumstances. It follows that Audad can come within the second limb of the Trust Company decision and that reasonable excuse has been established. Order The Court has jurisdiction to decide this appeal. BR O'CONNOR JUDICIAL REGISTRAR -- 3 of 3 --