Clayton v Department of Natural Resources and Water [2006] QLC 64

LAND COURT OF QUEENSLAND CITATION: Clayton v Department of Natural Resources and Water [2006] QLC 64 PARTIES: Dianne and Norman Clayton (appellants) v. Chief Executive, Department of Natural Resources and Water (respondent) FILE NO.: AV2005/1344 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against unimproved valuation DELIVERED ON: 4 October 2006 DELIVERED AT: Brisbane HEARD AT: Stanthorpe MEMBER Mr BR O'Connor, Judicial Registrar ORDER: The Court has jurisdiction to determine the matter. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr N Clayton for the appellants Mr BG Mahoney, Senior Valuer, for the respondent [1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged six 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. -- 1 of 3 -- 2 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." 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 of the VLA 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 case, 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 Norman Clayton gave evidence on behalf of the appellants. He stated that he and his wife run a small alpaca operation on their property, and that their explanation for late lodgement essentially relates to a serious illness contracted by one of their small but rare female herd just prior to the expiry of the 42 day time limit. Mr Clayton states his wife takes predominant responsibility for the business paperwork including attendance to the current appeal and it was she who was primarily occupied with attending to the sick alpaca. [4] Mr Clayton's verbal evidence contains greater detail of the circumstances at the relevant time: "We are registered as a business and alpacas – there aren't too many in the country at the moment and getting females is a bit like gold dust, especially good ones. About July last we had seven breeding females and one came down ill and was ill for three weeks and then we had to have her operated on and she subsequently died which cut our breeding flock down to six. Then – it was actually on the 2nd of October – yes, the 2nd of October we went out to the paddock early in the morning to feed them and our best female was actually down on the floor ill. We were a bit concerned as we had just lost the other one, so we stayed out watching her and administering to her later that day giving her oil and vitamin B complex and various things and basically we were down – the next day we were down at the vet's and basically our total thoughts were to try to get our alpaca back on its feet and I expect that's the day we almost expected to post it – either that day or the next day – and at the end of the week we found the letter there almost ready to go and we put it in the post at the end of that week." [5] Mr Clayton tendered evidence of veterinary surgeon accounts to support his claim both of the alpaca illness and the relevant dates at which treatment was administered. [6] Mr Mahoney for the respondent did suggest that Mr Clayton had ample time to send the appeal over the 42 days. However it has been previously held that there is no obligation -- 2 of 3 -- 3 on an appellant to forward his appeal earlier in the time period and if something arises at the very end of such period, which if unanticipated and genuinely causes a late lodgement, this can amount to a reasonable excuse. Decision [8] The present case is rather an unusual one. There have been previous cases where illness of an appellant around the relevant time for lodging an appeal was held to amount to a reasonable excuse. On the other hand, there have been instances where claims of specific pressures of farming operations have been held to have been part of the normal overall tasks of management of the business and not amount to a reasonable excuse. In the instant case, my view is that there is a combination of circumstances sufficient to justify a finding of reasonable excuse. These include: the fact that the animal subject to attention was a key component of a small fairly rare female herd; the death of another female of that herd had recently occurred; documented veterinary evidence was presented to support the claims; the wife was the primary carer of the alpacas but also responsible for the business correspondence; a substantial part of the wife's time and focus was on the ill animal around the relevant time; the appeal was only some six days late. [9] The unusual facts of this case are not likely to cause any undesirable precedent in the determination of reasonable excuse in future cases. Order [10] The Court has jurisdiction to determine the matter. BR O'CONNOR JUDICIAL REGISTRAR -- 3 of 3 --