Britten & Anor v Department of Natural Resources, Mines and Water [2006] QLC 22

LAND COURT OF QUEENSLAND CITATION: Britten & Anor v Department of Natural Resources, Mines and Water [2006] QLC 22 PARTIES: W and J Britten and Jedston Pty Ltd as Trustee for P and M Ryan (appellants) v. Chief Executive, Department of Natural Resources, Mines and Water (respondent) FILE NOS: AV2006/0010 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation. DELIVERED ON: 4 May 2006 DELIVERED AT: Gatton HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: The Court has no jurisdiction to hear the appeal in the subject matter. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse. APPEARANCES: Mr W. Britten for the appellants Mr R Patterson for the respondent. [1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged seven 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 s.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 4 -- 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 cases, 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] At the hearing, Mr Britten gave evidence on behalf of the appellants. The respondent did not call any evidence. [4] There is common ground between the parties on most issues, which can be summarised as follows:  The decision on objection was issued on 29 November 2005.  The appellants received the decision on objection in the post on or about 12 December 2005.  Throughout December 2005 the appellants’ property, which is situated in Logan, was subject to a large number of storms. Some of those storms resulted in some damage to the appellants’ property, principally a large gum tree which fell across the property damaging fencing, and a net. The damage caused by the gum tree was covered by insurance.  Mr Britten completed a notice of appeal to the Land Court (form 59). The notice of appeal bears the date 10 January 2006.  The time limit for lodging an appeal in the Land Court expired on 10 January 2006.  The notice of appeal was received in the post by the Land Court on 17 January 2006.  On 11 January 2006 (note the letter is incorrectly dated 11 January 2005). Mr Britten wrote to the respondent raising issue with the valuation and the category for the valuation and concluding with the comment that “we confirm our appeal form will be with the Land Court in due course”. -- 2 of 4 -- 3  During the 42 day appeal period, there were a number of public holidays over the Christmas/New Year period. [5] Put simply, Mr Britten’s case is that the decision on objection was delayed in the post in reaching him, caused presumably by the heavy pre Christmas postal period; he suffered from many afternoon thunder storms; Christmas/New Year holidays; and other business matters. He says that he completed the notice of appeal on 10 January 2006 and posted it but it did not reach the Land Court until 17 January 2006. Mr Britten said that he misunderstood his requirements, in that he thought the 42 day time period commenced at the time he received the decision on objection. [6] I note in particular the anomaly that the appellants notice of appeal bears the date 10 January 2006, whilst Mr Britten, in his letter dated 11 January 2006, refers to his intention to have the appeal with the Land Court in due course. I also note that the envelope which contained Mr Britten’s appeal to the Land Court bears the Australia Post imprint of having been processed at 6:00pm on 16 January 2006. [7] In contending that the appellants actions in this matter do not amount to a “reasonable excuse”, Mr Patterson for the respondent referred me to a number of authorities, including Anthony’s case, referred to earlier in this decision Fischer v The Valuer- General [1990-91] 13 QLCR 129 and Parnell v Chief Executive, Department of Natural Resources and Mines [2003] QLC 84. [8] Although the VLA has been amended in relevant parts subsequent to the decision in Fischer, the principals from the decision remain relevant, that is, that a delay may occur in the post in the outward journey of the notice of decision on objection as well as in the inward posting of the notice of appeal to the Land Court. Accordingly, applying Fischer’s case, the delay in receipt of the decision on objection is a matter that I may take into account in considering this matter. [9] Parnell’s case concerned a matter where the appellants suffered delay due to their absence on holidays. In that case, the Court was found not to have jurisdiction as no reasonable excuse had been made out. The appellants in that case had made no arrangements to have another person look after their affairs during their absence or to have their mail diverted to them. [10] Mr Patterson also submitted that, whilst an appellants late lodgement of a notice of appeal may be due to understandable circumstances, that was a lower test than “reasonable excuse” as provided for in section 57 of the VLA. [11] I agree with Mr Patterson’s submissions. Although there were certainly several factors which caused some interference in the ability of the appellants to file the notice of appeal -- 3 of 4 -- 4 within time, in my view, based on the authorities including those referred to by Mr Patterson, those occurrences were not, either of themselves or taken together, sufficient to amount to a reasonable excuse as provided for in section 57 of the VLA. Further, it is curious that the appellants dated the notice of appeal 10 January 2006 but it was not processed through the mail centre until 16 January 2006. [12] Although it is my view that a reasonable excuse has not been established in this matter, as Judicial Registrar O’Connor has pointed out in numerous decisions,1 it remains open to the appellants to further approach the respondent for consideration of the valuation, particularly with respect to the appellants’ contention that the wrong land use coding has been applied to the subject property. Order [13] Having considered the tests outlined in the authorities and the facts in those cases, I conclude that no reasonable excuse has been established in the circumstances of the present case. Accordingly, I find that the court has no jurisdiction to hear the appeal. P A SMITH MEMBER OF THE LAND COURT 1 See for example Kallinicos & Ors v The Department of Natural Resources and Mines [2005] QLC 30. -- 4 of 4 --