Bromet & Anor v Department of Natural Resources and Mines [2005] QLC 63

LAND COURT OF QUEENSLAND CITATION: Bromet & Anor v Department of Natural Resources and Mines [2005] QLC 63 PARTIES: Marcus Bromet as Trustee for the Bromet Family Super Fund and Contracting Services Trustee for Bromet Family Trust (appellants) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO.: AV2005/0751 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation DELIVERED ON: 22 December 2005 DELIVERED AT: Brisbane HEARD AT: Hervey Bay MEMBER Mr BR O'Connor ORDER: The Court has jurisdiction to hear the appeal in the subject matter. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr M Bromet, for the appellants Mr D Gaedtke, Area Manager, Department of Natural Resources and Mines, for the respondent [1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged one day after the due date. Section 57 of the Valuation of Land Act 1944 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 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] Mr Bromet presented three alternative arguments to support the appellants' case: one essentially a legal point, the other two more factual. First, Mr Bromet argued that the appeal was instituted by the appellant when it was actually lodged in the post – in the present case one day before the 42 day period had expired – rather than when received in the registry. Second, as the anticipated delivery time for Maryborough to Brisbane was one day after lodgement in the post, Mr Bromet argued he could have reasonably expected his notice of objection to have arrived on the 42nd day, not the day later. Third, Mr Bromet claims he was preoccupied with attention to fire management issues on his property at the relevant time and this affected his power to give proper attention to the appeal notice. [4] I will deal with each of these issues in turn. Instituting the Appeal [5] Section 45 of the Valuation of Land Act 1944 provides in part: 45 Appeal (1) An owner who has objected pursuant to section 42 against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court against the valuation. (2) Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 42 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive's decision upon the objection (which date of issue shall be stated in such notice). (3) An appeal shall be instituted by filing a notice of appeal in the Land Court registry. [6] In my view, subsection 3 requires the notice of appeal to be actually received in the Land Court registry (either through the post or by facsimile transmission or by filing in person) -- 2 of 3 -- 3 before it can be said to be instituted. This statutory requirement supersedes any application of the common law "postal rule" frequently applied in contract law situations. Further, this conclusion is reinforced by the example of reasonable excuse (for late lodgement) given in s.57 of the Valuation of Land Act 1944, namely a delay in the post. If the notice was deemed to have been received by the registry when posted the question of delay in the post would never be an issue and not have been needed to be referred to as an example in the Act. [7] It follows that the appellant's argument based on the meaning of instituting an appeal cannot be substantiated. Normal Delivery Times [8] Mr Bromet was given leave at the court hearing in Hervey Bay to make detailed enquiries as to the normal delivery times for mail posted in Maryborough addressed to Brisbane. He subsequently tended to court an Australian post publication confirming that delivery times to be one day. On this basis the appellants' notice should have been delivered to the Land Court registry on the 42nd day rather than the 43rd day when it was recorded as being received. [9] The Australia Post published times are merely guides for an anticipated times and certainly do not provide any form of guaranteed delivery times (the use of Express Post may ensure such guaranteed times). However, I consider that an objector could reasonably expect that a letter would generally reach its destination within the times noted in the guidelines. If not it could be reasonably claimed that there was a delay in the post. In my view, the appellant has succeeded on this second ground. Fire Control of Property [10] Having established reasonable excuse on the ground above, it is unnecessary to decide if this fire control ground would constitute reasonable excuse in the circumstances outlined by Mr Bromet. However, given that the fire permits and resultant action related to a period several days before the expiry time, it is unlikely such would justify a reasonable excuse finding. The activity described by the appellants seems to amount to more predictable ongoing property management rather than something that would have so preoccupied a landowner that he may not have been able to attend to other administrative matters. Decision [11] Reasonable excuse on the basis of delay in the post has been established. Jurisdiction is thus found to lie in the appeal. BR O'CONNOR JUDICIAL REGISTRAR -- 3 of 3 --