Everest Holdings v Department of Natural Resources and Mines [2005] QLC 64

LAND COURT OF QUEENSLAND CITATION: Everest Holdings v Department of Natural Resources and Mines [2005] QLC 64 PARTIES: Everest Holdings Pty Ltd (appellants) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO.: AV2005/0626 and 0627 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeals against Unimproved Valuations DELIVERED ON: 22 December 2005 DELIVERED AT: Brisbane HEARD AT: Hervey Bay MEMBER Mr BR O'Connor ORDER: The Court has no jurisdiction to hear the appeals in these matters. CATCHWORDS: Jurisdiction – Late filing of appeals – Whether reasonable excuse APPEARANCES: Mr M Bollin, for the appellants Mr D Gaedtke, Area Manager, Department of Natural Resources and Mines, for the respondent [1] The issue for determination in these matters is whether the Court has jurisdiction to hear the appeals lodged three days 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 -- 1 of 3 -- 2 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." 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] The notices of appeal in the above matters were received by mail in the Land Court registry on 18 August 2005. The envelope containing the notice of appeal bears an Australia Post endorsement has been processed at the Mackay Mail Centre on 15 August 2005 at 6pm. [4] The 42 day period in which the appellant's had to lodge an appeal expired on 15 August 2005. It thus appears the notice was lodged out of time. [5] The appellant offered no substantial reason which could warrant reasonable excuse being found as required under s.57 of the Valuation of Land Act 1944. However, in the proceeding jurisdiction hearing at the Hervey Bay Court the legal question was raised by the appellant as to whether an appeal could be validly instituted from the date of posting as opposed to the date of receipt. [6] I agree to withhold a decision in the present matter until I had properly considered the argument advanced in the Bromet case Ref (AV2005/0751). [7] The Bromet matter has now been decided. The reasoning and conclusion on the date of lodgement issue being as follows: "Instituting the Appeal 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 of 3 -- 3 (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. [8] 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) 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. [9] It follows that the appellant's argument based on the meaning of instituting an appeal cannot be substantiated." Decision [10] The court has no jurisdiction to hear the present appeals. BR O'CONNOR JUDICIAL REGISTRAR -- 3 of 3 --