Ballinger & Anor v Chief Executive, Department of Natural Resources and Mines [2002] QLC 84

LAND COURT OF QUEENSLAND CITATION: DM Ballinger & Anor v Chief Executive, Department of Natural Resources and Mines [2002] QLC 84 PARTIES: Donna Maree Ballinger and David Terrington Booth (applicants) v Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO/S: AV2002/0263 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 18 October 2002 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Dr NG Divett ORDER: The appeal is dismissed as the Court has no jurisdiction to hear the matter. CATCHWORDS: Practice and Procedures – satisfying jurisdiction – out of time – reasonable excuse not provided – Valuation of Land Act APPEARANCES: Ms DM Ballinger for the appellants Ms R Trigge, Principal Legal Officer for the respondent Background [1] This matter relates to land at 29 Passchendaele Street, Tarragindi, and described as Lot 42 on RP 157611, Parish of Yeerongpilly. The subject land has an area of 801 m² and is used for the purpose of a single residence. The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter -- 1 of 8 -- 2 in respect of an appeal against an annual valuation at 1 October 2001, under the Valuation of Land Act 1944. Ms DM Ballinger appeared for the appellants. Ms R Trigge, Principal Legal Officer, Department of Natural Resources and Mines appeared for the respondent, calling evidence on grievance procedures from Graham John Jacobsen, Land Officer, Department of Natural Resources and Mines. The Facts: [2] The following chronology of events assists in understanding the circumstances of the appeal. On 25 February 2002 the Chief Executive issued a valuation of the subject land at $180,000. Following an objection on 5 April 2002, the Chief Executive confirmed that unimproved value on 11 June 2002. The closing date for an appeal to the Land Court was 23 July 2002. Notice of Appeal dated 20 July 2002 was received by the Registrar of the Land Court by facsimile transmission on 24 July 2002. [3] On 24 July 2002 the Registrar of the Land Court notified the appellants that the Notice of Appeal appeared to have been lodged after the statutory period of 42 days allowed for an appeal under s.45(2) of the Act, which was 23 July 2002. The Registrar advised that such an appeal did not lie, unless the appellant was able to satisfy the requirements of s.57(1) and (2), copies of which were supplied to the appellants for information. The notification of the Registrar specified a reply within 21 days, as to whether the appeal would be proceeding, or advice if the matter was to be withdrawn. [4] On 26 July 2002 the appellants responded by facsimile advising that they would endeavour to satisfy the Court that they had a reasonable excuse for filing the notice after the prescribed time. The Registrar acknowledged receipt of that response on 26 July 2002, advising that the matter would be set down to determine the point of jurisdiction. A Court Notice of 7 August 2002 set the matter down for hearing on jurisdiction on 11 September 2002. [5] Ms Ballinger explains that it had been the intention of the appellants to proceed with their appeal in conjunction with the owners of the neighbouring property. Unfortunately due to the absence of their neighbours, any discussions about mutually similar grounds of appeal had not been possible until 21 July 2002. The first working day after 21 July 2002 was Monday 22 July 2002, which was a non-working day for Ms Ballinger, who works only on four days of each week. Ms Ballinger advises that she had no access to a facsimile machine from her home, so that she then arranged to fax the Notice of Appeal to the Court from her place of employment on Tuesday 23 July 2002, the final date for lodgment of the appeal. -- 2 of 8 -- 3 [6] On 23 July 2002 Ms Ballinger then faxed the Notice of Appeal before proceeding away from her normal place of employment to other duties of a consulting nature. Unfortunately, apparently she had misdirected the facsimile address number, and she was not aware until the morning of 24 July 2002 of her error. She immediately then corrected the facsimile address number and redirected the Notice of Appeal to the Court, which was received by the Registrar of the Court at 9.27 am on 24 July 2002. [7] Unfortunately Ms Ballinger had not retained a copy of the details of the incorrectly addressed transmission document, as she was at that time unaware of the statutory time limits imposed upon the lodgment of appeals. During the jurisdictional hearing Ms Ballinger confirmed those circumstances under oath. Ms Ballinger further confirms that she works as a lay practitioner in the Industrial Relations jurisdiction, and regularly appears in that jurisdiction, where she has to argue against extensions of appeal applications. [8] Mr Jacobsen explains that he has responsibilities in the administration area dealing with the issuing of valuation notices and decisions on objections. He explains how it has been the practice in that area for decisions on objections to be held in batches until the agreed formal date of issue of those decisions on objections. However he advises that staff in that area have recently moved to posting the actual written notices of the decisions soon after receiving the decision from the official decision-maker in the Department. This now often results in the property owner receiving the formal notice of decision prior to the formal date of issue. In the circumstances of the current matter this could have been soon after, or even upon, the 11 July 2002. It is noted that there is a special section which dispatches the notices. Mr Jacobsen advises that there were no known delays in the system at that date. [9] In explaining the office procedures at her place of employment, Ms Ballinger advises that it is normally her procedure to check back to the facsimile machine to confirm whether the transmission had proceeded accurately. She notes that the transmission arrangements involve a system where transmissions are stored in a computer memory database. Unfortunately on 23 July 2002 she had been working away from the office, and had not seen the need to check with the administrative officer in her normal place of work on 23 July 2002, to confirm if the transmission had proceeded correctly. She explains that there had been no specific reason for her not returning to her office on 23 July 2002, other than the need to collect her children from preschool at about 2 pm in the afternoon. She further argues that due to the pressing nature of her work arrangements she had little time for further checking on such procedures, and relies upon the memory system in the fax -- 3 of 8 -- 4 machine. She also concedes that her arrangements with fax transmissions did not include the added backup of posting the original Notice of Appeal as confirmation of the fax transmission. She also concedes that while she does get transmission reports from time to time she generally does not retain them. [10] Ms Ballinger further notes that it may have been possible also for her husband Mr Booth to have attended to the posting of the appeal. However she explains that as she had intended to fax the notice personally on the due date 23 July 2002, and had in fact done so to her knowledge, she saw no reason necessitating Mr Booth to become further involved. Ms Trigge argues that as the appeal was in joint names there then was also a responsibility upon Mr Booth to see that the notice was received in time. Whether a reasonable excuse - [11] Before considering the facts of this matter I turn to the legislation, and note that in respect of the late filing of an appeal to this Court, guidance is provided in s.57(1) which states: “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’ – The notice of the chief executive’s decision or the notice of appeal was lost or delayed in the ordinary course of post. (2) If the owner satisfies the court under subsection (1), the court may hear and decide the appeal.” [12] The meaning of the words “reasonable excuse” has long been explored by the courts, and I particularly note the findings of the Land Appeal Court in AG Russell v The Crown (1992-93) 14 QLCR 202; Union Fidelity Trustee Company of Australia Limited v The Co-Ordinator General (1988-89) 12 QLCR 153; RM Denning v Council of the City of Ipswich (1988-89) 12 QLCR 171; and also Director-General, Department of Transport v Congress Community Development and Education Unit Limited (A97-09) 25 June 1998, unreported. The relevant interpretation of those precedents were analysed in MJ and D Anthony v Chief Executive, Department of Natural Resources (AV00-517), 10 November 2000, unreported, at page 7. [13] However in explaining that guidance I note that a “reasonable excuse” does not have to be blameless. That was clarified in Congress Community Development and Education Unit Limited (supra) where Muir J said at page 5: -- 4 of 8 -- 5 “In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself) or its agents, be blameless. The expressions under consideration are broad in meaning and quite apt to cover a ‘slip’ of the nature of that made by the employee of the Crown Solicitor. One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of subsections 44(11)(a)(b). cf Bull v Attorney-General (NSW) 1913 17 CLR 370. In Bull (supra) Isaacs J (CJ) noted at page 384: ‘In the first place, this is a remedial act, and therefore, if any ambiguity existed, like all such acts, should be construed beneficially (per Lord Loreburn LC in Bist v London and South Western Railway Co (1907) AC, 209, at page 211. This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.’” [14] I note also that a “reasonable excuse depends upon the facts established in the evidence”. (see Poole v Wah Min Chan (1947) 75 CLR 215, per Starkey J at page 232.) On the evidence I find that while Ms Ballinger is not legally trained, she in fact does act in legal proceedings in another jurisdiction, and is familiar with the requirements of legislative directions. That she was not fully conversant with the Valuation of Land Act 1944 does not detract from her general standing as a person of substance in such matters. [15] That background in the appellant leads to the question of what might be considered to be the reasonable conduct that could be expected of such an appellant in the current matter. I note for example in the matter of Stevens v Motor Vehicle Insurance Trust (1978) WAR 232, Burt CJ in the Full Court said at page 235: “What one is looking for is some ‘cause’ which a reasonably man would regard as sufficient, a cause consistent with a reasonably standard of conduct, the kind of thing which might be expected to delay the ‘taking of action’ by a reasonable man (see Quinlivan v. Portland Harbour Trust (1963) V.R. 25 at 28 per Sholl J.)”. (see also Congress Community Development and Education Unit Limited (supra) at page 3). [16] In the current matter, Ms Ballinger was aware of the time constraints relating to the appeal. She had signed the Notice of Appeal on 20 July 2002, yet chose not to arrange transmission of the document until 23 July 2002, the date upon which it was due. Why she decided not to dispatch the original document by ordinary Australia Post services on 22 July 2002, was not explained. In hindsight that was not a wise course of action in the circumstances. -- 5 of 8 -- 6 [17] As Ms Trigge argues, because of the importance of the Notice of Appeal, and its safe transmission within time which would affect its legal standing, it would have been reasonable for Ms Ballinger to have taken certain additional safeguards to ensure its safe and correct dispatch to the Court. Indeed Ms Trigge refers me to the matter of AF and RD Hall v Chief Executive, Department of Natural Resources (AV00-611), 14 December 2000, unreported, where the Member found at page 11: “In the current matter I find that while the appellant has demonstrated that he has a very sincere intention to prosecute the appeal, and that there is no evidence of any arbitrariness or vexatiousness, his failure to effectively meet the directions of the legislation is fatal to his case.” [18] Indeed in that matter it was found at page 9: “The only reason that I can discern from Mr Hall's failure to meet the requirements of s.45(2) of the Act, is that he would appear to have been preoccupied by other matters.” The current matter has some similarities with Hall, in that the personal business and family responsibilities of the appellants appear to have taken precedent over their obligations under the Act. That the transmission was delayed until 23 July 2002 perhaps demonstrated a lack of concern with a need to meet the deadline, or an inappropriate reliance upon technology. In the end it would appear that an incorrect fax telephone number has misdirected the transmission. [19] In respect of Ms Trigge’s reference as to whether the appellant maintained a persuasion to fully argue the merits of their case, I find that is not a matter for my consideration in this matter. Ms Ballinger assures the Court that it is the appellants’ intention to pursue the matter fully should jurisdiction be found to lie. The guidance of Kirby J in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 539 merely outlines a scenario under which a “reasonable excuse” should be considered: [20] And finally I consider the consequences of the appellants’ current procedures in lodging the appeal by electronic transmission. In that matter I note recognition of electronic procedures is established in the Land Court Rules 2000. Section 4(1) of the Rules directs that they are to be read in conjunction with the Uniform Civil Proceedings Rules 1999, and s.9 outlines the content and address particulars for the address of service. Clearly the transmission by electronic means is an appropriate mechanism for lodging an appeal. [21] However the procedures for implementing electronic transmission are not clearly defined in the Land Court Rules. If I turn however to the Uniform Civil Proceedings Rules 1999, I find at s.122: -- 6 of 8 -- 7 “Special requirements for service by fax 122(1) A document served by fax must include a cover page stating the following: - (a) sender’s name and address; (b) the name of the person to be served; (c) the date and time of transmission; (d) the total number of pages, including the cover page, transmitted; (e) the telephone number from which the document is transmitted; (f) the name and telephone number of a person to contact if there is a problem with the transmission; (g) that the transmission is for service under a stated rule. (2) An affidavit of service of a document by fax must include, as an exhibit, the transmission advice, generated by the sender’s fax machine, indicating the transmission was successful.” [22] Clearly under s.122(2) there is a responsibility upon the sender of the fax to provide evidence of correctly undertaking the transmission. It would be reasonable to conclude that the transmission advice would also have been checked in the current matter, and the incorrect fax telephone number identified. That did not occur. [23] Where an incorrect fax telephone number has been inadvertently provided, that has some analogy to an incorrect postal address being applied to the documents. Such an approach has been found to not satisfy the practical intentions of s.57(1). For example in RJ Claybourn v Chief Executive, Department of Natural Resources (AV99-431), 22 February 2002, unreported, the appellant inadvertently dispatched the Notice of Appeal to the Chief Executive, assuming he would pass it on to the Court. The Member in that matter found at page 6 of that decision: “Having considered the evidence of the appellant, and the chronology of the facts, I am not convinced that the appellant has satisfied the appropriate requirements of the Act in respect of his appeal. While the appellant, acting in good faith, believed that he had lodged his notice of appeal correctly, the result was that he had not done so.” In that matter jurisdiction was not found to exist and the appeal was struck out. [24] Bearing in mind the mandatory nature of the legislation, I am reminded also of the limited jurisdiction of this Court as outlined by the Land Appeal Court in Gold Coast Milk Ltd -- 7 of 8 -- 8 and South Coast Co-operative Dairy Association Limited v The Valuer-General (1983) 9 QLCR 13, where it said at page 17: “The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed. It has no inherent jurisdiction. It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction when and in the manner in which the Legislature authorises it to do so.” Conclusion: [25] On the evidence before me I find that the appellants have not provided a reasonable excuse for the delay in lodging the Notice of Appeal. I therefore find that the appellants have failed to meet the statutory obligations of the legislation. The appeal is dismissed as I find I have no jurisdiction to hear the matter. MEMBER OF THE LAND COURT -- 8 of 8 --