Eden v Chief Executive, Department of Natural Resources and Mines [2001] QLC 109

LAND COURT BRISBANE 12 OCTOBER 2001 Re: Appeal Against Annual Valuation Valuation of Land Act 1944 Property ID: 30950 Local Government: Caboolture (AV2001/0350) Brian C Eden v. Chief Executive, Department of Natural Resources and Mines DECISION ON JURISDICTION Background: (1) This matter relates to land at Duke Street, Meldale, and described as Lot 43 on RP 76575, Parish of Toorbul. The subject land is used for the purpose of a single unit dwelling and has an area of 1,123 m². The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of an appeal against an annual valuation at 1 October 2000 under the Valuation of Land Act 1944. Brian C Eden appeared on his own behalf. Mr R Paterson, Principal Legal Officer, appeared for the respondent. The Facts: (2) The Chief Executive issued a valuation of the subject land in February 2001 at $95,000. Following an objection the Chief Executive confirmed that figure on 21 June 2001. The appellant has now appealed on 3 August 2001 claiming the unimproved value should be $65,000. (3) On 8 August 2001 the Registrar of the Land Court notified the appellant that the 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 2 August 2001. The Registrar advised that such an appeal did not lie, unless the appellant was able to satisfy the requirements of s.57(1) and s.57(2), copies of which were supplied to the appellant for information. The appellant responded to the Registrar on 13 August 2001, and on 14 September 2001 the matter was set down for hearing on jurisdiction on 27 September 2001. (4) Mr Eden supplied a statement of reasons for the delay in lodging the appeal, which advise: [2001] QLC 109 -- 1 of 6 -- 2 1. A notice of objection was forwarded to the Natural Resources Department, Caboolture, in error, and arrived there on 30 July 2001. 2. The Department then advised the appellant by letter of 31 July 2001 that the notice of objection was in fact invalid, and that a Notice of Appeal (Form 59 supplied) should be forwarded to the Land Court, at PO Box 13367, George Street Post Shop. That letter from the District Manager, Caboolture, was received by the appellant on 1 August 2001. 3. The Notice of Appeal was immediately despatched by post on 1 August 2001, and received by the Land Court on 3 August 2001. (5) Mr Eden advises that he forwarded the notice incorrectly to the Chief Executive because of his inexperience in these matters. He had assumed that the Notice of Appeal should have been forwarded to the previous address to which he had, until that time, directed all correspondence. He admits that it was an error on his part, and that the delay in responding to the decision on objection was also overlooked in his records until 30 July 2001. (6) Mr Eden further advises that when he arrived home from work on 1 August 2001, he immediately completed the Form 59, and then posted the notice some time after 6 p.m. on 1 August 2001. The letter was then stamped by Australia Post at 6 p.m. on 2 August 2001. Mr Eden concedes that he had hoped that the normal postal collection due at 6 p.m. might have been as late as 6.30 p.m. on 1 August 2001, but agrees that did not occur. (7) Mr Paterson argues that the circumstances as outlined by the appellant failed to meet the criteria of a "reasonable excuse". He argues that a mere lapse of memory is not a reasonable excuse, nor is the matter of sending the Notice of Appeal to the incorrect address. Mr Paterson further advises that the correct address of the Land Court is clearly enunciated on the back of the Notice of Appeal Form 59. Mr Paterson agrees that a Form 59 had not been sent with the decision on objection on 21 June 2001, but argues that it would not be appropriate for the respondent to automatically attach an appeal form to every decision on objection. (8) In respect of possible amendments to the Chief Executive's current procedures for advising objectors, Mr Paterson draws attention to a recent decision on jurisdiction by the Judicial Registrar of this Court in Zolgaze Pty Ltd v. Chief Executive, Department of Natural Resources and Mines (AV2000-0453), 22 August 2001, unreported at p.4. In that matter the Judicial Registrar noted the confusion evident in respect of how to appeal to this Court. -- 2 of 6 -- 3 (9) While I note that the existing system may be seen to be working effectively, I would tend to support the Judicial Registrar's concern that inexperienced appellants could have difficulty in ascertaining the format of appropriate originating application documents to the Court. It is also often apparent that some inexperienced appellants have a lack of clarity of the separate role of the Court in such matters. Decision: (i) Statutory Interpretation - (10) By amendment of 1 October 2000, s.57(1) of the Valuation of Land Act now provides for some further latitude in respect of satisfying the requirement for lodgment of a Notice of Appeal within 42 days from the date of issue of a decision on objection by the Chief Executive. Section 57(1) now 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." (11) However the matter of a "reasonable excuse" was examined by this Court in MJ & D Anthony v. Chief Executive, Department of Natural Resources (AV00-517), 10 November 2000, to be reported. In that matter the learned Member considered the findings in AG Russell v. The Crown (1992-93) 14 QLCR 202, where the Land Appeal Court said at p.204: "Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation." (12) In the Russell matter the Land Appeal Court rejected the claim by the appellant that ill health had been the reason for the late lodgement of the appeal, noting any lack of particularity to support such a claim. During its deliberations the Land Appeal Court considered the findings of Union Fidelity Trustee Company of Australia Limited v. The Co-Ordinator-General (1988-89) 12 QLCR 153, and also -- 3 of 6 -- 4 RM Denning v. Council of the City of Ipswich (1988-89) 12 QLCR 171. Both of those matters were also discussed in Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (A97-09), 25 June 1998, unreported. (13) In seeking to understand the reasonableness of the nature of Mr Eden's processing of his appeal, I find that guidance may be found in Stevens v. Motor Vehicle Insurance Trust (1978) WAR 232, where in the Full Court of Western Australia Burt CJ said at page 235: "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 might be expected to delay the 'taking of action' by a reasonable man. (See Quinlivin v. Portland Harbour Trust (1963) VR 25 at 28 per Sholl J)." (14) I note guidance also to be found in Jackamarra v. Krakouer (1998) 195 CLR 516, where his Honour Kirby J noted at page 539 as follows: "(i) Firstly there are no rigid rules, and each case must depend upon its own particular circumstances. (ii) The starting point is to understand the purpose for which the power under the legislation has been afforded, and whether it would be just in all circumstances to grant or refuse the application. (iii) The distinction between whether the matter is of a substantive nature, or is one of a procedure." (15) In the current matter the extension of time requested relates to a substantive matter in respect of whether the appellant should retain the right of appeal beyond the statutory period of 42 days from the issuing of the decision on objection. In that regard I note the findings of this Court in Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. Valuer-General 1983) 9 QLCR13. In that matter Mr ID Callinan QC (now Callinan J of the High Court) argued that the circumstances represented extraordinary or unusual circumstances. It was argued that it was the first time the appellants had appealed, and the solicitor for the appellants had overlooked the statutory requirement due to pressures of work at that time. (16) In the end the President of this Court dismissed the appeal, noting at p.20: " I think that the 'extraordinary or unusual circumstances' referred to in the proviso to the subsection should be read as being of a general nature and the words should be construed objectively. It is not possible by way of illustration to be exhaustive as to the type of such circumstances. I would instance fire, flood or tempest, sudden illness, accident or misadventure, community disturbance and circumstances of this nature -- 4 of 6 -- 5 so arising must relate to an appellant's failure to serve the copy of his appeal on the Valuer-General." (17) However I note that the President also went on to say at p.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." (18) In the circumstances of the current matter the only scope for consideration is whether the excuse offered by Mr Eden, that his appeal was late due to his inadvertently forwarding it to the incorrect address, could be considered as a "reasonable excuse". (19) However in that regard I am directed to another decision of this Court in RJ Claybourn v. Chief Executive, Department of Natural Resources (AV99-431), 22 February 2000, unreported at p.6. The circumstances of that matter closely parallel those of the current matter, in that, because of a lack of full understanding of the separate role of the Land Court, the Notice of Appeal had been sent incorrectly to the Chief Executive. The Court dismissed the appeal, finding that it had no jurisdiction as the Notice of Appeal had not been lodged in accordance with the requirements of the legislation. (20) In the current matter I find that a further reason that the Notice of Appeal was late, was because Mr Eden had misplaced the decision on objection in his records, a matter he concedes contributed to the delays. However that has similarities to the findings of AF & RD Hall v. Chief Executive, Department of Natural Resources (AV00-611), 14 December 2000, unreported. (21) In that matter the appellant was also late in lodging his appeal, and argued that his absence overseas during the issuing of the decision on objection should be considered as a reasonable excuse. In the end the Court found that the appellant's only reason for being late was that he was preoccupied with other matters which took precedence over the need to lodge the appeal on time. In that matter the appellant also misdirected the Notice of Appeal initially to the Chief Executive, thus causing further delay in lodging the appeal. Conclusion (22) On the evidence before me, while I have no doubt that the appellant made a sincere attempt to meet the requirements of the legislation, he unfortunately did not do so. Mr Eden admits that it would have been better had he hand delivered the Notice -- 5 of 6 -- 6 of Appeal personally on 1 August 2001. However, as he did not receive the further advice from the Chief Executive until his return to his home after work, such an approach was unlikely to have been received by the Registrar of the Court during normal business hours on 1 August 2001. If such a scenario was to occur again, I suggest a preferable approach might be to use a facsimile lodgment, if that was available. The use of such electronic mailing is now a regular practice in the Court, and is provided for under the Land Court Rules 2000, s.7(2). (23) In the end I find that the appellant has failed to meet the statutory obligations of the legislation. The appeal is dismissed as I find I have no jurisdiction to hear the matter. NG DIVETT MEMBER OF THE LAND COURT -- 6 of 6 --