Dunn v Chief Executive, Department of Natural Resources [2000] QLC 70

LAND COURT, BRISBANE 10 November 2000 Re: Appeal against Annual Valuation - Valuation of Land Act 1944 - Property Identification No: 9050123 - Local Government: Brisbane City - Stephens. (AV00- 418) Steven H Dunn v. Chief Executive, Department of Natural Resources DECISION ON JURISDICTION Background: This matter relates to land at 23 Woodford Street, Holland Park, and described as Lot 1 on RP102599 and Lot 8 on RP94583, Parish of Yeerongpilly. The subject land has an area of 1674 square metres and is used for the purpose of multi-unit dwellings (flats). 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 1999 under the Valuation of Land Act 1944. There was no appearance by the appellant, and Mr R Paterson, Principal Legal Officer, appeared for the respondent. In view of the failure of the appellant to appear, the Court acceded to an application from Mr Paterson to strike out the appeal for want of prosecution. In the event Mr Paterson then sought costs thrown away by the respondent to an amount of $125. This Court then awarded costs to $125, and noted that it would provide reasons for awarding costs as a guide to the appellant. The Facts: The Chief Executive issued a valuation at $285,000 on 27 March 2000. Following an objection the Chief Executive issued a revised figure of $215,000 on 27 June 2000. The appellant then appealed to the registrar of the Land Court on 9 August 2000. [2000] QLC 70 -- 1 of 4 -- 2 On 11 August 2000, the registrar notified the appellant, advising 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 8 August 2000. 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 appellant for information. That notification of 18 August by the registrar specified a reply within 21 days as to whether the appellant would be proceeding, or advice if the matter was to be withdrawn. There was no response to the notification of 18 August 2000, and on 4 September 2000 the registrar advised the appellant that the matter would be set down for hearing the preliminary point of the jurisdiction of the Court. Copies of the letters of 18 August 2000 and 4 September 2000 were also forwarded to the Chief Executive. On 9 October 2000, a court notice of a hearing on jurisdiction was set down for 24 October 2000. During all of those procedures neither this Court nor the respondent received any advice from the appellant that the matter would not be proceeding. On calling the matter on 24 October 2000, inquiries by the registrar to the appellant's place of residence revealed that the appellant had decided not to proceed, but had made no effort to convey that decision to the other party, or the Court. In exercising my discretion on costs, I am reminded that guidance is provided in respect of any costs of an adjournment under s.62 of the Valuation of Land Act 1944, or in respect of a determination of an appeal under s.70 of that Act. Where an appeal is struck out for want of prosecution, the matter of costs may then be determined at the discretion of the Court. The discretion of the Court on costs is to be found in the new Land Court Act 2000, which was enacted on 1 July 2000, where s.34(1) states: "34.(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate." The awarding of costs against a party under s.34(3) may be made an Order of the Supreme Court and enforced in the Supreme Court. The powers to award costs mirror similar powers enacted in the previous Land Act 1962, which has now been superseded by the Land Court Act 2000. In exercising -- 2 of 4 -- 3 my discretion, I note the decision of this Court in EFS (Holdings) Pty Ltd v. Valuer- General (1980-81) 7 QLCR 14, where the learned Member, later President, said at p.15: "The general power of this Court to award costs is to be found in section 42(9) of the Land Act 1962-1978. The Court has a discretion in the matter. This discretion must be exercised judicially by having regard to relevant considerations. In this matter, the appellant company has not seen fit to advise the Court nor the Valuer-General of any intention not to proceed. There has been adequate time for this action to have been taken between the date of the notice of hearing and the date set down for such hearing. The Valuer-General has been put to expenditure in the matter and I propose to exercise my discretion and make an order for costs as sought. " The circumstances of that matter closely parallel the current matter. I believe judicial consideration of the facts of this matter support a similar conclusion. In the current matter Mr Paterson was required to prepare applications to the Court on two separate bases. Firstly, if recent amendments to s.57(1) of the Valuation of Land Act 1944, with a date of enactment of 1 October 2000, were to be considered as substantive matters, then evidence would be given on the basis of s.57(1) prior to the date of effect of the amendment. Under s.57(1), as it then was, the powers of the Court to consider reasons for the lateness of the appeal were more circumscribed, and relate only to acceptable delays in the normal course of the mails. Secondly, Mr Paterson was also required to prepare an application on the basis that the lateness of the lodgment of the appeal could be considered purely as a procedural matter. On such a basis, there is now, since 1 October 2000, more scope for the Court to consider the reasonableness of the circumstances surrounding the lodgment of the appeal. "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." I also note, however, that the provisions of s.58(3) dictate that unless the notification of the registrar has been responded to within the prescribed period of 21 days, then the Land Court shall not proceed to hear the matter, unless the Court is satisfied that the notice of appeal was not defective in any way. That failure to -- 3 of 4 -- 4 respond to the registrar, in the circumstances of this matter, was fatal to the appeal anyway. In the end neither basis of the appeal needed to be resolved as the matter was struck out. However, the respondent has been put to considerable disadvantage in preparing for the jurisdictional hearing, and has a right to seek reimbursement of those costs. That the claim from Mr Paterson only represents $125, in my opinion, reflects a very reasonable and conservative approach to seeking redress in this matter. I direct that the appellant pay the costs thrown away of the respondent to an amount of $125 accordingly. (NG Divett) Member of the Land Court -- 4 of 4 --