Claybourn v Chief Executive, Department of Natural Resources [2000] QLC 9

LAND COURT BRISBANE 22 FEBRUARY 2000 Re: Appeal against Annual Valuation Valuation of Land Act 1944 Valuation Roll No.: 11269 Local Government: BCC-Kedron (AV99-431) Raymond J Claybourn v. Chief Executive, Department of Natural Resources DECISION ON JURISDICTION Background: This matter relates to a property located at 26 Farnell Street, Chermside, and described as Lots 77 and 78 on RP 42747, Parish of Kedron. The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the case in respect of an appeal against an annual valuation of the subject land at 1 October 1998, under the provisions of the Valuation of Land Act 1944. Mr RJ Claybourn appeared and gave evidence on his own behalf. Mr R Paterson, Principal Legal Officer, appeared for the respondent. The Facts: In order to understand the history of the appeal, the following chronology of events needs to be considered:  8 March 1999 – the Chief Executive issued a valuation of the subject land at $81,000;  31 March 1999 – the appellant objected the valuation;  9 April 1999 – the Chief Executive acknowledged the objection;  19 April 1999 – due date for lodgment of the objection;  1 June 1999 – the Chief Executive issued a decision on the objection, confirming the unimproved value at $81,000;  7 July 1999 – the appellant wrote to the Department of Natural Resources advising that he appealed against the decision on the objection;  (between 7 and 19) July 1999 – three Notices of Appeal (Form 59) sent by the respondent to the appellant, without any covering letter explaining that the appeals must be lodged with the Land Court;  13 July 1999 – due date for lodgment of the appeal with the Land Court against the decision of the Chief Executive under s.55;  19 July 1999 – Notice of Appeal signed by the appellant; [2000] QLC 9 -- 1 of 6 -- 2  20 July 1999 – Notice of Appeal lodged by hand with the Registrar of the Land Court;  21 July 1999 – copy of the appeal posted to the respondent;  23 July 1999 – Land Court Registrar wrote to the appellant notifying that the appeal appeared to be out of time, and seeking advice within 21 days whether the appellant wished to continue the appeal;  27 July 1999 – response received by the Land Court Registrar, advising that the appellant sought to demonstrate that the Notice of Appeal had been inadvertently lodged with the respondent, due to a lack of clear directions as to where to appeal;  27 July 1999 – Registrar of Land Court acknowledged receipt of the reply to Notification, advising that the matter would be set down to determine whether the Court had jurisdiction to hear the matter;  13 August 1999 – due date for response to the Registrar;  26 October 1999 – notice from the Registrar notifying that the matter of jurisdiction would be heard in Brisbane on 11 November 1999;  11 November 1999 – hearing to determine jurisdiction. Decision: Before considering the events surrounding the lodgment of the appeal, I turn to the Valuation of Land Act. I note that in respect of an annual valuation s.45(1) provides for a dissatisfied person to appeal to the Land Court, and s.45(2) states: "(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)." Any such appeal is to be lodged with the Registry of the Land Court under s.45(3), and the burden of proof is placed upon the appellant under s.45(4). I note also that the procedure to start an appeal is covered by s.56, and the responsibility of the Land Court Registry and the owner in the late filing of an appeal is covered in s.57. I note particularly s.57(1) which states: "57. (1) Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by section 55(2), the registrar of the court shall notify the owner that, as the notice of appeal was not filed in the Land Court registry within the time prescribed by section 55(2), the appeal does not lie unless the owner - (a) proves to the satisfaction of the court that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post;" In the event that the owner satisfies the response to the Registry in respect of the timing of due responses; and to the Land Court that the failure to institute the appeal was the result of acceptable delays within the legislation, then the appeal shall lie, but otherwise under s.57(2) the appeal shall not lie. -- 2 of 6 -- 3 The due date for the lodgment of an appeal relates to a specified 42 days after the date of issue of the decision by the Chief Executive. The right for an owner to appeal against the valuation is provided under s.45(2), which states that an owner may appeal within a statutory period "after the date of issue to the owner". I consider now whether this Court has any power to extend that statutory period, and I note in JJ Bidner v. The Valuer-General (1992-93) 14 QLCR 88, where the learned Member found at p.93: " As has been noted in previous cases, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute. It has no inherent jurisdiction. Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature. (See Gold Coast Milk Pty Ltd and South Coast Co- operative Dairy Association Limited v The Valuer-General (1983) 9 QLCR 13, at 17)." That was also found in KW Fry v. Commissioner of Water Resources (1986-87) 11 QLCR 92 in respect of the statutory period for lodgment; AJ and E Schirmer v. The Valuer-General (1974) 1 QLCR 144, in respect of other details missing on a Notice of Appeal; and RG Ubank v. Queensland Housing Commission (1954-55) 25 CLLR 5, in respect of failure to meet the statutory time limits for lodgment of an appeal. In considering the chronology of events in the current matter, it would appear that the appellant sought to respond to actions by the respondent within reasonable time frames, except for his misunderstanding about with whom to lodge his appeal to this Court. It is noted that the appellant's lodgment of his objection to the Chief Executive preceded the closing date for objection (19 April 1999) by some 10 days; his inadvertently addressed Notice of Appeal to the Chief Executive (due 13 July 1999) preceded that date by six days; and his response to the Registrar of the Land Court (due 13 August 1999) preceded that date by 17 days. In all of those responses the appellant acted promptly, and well within the statutory time constraints. Mr Claybourn concedes that he inadvertently forwarded his Notice of Appeal in good faith to the Chief Executive, as he was unaware of the separate identity of the Land Court. Mr Claybourn is a retired gentleman of some 79 years of age, who has a less than clear understanding of the principle of the separation of powers, and who, quite reasonably in my opinion, sought to approach the Land Court through the Chief Executive. It was his mistaken belief that the respondent would on-forward his Notice of Appeal to the Court for its action. That belief was supported by the receipt of three copies of the Notice of Appeal forms from the respondent, without any covering letter of explanation, that the appeals needed to be lodged directly to the -- 3 of 6 -- 4 Court. Mr Claybourn was consequently completely surprised to receive the letter from the Registrar of the Land Court advising of the possible lateness of his appeal. The respondent argues that s.45 of the Act is mandatory in its directions, seeking precedent in the decision of the Land Appeal Court in WM & TJ Fischer v. The Valuer-General (1990-91) 13 QLCR 129, at p.131. In that matter the appellants failed to lodge their appeal within the prescribed time, but, unlike the current matter, claimed that the delay in lodging the appeal was the result of delays in the ordinary course of mail delivery. The Land Appeal Court in that matter noted that delays in the mail may occur either at the beginning of the statutory appeal period, or at the end of it. However, the Land Appeal Court also confirmed that it is a question of fact as to whether such delays had occurred. In the circumstances of that matter the advice of the decision on the objection had been delayed some eight or nine days at the beginning of the appeal period, before being received by the appellants. In that matter the Land Appeal Court accepted that there was a reasonable cause for the delay due to the delay in the mail, and allowed the appeal to be heard on its merits. In the current matter the Notice of Appeal was lodged by hand with the Court on 20 July 1999, some seven days after the statutory due date (13 July 1999). On that basis it is clear that there could be no delays in the ordinary course of mail in respect of the forwarding of the Notice of Appeal to the Court. In respect of any possible delays in the mail during the delivery of the decision of the Chief Executive to the appellant, Mr Claybourn has supplied no evidence that the letter of 1 June 1999 was not received for an extended period. Mr Claybourn advises that he even wrote in his diary when he had to lodge his appeal, suggesting that he was likely to have received the letter of the Chief Executive of 1 June 1999 some time prior to the date on which he despatched his letter of appeal on 7 July 1999. Indeed, a notation was made on the "decision on objection" letter of 1 June 1999 by the appellant, indicating that the letter of appeal was forwarded on 7 July 1999 (Exhibit 3). On that evidence there is nothing to indicate any abnormal delays in the mail either to or from the appellant. Mr Paterson also referred me to the decision of Seaworld Pty Ltd v. The Valuer-General (1978) 5 QLCR 309, where the solicitor for the appellant in that matter had sought an extension of time to lodge an appeal. In that matter the solicitor, being aware of the time constraints for lodgment of the appeal, made a telephone request to the Post Master, seeking for a courier to collect the documents for dispatch -- 4 of 6 -- 5 to the Court. Due to an oversight, the courier service was not advised of the need to collect the documents, and the Notice of Appeal consequently was delivered to the Court one day after the due date for lodgment of the appeal. In its decision the Land Appeal Court said at p.312: "In our view the telephone call to the postmaster was only an application for a Courier Service. There must be a handing across or passing across of an item of mail before it can be said that an article is in the transmission of mail." The Land Appeal Court rejected the application, and found that jurisdiction could not be found to lie in that matter. In this matter I note that it has been noted in previous cases, that the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute and there is no inherent jurisdiction. Because it is a Court of limited jurisdiction, it must only assume jurisdiction within the specific authorities of the legislation. This was determined, for example, in Bidner v. The Valuer-General (supra) where the learned Member said at p.93: " The practical consequence for the appellant is that the Court only has jurisdiction to hear the appeals if section 21 of the Valuation of Land Act 1944 confers that jurisdiction. The requirements of section 21 are mandatory and constitute conditions precedent to the jurisdiction of the Court." In that matter the form of the Notice of Appeal was covered in old s.21 (now s.55 to s.68 of the Act). It was held that the appeal did not comply in all respects with the requirements of the Act. It was also found in City of Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. The Valuer-General (supra), where the learned President said 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 and in the manner in which the Legislature authorises it to do so." Clearly, as noted by previous cases, this Court has no power to ignore the directions of the Act in this matter. In the matter of whether the Court can proceed with the appeal, I note in particular that s.58(3) directs that: "… The Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular …" Conclusion: -- 5 of 6 -- 6 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. I further believe that when the officers of the Chief Executive forwarded three copies of the Form 59 (Notice of Appeal) to the appellant, they were likely to have been of the view that they were being of assistance to the appellant in pursuing his case. However, the lack of any accompanying correspondence, explaining the correct procedure for lodging the appeal, to a person unfamiliar with the Act, could have been confusing. This is not an uncommon occurrence for members of the public who have never appealed previously, and the Chief Executive might consider preparing a suitable standard explanation which could assist possible future potential litigants. While not a responsibility of the Chief Executive in matters of appeal, such an approach is likely to be seen as a useful public service. However, it is the responsibility of the appellant to satisfy the requirements of the law as espoused in the legislation. I therefore find that I have no jurisdiction to hear this matter, and the appeal is found to not lie with the Court. The appeal is struck out for want of jurisdiction. NG DIVETT MEMBER OF THE LAND COURT -- 6 of 6 --