50 Long Pty Ltd & Ors v Chief Executive, Department of Natural Resources [1998] QLC 146

LAND COURT, BRISBANE 24 November 1998 Re: Determination of Unimproved Value - City of Brisbane - Division of Brisbane - (REF AV97-524). 50 Long Pty Ltd, Arras Pty Ltd and Conias Corporation Pty Ltd (Purported Appellants) v. Chief Executive, Department of Natural Resources (Respondent) DECISION - JURISDICTION OF THE COURT This matter is before the Court for an initial finding as to whether the Court is seized of jurisdiction to consider the purported appeal on merit following advice from the respondent Chief Executive that it was his intention, when the matter was called on for hearing on Wednesday, 14 October 1998, to resist the hearing of the case on merit on the basis that the Court had no jurisdiction to so do. The respondent’s application is based on the ground that the purported appeal was not filed in the Land Court registry within the time prescribed by section 45(2) of the Valuation of Land Act 1944. The sub-section reads: “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). ” Now it is the respondent Chief Executive’s submission that the date of issue of the decision upon objection was 28 January 1998 (Exhibit 2) and since the notice of appeal was lodged by hand in the Land Court registry on 23 December 1997 (Exhibit 1) then it is invalid since it was not filed within 42 days from 28 January 1998. The application by the respondent Chief Executive is opposed by the purported appellants. Evidence was called by the respondent from Registered Valuer George William Lindberg, who is in the employ of the State Valuation Service Section of the respondent Department. Mr Lindberg had in his possession a file containing documents which were accessed from the Departmental data base. Among the documents tendered through Mr Lindberg was a copy of the notice of decision on objection issued to 50 Long Pty Ltd, Arras [1998] QLC 146 -- 1 of 4 -- 2 Pty Ltd & Conias Corporation Pty Ltd (Exhibit 2) which bears a date of 28 January 1998. The notice of decision was in response to an objection filed against a valuation of $825,000 for Lot 2 on RP 592, Parish of North Brisbane and was directed to the valuation firm, Harley Property Valuations Pty Ltd. Mr Lindberg informed the Court that according to his notes an objection conference was scheduled to take place on 1 October 1997 at 9a.m. The file is marked that no appearance was entered by the owners or the owners’ agent (Harley Property Valuations Pty Ltd). Mr Lindberg cannot now recall whether the owners’ agent attended for conference purposes later in the day or whether he met with the principal of the agent firm (Ms Sweden Jade Harley) on another occasion when she was probably in his office dealing with another matter. Mr Lindberg has no reason to believe that the notice of decision on objection bearing date 28 January 1998, was not forwarded to the owners, and he informed the Court that the notice issued pursuant to a decision being made on the objection on 12 December 1997. The decision notice was processed by the Department on 15 December 1997. In response to a suggestion by counsel for the purported appellants that the decision on the objection issued on 16 December 1997, Mr Lindberg suggested that the issue of a decision on objection just one day after it was processed “would be the first time I’ve ever known of it to happen so quickly”. The purported appellants called in evidence Ms Harley who told us that subsequent to the lodgment of the objection, she received a letter from a valuer, Mr Smith who then proposed to have an objection conference at 9a.m. on 29 August 1997. But this date did not suit Ms Harley’s clients. Subsequently the 1 October 1997 conference date was arranged and she and her clients (Mr Conias and Mr Ogilvie representing the objector companies) attended an objection conference with Mr Smith at 9.30a.m. on 1 October 1997. Subsequently, Ms Harley said she received the decision on the objection dated 16 December 1997. She says she probably received it on 17 or 18 December 1997. When she contacted her clients, both wished to appeal the decision. As a result, Ms Harley filed a notice of appeal which, I note from the Court file, is dated 23 December 1997. Ms Harley told us that she included within the notice of appeal that the amount of the valuation appealed against was $825,000, that she would have obtained that figure from the decision on objection, and that she would not otherwise have known that “they weren’t going to reduce it”. Notwithstanding a diligent -- 2 of 4 -- 3 search of her records, Ms Harley has been unable to find the notice of decision on objection she claimed to have received. Ms Harley told us that she handled three other objections by Mr Conias and Mr Ogilvie and was in receipt of, and has available, written notices of the other decisions on objections each of which is also dated 16 December 1997. The only explanation Ms Harley can put forward for her being unable to produce the decision of 16 December 1997 relating to this purported appeal is that probably she received two notices of decision on objection for the subject property and “probably because the second one was sent to me, I threw the first one out because I often get two lots of letters on the same thing from the Department and I throw one away”. Ms Harley told us she has a clear recollection of the meeting with Mr Smith at the conference on 1 October 1997, but recanted her position when informed by counsel for the respondent that Mr Smith was then no longer in the respondent’s employ. Mr Lindberg told us that Mr Smith left the Department in June or July 1997. Ms Harley told us that she does not know Mr Smith but she did confer with Departmental representatives on 1 October 1997. Spero Conias was called briefly by the purported appellants. Mr Conias thinks he attended an objection conference but whether it was on 1 October 1997 he cannot now be sure. But tendered in evidence is a copy of an entry from Mr Conias’ diary which indicates that he had a conference scheduled at the Lands Office with Ms Jade Harley for 9.30a.m. on 1 October 1997. Mr Conias recalls that in December 1997 he was advised by Ms Harley of a decision consequent to an objection conference. He has had many discussions with Ms Harley about his objections. He was not sent a copy of the alleged decision on objection dated 16 December 1997. Accordingly, he does not have a copy in his file. Mitchell Gerard Ogilvie, who is a retailer by occupation and whom I assume is connected with one or more of the purported appellant companies, was also called in evidence. Mr Ogilvie had with him a photocopy of his diary which has an entry for 9.30a.m. on 1 October 1997 for a conference with Mr Smith and Ms Harley. He recalls being at the meeting and there were two Government valuers in attendance whose names he cannot recall. Counsel for the purported appellants submitted that it appeared to him that the application by the respondent was an attempt to cause a nuisance in the matter, and asked the Court to use its discretion and allow the appeal to be heard on merit. He referred to section 45(8) of the Valuation of Land Act 1944 but this sub-section does not aid his submission as it -- 3 of 4 -- 4 only provides that the Land Court may in a particular case direct that an appeal against an annual valuation be heard and determined in open court. Now, if I am to find that the Court is seized of jurisdiction to hear and determine this purported appeal on merit, I have to be satisfied beyond reasonable doubt that the purported appellants received a copy of the decision on objection on 16 December 1997. It is unfortunate that Ms Harley could not produce a copy of this notice. She had copies of another notice related to a decision on objection on another property dated 16 December 1997 and simply has to rely on her memory that she did receive a decision on objection for the subject property carrying the same date. On the other hand, a copy of the decision on objection produced by Mr Lindberg (Exhibit 2) is clearly dated 28 January 1998, and Mr Lindberg has satisfied me that it would be a rare event for two notices of decision to have been sent for the one property. It is also a pity that the receipt by Ms Harley of the decision dated 28 January 1998 did not prompt her to check her file and lodge another notice of appeal within the prescribed time. In the circumstances, I am not convinced beyond reasonable doubt that the subject notice of appeal was filed within the period prescribed by section 45(2) of the Valuation of Land Act 1944. The appeal is accordingly a nullity and the Court is not seized of jurisdiction to proceed to consider it on merit. (CH Carter) Member of the Land Court -- 4 of 4 --