Evans v Chief Executive, Department of Natural Resources [1997] QLC 119

LAND COURT BRISBANE 1 August 1997 Re: Determination of Unimproved Value - City of Townsville. (AV96-553). MW and MA Evans v. Chief Executive, Department of Natural Resources J U R I S D I C T I O N The above matter was called on in Townsville on Tuesday, 15 July 1997, for the purpose of the Court's decision as to whether it has jurisdiction to hear the appeal on merit since it appeared to the Registrar of the Court that the appeal was filed subsequent to the end of the period within which it was competent for it to have been so filed. The undisputed facts, insofar as they are relevant, are: The respondent Chief Executive gave to the appellants notice of his decision on an objection lodged against the valuation of Lot 159 on Plan T118105 by notice bearing date 11 September 1996. This notice was forwarded to the appellants' address for service at their private Post Office Box 1156, Townsville. Subsequently, an appeal was filed in the Land Court Registry on 11 October 1996. The Registrar of the Court, by letter dated 18 October 1996, advised the appellants by notification that the appeal was filed out of time, since the 28 day period within which an owner may institute an appeal expired on 8 October 1996. The appellants now come before the Court endeavouring to satisfy it that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post (vide section 57(1) and (2) of the Valuation of Land Act 1944). Melvyn William Evans, who is a practising Registered Valuer in Townsville and one of the appellants, furnished evidence in the matter. Mr Evans does not contend that there was delay in the transmission of mail carrying the notice of appeal to the Land Court Registry. But he contends there was delay in the transmission of the notice of the decision on objection in the post since it was not received in the office of his employment - Messrs Collins and Eales, Real Estate Valuers - until 16 September 1996. In these circumstances, Mr Evans believes that his case on the point of jurisdiction is the same as that argued before the Court in Re: GV and DE Roberts v. Chief Executive, Department of Natural Resources (AV96-552) where the learned President of this Court held that it had jurisdiction to hear the appeal on its merits. So perhaps I [1997] QLC 119 -- 1 of 3 -- 2 should outline the facts in the Roberts' case as contained within the President's decision. I should say at the outset that the filing of the Roberts' appeal was made by Registered Valuer Mr GW Eales, the principal of the firm Collins and Eales. The Roberts' appeal was signed by Mr Eales, as was the Evans' appeal. The Roberts' notice of appeal was also filed in the Land Court Registry on 11 October 1996, outside the period during which it was competent for the appeal to have been lodged which also expired on 8 October 1996. The decision on the Roberts' objection was also dated 11 September 1996 and was forwarded to the office of Collins and Eales where it was also date-stamped 16 September 1996. At this time Mr Eales was away from his office on holidays, his last working day having been 13 September 1996. Mr Eales did not return to work until 8 October 1996. On return, he took verbal instructions from Mr Roberts, prepared the appeal, dated it 9 October 1996 (the same date as the Evans' appeal), and forwarded it the same day to the Land Court Registry. Now in the Roberts' case, the President found that the decision on objection was received by Collins and Eales on 16 September 1996, five days after the date upon which it issued and four days after it would normally have been delivered in the ordinary course of post. In accordance with the authority of Fischer v. The Valuer-General (1990) 13 QLCR 129, the President found that there was delay in the transmission of mail conveying the decision on the Roberts' objection. Mr Evans told us that he was away from Townsville engaged in working activities on Monday, 16 September 1996 and Tuesday, 17 September 1996. He could not recollect whether he cleared his private Post Office Box (1156) on Friday, 13 September 1996, and he told us that he does not clear his Box every day. But he did leave his Post Office Box keys with his staff on Friday, 13 September 1996, since he knew he would be away on the following Monday and Tuesday. He asked his staff to clear the mail from his Box. Given office procedures, Mr Evans believes that a staff member cleared his private Box, removed the decision on objection, returned to the office and date-stamped it as having been received on 16 September 1996. Now it is urged by the respondent Chief Executive that the facts in this case can be distinguished from those in the Roberts' case. With this I agree. Mr Evans cannot satisfy the Court with any certainty as to when the notice of objection was placed in his private Mail Box. It could have been there on Friday, 13 September 1996, when the Box was not cleared. It may have even been there on Thursday, 12 September 1996, as Mr Evans does not clear his box each day, and it is to be noted that 12 September 1996, is just one day after the date of the notice of -- 2 of 3 -- 3 decision on objection. The appellants carry the onus of proof in appeals of this nature, and they have not satisfied me that there was delay in the transmission of the mail conveying the notice of decision on objection. Accordingly, the appeal is struck out for lack of jurisdiction. (CH Carter) Member of the Land Court -- 3 of 3 --