Cleary v Chief Executive, Department of Natural Resources [1997] QLC 8

LAND COURT BRISBANE 14 FEBRUARY 1997 Re: AV96-283 and 284 - Jurisdiction Matters in appeals against unimproved valuations - Valuation of Land Act 1944 J.S. and D.T. Cleary v. Chief Executive, Department of Natural Resources (Hearing at Dalby) D E C I S I O N Decisions on objections against unimproved valuations of property owned by Mr J.S. Cleary and Mr J.S. and D.T. Cleary jointly, were issued by the Department of Natural Resources on 12 June 1996. Appeals against those decisions were received in the Registry of the Court on 18 July 1996, the envelope containing the Notices of Appeal being postmarked on 17 July 1996. The appellants were notified that the “period of 28 days within which an owner may institute an appeal expired on 10 July 1996", as provided in s.45(2) of the Valuation of Land Act 1944. They were further advised that the appeals did not lie except in compliance with s.57(1) and (2) of the Act. Section 57 deals with late filing and provides as follows: “(1) Where a notice of appeal is filed in the Land Court registry but not within the time prescribed ... 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 ..., 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; and (b) notifies the registrar within 21 days of the date of the notification of the registrar to the owner of the owner's intention to endeavour to so satisfy the Court as aforesaid. (2) If the owner - (a) notifies the registrar within the time prescribed and otherwise in accordance with the provisions of subsection (1)(b); and (b) proves to the satisfaction of the Land Court 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; the appeal shall lie, subject to this section, notwithstanding that it was not instituted within the time prescribed by section 55(2), but otherwise the appeal shall not lie. (emphasis [1997] QLC 8 -- 1 of 2 -- 2 added) .....” The owners duly advised that they intended to endeavour to so satisfy the Court. The question of determining whether the Court had jurisdiction to hear the appeals was set down for hearing at Dalby on 14 October 1996. The owners then advised that they were unable to attend on that day and sought an adjournment. That application was not granted, but the owners were invited to be represented by an agent or to file a written submission. The owners responded with the written submission. They had tried unsuccessfully to discuss the matter of the appeals with Departmental officers prior to the expiry date. The submission then concluded, “We realise now that we should have lodged the appeal before the closing date but in good faith waited until we were able to speak to ...”. Mrs T. Johnson, Barrister, represented the Department at the hearing. She submitted, correctly in my opinion, that the failure to institute the appeals was clearly not caused “by undue delay in the transmission of mail” and unless so proved, the Court was bound by the legislature. The owners, as many before them, were no doubt unaware of the mandatory nature of the legislation. However the Court does not have discretion in such a matter. It is necessary that the appeals be struck out for want of jurisdiction. RE WENCK MEMBER OF THE LAND COURT -- 2 of 2 --