Clow v Chief Executive, Department of Lands [1996] QLC 41

LAND COURT BRISBANE 12 APRIL 1996 In the matter of an appeal against a valuation Valuation Roll No.: 7692 Local Authority: BCC-Balmoral Trinidad R and Dennis G Clow v. Chief Executive, Department of Lands (Hearing at Brisbane) D E C I S I O N ON J U R I S D I C T I O N Facts The appellants in this case are the owners of land situated at 22 Aster Street, Cannon Hill, Brisbane. Pursuant to section 42(1) of the Valuation of Land Act 1944, the appellants lodged an objection to the annual valuation of the land made by the Valuer General in 1993 and by a determination of the Chief Executive of the Department of Lands dated 22 December 1994, that objection was disallowed. The appellants then appealed against that determination. However, although their notice of appeal is dated 16 January 1995, it was not received in the registry of the Land Court until 19 April 1995. Mr Dennis Clow gave evidence on behalf of the appellants. He explained that he had posted the notice of appeal on 16 January 1995 but that by error he had addressed the letter to the Department of Lands, GPO Box 1401, Brisbane. The notice of appeal should have been addressed to the Registrar, Land Court, PO Box 367, Brisbane Roma Street. It was only when Mr Clow contacted the Land Court registry in April 1995 and was advised that no notice of appeal had been received in the registry that he became aware of his error and forwarded a copy of the notice of appeal to the registry. That copy was received in the registry on 19 April 1995. Issues The only issue for decision by this Court is whether the Court has jurisdiction to hear the appeal. This is an issue because the notice of appeal was received in the Land Court registry after the time for appeal had expired. Statutory Provisions Sections 45 and 57 of the Valuation of Land Act 1944 enable an owner to appeal to the Land Court against an annual valuation. The parts of the sections particularly relevant to this appeal are: [1996] QLC 41 -- 1 of 3 -- 2 "Appeal 45(1) An owner who has objected pursuant to section 42 against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court against the valuation. (2) Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 28 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). (3) An appeal shall be instituted by filing a notice of appeal in the Land Court registry. ... (6) The appellant shall serve a copy of the notice of appeal on the chief executive not later than 7 days after the notice is lodged in the Land Court registry. ... (9) Sections 57 to 68 and section 70 apply, with any necessary changes, to an appeal under this section. Late Filing 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; and (b) notifies the registrar within 21 days of the date of notification of the registrar to the owner of the owner's intention to endeavour to so satisfy the court as aforesaid." Although section 57 refers to the time prescribed by section 55 as the time within which an appeal must be filed, it is clear that because this is an appeal against an annual valuation, the applicable time period is that prescribed by section 45 rather than that set out in section 55. Pursuant to section 45(2) and (3), the appeal in this case should have been filed in the Land Court registry within 28 days after the date of issue of the notice of the chief executive's decision on the objection. -- 2 of 3 -- 3 Conclusion The notice of appeal in this case should have been filed in the registry by 19 January 1995 which is 28 days after the date of issue of the determination under appeal. It was not filed until 19 April 1995. In Fischer v The Valuer General (1990) 13 QLCR 129, the Land Appeal Court held that the procedure set forth in section 16J of the Valuation of Land Act for the institution of appeals against an annual valuation is mandatory. (Section 16J has been renumbered as section 45. See Reprint No 2 of the Act.) The only exception is found in section 57 which provides that when a notice of appeal is filed outside the time prescribed, the appeal does not lie unless the owner proves to the satisfaction of the court that the late filing was caused by undue delay in the transmission of mail in the ordinary course of post. There is no suggestion in this case that the late filing was caused by a delay in the transmission of mail in the ordinary course of post. Therefore, although the court has sympathy with Mr Clow's plight, the law is clear. The court does not have jurisdiction in this matter. Order The appeal is struck out for want of jurisdiction. CAC MacDONALD MEMBER OF THE LAND COURT -- 3 of 3 --