Citypoint Pty Ltd v Chief Executive, Department of Lands [1995] QLC 1 (1994-1995) 15 QLCR 379

LAND COURT BRISBANE 9 February 1995 Re: Appeal against a valuation - Valuation of Land Act 1944 - AV94-576. Citypoint Pty Ltd v. Chief Executive, Department of Lands JURISDICTION In this matter, a question of jurisdiction arises from the manner and time of filing of a notice of appeal in the Land Court against a decision by the Chief Executive, Department of Lands (the respondent), on an objection made by Citypoint Pty Ltd (the appellant), to the valuation of certain land owned by the appellant in the City of Brisbane. The objection was against a valuation made under the provisions of the Valuation of Land Act 1944 (the Act) for the purposes of the Annual Valuation of the Area as at 30 June 1993. The decision on the objection issued on 29 August 1994. Under s.45(1) of the Act, an owner who is dissatisfied with a decision on an objection may appeal to the Land Court. The section then provides insofar as is relevant - "(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. " In the subject case, the last day for filing a notice of appeal in the registry of the Court was 26 September, 1994. A notice of appeal under covering letter bearing that date was executed by the owner's solicitors and a copy transmitted to the Court by facsimile. The fax machine in the registry records the documents as being received at 18.10 hours (ending at 18.13 hours). The original documents were received by the Court by post on 28 September. There is no dispute as to the date and time of reproduction of the notice of appeal by facsimile telegraphy. The Act in section 45 and following sections envisage filing of a notice of appeal in the registry either by hand or by post and there are provisions excusing delay (late filing) if an appellant proves to the satisfaction of the Court that failure to institute the [1995] QLC 1 -- 1 of 4 -- 2 appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. In other respects late filing is fatal to the hearing of an appeal. See Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Ltd v. The Valuer-General (1983) 9 QLCR 13 and Conroy v. Valuer-General (1986-87) 11 QLCR 25. In fact the Land Appeal Court has held that compliance in all respects with the provisions of s.45 is mandatory, (See Seaworld Pty Ltd and Ors v. The Valuer-General (1978) 5 QLCR p.309, Schirmer v. The Valuer-General (1974) 1 QLCR 144, Franklin and Ors v. The Valuer-General (1978) 5 QLCR 181. Under the Act a notice of appeal may be instituted by "filing" a notice of appeal in the Land Court registry. The Acts Interpretation Act 1954 defines "file" as including the word "lodge". The Shorter Oxford English Dictionary defines these words as including: "file. 3. a string, wire, or other contrivance, on which papers are placed for preservation and reference b. esp. one in a court of law to hold proceedings or documents in a cause, etc. 1. trans. To string upon a thread; to place on a file; to place in consecutive order for preservation and reference. b. to place in due manner among the records of a court or public office. lodge. 3.a. To put and leave in a place of custody or security 1666. To l. [a person] in..a state prison MAR. EDGEWORTH, money in the hands of a banker 1882. b. To deposit in court or with an official a formal statement of (an information, complaint, objection, etc.). " The Macquarie Dictionary provides - " file. 11. to place on record, register (a petition, etc.). 12. Law. to bring (a suit) before a court of law. lodge. 14. to put or deposit, as in a place for storage or keeping. 17. to lay (information, a complaint, etc.) before a court or the like. " Section 39(1) of the Acts Interpretation Act recognises that service may be effected by facsimile telegraphy. Although the words "file" or "lodge" are not specifically mentioned in the section, the provisions of subsection 2 would indicate that words having an analogous meaning to those contained within the section may be sufficient to enable service to be made within the provisions of subsection (1). Further, subsection 3 -- 2 of 4 -- 3 provides that nothing in subsection (1) affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection. These provisions are wide enough in my opinion to enable the registry to accept service of a notice of appeal by facsimile and indeed it has been the practice of the Court to do so for some time. The answer to the problem however does not end there. The Act requires that the appeal be "filed" within a specified period; in this case expiring on 26 September 1994. In Purden Pty Ltd v. Registrar in Bankruptcy (1982) 43 ALR 512 - Federal Court of Australia - General Division (Full Court) the Court in considering the distinction between the words "presented" or "presentation" as used in the Bankruptcy Act and the word "filing" which appears in the Bankruptcy Rules said at p. 515: "... 'Filed' is a word which appears in the Bankruptcy Rules and understandably so. Those Rules are concerned with what happens within the bankruptcy registries and with the duties of parties lodging documents there. 'Filing' is the word traditionally used to describe the act or process of placing documents in the records of courts or registries. " and at p.517: "... The act of filing the petition under the Rules, whether by presentation or otherwise, is an act of a different character; it is internal to the registry. This is not to say that the Registrar may not be entitled to refuse to file the petition if the requirements of the Bankruptcy Rules are not complied with; for example, by failure to tender the prescribed fee or to file the documents referred to in r 12(2) and (3)." The interpretation given by the Court to the word "filing" in that case may be compared with the dictionary meanings. Under the Rules of this Court the registry is open to the public on all days not being Sundays or Public Holidays between the hours of 10a.m. and 4p.m. (Rule 5). The registrar is required to keep a register of all matters entered for hearing before the Court (Rule 4) and documents are stamped showing the date of filing. In order to activate the registry, a notice of appeal must get into the hands of the registrar or those officers under his control. The manner in which a party may do this is prescribed in the Act (s.45) and may be effected personally, by post, by fax or by other means as provided for in the Rules. However, a notice of appeal cannot move the registry (be filed) unless the Rules enable the registry to act upon it within the hours when the registry is open to the public - See E Ryan and Sons Limited v. Rounsevell 10 CLR 176; see also the Rules of the Supreme Court which provide that no document in respect of which a fee is payable can be "filed" until the fee is paid. It may equally be argued that -- 3 of 4 -- 4 a notice of appeal cannot be "filed" in the registry unless received in the registry within the hours when the registry may register receipt of it. In this context sending a copy of a notice of appeal by fax after hours (in this case even after normal public service hours) is no different in my opinion from placing a notice of appeal under the door of the Court after hours or in the Post Office box of the Court after hours. In the circumstances I find that the appeal has not been instituted within the time prescribed by the Act and accordingly the Court has no jurisdiction to hear it. The appeal is struck out for want of jurisdiction. President of the Land Court -- 4 of 4 --