50 Long Pty Ltd & Arras Pty Ltd v Chief Executive, Department of Environment and Resource Management

[2010] QLC 6

LAND COURT OF QUEENSLAND

CITATION:  50 Long Pty Ltd & Arras Pty Ltd v Chief Executive, Department of Environment and Resource Management [2010] QLC 0006

PARTIES:50 Long Pty Ltd and Arras Pty Ltd

(applicants)

v.

Chief Executive, Department of Environment and Resource Management

(respondent)

FILE NO:VLA450-09

PROCEEDING:  Hearing of an application

DELIVERED ON:                  11 February 2010

DELIVERED AT:                   Brisbane

MEMBER:Mr BR O’Connor, Judicial Registrar

ORDER:The Court has jurisdiction to hear the appeal.

CATCHWORDS:                  Jurisdiction – Late filing of appeal – Whether reasonable excuse

APPEARANCES:                  Mr A Crawford, Valuer, Chestertons, for the applicant

Mrs T Johnson, Principal Lawyer, Department of Environment and Resource Management, for the respondent

1. O’CONNOR JR:  This case was heard in conjunction with Trust Company v Chief Executive[1] and it was agreed by the parties that relevant evidence in that case could also be considered in the hearing of the instant application.

   [1] [2010] QLC 0007.

2. The issue for determination in this application is whether the Court has jurisdiction to hear an appeal in circumstances where the notice of appeal was filed some six months out of time. The key dates in question are as follows:

   ·A notice of objection was lodged by Chestertons, agents for the appellants, on 30 April 2008.

   ·The Chief Executive’s decision on objection made under s.43 of the Valuation of Land Act 1944 (VLA) was notified to the applicant as required by that section by notice of decision issued and dated 3 March 2009.

   ·The applicant had a right of appeal under s.45 of the VLA against the decision but, by virtue of s.45(2), only if the appeal was instituted within 42 days after the date of issue.

   ·The appeal period expired on 14 April 2009.

   ·When no notice of decision on objection had been received by Chestertons by 21 August 2009, the latter made enquiry of the Department as to the situation. A copy of the decision on objection was subsequently received by Chestertons on 27 August 2009.

   ·The appeal was filed in the Land Court registry on 7 October 2009.

3. At the current hearing, evidence was given by Thomas John Peter Walton, Land Economist for Chestertons, and Graham John Jacobsen, Land Officer for the Department of Environment and Resource Management.  From a consideration of this oral and affidavit evidence of the witnesses and subsequent submission by representatives for the parties, I accept that:

   ·The decision on objection dated 3 March 2009 was sent to the appellants’ private address at 190 Edward Street, rather than the address for service noted on the notice of objection (Chestertons’ PO Box). The reason for sending the notice to the Edward Street was that this was the address previously noted on Departmental records and such had not been updated when Chestertons lodged their notice of appeal nominating their own address for service.

   ·There was no conclusive evidence as to whether the notice on objection had actually received at the Edward Street.  However, I accept the submission of Counsel for the respondent that the applicants bear the onus of proof generally and on this matter and also that reliance can be placed on the presumption that material sent in the mail to the address can be presumed to have been received unless such presumption is rebutted. For present purposes, I am prepared to find that the notice of decision of objection was sent and received at the Edward Street address.

4. The question then becomes whether it was a reasonable assumption on the part of the owners that, having placed the appeal conduct in the hands of experienced valuation firm (Chestertons), it could be expected that the matter would be followed through by them. The owners may have reasonably expected, assuming that they did themselves receive a copy of the decision on objection, that a further copy of the notice was sent to their advisors to follow through. There would seem no obligation on the owners to have forwarded any notice of objection to Chestertons provided Chestertons had nominated themselves with the Department as the recipients of such correspondence. I find that such conduct justifies to a ‘reasonable excuse’ under s.57 of the VLA.

5. Two further points need also to be addressed. Counsel for the respondent was critical of the extensive time period between date of issue of the decision on objection, (3 March 2009), and eventual date of lodgement of the appeal (7 October 2009).  However, Chestertons were not aware of the issue of decision on objection until 27 August 2009 and there is evidence that it is not unusual for some decisions on objection to be outstanding for well over a year. The second point is that, as I concluded in the Devine[2] decision, the appellants’ representatives were entitled to take a further 42 days to lodge the appeal from the date from which they were actually made aware of the notice of decision on objection. This period would allow for consideration of whether the expensive process of an appeal should be undertaken.

   [2] [2009] QLC 0121.

Conclusion

1. In all the circumstances, I find that reasonable excuse has been established in this case.

Decision

1. The Court has jurisdiction to proceed with this appeal.

BR O’CONNOR

JUDICIAL REGISTRAR