A Boccabella v Department of Natural Resources and Water

[2007] QLC 61

LAND COURT OF QUEENSLAND

CITATION:	A Boccabella & Ors v Department of Natural Resources and Water [2007] QLC 0061
PARTIES:	Annibale Boccabella, Lorenzo Boccabella and Lorenzo Boccabella and Trudy M Andrews (applicants)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NOS.:	AV2007/0075, AV2007/0076, AV2007/0077, AV2007/0078, AV2007/0079, AV2007/0080, AV2007/0081 and AV2007/0082
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – appeals against unimproved valuations
DELIVERED ON:	6 September 2007
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER	Mr RS Jones
ORDER:	The Court does not have jurisdiction to hear and decide appeals AV2007/0075, AV2007/0076, AV2007/0077, AV2007/0078, AV2007/0079, AV2007/0080, AV2007/0081 and AV2007/0082.
CATCHWORDS:	Late filing of appeals – whether reasonable excuse exists – section 57 Valuation of Land Act 1944
APPEARANCES:	Mr L Boccabella in person for the applicants Mr M Heather, principal legal officer for the respondent

1. The issue for determination in all of these applications is whether the Court has jurisdiction to hear the appeals in circumstances where, on the best case for the applicants, the appeals were filed one day after the due date. 

Background

1. The uncontested facts and circumstances surrounding these applications are relatively brief and are:

   i.Mr Boccabella is a practising barrister at the private bar of Queensland.  However, in the circumstances of these applications, Mr Boccabella did not appear as counsel acting on instructions from the applicants but appeared on his own behalf and in a personal capacity described by him as being one of the executors of his late father's estate.

   ii.Mr Boccabella's father unfortunately passed away on 15 November 2006.  Mr Boccabella and his brother, the other executor of the estate, are responsible for managing five estate properties, three of which are blocks of flats.  As a consequence, in addition to his practice at the private bar and other business pursuits, Mr Boccabella, together with his brother, was also responsible for dealing not only with the tenants of the flats but also with the numerous trades people associated with carrying out general repairs and maintenance on the estate properties.

   iii.The evidence indicates that the filing system associated with the management of the estate properties was not always rigorously monitored.  Relevantly, it would appear that the documents associated with all of these appeals were placed amongst other estate documents, such as general bills, tradesmen invoices and the like, which were then dealt with on a more ad hoc or informal way in contrast with those documents having more serious consequences, for example insurance policies and the like, which were kept and managed from a different file or files. 

   iv.        The appeal period against the objection decision of the respondent (dated 1 May 2007) expired on 12 June 2007. 

   v.The appeal documents were discovered during a meeting between Mr Boccabella and his brother on the evening of 13 June 2007.  It was also during this meeting that the documents were completed and sent by facsimile to the registry of this Court outside of normal business hours.  These meetings concerning the affairs of the estate were described by Mr Boccabella as being irregular in nature. 

2. During his evidence in chief and cross-examination, Mr Boccabella candidly conceded that he should have paid more attention to identifying and diarising the due appeal date.  Mr Boccabella also conceded that the appeal documentation was inappropriately dealt with and, in retrospect should have been directed to his barrister's chambers where they would have almost certainly been processed and filed by the due date. 

Legislation and decided cases

1. Section 57 of the Valuation of Land Act 1944 relevantly provides:

   "(1)  If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), the registrar of the court must notify the owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated.

   …

   (2)  If the owner satisfies the court under subsection (1), the court may hear and decide the appeal."

2. In Russell v The Crown[1] the Land Appeal Court was concerned with the failure of the appellant to meet the requirements imposed under of s.44(11)(a) and (b) of the Land Act 1962 as it then was and, in particular with whether or not there was "a reasonable cause or explanation" for non-compliance.  At page 204 the Court determined that the cause or explanation must be "substantial" and that it was of little use for the appellant, for example, merely to say without more that he or she did not know of the time limitation or had simply overlooked duly complying with them.

   [1] (1992 – 93) 14 QLCR 202.

3. In Stevens v Motor Vehicle Insurance Trust[2], Burt CJ said at 235 in respect of legislation which gave the Court power to grant relief where it considered the "delay was occasioned by mistake or reasonable cause": 

   "What one is looking for is some 'cause' which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the 'taking of action' by a reasonable man …."

   [2] (1978) WAR 232.

4. It is of importance that provisions such as s.57(1) of the Act are meant to be remedial and ameliorative in nature. In Director-General, Department of Transport v Congress Community Development and Education Unit Limited[3], the Land Appeal Court was concerned with a provision materially the same as that considered by the Court in Russell where, in circumstances described by Muir J as a combination of work pressure, inexperience and possibly bad luck, the appeal was not filed until the first working day after the due date.  After reviewing a number of authorities, including Stevens, Muir J at 171 said:

   "In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself) or its agents, be blameless.  The expressions under consideration are broad in meaning and quite apt to cover a 'slip' of the nature of that made by the employee of the Crown Solicitor.  One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of s44(11)(a)(b).  cf Bull v Attorney-General (NSW) 1913 17 CLR 370."

   [3] (1998) 19 QLCR 168; see also Trust Company of Australia Ltd v DNRW [2007] QLC 0045.

5. In my opinion the evidence leads to the conclusion that, notwithstanding the known importance of the subject documentation, it was treated in a way not at all consistent with that level of importance.  In fact it appears that the actual filing date of these appeals was as much to do with accident as design.  A slip had occurred in the handling of these appeals however, in my opinion, not the kind of slip envisaged by Muir J in the Congress Community case.  To put it another way the cause of the delay was not consistent with a reasonable standard of conduct concerning the appeals.

6. For the reasons set out above, I have unfortunately reached the conclusion that a reasonable excuse under s.57(1) of the Act has not been established and, accordingly, that the Court does not have the jurisdiction to hear the appeals.

Order

The Court does not have jurisdiction to hear and decide appeals AV2007/0075, AV2007/0076, AV2007/0077, AV2007/0078, AV2007/0079, AV2007/0080, AV2007/0081 and AV2007/0082.

RS JONES

MEMBER OF THE LAND COURT