Aldi Foods Pty Ltd v Department of Natural Resources and Mines

[2005] QLC 62

LAND COURT OF QUEENSLAND

CITATION:	Aldi Foods Pty Ltd v Department of Natural Resources and Mines   [2005] QLC 0062
PARTIES:	Aldi Foods Pty Ltd (appellant)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NOS:	AV2005/1831
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation.
DELIVERED ON:	19 December 2005
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr PA Smith
ORDERS:	The Court has no jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse.
APPEARANCES:	Mr B Geary, Property Director, Aldi Foods Pty Ltd, for the appellant Mr R Paterson for the respondent.

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged six months after the due date. Section 57 of the Valuation of Land Act1944  allows for "reasonable excuse" as a cause for such delay:

   "57.(1)  If a notice of appeal is filed in the Land Court registry after the time stated in s.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.

   Example of 'reasonable excuse' -

   The notice of the chief executive's decision or the notice of appeal was lost or delayed in the ordinary course of post."

   The question then is whether the explanation for the late lodgement advanced by the appellant falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.

2. The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000.  In essence, the authorities establish that the excuse must be "substantial" and "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 one might have expected to delay the taking of action by a reasonable man". 

Background

1. At the hearing, Mr Geary gave evidence on behalf of the appellant.  The respondent tendered a document (Exhibit 4) but did not otherwise call any evidence.

2. There is common ground between the parties on most issues, which can be summarised as follows:

   ·The decision on objection was issued on 5 April 2005.

   ·The appellant completed a Form 59 Notice of Appeal and posted it to the respondent on 11 April 2005.

   ·The last day for filing of an Appeal was 17 May 2005.

   ·On 17 November 2005, the Land Court received a letter from the Department of Natural Resources and Mines, Robina, dated 15 November 2005, (Exhibit 3), enclosing the appellant’s Notice of Appeal.

3. Mr Geary’s evidence was that the office procedures of the appellant, which had been used for other appeals to the Land Court, was for the notice of appeal to be sent to the Land Court, with a copy as required forwarded to the respondent, after which a notation was made on the office copy of the appeal.  Mr Geary tendered Exhibit 1, the appellant’s office copy of the Notice of Appeal, which has in the top right hand corner the notation “Sent 11/4” followed by some initials.  During cross-examination, Mr Geary conceded that he had no personal knowledge that the Notice of Appeal had in fact been posted to the Land Court on 11 April 2005.  He also gave evidence that the appellant has no register of its mail.  Mr Geary’s evidence was that the initials on Exhibit 1 belonged to his Personal Assistant, Lynda Wood.

4. Lynda Wood was present in Court with Mr Geary when this matter came on for hearing.  On a number of occasions during the proceedings, Mr Geary asked if Lynda Wood could speak.  On each occasion, the nature of the receipt of evidence was explained to him.  Mr Geary chose not to call Ms Wood to give evidence.  To ensure that the appellant understood the nature of the proceedings and had every opportunity to submit any evidence it considered relevant, Mr Geary was again invited to call additional evidence prior to the close of the hearing.  He declined..

Conclusion

1. I now turn to the crux of this matter. Do the circumstances surrounding the appellant's appealing out of time, amount to a "reasonable excuse" pursuant to s.57 of the VLA?

2. There is no doubt that the obligation rests with the appellant to institute an appeal process.  The appellant contends that the evidence points toward the Notice of Appeal being posted to the Land Court on 11 April 2005, and that such Notice of Appeal must have been lost in the post.

3. In contending that the appellant's actions in this matter do not amount to a "reasonable excuse", Mr Patterson referred me specifically to Anthony's case, referred to earlier in this discussion, Lebeter & Anor v Department of Natural Resources and Mines [2002] QLC 92, and Eden v Department of Natural Resources and Mines (12 October 2001)

4. Both Lebeter and Eden relate to matters where the Notice of Appeal was incorrectly forwarded to the respondent instead of being lodged with the Land Court, resulting in the ultimate lodgement with the Land Court being out of time.  In that respect, both cases are similar to the matter under consideration.  In both cases, the Court found that “reasonable excuse” had not been made out.  However, unlike the present case, those appellants were both unaware of the correct procedure to follow in lodging an appeal.  As Mr Geary has admitted, the appellant has previous experience in lodging appeals, and thus knew the correct procedure to follow.  Clearly, unless the appellant is able to establish the probability, as opposed to the mere possibility, that the Notice of Appeal was posted to the Land Court on 11 April 2005 and subsequently was lost in the mail, it will not be able to establish a reasonable excuse for the late lodgement of its Notice of Appeal.

5. Mr Geary’s evidence, coupled with Exhibit 1, gives rise to the possibility that the Notice of Appeal was posted to the Land Court by the respondent on 11 April 2005.  However, such evidence falls far short of convincing me, on the balance of probabilities, that the Notice of Appeal was in fact lost in the post some time after 11 April 2005.

6. Despite being given a number of opportunities to do so, Mr Geary did not produce any direct evidence of what occurred in the respondent’s office with respect to the posting of the Notice of Appeal.  There is quite simply a lack of evidence that the Notice of Appeal was placed in an envelope properly addressed to the Land Court, postage was paid, and the letter was placed into the postal mail system, and subsequently lost by the postal service.

Order

1. Having considered the tests outlined in the authorities and the facts in those cases, I conclude that no reasonable excuse has been established in the circumstances of the present case.  Accordingly, I find that the court has no jurisdiction to hear the appeal.

P A SMITH

MEMBER OF THE LAND COURT