Anderson v Department of Natural Resources, Mines and Water

[2007] QLC 109

LAND COURT OF QUEENSLAND

CITATION:

Anderson v Department of Natural Resources, Mines and Water [2007] QLC 0109

PARTIES:

Paul and Janeice Anderson
(appellants)

v.

Chief Executive, Department of Natural Resources, Mines and Water
(respondent)

FILE NO:

AV2007/0621

DIVISION:

Land Court of Queensland

PROCEEDING:

Jurisdiction – Appeal against unimproved valuation.

DELIVERED ON:

12 November 2007

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane (on papers)

MEMBER:

Mr B R O'Connor

ORDER:

The Court has jurisdiction to decide this appeal.

CATCHWORDS:

Valuation of Land Act 1944 – late response to requisition of Registrar – late filing of appeal – operation of s.58(3), s.45 and s.57.

Jurisdiction – late lodgment of appeal – initial failure to answer requisition – power of Court to accept – implied time limits – reasonable excuse.

1. The issue in this jurisdiction hearing is whether a reply to the registrar's requisition to an appeal form, lodged out of time, should be accepted by the Court. 

2. Brief background facts are as follows:

   ·        Notice of Appeal was lodged within the prescribed 42 days on 10 August 2007.  The appeal was lodged by PRW Agribusiness (PRW), a Longreach based firm, with considerable experience in representation in Land Court matters.

   ·        The registrar, in letter dated 11 August 2007, notified that the appeal was defective in that no appellant estimate of unimproved value was supplied.  This letter was sent to PRW.

   ·        PRW forwarded this requisition onto the client Anderson, such being received on the 24 August 2007 (Thursday).

   ·        The requisition was answered by the appellant, dated 25 August 2007 (Friday) and sent from the post office Alpha, post marked 28^th August 2007 (Monday).  The appellant apparently made a separate trip to Alpha to ensure posting of the material. 

   ·        The reply to the requisition was not received to the Brisbane Land Court Registry until 7 September 2007. 

3. There is no dispute that the reply to the requisition was received outside the 42 day period for valid lodgement of appeal and outside the 21 days for the reply to the requisition s.58 Valuation of Land Act 1944)

4. Whether the reasonable excuse provisions in s.57 of the Act, applicable to late lodging of an appeal, also relate to the late filing of a requisition was recently considered in Lade v Department of Natural Resources and Water [2007] QLC 0040. After analysing the relevant provisions, the Court concluded:

   "I think the proper construction to place on the third part of s.58(3) is that the Court may decide whether a requisition has been complied with and, if it has, whether that has occurred within the 42 days provided for in s.45(2) or such extended time as permitted in accordance with s.57(1) discussed below. I have already said that the notice of appeal filed on 30 April 2007 satisfies s.45(4) and (5) therefore meets part of the requirement of the third of s.58(3). I now need to consider the application of s.57 which provides:-

   57     Late filing

   (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.

   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."

5. I am prepared to accept reasonable excuse was established in the current circumstances for the following reasons.

   1.  The appellant should not be held responsible for their agent's (in this case the PRW, a firm experienced in valuation appeals) delay in returning to them the notice of requisition.  Such notice was not received by the appellants until 24 August 2007.  The fact that the agent did not telephone the appellants to arrange for the reply to be sent by the agent via facsimile should not be held against the appellants (see recent decision of the Land Court President in Trust Company of Australia Limited v Department of Natural Resources and Water [2007] QLC 0045).

   2.  The fact that, in that case, the appellant's agents were solicitors and, in the current case, the agents are valuers experienced in Land Court matters is not a significant difference.

   3.  The appellants, unless contacted by their agent by phone or facsimile etc, would not have been expecting a response to the appeal lodged and have to answer a requisition within a tight timeframe.  There was no apparent need for them to collect mail other than in their normal course. 

   4.  The appellants responded to the requisition once received with reasonable speed (even though by post) and may well have expected a letter posted at Alpha on Tuesday 28 August 2007 to have been received in Brisbane by close of business on Friday the 31 August 2007.

   5.  The fact that the appellants could have responded to the Court by facsimile within the time allowed should not, in itself, prevent the reasonable excuse provision from being satisfied given the other surrounding circumstances. 

Order

The Court has jurisdiction to decide this appeal.

BR O'CONNOR

JUDICIAL REGISTRAR