Anthony v Department of Natural Resources

[2000] QLC 72

[2000] QLC 72

 

LAND COURT, BRISBANE

10 November 2000

Re:Appeal against Annual Valuation - Valuation of Land Act 1944 - Property ID: 1110778 -

Local Government: Brisbane City - South Brisbane (AV00-517).

Michael J and Demetra Anthony v.

Chief Executive, Department of Natural Resources

DECISION ON JURISDICTION

Background:

This matter relates to land at 90-92 Vulture Street, South Brisbane, and described as Lot 10 on RP218258, Parish of South Brisbane. The subject land is used as professional offices, and has an area of 1021 square metres. The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of an appeal against an annual valuation at 1 October 1999 under the Valuation of Land Act 1944. Michael J Anthony appeared and gave evidence for the appellants. Mr R Paterson, Principal Legal Officer, appeared for the respondent.

The Facts:

The Chief Executive issued a valuation of the subject land on 27 March 2000 at $950,000. Following an objection the Chief Executive revised the unimproved value to $770,000 on 27 June 2000. The appellants appealed that figure on 14 August 2000, together with a letter of authority for James Varitimos to act as their agent.

On 17 August 2000, the Registrar of the Land Court notified the appellants that the appeal appeared to have been lodged after the statutory period of 42 days allowed for an appeal under s.45(2) of the Act, which was 8 August 2000. The Registrar advised that such an appeal did not lie, unless the appellant was able to satisfy the requirements of s.57(1) and (2), copies of which were supplied to the appellant for information. That notification of 17 August 2000 by the Registrar

specified a reply within 21 days, as to whether the appeal would be proceeding, or advice if the matter was to be withdrawn. There was no response from the appellants to the Registrar.

On 12 September 2000 the Registrar wrote to the appellants advising that a response had not been received, and the matter would be set down by the Court in order to determine the preliminary point of jurisdiction. On 9 October 2000, a court notice was sent to the appellants advising that the matter of jurisdiction would be heard on 24 October 2000. Copies of all correspondence to the appellants were forwarded to the respondent for information.

Mr Anthony explains that he had informed the Court by letter of 18 October 2000 of the background to his appeal as follows:

(1)The notice of appeal was filed by Mr Anthony's wife personally before leaving on vacation on 2 August 2000.

(2)Within one week of departing on vacation the file on the subject land was delivered to Mr Varitimos, a solicitor handling the matter for the appellants in their absence.

(3)The appellants became aware that the notice of appeal had not been filed correctly with the Court only on their return to Australia on 5 October 2000.

(4)Investigations subsequently revealed that the notice had been incorrectly addressed to the office of the Chief Executive, instead of to the address of the Court. A copy of that notice of appeal dated 31 July 2000, but directed to the wrong address, was supplied to the Court. (Exhibit 2).

Also supplied was an unsigned record by Mr Anthony's secretary dated 14 August 2000, noting a telephone discussion with Mr Varitimos who advised that he had been in touch with the other side; and a letter of instruction to Mr Varitimos of 31 July 2000.

Mr Anthony blames no-one but himself for any delay in lodging the notice of appeal, agreeing that responsibility for safe delivery of the notice rests entirely with him. However, he seeks the indulgence of the Court to consider that the steps taken to ensure that the appeal proceeded in his absence were reasonable in the circumstances. He notes that as a solicitor himself he is fully aware that the Land Court is a separate entity  to  the  Department  of  Natural  Resources,  and  that  the  notice  was  sent

inadvertently to an incorrect address, while he was absent overseas. However he believes that as a member of the public, he could have anticipated that the respondent might have forwarded the notice of appeal to the Court.

Mr Paterson argues that ignorance of the law is no excuse for failing to deliver the notice of appeal to the correct address, seeking support in the decision of Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. Valuer-General (1983) 9 QLCR 13, at page 20.

In respect of whether there had been an undue delay in the transmission of mail affecting the receipt of the notice of the decision by the Chief Executive on the objection, I am directed to the findings of the President in GV and DE Roberts v. Chief Executive, Department of Natural Resources (1997-98) 17 QLCR 198. In that matter it was found that the delayed receipt of the notice of decision was a cause of failure to institute the appeal on time.

The special circumstances of that matter disclose that the appellants had formally lodged an objection with the Chief Executive against a valuation; and at the same time advised the Chief Executive of the name of their agent who would be handling the matter. The subsequent decision of the objection issued on 11 September 1996 was posted to the agent's office.

However the agent had gone on leave from close of business on 13 September 1996, and the decision on objection was not activated until the agent returned from leave on 8 October 1996. Following instructions from the appellants, the agent then lodged a notice of appeal on 11 October 1996, two days after the due date for lodgment of an appeal, which had been due within the then statutory period of 28 days from the date of issue of the notice (9 October 1996).

The statutory period is determined from the date after the day of issue of the notice. (F and AR Watt v. Chief Executive, Department of Natural Resources (AV99- 719), 22 February 2000, to be reported).

In the Roberts matter the President considered the findings of the Land Appeal Court in WM and TJ Fischer v. The Valuer-General (1990) 13 QLCR 129, and found at page 203:

"In accordance with the reasoning in Fischer's case, I find that the delayed receipt of the notice of decision on objection was a cause of the failure to institute the appeal within time. The 28-day period for lodging appeals is substantially shorter than the previous period of 60 days. There  is  little  room  for  error,  particularly  where  a  professional

representative must seek instructions from his principal.  In some cases, such as the present, a delay can have serious consequences. "

However in the current matter I note that Mr Anthony does not contest that the notice of decision by the Chief Executive was unduly delayed in the normal course of the post. Mr Anthony agrees that his daughter was likely to have received a notice a few days after the date of issue on 27 June 2000, and overlooked responding to the letter because she failed to associate the Department of Natural Resources with the need to appeal the valuation. Apparently the daughter had been a resident of New South Wales, where matters of this nature were handled by the Valuer-General.

There is some analogy with the Roberts matter in as much as Mr Anthony's agent had not put actions in place to respond to the objection, until the matter came to the attention of the appellant. However, unlike the agent for Roberts, who was on leave until the day prior to the due date for the lodgment of the appeal, Mr Anthony's daughter had knowledge of the decision on objection, but just failed to recognise its significance. It is also noted that the current statutory period of 42 days allows more time for the briefing of professional advisers, than the period of 28 days afforded in the Roberts matter.  On the difference in the particular circumstances of those matters, I can distinguish the findings of Roberts in this matter.

1. Statutory Interpretation:

Mr Paterson argues that, in his opinion, the recent amendments to s.57(1) of the Act are procedural in nature, and could have an impact upon this Court's exercise of discretion in this matter. Prior to the recent amendment of s.57(1), which became effective on 1 October 2000, the powers of this Court to consider reasons for a delay in lodging an appeal, after the statutory 42 days from the date of issue of a decision by the Chief Executive on an objection, were more circumscribed. Section 57(1), as it then was, allowed only that "an acceptable delay may be allowed by the Court if it may have occurred through the normal course of post".

The amended s.57(1) now states:

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.  "

Before proceeding to examine the legal interpretation of the recent amendment to s.57(1), I also note that the appellants have so far failed to meet the requirements of s.58(3). That states, in respect of the requisition by the registrar of 17 August 2000 issued under s.58(1), as follows:

"58(3) If the appellant does not fully comply with the requirements of the requisition to the satisfaction of the registrar within the prescribed time, the Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular or that, where in its opinion a requisition was properly issued, the requirements of the requisition have been complied with to the extent that, taking such compliance into consideration in conjunction with the notice of appeal as first filed, the requirements of section 56 have been complied with and there is no defect in any material particular.  "

In accordance with s.58(3), the current application must fail, unless the appellants can satisfy this Court that the reason for the delay was "a reasonable excuse". There is no doubt that the requisition was properly executed by the Registrar. The only material particular where the appeal was defective lies in its failure to meet the statutory time limits.

To support his argument Mr Paterson seeks guidance in the decision of the Land Appeal Court in Director-General, Department of Transport v. Hibiscus Holdings Pty Ltd (1994-95) 15 QLCR 408. In that matter the provisions of the Land Act 1962 had been amended subsequent to an appeal lodged with the Land Appeal Court, but prior to the hearing of the appeal by the Land Appeal Court. That matter related to an entitlement to adduce further evidence as of right, but the legal principle is similar in the current matter.

In the Hibiscus matter, the Land Appeal Court considered the common law, and drew support from the decision of the High Court in Maxwell v. Murphy (1956-

57) 96 CLR 261. In that matter the common law principle was stated by Dixon CJ where he said at page 267:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not

within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v. Erlanger (1876) 3 ChD 62. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.' (1876) 3 ChD at p.69. "

However it is not a simple matter of classifying whether a statute is either procedural or substantive, which determines whether it may have a retrospective operation. (Rodway v. The Queen (1990) 169 CLR 515, at 519.) There is always the need to determine that no injustice should be done to either party.

The distinction between statutes which are seen as substantively modifying or abolishing rights or liabilities; or statutes which deal with the pursuit of remedies, has led to the understanding "that if a statute is concerned only with the way in which certain rights are to be enforced or is quite literally concerned with court procedure, it will operate retrospectively". (Statutory Interpretation in Australia, 3rd  Edition, Pearce and Geddes, page 189.

Such a statute amending procedure extends to actions that are only partly completed when the change in procedure is made. Such partly-completed actions often require the Court to declare statutes as procedural, and therefore less likely to attract the presumption against retrospectivity.

In the Hibiscus matter, the Land Appeal Court also considered the findings of the High Court in Maxwell and Murphy where the High Court said at page 521:

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity.  "

The Land Appeal Court then determined at page 414:

"In our judgment, that passage is applicable in the present case. The amendment to s.44(13) does not operate retrospectively so as to impair any existing right. It operates only prospectively, on cases heard after it came into force. It governs the way in which the right of appeal is exercised. It involves only a matter of procedure. ---- The time at which the manner of enforcement is to be determined is the time at which any

given step in the enforcement process is carried out. It is the law as it stands at that time which is relevant. "

In seeking further guidance in the current matter, I look to the purpose of the amendment of s.57(1) of the Valuation of Land Act. The previous statute as noted earlier was very circumspect, allowing limited scope for discretion by the Court, other than for delays in the ordinary course of the mails. The amendment to s.57(1) now allows the Court greater scope to consider other facts in judging the reasonableness of the excuse by the appellant. However that reasonableness would appear to have to reflect some substantial nature.

1. Whether a reasonable excuse?

In seeking understanding of the term "a reasonable excuse", I am directed by Mr Paterson to the findings of the Land Appeal Court in AG Russell v. The Crown (1992-93) 14 QLCR 202. That matter dealt with failure by the appellant to meet the strict time limitations imposed under s.44(11)(a) and (b) of the Land Act 1962. In the circumstances then prevailing under the Land Act 1962, the Land Appeal Court found at page 204:

"Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation."

The Land Appeal Court rejected the claim by the appellant that ill health had been the reason for the late lodgment of the appeal, noting any lack of particularity to support such a claim. During its deliberations the Land Appeal Court considered the findings of Union Fidelity Trustee Company of Australia Limited v. The Co- Ordinator-General (1988-89) 12 QLCR 153, and RM Denning v. Council of the City of Ipswich (1988-89) 12 QLCR 171; both of which are discussed in Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (A97-09), 25 June 1998, to be reported.

Another matter of reference from Mr Paterson was the decision of the President of this Court in Gold Coast Milk Pty Ltd and South Coast Cooperative Dairy Association Limited v. Valuer-General (supra).   In that matter the appellant

failed to meet the statutory period in serving a copy of the notice of appeal on the Valuer-General, after meeting the statutory period in serving the actual notice on the Court.     The appellants argued that it represented extraordinary or unusual circumstances, in that it was the first time they had appealed, and the solicitor for the company had overlooked the statutory requirement due to pressures at that time.

The Court struck out both appeals, noting that it was not satisfied that the excuses were not too exclusively personal and subjective in nature. In rejecting the persuasive argument of Mr ID Callinan QC, the President said at page 20:

"I think that the 'extraordinary or unusual circumstances' referred to in the proviso to the subsection should be read as being of a general nature and the words should be construed objectively. It is not possible by way of illustration to be exhaustive as to the type of such circumstances. I would instance fire, flood or tempest, sudden illness, accident or misadventure, community disturbance and circumstances of this nature so arising must relate to an appellant's failure to serve the copy of his appeal on the Valuer-General."

However the matter of "a reasonable excuse" being accepted was demonstrated in the findings of the Land Appeal Court in Congress Community (supra). In that matter an application to extend time to lodge and serve a notice of appeal was allowed, bearing in mind the circumstances of that matter. The solicitor for the appellant followed her normal course of procedures in following through on an appeal, but due to an oversight on the day that the appeal was to be lodged, failed to meet the deadline. The authorities relating to the meaning of "a reasonable cause or explanation" were analysed and Muir J said at page 5:

"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 sub- sections 44(11)(a) and (b). cf. Bull v. Attorney-General (NSW)(1913) 17 CLR 370. "

However in a separate part to that decision, the Land Appeal Court also noted:

"That does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal. The reasonable cause and explanation of the lateness of the service and lodgment of the notice and payment of the prescribed fee is, in our opinion, the fact that the solicitor

failed in the duty entrusted to her. The applicant had done everything that should have been expected of him. "

Another matter where the notice of appeal was delayed in the office of a solicitor for the appellant was in Seaworld Pty Ltd v. Valuer-General (1978) 5 QLCR

1. In that matter the receptionist for the solicitor arranged for the notice of appeal to be collected by Australia Post courier for delivery to the Court. However, due to an error in the office of the Postmaster at Southport, that instruction to the courier was never executed; and the notice of appeal remained in the hands of the solicitor. In the constrained nature of the legislation as it then was, the Land Appeal Court found that the notice of appeal was never in "the normal course of mail", and rejected the bona fides of the appeal, which was then dismissed.

   If I return to the current matter, and if I accept that the amendment to s.57(1) may be seen as a procedural matter and may be considered in dealing with the appeal, I find I am not so constrained in respect of whether Mr Anthony's procedures may be seen in the light of a reasonable excuse. The purpose of the amendment to s.57(1) is to ensure that not significant deficiencies should otherwise impair the appellants' rights to ventilate their concerns before the Court. However in considering the reasonable nature of Mr Anthony's conduct in lodging his appeal, I find that his solicitor was not involved in the lodging of the notice of appeal, albeit to the incorrect post box address. As Mr Anthony notes, as a solicitor, he finds little excuse for such an incorrect disposition of the documents. The question to which I should address my mind was clearly espoused in Stevens v. Motor Vehicle Insurance Trust (1978) WAR 232, where in the Full Court Burt CJ said at page 235:

   "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. (See Quinlivin v. Portland Harbour Trust (1963) VR 25 at 28 per Sholl J)." (Reported also in Congress Community Development and Education Unit Limited (supra) at p.3).

However in seeking to understand what might be seen as a reasonable excuse for the delay in lodging the appeal, I could take no better guidelines than those outlined by Kirby J in the High Court decision of Jackamarra v. Krakouer (1998) 195 CLR 516, where his Honour noted at page 539 as follows:

(i)Firstly there are no rigid rules, and each case must depend upon its own particular circumstances.

(ii)The starting point is to understand the purpose for which the power under the legislation has been afforded, and whether it would be just in all circumstances to grant or refuse the application.

(iii)The distinction between whether the matter is of a substantive nature, or is one of a procedure.

Kirby J also notes that an appeal for a hearing within a specified time under the Rules of the Supreme Court of Western Australia "is one of a procedural character and not one touching the substance of a party's appellate rights". (Page 540).

(iv)The party seeking indulgence bears the burden of persuading the decision maker to grant its request. A factor to be considered  is whether the case is arguable. (See R v. Secretary for Home Department; ex parte Mehta (1975) 1 WLR1087, per Lord Denning at 1091).

(v)The current attitude of courts to focus on the need for some flexibility, the avoidance of overdue technicality, and whether there was  any actual prejudice to a party if the indulgence were granted.

(vi)However there should also be an awareness of the concern to ensure the efficiency and despatch of court business; but bearing in mind the ultimate obligation to ensure the attainment of justice.

(vii)Whether the application relates to an extension of time for appealing; or whether it relates to extending the period within which an appeal, already lodged within time, might be entered for hearing.

(viii)Whether the delay was intentional or contumelious; or merely  the result of a bona fide mistake or blunder. (Esther Investments Pty Ltd v. Markalinga Pty Ltd (1989) 2 WAR 196 at 204.)

(ix)Whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. (Sophron v. Nominal Defendant (1957) 96 CLR 469 at 474).

On the evidence I would agree with Mr Anthony that a reasonable man was likely to have been aware of the separation of powers which direct that the Chief Executive and the Land Court are separate entities, a matter with which Mr Anthony fully concurs.  However in other respects of Mr Anthony's actions to lodge his appeal, I find that he had sought to lodge the notice of appeal prior to the final date of acceptance, and that he then took steps to place the ongoing matter of the appeal in the hands of a solicitor. The only mistake he made was to use the wrong post box number on the appeal.

1. The Wrong Address -

The matter of the wrong address for the notice of appeal was also addressed in RJ Claybourn v. Chief Executive, Department of Natural Resources (AV99-431), 22 February 2000, unreported. In that matter the appellant confused the separate identity of the Chief Executive and the Land Court, and despatched the notice of appeal to the address of the Chief Executive, with a somewhat similar outcome as the current matter. While understanding broadly the separation of powers principle, the appellant in that matter had concluded that the Chief Executive would pass on the notice of appeal to the Court. However the Court found that while the appellant had acted in good faith, his actions did not satisfy the requirements of the legislation, and jurisdiction was not found to lie.

In the current matter the subsequent actions by Mr Anthony in not responding to the requisition by the Registrar of the Land Court as required under s.58(3), is a matter which may prove fatal to the appeal. There was no record on the Land Court file of receipt of Mr Anthony's response to the Registrar, noting only the letter to the Registrar of 18 October 2000, some 6 weeks after the due date, setting out the facts as Mr Anthony saw them. On that basis there is little to conclude as a reasonable person that Mr Anthony had sought to meet the requirements of the requisition of the Registrar, and I reject the appeal as not meeting the criteria of a reasonable excuse.

While the amended provisions of s.57(1) allow a wider discretion, they do not provide for circumstances where the intentions of the legislation do not appear to have been followed. Any understanding of the meaning of the "normal course of post" must assume that the notice of appeal would have been correctly addressed to the Court. To assume otherwise would virtually open the understanding of a reasonable excuse beyond the limits of credibility.

On the evidence before me I find that the appellant has failed to meet the statutory provisions of the legislation. The appeal is dismissed as I find I have no jurisdiction to hear the matter.

(NG Divett)

Member of the Land Court