Awj Family Pty Ltd as Tte v Chief Executive, Department of Natural Resources, Mines and Water

[2006] QLC 49

LAND COURT OF QUEENSLAND

CITATION:	AWJ Family Pty Ltd as Tte and Anor v Chief Executive, Department of Natural Resources, Mines and Water [2006] QLC 0049
PARTIES:	AWJ Family Pty Ltd as Tte and RJP Family Pty Ltd as Tte (appellants)
v. Chief Executive, Department of Natural Resources, Mines
and Water (respondent)
FILE NOS.:	AV2006/0114
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation
DELIVERED ON:	25 August 2006
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
JUDICIAL REGISTRAR:	Mr BR O'Connor
ORDER:	The Court has jurisdiction to hear this appeal.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse
APPEARANCES:	Mr A Crawford (Valuer) for the appellant Mr M Heather, (Crown Law) for the respondent

[1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged seventeen days after the due date. Section 57 of the Valuation of Land Act 1944 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 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."

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

[3]               Evidence was given by Mr Huw van Hoffen, Director of Finance, of Citimark, the company responsible for management of the appellant owners. Mr van Hoffen, in a letter dated 29 May 2006, addressed to the respondent but later forwarded to the Land Court with the Appeal Notice, outlined the explanation for the late lodgement. He confirmed the contents of this letter under oath at the jurisdiction hearing before the Land Court.

[4]               In this letter Mr van Hoffen states:

"On 1 December 2005 an objection hearing took place in relation to objections to the valuation of the above properties. The owners were presented (sic) by Allan Crawford of Chestertons and Nick Wordsworth of Landmark White.

On 22 May 2006, I was concerned that we had not heard the outcome of the objection and I contacted our representatives to see whether they had received any information. I received a reply from Nick Wordsworth, a copy of which is attached, indicating that he had spoken to the DNRM representative in late March or early April and that the decision had not been issued at that time.

Upon further enquiry on 23 May, we were informed that the objection decision appears to have been sent to the owners on 4 April 2006. We obtained a faxed copy of the decision on 23 May 2006.

The owners did not receive the original decision letter. I believe the reason for this is that the business relocated from 16/455 Brunswick Street to level 16 Central Plaza One, 345 Queen Street, Brisbane in January 2006. Although a redirect instruction is in place with Australia Post, the original letter has to date not been received in our new offices.

In my capacity as Director of Finance, all correspondence to do with valuations is normally handed to me. I have not received the original letter myself and I have personally checked with my colleagues in the office, showing the faxed copy of the decision letter, that none of them has received it either.

The result of the non-receipt of the original notification is that the 42 day period allowed for noting an appeal to the Land Court has passed. The purpose of this letter therefore is to request dispensation to note an appeal out of time, on the basis that:

There is a reasonable explanation for the failure to note the appeal in time;

• Although not specifically required to do so, the owners, through their employees and agents, have taken reasonable steps to monitor the outcome of the appeal; and

• Have acted as quickly as possible to remedy the situation once the position was known, through noting an urgent appeal."

[5]               It would appear that the departmental letter advising of the decision on objection (which triggers the 42 day appeal period) was lost in the post, presumably as a result of the change of premises of the appellants' representative.

Decision
[6]	Given there is no contrary evidence as to the appellants receiving the original decision on objection, that the appellants took adequate steps to follow up the non-receipt and lodged an appeal with the Land Court with reasonable speed, I find that reasonable excuse in the current circumstances has been established.
[7]	I also note that the Chief Executive does not argue against such a finding.
Order
The Court has jurisdiction to hear this appeal.

BR O'CONNOR
JUDICIAL REGISTRAR