Barlow v Department of Natural Resources and Mines
[2006] QLC 23
•9 May 2006
LAND COURT OF QUEENSLAND
CITATION: Barlow v Department of Natural Resources and Mines [2006] QLC 23 PARTIES: Kevin and Florence June Barlow
(appellants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO.: AV2005/1561 and AV2005/1562 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeals against Unimproved Valuation DELIVERED ON: 9 May 2006 DELIVERED AT: Brisbane HEARD AT: Emerald JUDICIAL REGISTRAR: Mr BR O'Connor ORDER: The Court has jurisdiction to hear these appeals. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr K Barlow for the appellant
Mr P Rabaa, (Crown Law) for the respondent
The issue for determination in these matters is whether the Court has jurisdiction to hear the appeals lodged some 6 weeks 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.
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
Mr Barlow in a written statement and in further oral evidence to the court detailed the background facts explaining why his appeal was outside the prescribed time.
Mr Barlow states that after he had his initial objection rejected by the Department, he then went to the Departmental office in Emerald and enquired with a woman attending the counter about lodging another appeal. He was given a Form 58 (Objection Form) rather than the Form 59 (Court Appeal Form), and proceeded to lodge the former with the Department. When the Department did not acknowledge that he had lodged another objection, Mr Barlow subsequently enquired as to the position. Sometime later the Department wrote to him stating that time had elapsed and that his right of appeal was now outside the required timeframe.
He was further advised that his objection was not accepted, as Form 58 was used instead of Form 59. The completed Form 58 was never forwarded by the Department to the Land Court.
Mr Barlow was later advised by Mr Graham Jacobson, Valuation Administration Officer in Brisbane, to write to the Land Court stating all details along with an objection on the correct Form 59. This was lodged on 10 October 2005.
In cross examination by Mr Rabaa, counsel for the Department, Mr Barlow conceded he had asked the counter office at the Department for the form to lodge an objection to do with valuations, rather than an appeal form.
However he further explains in his oral evidence:
"I sort of explained to the woman that I had objected and that objection was disallowed and then I wanted to reobject again. I didn't know she didn't understand. She didn't seem to know a real lot about it till I explained to her that I objected and that we had a conference and we received notice that our objection was disallowed and that I wanted to object again as I didn't agree."
Parties submissions
Mr Rabaa contends that reasonable excuse is not established in that Mr Barlow was sent a letter wherein he was told where he could get the form from in relation to his appeal. Ignorance of law is no excuse and Mr Barlow is required to file a Notice of Appeal in the Land Court. He states in his own evidence that he went to the Department of Natural Resources and that the line of questioning and request was to obtain an objection form. While the Department acts as de facto agent for the Land Court, it is in the position of a respondent when it comes to the case proceeding to the Court. Mr Barlow had asked for an objection form, was given an objection form and this ties in with the obligation that is placed with him to know where to get the correct form from and where to file the correct form. There is clear evidence from Mr Barlow as to his requesting an objection form. At that point of time, he had been given exactly the same form and should have realized that there was something amiss, and then made further enquiries rather than going out and filling in the same form. The position of the inexperienced counter clerk was not to give legal advice to the appellant as to how to complete the various steps required in lodging an appeal.
From Mr Barlow's side, apart from the background discussed above, he makes the further point that when he sent the objection form to the Department, they did not contact him and tell him that he had sent the wrong form in and that there was another form that should have been sent to appeal to the Court. He states he had plenty of time if they had contacted him to inform him that the wrong form had been completed.
Decision
I acknowledge the points raised by Mr Rabaa that Mr Barlow asked for an objection form rather than appeal form and the Department's limited role as agent for the Court and its role as a respondent in the appeal matter.
However for the following reasons considered in totality, I am of the opinion that a reasonable excuse has been established in the current circumstances:
· Unlike certain other jurisdiction cases where the appellant had in his possession Form 59 with clear instructions where it should be sent to, Mr Barlow was never in possession of such form in the current case.
· No mention of Form 59 was made in the letter from the Department informing Mr Barlow of the objection decision.
· The incorrect Form 58 when completed by Mr Barlow and lodged with the Department was not returned to him.
· A person in the position of Mr Barlow could be expected to perhaps rely more heavily on departmental advice as to procedures rather than, say, a professional person who has many more dealings with matters of this nature.
· The finding of "reasonable excuse" does not indicate any finding of fault or liability against the Department.
· The equity and good conscience provisions established under the Land Court Act s.7 provides justification for placing less weight on the traditional role of a respondent/appellant in court litigation.
I understand the Court registrar, in conjunction with the Department, is in the process of developing a new appeal form. This may alleviate some of the difficulties raised in this case and certain recent cases of a similar nature. However, that said, it should be remembered that the vast majority of appeals which proceed to the Land Court do not encounter these difficulties.
Order
The Court has jurisdiction to hear these appeals.
BR O'CONNOR
JUDICIAL REGISTRAR
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