Barry James and Marilyn Teresa Clark and Cooktown Earthmoving & Quarrying Pty Ltd v Chief Executive Department of Environment and Resource Management
[2010] QLC 134
•7 October 2010
LAND COURT OF QUEENSLAND
CITATION: Barry James and Marilyn Teresa Clark and Cooktown Earthmoving & Quarrying Pty Ltd v Chief Executive Department of Environment and Resource Management [2010] QLC 0134 PARTIES: Barry James and Marilyn Teresa Clark and Cooktown Earthmoving & Quarrying Pty Ltd (Appellants) v. Chief Executive, Department of Environment and Resource Management
(Respondent)FILE NO: VLA313-10, VLA316-10 & VLA318-10 DIVISION: Land Court of Queensland PROCEEDINGS: Application/Preliminary Point DELIVERED ON: 7 October 2010 DELIVERED AT: Brisbane HEARD AT: Cairns – 6 September 2010
Brisbane – 23 September 2010MEMBER: His Honour, Mr WL Cochrane, Member ORDER: The Court has jurisdiction to hear these appeals. CATCHWORDS: Application, Appeal, Time for Lodgement, Late Lodgement, Reasonable Excuse, Jurisdiction, s.57 Valuation of Land Act 1944 APPEARANCES: Mr A Kerr, Solicitor of Preston Law
Mrs T Johnson, Principal Lawyer, for Department of Environment and Resource Management.
Background
This is the determination of a preliminary matter in the above applications brought pursuant to the provisions of the Valuation of Land Act 1944 (VLA) and the Land Court Act 2000. It arises out of the identification by this Court of the possibility that the three applications have been lodged later than the expiry date for lodgement provided by s.55 of the Valuation of Land Act 1944. That section provides:
“55 Appeal right
(1) An objector who has objected under section 52 against a valuation may, if dissatisfied with the decision of the chief executive on the objection, appeal to the Land Court against the decision.
(2)However, an objector can not appeal if—
(a) the amount of the valuation sought in the objection was less than the valuation and the decision was to change the valuation to an amount that is equal to or less than that amount; or
(b)the amount of the valuation sought in the objection was more than the valuation and the decision was to change the valuation to that amount; or
(c)the objection is not a properly made objection; or
(d)the chief executive has not made a decision under section 53 on the objection.
(3) Also, other than under section 57, an appeal can not be filed after 42 days after the date of issue stated in the chief executive’s decision on the objection.”
Section 57 of the VLA provides an opportunity for the Land Court to deal with an appeal which is not filed within the requisite period of time.
Section 57(1) and (2) provides as follows:-
“57 Late filing
(1) If a notice of appeal is filed in the Land Court registry after the time stated in section 55(3), the registrar of the court must notify the appellant that the appeal may not be heard unless the appellant satisfies the court that the appellant 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.
(2) If the appellant satisfies the court under subsection (1), the court may hear and decide the appeal.”
The land the subject of three appeals is variously described as:
·Lot 13 on SP136524 Parish of Cook (VLA 313-10)
·Lot 4 on SP142884 Parish of Cook (VLA 316-10)
·Lots 1,3, 5-8, 39, 40, 63, 65 on RP710221 Parish of Cook (VLA 318-10)
In each of the three cases having regard to the provisions of s.42 and the provisions of s.38 of the Acts Interpretation Act 1954 the appeals were filed one day late.
The Decisions on Objection were sent out bearing an issue date of 2 July 2010 (that being a Friday). Forty-two days thereafter expired on Friday the thirteenth of August 2010. It is not disputed that the appeal in each of the three cases were sent by facsimile transmission to the Land Court on Sunday the fifteenth of August 2010. For reasons for which are not entirely clear the date stamp for receipt by the Land Court is shown on the file as being the fifteenth of August 2010 that date can only have been affixed not earlier than the sixteenth of August 2010, the fifteenth of August being a Sunday and the Court being closed on that day.
Accepting that the documents were filed on the next day upon which the Court was open it becomes clear that the appellants have failed to file their appeals in time by one business day.
The question arises as to whether, having regard to the provisions of s.57(1) the owner, upon whom the onus lies pursuant to s.57(1) of the VLA can satisfy the Court that it “has a reasonable excuse for filing the notice after the time stated.”
The matter came on for hearing on the sixth day of September 2010 on which occasion the applicants had filed an affidavit sworn by one Susan Louise Clark.
The affidavit filed by Ms Clark did not depose to her being authorised by any of the appellants Barry James Clark, Marilyn Teresa Clark, or Cooktown Earthmoving & Quarrying Pty Ltd to swear the affidavit on their behalf.
In the event, on the sixth of September 2010 I was of the opinion that the material contained within the affidavit of Susan Louise Clark was inadequate for the purpose of satisfying the Court that the appellants had a reasonable excuse for the late filing.
Queries made by me in Court of the solicitor for the Respondent, Chief Executive of Department of Environment and Resource Management, elicited a response that the Chief Executive did not resist the notion that the appellants should be given an opportunity to file further affidavit material which may satisfy the Court as to the reasonableness of their excuse for the late filing in the first instance. Accordingly, I made Orders that on or before the twenty-second of September 2010 the applicants have leave to file and serve such further affidavit material as they see fit with the matter to be heard at 9.00 am on Thursday the twenty-third day of September 2010.
The appellants filed a further affidavit of Marilyn Teresa Clark.
On the return date of the twenty-third of September 2010 Mrs Johnson for the Chief Executive advise the Court that the Chief Executive had a change of position and now resisted the appellants being granted any extension of time on the basis that, in their submission, the appellants had failed to disclose a reasonable excuse for the late filing.
Careful reading of the affidavits of Marilyn Teresa Clark and Susan Louise Clark make it clear that the activities of each of the appellants are closely interwoven and constitute what might be seen as a family enterprise with a number of members of family having responsibility for different aspects of the operation.
It seems indisputable from the material provided to me that at all times the parties intended to file an appeal against the valuation which had emerged pursuant to property made objections dating back to May. Indeed, Marilyn Teresa Clark had caused the objections to be sent to the Department and Susan Louise Clark had collected the decisions on those objections from the Cooktown Post Office on or about the twelfth or thirteenth of July 2010.
The notices themselves bear a date of 2 July 2010 and a post office box in Cairns. There is no explanation either as to what would be the usual course of the mail in Cooktown nor is there any explanation as to why it took between ten and eleven days for the correspondence to reach the appellants. Even allowing that the date of the decision was a Friday one might have expected, in the normal course of things, that the letters would have arrived at their destination within say four or five days. Accordingly, there has been some but not necessarily an unreasonable amount of, delay in the postage. Notwithstanding that it is also clear that the appellants had some thirty or thirty-two days within which to get their houses in order and to file the appeals against the decisions.
It seems to me from the consideration of the material gleaned from the two affidavits of Marilyn Clark and Susan Clark that there were diligent steps taken by them to ensure that the notices of appeal were prepared ready for signing, signed and ultimately were in a position where they could have been filed on the thirteenth of August 2010.
Marilyn Clark it appears is an Alderman on the Cook Shire Council and in her affidavit deposes at paragraph 16, 17, 18 and 19 as follows
“16.In the week of 9 August 2010, I spent a lot of time preparing for a Cook Shire Council Ordinary Meeting which was held on 16, 17 and 18 August 2010. The agenda for the Ordinary Meeting, which was extensive, was distributed by the Chief Executive Officer on 12 August 2010.
17.On 13 August 2010, I reviewed the Notices of Appeal and signed the documentation. Before finalising, I was under the impression that my husband Barry Clark, as the other director and owner, was required to sign the notice of valuation. He was away on business until Friday, 13 August 2010. I arranged for Barry to countersign the Appeal in respect of the company property on his return that day and left the notices for Susan to send by facsimile to the Land Court before she left for the day. I recall it was a very hectic day in the business.
18.Due to a misunderstanding between myself and Susan Clark, the appeal documentation was not forwarded to the Land Court at the time of execution and Susan Clark was under the impression that I would send the documentation to the Land Court.
19.Unfortunately, I was distracted with other business on that day and did not realise that the appeals had not been sent by Susan Clark.”
She goes on to depose to not discovering until Sunday the fifteenth that, contrary to her expectations, the appeals had not been faxed to the Court by Susan Clark and accordingly attended to that herself on Sunday.
Susan Clark in her affidavit sworn earlier deposes to the following:
“10.The documents were prepared, ready for signing on 13 August 2010 and were signed by all parties on that day.
11.Both Barry and Eric were engaged with the business and were not available to sign the appeal documents until Friday, 13 August 2010.
12.Once the documents were signed by all parties, I left them in the office at the home of Barry Clark and Marilyn Clark for Marilyn to send to the Court.”
Clearly each of Susan Clark and Marilyn Clark contemplated that the other was to accept responsibility for filing the appeals. Ultimately neither of them attended to that relatively simple task with the consequence that the appeals were filed out of time.
My review of the file shows that the facsimile transmission was received by the Land Court at Brisbane at approximately 12.15 on the fifteenth of August. It would appear that the main reason, apart from the confusion between Marilyn Clark and Susan Clark referred to above was the impact upon the discharge of her civic duties as an Alderman which caused Marilyn Clark to be distracted from the pressing timeframe within which the appeals were to be filed.
In circumstances where a party is engaged in carrying out civic responsibilities and where the discharge of those civic responsibilities has the potential to impact substantially upon their own personal affairs I am of the view that it would be unreasonable not to grant the very short extension of time which is required in the present circumstances to keep the appeals alive.
That of course is not to say that they have necessarily identified or demonstrated a reasonable excuse for their failure to file in time.
The application of s.57(1) with respect to granting an extension of time has been considered on a number of occasions by Officers of this Court.
This is not a case where a party has relied upon the assistance of a legal practitioner who has let them down. In this case the appellants, being lay persons relied upon their own resources and it seems likely that only the pressure of the business and attendance upon civic duties prevented filing of the notice of appeal in time.
The relevant part of s.57 was inserted into the Valuation of Land Act pursuant to the Valuation of Land Amendment Act (No. 32) of 2000.
The explanatory notes to the Valuation of Land Amendment Bill says in respect of clause 29:
“Clause 29 widens the discretionary powers for the Land Court in section
57 to accept late filing of an appeal. Currently the Act only gives the Land
Court power to exercise discretion through an excuse of undue delay in the
post in the institution of an appeal. This amendment will provide that the
Land Court may consider any reasonable excuse for late filing, not just a
delay in the post.”In the matter of Michael J and Demetra Anthony v Chief Executive, Department of Natural Resources (Land Court AV00-517 10 November 2000) the learned Member Dr. Divett had to apply his mind to an understanding of the term “a reasonable excuse” in that respect he observed:
“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.’”
Of course in the Russell case the Court was considering the rather more stringent conditions set down in the Land Act 1962 s.44(11) deals with appeals to the Land Appeal Court and provides that s.44(11)(d) that where a notice of appeal was not filed within time prescribed that where “the appellants satisfies the Land Appeal Court that there is a reasonable cause or explanation for the lateness of the service, lodgement or payment … the appeal shall lie notwithstanding any Act, law or practice and, where the Land Appeal Court determines that the appeal so lies, such determination is final and not subject to any appeal.”
In the Director-General, Department of Transport v Congress Community Development and Education Unit Limited (A97-09) 25 June 1998 the matter of a “reasonable excuse” being accepted was demonstrated in the findings of the Land Appeal Court. As was pointed out in the Anthony decision referring to the Congress Community Development case:
“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 lodgement 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.’”
Further, in the Anthony decision Dr Divett’s aptly (for the purposes of the current case) considered the observations of Kirby J in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at (at 539) where his Honour noted:
“(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).”
In the present case on the evidence before me I am satisfied that the appellants have demonstrated an argument that they have a “reasonable excuse” the failure being generated by the combination a mere oversight, some confusion on the part of the person’s responsible for preparing, signing and lodging the notice of appeal and the intrusion of the discharge of civic duties by Marilyn Clark on paying attention to her own family interests. In the circumstances I am of the view that it would be unjust to deny the parties an opportunity to have their appeals heard and determined.
My view is considerably strengthened by the concession made by the solicitor for the Chief Executive that she did not point to any particular prejudice being suffered by the Chief Executive if the applicant were found to have demonstrated a “reasonable excuse”.
By way of confirming my view that this is an appropriate case in which the appellant has managed to demonstrate that it has a reasonable excuse for filing the notice after the time stated I come to the view that an application of the nine points iterated by Kirby J in the Jackamarra case would also result in the appellants being granted an extension of time within which to have their appeal regarded as properly filed. Key among the factors to which I have applied my mind is the intention of the provision of s.57 to avoid overdue technicality and whether there has been any actual prejudice to any party if the indulgence is granted to the appellants.
More particularly, it would be noted that the delay is neither intentional nor contumelious but merely the result of blundering by each of or both of Marilyn Clark and Susan Clark. It is important also to note that Susan Clark has no particular personal interest in the outcome of any of the appeals although, clearly, she is a member of the family group that carries on the enterprises.
It cannot be said that the Chief Executive or the appellant will be caused any significant delay in the hearing of this matter.
In the circumstances I am of the view that a reasonable excuse has been demonstrated by the appellants and accordingly, the Land Court has jurisdiction to hear these appeals.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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