Boyd Pty Ltd v Chief Executive, Department of Natural Resources

[1999] QLC 12

[1999] QLC 12

 

LAND COURT,

BRISBANE

4 March 1999

Re:     Appeal against Annual Valuation

Valuation of Land Act 1944
  Valuation Roll No:  13410
  Local Government: GCCC-Gold Coast
  (AV98-713)

Boyd Pty Ltd

v.

Chief Executive, Department of Natural Resources

(Hearing at Coolangatta)

DECISION ON JURISDICTION

Background:

This matter deals with whether this Court has jurisdiction to hear an appeal against an annual valuation of land at 23 Montgomery Street, Southport, and described as Lot 7 on Plan M73861, Parish of Gilston.  The valuation relates to the unimproved value of the subject land at 1 October 1997, in accordance with the provisions of the Valuation of Land Act 1944.
           Mr James Marshall Boyd appeared and gave evidence on behalf of the appellants.  Mr J O’Rourke, Legal Officer, appeared for the respondent, calling evidence from Mr S Montgomery, the Departmental Registered Valuer responsible for determining the valuation.

The Facts:

In seeking to understand the facts of this matter it is necessary to note the history of the application.  From a study of the records of the Land Court, and the evidence supplied to the Court, it would appear that the appellant may not have satisfied the statutory period for the lodgment of the appeal.  It was accordingly agreed to determine whether jurisdiction lay with the Court before proceeding to hear the substantive merits of the matter.  The chronology of events if as follows:

·    1 October 1997 – The date of the valuation.

·    2 March 1998 – The Chief Executive, Department of Natural Resources, issued a valuation of $192,500 to the respondent at the listed postal address of 20 West Street, Mt Isa, 4825.

·    16 April 1998 – An objection lodged with the Chief Executive claiming the unimproved value should be $175,000.

·    22 April 1998 – Letter of acknowledgment of the objection issued to the objector at 20 West Street, Mt Isa.

·    6 May 1998 – Telephone discussion between Mr S Montgomery and Mr Graham Boyd of Boyd Pty Ltd.

·    11 May 1998 – Decision on objection processed by the respondent.

·    25 May 1998 – Decision issued by the respondent by letter to the appellant at 20 West Street, Mt Isa, advising that the objection had been disallowed and the value remained unaltered.

·    6 July 1998 – The statutory period closing date for lodgment of appeals to the Court being 42 days from the date of issue of the notice on 25 May 1998.

·    23 July 1998 – Letter from Boyd Pty Ltd to the respondent seeking information as to when the objection will be heard, and noting that Boyd Pty Ltd had not heard back any further advice about when the matter will be heard.

·    27 July 1998 – Letter from the respondent to Boyd Pty Ltd at 16-20 West Street, Mt Isa, acknowledging the letter of 23 July 1998, and advising the details of correspondence and telephone communications with Boyd Pty Ltd, and advising that the decision on the objection had issued to Boyd Pty Ltd at 20 West Street, Mt Isa on 25 May 1998.

·    7 September 1998 – Being a period of 42 days from the advice of the respondent of 27 July 1998.

·    2 October 1998 – Appeal lodged with the Registrar of the Land Court (received 5 October 1998).

·    8 October 1998 – Registrar of the Land Court wrote to the appellant advising that the appeal appeared to be out of time, and unless the provisions of section 57(1) and (2) are complied with, the appeal may be found not to lie.  The appellant was directed to section 57(1)(b), noting that a response to the requisition of the Registrar was required within 21 days.

·    15 October 1998 – Appellant wrote to the Registrar of the Land Court advising that the appellant would seek leave to argue the matter of jurisdiction before the Court, and noting that the reason for lateness of the appeal was not related to delays in the post (received 19 October 1998).

·    23 October 1998 – The Registrar of the Land Court wrote to the appellant advising that the Legislation provided only one reason for delay, and the Court had no discretion in the matter.  The appellant was asked if he intended to proceed to hear the matter of jurisdiction.

·    17 November 1998 – Appellant wrote to the Registrar of the Land Court asking for the matter to be set down for consideration (received 19 November 1998).

·    18 December 1998 – By  notice to the parties the matter was set down for hearing on 16 February 1999 at Coolangatta to determine whether jurisdiction was held.

·    5 February 1999 – Letter from appellant to the Registrar of the Land Court advising that the delay had nothing to do with delays in the post, and related to the outcome of a conversation with Mr S Montgomery on 6 May 1998, and not being then advised that the valuation would be increased.

·    16 February 1999 – Hearing on jurisdiction heard at Coolangatta.

The evidence:
           At the hearing Mr Boyd confirmed that delays in appealing had nothing to do with any delays in the post.  The reason the appeal was delayed was rather that the appellants did not receive any written confirmation that the objection had been disallowed.  He advised that the apparent advice to the appellant of 25 May 1998 was not received by the appellant.
           Mr Boyd confirmed that Mr Montgomery had telephoned his son, Mr Graham Boyd, on 6 May 1998 to discuss the valuation of the subject, and another property of the appellant at Highgate Hill, which had inadvertently been incorrectly attached to the objection form.  It was Mr Boyd’s understanding of that telephone conversation that the matter had not been finally resolved, but Mr Montgomery felt that the objection was likely to be disallowed.
           Mr Graham Boyd acts as the Mt Isa agent for the appellant, which is a family company with members of the Boyd family as shareholders.  Because the telephone discussions with Mr Montgomery had been left in an unfinalised situation, Mr Boyd awaited formal advice of the outcome of the objection.  When that had not been received by 23 July 1998, he wrote to the respondent seeking advice.
           Mr Montgomery advised that Departmental records disclosed that the letter of 25 May 1998 had been sent to the formal postal address for notices at 20 West Street, Mt Isa.  (A copy was supplied to the Court as Exhibit 3).  Mr Montgomery advised that there was nothing on the file to indicate any unusual circumstances, and all correspondence had been sent to the same address at 20 West Street, Mt Isa. 
           Mr O’Rourke argued that, as the only allowable reason for delaying the lodgment of appeals relates to delays in the post, then the appeal must be found not to be within the jurisdiction of this Court.  He further argues that if the appellant, for some unexplained reason, had not received the original notice sent by post on 25 May 1998, then at least the appeal should have been lodged within 42 days from the receipt of the confirmation letter of 27 July 1998 from the respondent.  As he also has not lodged the appeal within that period, then the Court also would have no jurisdiction to hear the matter.

Decision:

Before considering the impact of the events surrounding the lodgment of the appeal, I turn to the Valuation of Land Act, and note that in respect of an annual valuation, section 45(1) provides for a dissatisfied person to appeal to the Land Court, and section 45(2) states:

“45.(2)  Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 42 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive’s decision upon the objection (which date of issue shall be stated in such notice).  ”

Any such appeal is to be lodged with the registry of the Land Court under section 45(3) and the burden of proof is placed upon the appellant under section 45(4).  I note also that the procedure to start an appeal is covered by section 56, and the responsibility of the Land Court registrar, and the owner, in the late filing of an appeal, are covered in section 57.  I note particularly section 57(1) which says:

“57.(1)  Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by section 55(2), the registrar of the court shall notify the owner that, as the notice of appeal was not filed in the Land Court registry within the time prescribed by section 55(2), the appeal does not lie unless the owner –

(a) proves to the satisfaction of the court that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post;  ”

In the event that the owner satisfies the response to the registry in respect of the timing of the due responses, and to the Land Court that the failure to institute the appeal was the result of unacceptable delays within the Legislation, then the appeal shall lie, but otherwise under section 57(2) the appeal shall not lie.

In considering whether this Court has any power to extent that statutory period, I note in JJ Bidner v. The Valuer-General [1992-93] 14 QLCR 88 where the learned Member found at page 93:

“  As has been noted in previous cases, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute.  It has no inherent jurisdiction.  Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature.  (See Gold Coast Milk Pty Ltd and South-Coast Co-Operative Dairy Association Limited v. The Valuer-General (1983) 9 QLCR 13 at 17.) ”

That was also found in KW Fry v. Commissioner of Water Resources (1986-87) 11 QLCR 92, in respect of the statutory period for lodgment; AJ and E Schirmer v. The Valuer-General (1974) 1 QLCR 144 in respect of other details missing on a notice of appeal; RG Ubank v. Queensland Housing Commission (1954-55) 25 CLLR 5 in respect of failure to meet the statutory time limit for lodging of an appeal; and also in CM Conroy v. The Valuer-General (1986-87) 11 QLCR 25, where the appellant failed to provide adequate information to define the quantum of the amount appealed for.

While the chronology of dates would appear to be fatal to Mr Boyd’s argument, the only possible extenuating circumstance which may attach to Mr Boyd’s claim, could be whether his reason for the delay in lodging the appeal, could be interpreted as being a “reasonable excuse”, although it must be remembered that any such excuse must be related to the grounds established by the Act as relating to a delay in the post.  On the evidence before me I find little to support such a claim.  I note that the meaning of “reasonable cause or explanation” was analysed at some length by the Land Appeal Court in Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (A97-09) 25 June 1998 (to be reported).

On the evidence before me the decision of Congress Community can be distinguished as that dealt with the late-lodging of an appeal by a period of some three days after the due date required by the Act.  The delay had been occasioned by the heavy work pressures upon the claimant’s solicitor who, over a period of a weekend, failed to meet the deadline required by the Legislation.  Under the circumstances, and bearing in mind that the claimant had relied upon the professional services of his legal adviser, the Land Appeal Court allowed some flexibility in the explanation for the delay to be interpreted as a “reasonable excuse”. 

However the Land Appeal Court was most critical of the environment then existing in the office of the Crown Solicitor which it noted “exposed an apparently efficient solicitor, and one entrusted with the care and attention of a matter of State importance, to work-related exhaustion to the degree which would cause an important task to be forgotten, is hardly consistent with a reasonable standard of professional conduct.  ”  (Page 2 of additional reasons from the Court).

The message of all the relevant Court precedents is that the failure to meet the requirements of the Legislation in this matter is fatal to the appeal.

Summary:

In summary this Court is a body of statutory powers, and as such can only exercise such powers in accordance with the directions of the Legislation.  There is no direction to assume powers  beyond those limits.  While the appellant feels most strongly that his case should be examined by an independent court of authority, that must be considered in the context of the law, and that the valuation is an annual process, and a future opportunity may present itself in order to achieve the appellant’s objective.

As the lodgment of the notice has not met the requirements of the Act, I find that I have no jurisdiction to proceed with the appeal on its merits.  The appeal is struck out for want of jurisdiction.

Member of the Land Court