Burk v Department of Natural Resources and Water

[2008] QLC 192

LAND COURT OF QUEENSLAND

CITATION:Henry and Edith Burk v Department of Natural Resources and Water [2008] QLC 0192

PARTIES:Henry and Edith Burk

(appellants)

v

Chief Executive, Department of Natural Resources and Water
(respondent)

FILE NO:AV2005/1728

DIVISION:Land Court of Queensland

PROCEEDING:  An appeal against an annual valuation of land under the Valuation of Land Act 1944

DELIVERED ON:                  30 October 2008

DELIVERED AT:                   Brisbane

HEARD AT:Brisbane

MEMBER:Mr PA Smith

ORDER:1.  The matter is struck out for want of prosecution.

2.No order as to costs.

CATCHWORDS:                  Appellants failure to appear – no advice to Court or respondent – No alternate address for service – current address for service vacant.

APPEARANCES:                  No appearance on behalf of the Appellants

Ms T Johnson, Legal Officer, Department of Natural Resources and Water, for the respondent

1. [The appellants appeal was listed for hearing in Brisbane on 30 October 2008.  The appellants failed to appear in Court, and failed to give any prior notification to the Court or to the respondent of any difficulties that they may have had in appearing at the hearing on 30 October 2008.  The respondent produced affidavit evidence which showed that the appellant’s home address is vacant and that neighbours are unaware of their current whereabouts.  All efforts by the respondent in recent times to contact the appellants have been in vain.  The appellants have prior history of failing to appear.[1]  The appellant’s notice of appeal was also filed out of time, but the Land Court on 24 May 2006[2] determined that the Court had jurisdiction to hear the matter, finding that although the appellants were not blameless in their failure to make arrangements for filing their notice of appeal on time, on balance they established a reasonable excuse.  Due to the prior conduct of the appellants and their failure to appear on 30 October 2008 and their failure to advise either the respondent or the Court of their current whereabouts, the respondent applied for the appellants appeal to be struck out.]

   [1]        See Transcript 17 March 2006.

   [2] [2006] QLC 0033

2. [Ex Tempore]  In my view the appellants have received the benefit of the doubt on a number of occasions in this matter.  I understand that there have been numerous attempts also by the court registry to contact the appellants without success, although not all of those attempts over the last few years are recorded on file.  However, the most significant aspect is that the court notice of 8 October 2008 has not been returned to the court as not having been received by mail.  One can only then assume that whatever the whereabouts of the appellants are they have either not put into any efficient operation a process for collecting their mail, or if they have put such a process into place, the appellants simply have ignored the consequences that would flow from the court notice. 

3. I note the affidavit of Mr Buchanan for the respondent and the attempts that he has made to contact the appellants.  I also note that although the attempts detailed by Mr Buchanan could be classified as recent as could be the court notice listing the matter for hearing today, there have been difficulties with these appellants dating back to October 2005 and that there was a failure to appear by these same appellants on 17 March 2006 when the appeal was struck out for want of prosecution. 

4. In the circumstances of the matter it is my view that it is appropriate to strike the matter out for want of prosecution.  Whilst there could perhaps be something said of the delay in bringing this matter on for hearing and any changed circumstances that may have come about for the appellants in the intervening period, if it is a fact that the appellants have changed address it is not a matter for the court to chase up the appellants and find new addresses for service, but a requirement of the appellants to properly advise both the respondent and the court of any changed service details. 

5. I also note that the respondent is not seeking any award of costs in this matter despite the fact that the respondent has gone to considerable expense in the preparation of a valuation report and in appearing in this matter today. 

6. In my view the matter of the appeal with respect to property ID 1218132 situated at 8 Lima Street, Nudgee Beach, as brought by the appellants Henry and Edith Burk, AV2005/1728, should be struck out, which of course results in the valuation as determined by the Chief Executive as at 1 October 2004 being confirmed in the amount of $235,000. 

7. I should add that, should Mr and Mrs Burk not be content with the outcome from this matter, as was the case on 17 March 2006, in my opinion the most appropriate way of proceeding is not to bring this matter back before a single member of the court again[3] but for the appellants to be required to undertake the usual process of an appeal to the Land Appeal Court.

   [3]Pursuant to Rule 45(2)(a), the Court may vary or set aside an order if such order was made in the absence of a party.  The appellants failed to appear at a proceeding on 17 March 2006 and, on the application of the respondent, their appeal was struck out.  Subsequently, the appellants wrote to the Land Court giving reasons for their failure to appear.  After considering the appellants reasons, I exercised my discretion pursuant to Land Court Rule 45(2)(a).  The appellants do not appear to have taken notice of the consequences of their previous failure to appear in Court or of their responsibilities to ensure that they receive in a timely fashion any notices sent by the Court. 

Order

1.The matter is struck out for want of prosecution.

2.No order as to costs.

PA SMITH
MEMBER OF THE LAND COURT