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

[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
[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.
I note the affidavit of Mr Buchanan for the respondent and the attempts that he has made to contact the appellants.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burk v Department of Natural Resources and Water

Details

AGLC: Burk v Department of Natural Resources and Water [2008] QLC 192
Case: [2008] QLC 192
Decision Date: 30 October 2008

CaseChat Overview and Summary

The Land Court of Queensland was presented with an appeal from Henry and Edith Burk, who sought to contest the annual valuation of their land under the Valuation of Land Act 1944. They appealed against the Chief Executive of the Department of Natural Resources and Water, who was responsible for determining the value of their property. The case was brought before the Court as the appellants contested the valuation set by the respondent. The legal issues the Court was required to decide involved whether the appellants' appeal should proceed and, if so, whether the valuation set by the respondent was justified. The Court had to consider the appellants' conduct, particularly their failure to appear in Court and provide any notification to the Court or the respondent regarding their inability to attend, and their lack of a current address for service. The Court was also required to determine if the appellants had a reasonable excuse for their failure to appear and if the respondent had acted appropriately in preparing the valuation report.

The Court examined the appellants' history of failing to appear in Court and their failure to provide any notification or alternate address for service, despite numerous attempts by the respondent and the Court registry to contact them. The Court noted that the appellants' home address was vacant, and their current whereabouts were unknown. The Court found that the appellants had not taken any steps to ensure they received notices sent by the Court, and their failure to appear had resulted in significant delays and expenses for the respondent. The Court also considered the respondent's affidavit evidence, which showed the extensive efforts made to contact the appellants and the absence of any response. The Court concluded that the appellants had not provided any valid reason for their failure to appear or provide updated service details. Based on the appellants' repeated failure to appear and their lack of communication, the Court determined that it was appropriate to strike out the matter for want of prosecution.

The Court struck out the appellants' appeal for want of prosecution, resulting in the confirmation of the valuation set by the respondent. The Court did not order any costs, noting the respondent's decision not to seek costs despite the expenses incurred in preparing the valuation report and appearing in the matter. The Court suggested that if the appellants wished to contest the valuation further, they should follow the usual process of appealing to the Land Appeal Court. This decision underscores the importance of parties fulfilling their obligations to attend Court and provide updated contact information, and the consequences of failing to do so.

Orders