Burnett v Chief Executive, Department of Natural Resources and Water

[2008] QLC 79

LAND COURT OF QUEENSLAND

CITATION:

Burnett & Ors v Chief Executive, Department of Natural Resources and Water  [2008] QLC 0079

PARTIES:

John S and Jan M Burnett
Frankfield Pastoral Co CQ Pty Ltd
Jo Jo Holdings Pty Ltd
(applicants)

v.

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

FILES NO:

Burnett - AV2007/0793, RV2007/0794, RV2007/0795,
RV2007/0796 and AV2007/0798

Frankfield – RV2007/0799 and AV2007/0800

Jo Jo Holdings – RV2007/0801 and AV2007/0802

DIVISION:

Land Court of Queensland

PROCEEDING:

Appeals under the Valuation of Land Act 1944 - jurisdiction

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARD AT:

Clermont

MEMBER:

Mrs CAC MacDonald

ORDER:

The Court has no jurisdiction to hear the appeals.

CATCHWORDS:

Jurisdiction – Late filing of appeals – Whether reasonable excuse

APPEARANCES:

Mr J Burnett, for the appellants
Mr G Smith, Department of Natural Resources and Water, for the respondent

1. These appeals have been lodged by the owners and lessees of various parcels of land in the Belyando and Emerald Shires against various determinations by the respondent, the Chief Executive, Department of Natural Resources and Water, under the provisions of the Valuation of Land Act 1944 (the Act) of the unimproved value of the land as at 1 October 2006.  The issue for determination in all of the matters is whether the Land Court has jurisdiction to hear the appeals.

2. The appeals were filed in the registry of the Land Court in Brisbane on 12 September 2007.  Prior to filing the appeals in the Court, the owners had lodged objections to the valuations under s.42 of the Act.  In the two appeals by Jo Jo Holdings the Chief Executive's decisions on the objections were dated 3 July 2008.  In the other seven appeals the decisions were dated 31 July 2008.

3. Section 45(2) of the Act says that, except as provided in the section, an appeal does not lie unless it is instituted within 42 days after the date of issue by the Chief Executive of the decision on objection.  Section 45(3) provides that an appeal shall be instituted by filing a notice of appeal in the Land Court registry.  For the appeals by Jo Jo Holdings, therefore, the notices of appeal should have been lodged in the Land Court registry on or before 14 August 2007.  For the remaining appeals, the time for lodgement expired on 11 September 2007.  Those appeals were, therefore, lodged one day late. 

4. The effect of s.57(1) of the Act (which applies to these appeals by virtue of the operation of s.45(9)) is that if a notice of appeal is filed late, 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.  The question to be determined therefore is whether the appellants have satisfied the Court that they had a reasonable excuse for filing the appeals out of time. 

5. At the hearing on this jurisdiction issue, the appellants were represented by Mr JS Burnett and Mrs JM Burnett gave evidence.  Mrs Burnett said that the decisions on objection had been received by the appellants over a period of a couple of weeks.  They had been collected and dealt with together and she had not realised that the decisions relative to the Jo Jo Holdings Properties were dated differently from the others.  Mrs Burnett's explanation for the late filing of the appeals was that the appeals had taken longer to prepare than she anticipated because a lot of information had to be gathered together, advice taken from a valuer, and decisions made as to whether to employ a valuer and a lawyer to prosecute the appeals.  She had intended that the appeal documents be collected by the mail contractor early on Friday, 7 September but because they were not ready then, she had driven into Clermont on Saturday 8 September and posted the appeals there.  Mrs Burnett was aware that the time for lodging the appeals expired on 11 September but believed that there would be sufficient compliance if the envelope containing the appeals were postmarked before 11 September.  She knew that the envelope would be postmarked on 10 September and was not surprised that it did not arrive in Brisbane until 12 September because they generally allowed two working days for mail to get from Clermont to Brisbane.  There was no suggestion from Mrs Burnett that she considered that there had been any delay in the delivery of the mail to the Court.  She had considered faxing the documents to the Court but, because there were so many pages, she had thought it safer to take them into the post office.

6. The issue of whether an appellant has satisfied the Court that he or she has a reasonable excuse for filing the notice of appeal after the time stated has been considered by the Land Court in numerous decisions.  The earlier authorities are discussed in Anthony v Chief Executive, Department of Natural Resources (unreported, Land Court, 10 November 2000 (AV00-517)).  Those authorities establish that, for the Court to be satisfied that the owner has a reasonable excuse for filing the appeal out of time, the excuse must be substantial.  The test to be applied is an objective one, that is whether a reasonable person would consider that the cause of the delay was sufficient, or consistent with a reasonable standard of conduct by the appellant.

7. In this case, Mrs Burnett admitted quite frankly that she thought that it would be sufficient if the envelope were postmarked prior to the due date.  Unfortunately, she was mistaken in that opinion.  This is because s.45(3) of the Act says that an appeal is instituted by filing a notice of appeal in the Land Court registry.  These appeals, therefore, were not effectively instituted until they were filed in the registry.  

8. Mrs Burnett's only other explanation for the delay was that the appeals had taken longer to prepare than she had anticipated.  However Mrs Burnett conceded that nothing unusual had occurred to prevent the appellants from completing the notices of appeal earlier.  Although Mr Burnett submitted that if the letter were postmarked 10 September it would arrive in Brisbane on 11 September, this was contrary to Mrs Burnett's evidence as set out above. 

9. In those circumstances, I do not consider that the appellants' explanations amount to a reasonable excuse for filing the appeals out of time.  My conclusion is that the Court has no jurisdiction to hear them.

Order
                 The Court has no jurisdiction to hear the appeals. 

CAC MacDONALD

MEMBER OF THE LAND COURT