Campbell v Chief Executive, Department of Natural Resources

[1998] QLC 19

[1998] QLC 19

 

  LAND COURT

BRISBANE

20 February 1998

Re:                 Appeals against Annual Valuations -
Valuation of Land Act 1944 -
  Shire of Cloncurry.
  (AV97-76, AV97-77, and AV97-78).

Douglas C Campbell
  v.
  Chief Executive, Department of Natural Resources

Ian C Campbell
  v.
  Chief Executive, Department of Natural Resources

Ian C Campbell
  v.
  Chief Executive, Department of Natural Resources

(Hearing at Cloncurry)

D E C I S I O N

These are three appeals by members of the Campbell family against the unimproved values of their properties in the Mt Isa area known as "Rosebud Station" and "Rifle Creek Station".
Mr DC Campbell is the lessee of an area of leasehold land on the outskirts of Mt Isa, principally comprising Heywood Pastoral Holding and Murrumba Pastoral Holding, containing an area of about 115,440 hectares. As at 1 January 1996, under the provisions of the Valuation of Land Act (the Act) the respondent determined the unimproved value of that land at $83,000, or 72 cents per hectare. Mr Campbell objected against that valuation and, after being advised that his objection had been disallowed, he appealed to the Land Court advising that in his opinion the unimproved value of the land should be $32,700.
           Mr IC Campbell, the son of Mr DC Campbell, is the lessee of "Rifle Creek" comprising Angus Pastoral Holding and Coll Pastoral Holding which, although adjoining, have been valued separately by the respondent.  Angus Pastoral Holding is situated about 60 kms east of Mt Isa and contains an area of about 35,900 hectares.  As at 1 January 1996, the respondent determined the unimproved value of that land at $20,500, or 57 cents per hectare.
           Coll Pastoral Holding is situated approximately 24 kms south of Mt Isa and contains an area of about 35,700 hectares.  As at 1 January 1996, the respondent determined the unimproved value of that land at $33,000, or 92 cents per hectare.
           Mr Campbell objected against those unimproved values and following advice that his objections had been disallowed, he appealed to the Land Court advising that his estimates of the unimproved value of those lands were $13,600 and $22,000 respectively.

Jurisdiction
           Section 45(1) of the Act provides that an owner who has objected against a valuation made by the Chief Executive may, if dissatisfied with the decision upon the objection, appeal to the Land Court against the valuation.  Sub-section (2) provides as follows:

"Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 28 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).  "

Sub-section (3) provides that an appeal is instituted by filing a notice of appeal in the Land Court registry.
           In each of these three cases, the respondent's notice of decision upon objection issued on 23 October 1996.  Therefore the 28 day period for the lodgment of valid appeals closed on 20 November 1996.  The three notices of appeal which had been included in the one envelope were received at the Land Court registry on 22 November 1996.  Therefore, they were filed two days out of time.
           The consequences of the late filing of appeals is dealt with in Section 57 of the Act, which provides that where a notice of appeal is filed in the Land Court registry but not within the time prescribed, the registrar shall notify the owner that the appeal does not lie unless the owner proves to the satisfaction of the Court that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post.  In such circumstances the owner was also required to notify the registrar within 21 days of the date of the notification, of the owner's intention to endeavour to so satisfy the Court.
           If the owner notifies the registrar as required and, when the matter comes before the Court, proves to the satisfaction of the Court as provided, the appeal shall lie.  However, if the owner does not so satisfy the Court the appeal shall not lie.
           At the hearing at Cloncurry, Mr IC Campbell appeared and gave evidence on behalf of the appellants.  The respondent was represented by Mr R Vize, of counsel and evidence on behalf of the respondent was given by Mr LR Croton, a registered valuer employed by the Department of Natural Resources.
           It emerged in evidence that both appellants have Post Office boxes at the Mt Isa Post Office to which their mail is delivered.  Mr DC Campbell lives in Mt Isa, but at the relevant time was not available through illness to clear his mail box.  Mr IC Campbell lives at "Rifle Creek" and clears his mail box at periodic intervals when he visits the city.  At the relevant time he was attending to his father's mail.
           Mr Campbell stated that the appellants thought the period for appeal expired on 23 November 1996, which they admit was a mistake on their part.  The notices of appeal were mailed at Mt Isa on 19 November 1996 and the appellants felt certain that they would arrive within what they understood was the time for appeal.
           Mr IC Campbell explained that he has a Post Office box because there is no mail service to "Rifle Creek".  That leads to delays in correspondence being received because he does not make regular trips to town to clear the box.  Sometimes during busy periods, mail might be left uncleared in the box for up to 14 days.
           Mr Croton gave evidence that he had made enquiries at the Mt Isa Post Office as to the ordinary course of mail.  He was advised that there was a two-day mail service from Brisbane to Mt Isa.  If the respondent's notices of decision upon objection had been posted on Wednesday 23 October 1996, they would have been placed in the Post Office boxes at Mt Isa on Friday 25 October 1996.
           Mr Croton said that he was advised that if a letter was posted at Mt Isa before 3.30p.m., it would be delivered in Brisbane two days later.  If a letter was posted in Mt Isa after 3.30p.m. it is more likely that it would be delivered in Brisbane on the third day.
           Therefore, if the notices of appeal had been posted on Tuesday 19 November 1996, prior to 3.30p.m., in the ordinary course of post they would have been delivered in Brisbane no later than Thursday 21 November 1996.  If they had been posted after 3.30p.m. on 19 November 1996, it is more likely that they would have been delivered in Brisbane on Friday 22 November 1996.
           Mr Croton said that his investigations had indicated that there was no undue delay in the transmission of mail in the ordinary course of post.  He also enquired about the weather conditions and found that there had not been enough rain to stop aircraft entering or leaving Mt Isa at the critical time.
           Section 57 of the Act makes provision for circumstances where landowners lodge notices of appeals with the Land Court registry outside the prescribed time.  It provides that in such circumstances the Land Court may hear the appeal where the landowner can prove to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post.  Where the landowner cannot so satisfy the Court, the appeal does not lie.  In other words, the Land Court has no jurisdiction to hear the appeal.
           It is therefore necessary to consider whether, in the circumstances of this case, there was undue delay in the transmission of mail in the ordinary course of post.  There is no proof that there was any delay in the notices of decision upon objection arriving at Mt Isa.  They were placed in the Post Office boxes of the respective appellants.  Because of the circumstances explained by Mr Campbell, those mail boxes were not cleared immediately.  When they were cleared and the mail received, the appellants mistakenly thought that the closing date for valid appeals was 23 November 1996.  They posted the appeals on 19 November 1996, with the expectation that they would arrive within time.  However, they did not arrive until 22 November 1996, two days out of time.  There is the evidence from Mr Croton that the earliest possible time for those notices of appeal to have arrived in Brisbane was 21 November 1996.  If the mail was posted at Mt Isa after 3.30p.m., then it was probable that in the ordinary course of post they would have arrived on 22 November 1996.
           In my opinion, it cannot be said that there was undue delay in the transmission of mail in the ordinary course of post.  The reason for any delay in the appellants receiving the mail was the fact that they did not collect mail from their Post Office boxes for some time after the mail was placed in those boxes.  The reason the notices of appeal were received out of time in the Land Court registry was because the owners mistakenly believed the closing date was 23 November 1996, and did not post the notices until 19 November.  Those notices were received in the Land Court Registry on 22 November 1996.  That course of events does not constitute undue delay in the transmission of mail in the ordinary course of post either at the beginning or the end of the 28 day period.
           It is well settled that the requirements for instituting valid appeals to the Land Court are mandatory, including the lodgment of the appeals within the 28 day period (Fischer v. The Valuer-General (1990) 13 Q.L.C.R. 129, and the cases cited therein.) If an appeal is received out of time, then the Court has no jurisdiction unless the appellants can prove to the satisfaction of the Court that there was delay in the mail. The appellants have been unable to do so in these cases. Therefore, although it may seem harsh, I have no alternative other than to comply with the legislation and to find that I have no jurisdiction to hear the merits of these cases.
Amendments to the Valuation of Land Act in 1997 have extended the period for lodging appeals from 28 days to 42 days. However, they were not made retrospective and are therefore of no assistance to the appellants in these cases.

The Merits of the Appeal
           After hearing the evidence and submissions in relation to jurisdiction, I reserved my decision upon that point and heard the evidence in relation to the merits of the appeals so that in the event that I found that I had jurisdiction, it would be unnecessary to once again travel to north-west Queensland to hear the evidence of the merits of these cases.
           However, I made it clear to the parties at the time that I heard that evidence only on the understanding that I would act upon it if I found that I had jurisdiction to deal with the matters.  Since I have found that I have no jurisdiction in these matters, I am unable to deal with the merits of the appeals.
           It will be of no comfort to the appellants, but it may be useful to them for any future appeals, if I indicate that if I had been able to deal with the merits of the cases I could only have found that the appellants had not discharged the onus of proof in each of these cases.

Mr IC Campbell gave evidence of the very real difficulties which are suffered and increased working costs incurred by these properties from being in an area of intense mining activity and adjacent to a major mining city.  They gain no benefit from being situated so close to the City of Mt Isa.  The properties are severed by the Barkly Highway and other roads and powerlines, they suffer theft, vandalism, trespass and other problems not usually experienced by large grazing properties.  The recent mining boom has not increased the value of their properties.  It has only added to their problems and has made the management of the properties more difficult and expensive. 
           However, Mr Croton said that he was well aware of all the matters which were raised by Mr Campbell and had made allowance for them in making his valuations.  He said that if the properties did not suffer from those problems, the valuations would have been considerably higher.
           In support of his valuations, Mr Croton relied upon the analyses of two improved sales, although each of them is situated some distance from Mt Isa and neither of them suffers the problems of the subject lands.  Although those sales are not ideal, they are all that were available and Mr Croton has adopted a method of valuation which has been approved by the highest authority.  In the absence of sales of unimproved land, it is well established that the most appropriate basis of valuation is the analyses of sales of improved properties.  (See, for example, the judgment of the Land Appeal Court in McGuigan v. The Valuer-General (1984) 10 Q.L.C.R. 32.)
           On the other hand, Mr Campbell's case was based largely on the percentage increase in the valuations.  The costs of running the properties were increasing, including rates and rent, which would increase as a result of those increases in the valuations.  While these are very real concerns to the owners, they are not matters which assist in establishing the unimproved values of the lands, which must be based on sales.
           Therefore, if I had jurisdiction to hear these appeals, I would have had to find that the appellants had not discharged the onus of proof and the appeals would fail.
           However, I have found that I have no jurisdiction to hear the merits of these cases.  Therefore, the appeals are struck out for want of jurisdiction.

President of the Land Court