Crisafulli v Department of Natural Resources, Mines and Water
[2007] QLC 55
•1 August 2007
LAND COURT OF QUEENSLAND
CITATION: Crisafulli v Department of Natural Resources, Mines and Water QLC 0055 PARTIES: Giuseppe & Michelle Crisafulli
(appellants)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)FILE NO: AV2006/0457 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation DELIVERED ON: 1 August 2007 DELIVERED AT: Brisbane HEARD AT: Ingham JUDICIAL REGISTRAR: Mr BR O'Connor ORDER: The Court has no jurisdiction to decide this appeal. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr R.J. Castellani of Canegrowers, Herbert River for the appellants.
Mr W Isdale of Crown Law for the respondent.
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal which was lodged 1day after the due date. Section 57 of the Valuation of Land Act 1944 (VLA) allows for "reasonable excuse" as a cause for such delay.
"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), the registrar of the court must notify the owner that 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.
Example of reasonable excuse –
The notice of the chief executive’s decision or the notice of appeal was lost or delayed in the ordinary course of post."
The question then is whether the explanation for the late lodgement advanced by the appellants falls within the term "reasonable excuse" as interpreted by the relevant authorities, particularly those since the introduction of s.57 as amended in 2000.
The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000. In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a cause, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man".
Background
Evidence was given that the appeal and supporting grounds were prepared by the Canegrowers Herbert River "Canegrowers", the cane industry representative body in Ingham. Mr Crisafulli attended the Canegrowers' office to sign the appeal documents on the morning of 31 July 2006. Unlike the White jurisdiction matter [2007] QLC 54, heard at the same Court sitting as the present case, there is no evidence that Mr Crisafulli was aware of the 1 August 2006 requirement for lodging appeal documents with this Court.
The evidence is that the appeal was posted by the Canegrowers on 1 August 2006 and arrived by normal post in the Land Court Registry in Brisbane on 3 August 2006 (2 days late). The normal time for such delivery from Ingham to Brisbane would be two days.
Issue
The specific issue in this case is whether the action of Mr Crisafulli in placing the appeal in the hands of the local Canegrowers organisation but not instructing them of the need to lodge the appeal by 1 August 2006 amounts to "reasonable excuse" in all the circumstances.
Authorities
Cases where the appellant has relied on an agent to lodge an appeal (and such being subsequently lodged out of time) were recently reviewed by the Land Court President in Trust Company of Australia Limited v Department of Natural Resource and Water (2007) QLC 0045. The Court stated:
"… it is clear that essentially the issue in this case is whether this Court should apply the relatively strict approach adopted by the Land Appeal Court in the Union Fidelity Trustee Company case or the more flexible approach adopted by a later Land Appeal Court in the Congress Community Development case."
After considering these two cases in some detail, it further stated:
"Having regard to the circumstances of the present case and the authorities referred to above, I am of the view that the more flexible approach taken by the Land Appeal Court in the Congress Community Development case should be followed in the present case. Muir J found that there was reasonable excuse for the "slip" of the solicitor in that case. In my view, the same could be said for the "slip" of the solicitor in this case." (first limb)
"However, if that was not sufficient to constitute a reasonable excuse, I would adopt the reasoning of Mr Wenck and Dr Divett. As in that case, in the present case the fault lies with the solicitors, but the applicant has done everything that could be expected of a 'reasonable man' in entrusting the institution of the appeal to its solicitors." (second limb)
Consideration of Issue
Mr Isdale, counsel for the respondent, seeks to distinguish between solicitors (the agent in the cases discussed above) and a representative body such as the Canegrowers. He suggests placing an appeal in the hands of solicitors imposed much greater responsibility on them to ensure the appeal was properly lodged than that imposed on other agents.
I agree that this case is distinguishable from the Trust Company of Australia Limited case and the two cases considered therein in that it is an industry representive body rather than solicitors that are at fault in not lodging the appeal on time. The latter have wider professional responsibilities and assumed knowledge of filing requirements and related procedural issues than could be imputed to Canegrowers.
In the present case, I consider that the appellant would have acted reasonably in having this Canegrowers body handle the preparation of his claim and then specifically instructing them to lodge by the relevant date of 1 August 2006. As an industry business organisation they should have been able to carry out such instruction either by filing by facsimile or by sending by express post. However, as there is no evidence that Mr Crisafulli instructed Canegrowers to lodge the appeal documents by 1 August 2006, I do not consider 'reasonable' excuse is established.
This present case is also distinguishable from the White case (referred to above) on the basis that there was evidence that Mr White had instructed the Canegrowers to lodge the appeal documents on 1 August 2006.
In this case, if the matter had been handled by solicitors and they had failed to lodge on time, I consider Crisafulli could rely on the reasoning in the Trust Company case (second limb) – that he took reasonable steps in placing the matter in the hands of solicitors. As noted above, the latter have a greater degree of responsibility in legal matters than do Canegrowers.
In neither the present case or White has there been any evidence to establish that the conduct or 'slip' of the agent in late lodgement amounted to being reasonable in the circumstances. If such was established, both Crisafulli and White could have relied on the first limb of the Trust Company decision for support.
In circumstances of the current case, I conclude that a reasonable excuse has not been established.
Order
The Court has no jurisdiction to decide this appeal.
BR O'CONNOR
JUDICIAL REGISTRAR
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