Dalglish v Department of Natural Resources and Mines

[2006] QLC 19

LAND COURT OF QUEENSLAND

CITATION:	Dalglish v Department of Natural Resources and Mines [2006] QLC 19
PARTIES:	Robert and James William Dalglish (appellant)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NO.:	AV2005/1724 and 1725
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeals against Unimproved Valuation
DELIVERED ON:	21 April 2006
DELIVERED AT:	Brisbane
HEARD AT:	Rockhampton
MEMBER	Mr BR O'Connor
ORDER:	The Court has jurisdiction to hear the appeal in the subject matters.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse
APPEARANCES:	Mr J Dalglish for the appellant Mr D Grealy, Counsel for Department of Natural Resources and Mines

1. The issue for determination in these matters is whether the Court has jurisdiction to hear the appeals lodged 13 days after the due date. Section 57 of the Valuation of Land Act 1944 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 appellant falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.

2. 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

1. Mr Dalglish's basic claim is that he personally lodged the relevant appeal documents (Form 59) with the Department well before the 42 day expiry date.  When doing so he was given the impression by the Departmental counter clerk, after appropriate questioning, that such action was all that was required and no further separate lodgement by him with the Court was necessary.  After the 42 day expiry date, he was informed by Mr Gavin Coles, Valuations Administration Officer with the Department (but not the person Mr Dalglish spoke to at the counter), that lodgement with the Court was also necessary, that DNR had not forwarded copies to the Court at that stage and that the matter was probably now out of time.

2. Mr Dalglish stated in oral evidence before the Court as follows:

   "The Department of Natural Resources and Mines was approached prior to the expiry date for the appeal to the Land Court against the determination of the Chief Executive.  DNR's receivable date stamp on the original forms will confirm this.  I approached the department basically for advice of correct lodgement of the forms.  The DNR counter assistant at the time accepted the original form and proceeded to discuss the matter with departmental officer Gavin Coles.  I was consequently advised that everything was in order and DNR would handle the matter.  Subsequent to the expiry date for the appeal to the Land Court Gavin Coles from DNR was in telephone contact with me and then explained the correct procedure for the lodgement of Form 59.  He apologised for his mistake in informing me that DNR would handle the matter and Gavin Coles verbally agreed to confirm what had transpired.  After submitting the Form 59 to DNR I had complete confidence that the department would competently handle the matter and I do not expect to be penalised in any way for the incorrect advice."

3. Mr Coles also gave evidence at the Court hearing essentially confirming Mr Dalglish's account.  Mr Coles stated that after a period of time when he had not received any acknowledgment from the Land Court regarding the appeals he rang Mr Dalglish and asked him whether he had lodged the original with the court.  Mr Dalglish advised him that he had not and requested that Mr Coles fax it away to the court for him at that time.  Mr Coles subsequently sent a covering letter to the Court saying it was lodged in his office by the relevant date and it had not been received by the Court and was now probably out of time.

Decision

1. The above facts tend to confirm that when Mr Dalglish went to enquire with the Departmental counter clerk, he was given the impression that his action was sufficient lodgement with the Court as well as any obligation to lodge with the Department.  The counter clerk confirmed with him that everything would be in order.

2. In current circumstances, I consider reasonable excuse has been established by the appellant.  This conclusion may have been otherwise if the appellant had merely left the form with the Department without making the enquiries of staff that he did.  In such case the Department would have properly considered the form was merely a copy required to be lodged with them as part of the appeal process.  (There are clear instructions on the back of Form 59 that the original is to be lodged with the Land Court at the address of the Court stated thereon.)   

Order

The Court has jurisdiction to hear the above appeals. 

BR O'CONNOR

JUDICIAL REGISTRAR