Dean v Department of Natural Resources and Mines

[2006] QLC 7

LAND COURT OF QUEENSLAND

CITATION:	Dean & Ors v Department of Natural Resources and Mines   [2006] QLC 7
PARTIES:	Paul Dean, Arthur Biesiada, Jiann Yan Lo and Hollie Jane Stevens (appellants)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NOS:	AV2005/0436
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation.
DELIVERED ON:	16 February 2006
DELIVERED AT:	Brisbane
HEARD AT:	Heard on the papers
MEMBER:	Mr PA Smith
ORDERS:	The Court has jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse.
APPEARANCES:	Mr P Dean for the appellants Mr M Schipper, Senior Valuer, for the respondent

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged two days after the due date. Section 57 of the Valuation of Land Act1944 ("the 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 s.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 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. This matter was conducted, with the agreement of the parties, on the papers.  The appellants reside in Pasadena, California, USA.  Sufficient material has been provided by the parties to allow me to reach a decision on jurisdiction.

2. From the material, there is no contest on the facts, which can be summarised as follows:

   ·The decision on objection was issued on 14 June 2005 and posted to the appellants' address in Pasadena, California, USA.

   ·Mr Dean, on behalf of the appellants, had not received the decision on objection at his address as at 14 July 2005

   ·Between 15 July and 22 July, 2005, Mr Dean was absent from his address as he was interstate.

   ·On 22 July, 2005, Mr Dean returned to his Pasadena address and received the decision on objection.  That same day, Mr Dean completed a Notice of Appeal (Form 59) and posted it via registered air mail correctly addressed to the Registrar of the Land Court

   ·The Land Court holds the original envelope air mailed by Mr Dean.  It bears a United States Postal Service  notation showing that it was posted on 22 July 2005.

   ·The last day for filing of an Appeal was 26 July 2005.

   ·The Land Court received the Notice of Appeal on 28 July 2005.

Submissions

1. Mr Dean submits for the appellants that it has not been either party's intention to delay beyond a reasonable timeframe.  He argues that his response was very proactive.  He says that the decision on objection took 30 days out of the appeal period of 42 days to reach him, and that his Appeal was immediately submitted.  He also points out a time period in which mail from this Court has reached him (14 days) to show that international mail does take time.  He further states that he regularly receives mail with varying arrival dates compared with dates on the correspondence.

2. Mr Dean also refers to United States law which he says refers to the actual date of postage, with independent postal markings proving date of postage, rather than to arrival date.  Mr Dean concedes that the law is different in Australia.  Of course, it must be remembered that the appropriate date at the end of the appeal period is the date for filing in the Land Court.

3. Mr Schipper for the respondent, in his written submissions, does not accept the circumstances of this matter as amounting to a reasonable excuse.  He argues that the appellants successfully objected during the 42 day time period using the same mail system, and says that the appellants' failure in this matter has been to not be "at the address recorded in QVAS given to NR & M by the owner". 

Conclusion

1. I now turn to the crux of this matter. Do the circumstances surrounding the appellants instituting their appeal, and ultimately appealing out of time, amount to a "reasonable excuse" pursuant to s.57 of the VLA?

2. Unfortunately, the submissions of both parties fail to refer to any legal precedent with respect to the circumstances in this matter, save for the appellants' general reference to United States postal law, which the appellants correctly concede is not relevant to the instituting of the appeal in this jurisdiction.

3. There area number of relevant Land Court authorities which include consideration of postal delays.  I note in particular Roberts v. Chief Executive, Department of Natural Resources, (1997-98) 17 QLCR 198; Zolgaze Pty Ltd v. Chief Executive, Department of Natural Resources and Mines, 22 August 2001; and Bromet & Anor v. Department of Natural Resources and Mines, [2005] QLC 0063.

4. The Roberts decision chiefly concerns the issue of a postal delay in the receipt of the decision on objection by the appellants, resulting in the appeal being instituted late.  At the time of the decision in Roberts, the VLA contained more stringent circumstances where a late appeal could proceed, specifically relating to undue delay in the ordinary course of the post.  In that case, President Trickett found that the delayed receipt of the decision on objection was a cause of the failure to institute the appeal in time.  The Land Court was found to have jurisdiction to hear the appeal.

5. In Zolgaze  the issue of a delay in receipt of the decision on objection was considered.  In that case, although Judicial Registrar O'Connor found for other reasons that a reasonable excuse had been established, he found that the delay in the post did not amount to an inordinate delay given the circumstances of that case. 

6. In Bromet, Judicial Registrar O'Connor considered whether an appeal is instituted in the Land Court at the time it is posted or when it is received in the Land Court registry. Judicial Registrar O'Connor found, correctly in my view, that an appeal is instituted when it is received in the registry.  However, after considering the anticipated delivery times for the post, Judicial Registrar O'Connor found that the appeal should have been received in the expected delivery time of the post within time, and accordingly that a reasonable excuse had been established.

7. In the matter under consideration, I have no evidence to contradict that given by the appellants.  Indeed, the appellants' contentions are supported by postal markings on relevant envelopes.  In my view, there was a delay in the receipt of the decision on objection by the appellants.

8. Further, as soon as the appellants became aware of the decision on objection, immediate steps were undertaken to forward an appeal that same day by registered Air Mail to the Land Court.

9. In all the circumstances of the current case, I am prepared to find that a reasonable excuse can be made out.  The appellants in the circumstances have acted as reasonably and quickly as could be expected.

Order

1. Having considered the tests outlined in the authorities and the facts in those cases, I conclude that a reasonable excuse has been established in the circumstances of the present case.  Accordingly, I find that the court has jurisdiction to hear the appeal.

P A SMITH

MEMBER OF THE LAND COURT