Devine Nominees Pty Ltd v Chief Executive, Department of Environment and Resource Management

Devine Nominees Pty Ltd has applied for the Court to hear an appeal against the Chief Executive of the Department of Environment and Resource Management. The issue for determination is whether the Court has jurisdiction to hear an appeal where the notice of appeal was filed six weeks out of time. The key dates in question are the Chief Executive's decision on objection, made under section 43 of the Valuation of Land Act 1944 (VLA), which was notified to the applicant on 17 February 2009, and the applicant's right of appeal under section 45 of the VLA, which expired on 31 March 2009. The applicant's legal representatives claim that the notice of decision on objection was never received by them, but they enquired of the Department on 3 April regarding the notice. A further notice was sent to the applicant on 3 April with the original date of issue of 17 February. The purported appeal was not filed in the Land Court Registry until 14 May 2009.

The specific issues that the court had to decide were whether the decision on objection was received by the applicant's solicitors shortly after the date of issue of 17 February 2009, whether the applicant can claim that the conduct of its agents should not be attributed to it, and whether the applicant's subsequent conduct in not lodging the appeal for some 42 days from its claimed awareness was reasonable in all the circumstances. The court found that the notice of objection decision was received by Deacons, the applicant's solicitors, within a reasonable time of its being sent by the Department. The court also found that the applicant's conduct falls within the second limb of the Trust Company decision and was reasonable until such time as it became aware that the appeal had not been lodged. The court held that it was reasonable for the applicant to take 42 days from the date of the apparent receipt of notice by the owner to lodge the appeal.

The court concluded that reasonable excuse has been established and that the Court has jurisdiction to proceed with this appeal. The final orders are that the Court has jurisdiction to hear the appeal.