Director-General, Department of Transport v Congress Community Development and Education Unit Limited
[1998] QLAC 70
•25 June 1998
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Re: A97-09
An appeal from a decision of the Land Court - Determination of Compensation
Application to extend time to lodge and serve a Notice of Appeal
Director-General, Department of Transport
Appellant/Respondent
v.
Congress Community Development and Education Unit Limited
Respondent/Claimant
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 25 June 1998
The applicant seeks leave to appeal out of time. Judgment in this matter was pronounced in the Land Court on 13 March 1998. The appeal period thus expired on Friday, 24 April 1998. The notice of appeal was lodged and served on Monday, 27 April 1998.
The relevant provision of the Land Act
Section 44(11)(d) of the Land Act 1962 relevantly provides: “(d) Where it appears to the Land Appeal Court that -
(i)within the time prescribed by paragraph (a) that is applicable to the particular case -
(A) the notice of appeal was not served on another party on whom it is required to be served;
(B) a copy of the notice of appeal was not lodged with the Registrar; or
(C)the prescribed fee was not paid to the Registrar,
but that the notice was served, the copy of the notice lodged or the fee paid not later than 28 days after expiration of the time prescribed, and the appellant satisfies the Land Appeal Court that there is a reasonable cause or explanation for the lateness of the service, lodgment or payment ...
the appeal shall lie notwithstanding any Act, law or practice and, where the Land Appeal Court determines that the appeal so lies, such determination is final and not subject to appeal.”
The question for determination by the Court is whether, in this case, there “is a reasonable cause or explanation for the lateness of the service, lodgement (and) payment”.
The facts relied on to support the application
A solicitor employed by the Crown Solicitor, who has legal carriage of the matter on behalf of the applicant, deposes to the following -
That at a conference with counsel on 6 April she received verbal instructions to lodge and serve a notice of appeal;
On 9 April 1998 she received a draft notice of appeal from counsel.
About a week after the decision she calculated the last date for lodgment of the appeal and wrote that date in her diary.
On 14 April 1998 she spoke to counsel over the telephone and arranged to confer with him to settle the notice of appeal.
She was given a revised draft notice of appeal by counsel at his chambers on 15 April 1998. On returning to her office she gave the draft to her secretary and requested her to type it. She also gave instructions to her secretary that the appeal period expired on 24 April 1998.
On Wednesday 22 April 1998 she included the lodging and serving of the notice of appeal in a list of “things to do”. It was her standard practice to write a list of tasks on a piece of paper each day and then to make notes as each matter was attended to. Her practice included transferring incompleted tasks each day from the old sheet to a new sheet.
She realised that she had failed to lodge and serve the notice of appeal at approximately
7.30 a.m. on Saturday, 25 April 1998. She then took immediate steps to ensure that the notice of appeal was ready for lodgment. She ensured that it was lodged at 9.15 am on Monday, 27 April and served forthwith thereafter.
Throughout the period in question she had been extremely busy on other matters and, in particular, was heavily involved in proceedings concerning a native title claim. On some of the days in question she worked between 12 and 14 hours a day with the result that she was exhausted and distracted from complying with her normal procedures.
The meaning of “reasonable cause or explanation”
In Union Fidelity Trustee Company of Australia Limited v The Coordinator General (1988-89) 12 QLCR 153, the Land Appeal Court considered the meaning of the words “reasonable cause or explanation” at some length. In the course of their reasons the members of the Court referred, in particular, to three decisions. The first was Stevens v Motor Vehicle Insurance Trust (1978) WAR 232 (FC). In that case the Supreme Court of Western Australia considered an application under a section of the Fatal Accidents Act (WA) which permitted the Court to give leave to bring an action out of time. The Court had power to grant the application if it considered that the delay in bringing the action “was occasioned by mistake or by any other reasonable cause ...”. Burt CJ (with whose judgment the other two members of the Court agreed) said at 235-
“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 might be expected to delay the ‘taking of action’ by a reasonable man (see Quinlivan v Portland Harbour Trust (1963) VR 25 at 28 per Sholl J).”
The second case referred to was Quinlivan. In that case a prospective plaintiff sought leave to bring proceedings notwithstanding that a notice of intention to bring the action had not been given within the prescribed time. The Court had power to give leave for the action to be brought
if satisfied that failure to give the notice within time “was occasioned by mistake or by any reasonable cause”. Sholl J said at 28-
“I then turn to what seems to me quite a different question, namely, whether the applicant had reasonable cause for the omission to give the notice in this case, or, to put it, perhaps, more accurately, whether the failure to give the required notice was occasioned by any reasonable cause. One asks at once: ‘reasonable in what sense?’
I think the sub-sections means to refer to cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.”
His Honour found that “reasonable cause” existed where the applicant had entrusted the matter to a solicitor of seeming competence who failed to advert to the time limitation in the relevant statute. I note that in Denning v The Council of the City of Ipswich (1988-89) 12 QLCR 171 the Land Appeal Court held that a failure to serve a notice of appeal within time resulting from an erroneous view of the law by the appellant's solicitor was within the scope of “reasonable cause or excuse”.
The third case to which the members of the Court made reference was Pascoe v The Nominal Defendant (Qld) No. 2 [1964] Qd R 373 at 378 in which Mansfield CJ said-
“What is to be determined is whether the applicant has shown any cause which can be deemed by the court to be a reasonable excuse. I think this means cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.”
In R v Tawill (1974) V.R. 84 (F.C.) the Court considered the meaning of the words “without reasonable excuse” in section 233B(1)(c) of the Customs Act 1901-1971. Winnecke C.J., who delivered the judgment of the Court, said at 88 -
“The words ‘without reasonable excuse’ are words of wide import. We see no reason why defences, answers, justifications or excuses recognised by the established principles governing criminal responsibility, such as absence of mens rea, mistake, insanity, infancy or duress, do not fall within the ordinary grammatical meaning of those words.”
The view that such words should not be given a narrow meaning was also expressed by Kirby P in Ganim v NSW Crime Commission (1993) 32 NSWLR 423 at 436.
In Poole v Wah Min Chan (1947) 75 CLR 215 at 232 Starke J, referring to s.233 of the
Customs Act 1909-1932 said -
“In my opinion, therefore, the provisions of s.233 are absolute unless the person in possession of prohibited goods can establish that he was in possession thereof under some lawful authority or was in possession thereof having some reasonable excuse for that possession ... A reasonable excuse depends upon the facts established in evidence. The sub-section contemplates that the person in possession of the prohibited imports may not establish any legal justification for their possession and yet may have a reasonable excuse.”
It may thus be seen that the words “reasonable excuse” do not equate with “lawful excuse”. See also Von Doussa v Owens (No 1) (1982) 30 SASR 367 at 379.
The words “without reasonable excuse” in section 10(1) of the Securities Industry (Victorian) Code (which relate to a direction under section 8 to produce materials by the relevant statutory authority) have been interpreted as being referable to matters “such as the physical or practical difficulties which may be involved in their production”. Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1984) 156 CLR 385 at 392; Australian Securities
Commission v Ampolex (1995) 18 ACSR 735 at 748 and 756.
In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself or its agents) be blameless. The expressions under consideration are broad in meaning and quite apt to cover a “slip” of the nature of that made by the employee of the Crown Solicitor. One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of sub-sections 44(11)(a) and (b). c.f. Bull v Attorney-General (NSW) (1913) 17 CLR 370.
Whether there was a reasonable excuse for the applicant's delay
Here lodgment took place early on the first business day after the last day for lodgment. As has been observed, service was then promptly effected. The delay was thus slight. The applicant, by its agent, the Crown Solicitor, had put in train processes designed to effect the lodgment and service of the notice of appeal prior to the expiration of the period limited for appeal. The matter was entrusted to a solicitor in the Crown Solicitor's office who took normal steps towards ensuring the carrying out of the Crown Solicitor's instructions. She had procedures in place with a view to ensuring that time requirements such as lodgment dates were not exceeded. Those procedures miscarried in the circumstances explained above. A combination of pressure of work, physical tiredness, inexperience and, possibly, bad luck, combined to cause the appeal deadline to be missed. It must also be said that the check system employed was somewhat rudimentary in nature. Nevertheless, taking all these matters into consideration, it is my view that there is a reasonable explanation for non-compliance.
Meanings for the expression “reasonable cause” and “reasonable excuse” given in the authorities referred to above cannot displace the actual words in subsection (11)(d) nor provide alternative statutory tests. Those authorities though, offer assistance in an assessment of whether any given conduct satisfies the statutory test but each application must be considered on its own merits and by reference to its own facts. In my view, the conduct discussed above is consistent with a reasonable standard of conduct. It is the kind of thing which might be expected to delay the “taking of action by a reasonable man”. An excuse is not necessarily unreasonable because the maker of the excuse has made a mistake or omitted to do something through an oversight or misapprehension as to a question of fact or law.
Having regard to the conclusion reached by me I have not found it necessary to consider whether, on an application such as this, the applicant is necessarily fixed with his agent's conduct to the extent that the agent's conduct is in all respects to be treated as that of the applicant. I merely note that there is persuasive authority which supports a more flexible approach. See,
Quinlivan (supra), Coulson v Dunne (1966) Tas SR (NC) 292 and the cases collected by Sangster J in Mavra v Logan (1980) 24 SASR 567.
Does the Court have power to extend time where none of the requirements of s.44(11)(a) and (b) have been met?
It was argued on behalf of the respondent that it was not within the Court's power to extend time as the applicant had not complied with any of the requirements of s.44(11)(a) and (b) of the Land Act 1962 in that -
(i)the notice of appeal was not served on the respondent until 46 days after the pronouncement of the Land Court decision;
(ii)a copy of the notice of appeal was not lodged with the Registrar until 45 days after the pronouncement of the decision;
(iii)the prescribed fee was not paid until 45 days after the pronouncement of the decision.
It was submitted that s.44(11)(d) permitted the extension of time when the appeal is defective either because there has been a failure to serve the notice of appeal on the necessary party or a failure to file or a failure to pay the appropriate fee within the time prescribed but not where none of those steps towards the perfection of the appeal process has been taken within the prescribed time. In my view, paragraph (d), in referring to defects in service lodgment or payment of filing fees, does not purport to impose any limitation of the type urged by the respondent. The paragraph simply introduces the three obvious forms of breach as part of the process of prescribing the manner in which any such breach may be excused. The provision is a remedial one and should not be given a restrictive meaning. Bull v Attorney-General (NSW) (1913) 17 CLR 370. Clearly, in my view, the word “or” where it appears between sub-paragraph
(B) and (C) of paragraph (d) means “and/or”. To give the provision the meaning asserted by the respondent would be to deprive the provision of any application in the great majority of cases of
non-compliance with the requirements of section 44(11). A like conclusion was reached in the
Union Fidelity Trustee Company case (supra).
I would allow the application.
I would order that the applicant pay the respondent's costs of and incidental to the application and in accordance with s.44(16) of the Land Act 1962, the costs be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court.
MUIR J JUSTICE OF THE SUPREME COURT
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