Ede v Chief Executive, Department of Natural Resources

[1999] QLC 132

[1999] QLC 132

 

LAND COURT

BRISBANE

21 DECEMBER 1999

Re:     Appeal against Annual Valuation

Valuation of Land Act 1944
  Valuation Roll No.:    1993  (AV99-575)

Francis RL and Jessie M Ede

v.

Chief Executive, Department of Natural Resources

DECISION ON JURISDICTION

Background:
This matter relates to a property located at 106 Stuartholme Road, Bardon, and described as Lots 92 and 93 on RP 20609, Parish of Enoggera.  The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the case in respect of an appeal against an annual valuation of the subject land at 1 October 1998, under the provisions of the Valuation of Land Act 1944.
           Mrs JM Ede appeared and gave evidence for the appellants.  Mr R Paterson, Principal Legal Officer, appeared for the respondent.

The Facts:

In order to understand the history of the appeal, the following chronology of events needs to be considered:

·   8 March 1999 – the Chief Executive issued a valuation of the subject at $197,500;

·   16 March 1999 – the appellants objected to the valuation;

·   23 March 1999 – the Chief Executive acknowledged the objection;

·   16 June 1999 – the Chief Executive issued a decision on the objection, amending the unimproved value to $190,000;

·   28 July 1999 – due date for lodgment of an appeal with the Land Court against the decision of the Chief Executive under s.55.

·   2 August 1999 – Notice of Appeal lodged by facsimile with the Registrar of the Land Court;

·   3 August 1999 – Notice of Appeal received by post in the Registry of the Land Court;

·   5 August 1999 – Land Court Registrar wrote to the appellants notifying that the appeal appeared to be out of time, and seeking advice within 21 days whether the appellants wished to continue the appeal;

·   26 August 199 – due date by which the Registrar was to be advised under s.57, whether the appellants proposed to seek to prove that the late receipt was as a result of undue delay in the mail;

·   31 August 1999 – advice to the appellants and the Chief Executive from the Registrar that no response had been received by the prescribed time, and the matter would be set down for hearing to determine whether the Court had jurisdiction to hear the merits of the matter;

·   26 October 1999 – notice from the Registrar notifying that the matter of jurisdiction would be heard in Brisbane on 11 November 1999;

·   11 November 1999 – hearing to determine jurisdiction.

Decision:

Before considering the events surrounding the lodgment of the appeal, I turn to the Valuation of Land Act.  I note that in respect of an annual valuation s.45(1) provides for a dissatisfied person to appeal to the Land Court, and s.45(2) states:

"(2)      Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 42 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive's decision upon the objection (which date of issue shall be stated in such notice)."

Any such appeal is to be lodged with the Registry of the Land Court under s.45(3), and the burden of proof is placed upon the appellants under s.45(4).  I note also that the procedure to start an appeal is covered by s.56, and the responsibility of the Land Court Registry and the owner in the late filing of an appeal is covered in s.57.  I note particularly s.57(1) which states:

57. (1)  Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by section 55(2), the registrar of the court shall notify the owner that, as the notice of appeal was not filed in the Land Court registry within the time prescribed by section 55(2), the appeal does not lie unless the owner -

(a)       proves to the satisfaction of the court that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post;

In the event that the owner satisfies the response to the Registry in respect of the timing of due responses; and to the Land Court that the failure to institute the appeal was the result of acceptable delays within the legislation, then the appeal shall lie, but otherwise under s.57(2) the appeal shall not lie.
           The due date for the lodgment of an appeal relates to a specified 42 days from the date of issue of the decision by the Chief Executive.  The right for an owner to appeal against the valuation is provided under s.42(1), which states that an owner may appeal within a statutory period "after the annual valuation notice is given to the owner".
           I consider now whether this Court has any power to extend that statutory period, and I note in JJ Bidner v. The Valuer-General (1992-93) 14 QLCR 88, where the learned Member found at p.93:

"          As has been noted in previous cases, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute.  It has no inherent jurisdiction.  Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature.  (See Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v The Valuer-General (1983) 9 QLCR 13, at 17)."

That was also found in KW Fry v. Commissioner of Water Resources (1986-87) 11 QLCR 92 in respect of the statutory period for lodgment; AJ and E Schirmer v. The Valuer-General (1974) 1 QLCR 144, in respect of other details missing on a Notice of Appeal; RG Ubank v. Queensland Housing Commission (1954-55) 25 CLLR 5, in respect of failure to meet the statutory time limits for lodgment of an appeal.
           The notice of the decision of the respondent on the objection in the current matter was issued to the owner on 16 June 1999.  The required statutory period for the lodgment of an appeal by the owner to the Land Court is therefore 42 days from 16 June 1999, or 28 July 1999.
           The Notice of Appeal was signed on 2 August 1999, following a discussion with the office of the Registrar.  It was then sent by facsimile to the Court on 2 August 1999, and the original Notice of Appeal was then forwarded by mail, and received in the Court on 3 August 1999.  Mrs Ede concedes that she had inadvertently overlooked sending in her appeal, as she had misplaced the letter from the Chief Executive for some time.  Mrs Ede also concedes that the reason for being late had nothing to do with any delays in the postal system, and relates only to her overlooking the matter.
           Once Mrs Ede was made aware of the need to get her appeal lodged with the Court, she had unfortunately concluded that there would be a period of about three days' grace within which she could lodge her appeal. 
           The respondent argues that s.45 of the Act is mandatory in its directions, seeking precedent in the decision of the Land Appeal Court in WM and TJ Fischer v. The Valuer-General (1990-91) 13 QLCR 129, at p.131. In that matter the appellants failed to lodge their appeal within the prescribed time, but, unlike the current matter, claimed that the delay in lodging the appeal was the result of delays in the ordinary course of mail delivery.
           The Land Appeal Court in that matter noted that delays in the mail may occur either at the beginning of the statutory appeal period, or at the end of it.  However, the Land Appeal Court also confirmed that it is a question of fact as to whether such delays had occurred.   In the circumstances of that matter the advice of the decision on the objection had been delayed some eight or nine days at the beginning of the appeal period, before being received by the appellants.  In that matter the Land Appeal Court accepted that there was a reasonable cause for the delay due to the delay in the mail, and allowed the appeal to be heard on its merits.
           In respect of the receipt of a facsimile copy of the Notice of Appeal on 2 August 1999 in the current matter, Mr Paterson has directed me to the decision of the President of this Court in Citypoint Pty Ltd v. Chief Executive, Department of Lands (1994-95) 15 QLCR 379, where the President said at p.382:

"          Under the Rules of this Court the registry is open to the public on all days not being Sundays or Public Holidays between the hours of 10 a.m. and 4 p.m. (Rule 5).  The registrar is required to keep a register of all matters entered for hearing before the Court (Rule 4) and documents are stamped showing the date of filing.  In order to activate the registry, a notice of appeal must get into the hands of the registrar or those officers under his control.  The manner in which a party may do this is prescribed in the Act (s.45) and may be effected personally, by post, by fax or by other means as provided for in the Rules.  However, a notice of appeal cannot move the registry (be filed) unless the Rules enable the registry to act upon it within the hours when the registry is open to the public."

It is not contested that the appellants failed to respond to the Registrar within the prescribed period of 21 days, and is accordingly also in breach of s.55(2) which states:

55.(2)   Except as hereinafter in this section provided, such an appeal shall not lie unless it is instituted within 42 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive's decision upon the objection (which date of issue shall be stated in such notice)."

Conclusion:
Having considered the evidence of the appellants and the chronology of the facts, I am not convinced that the appellants have satisfied the appropriate requirements of the Act in respect of their appeal.  They have neither satisfied the requirements of s.55(2) in that they did not lodge the appeal within 42 days of receipt of the issuing of the decision on the objection; and they did not respond to the requisition of the Registrar within a further 21 days in accordance with s.57(2).
           In respect of the responsibilities of the Registrar, I find that they have been effectively fulfilled, and there are no grounds for special circumstances which may excuse the appellants of their responsibilities.
           In this matter I note that it has been noted in previous cases, that the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute and there is no inherent jurisdiction.  Because it is a Court of limited jurisdiction, it must only assume jurisdiction within the specific authorities of the legislation.  This was determined, for example, in Bidner v. The Valuer-General (supra), where the learned Member said at p.93:

" The practical consequence for the appellant is that the Court only has jurisdiction to hear the appeals if section 21 of the Valuation of Land Act 1944 confers that jurisdiction. The requirements of section 21 are mandatory and constitute conditions precedent to the jurisdiction of the Court."

In that matter the form of the Notice of Appeal was covered in old s.21 (now s.55 to s.68 of the Act). It was held that the appeal did not comply in all respects with the requirements of the Act. It was also found in City of Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. The Valuer-General (supra), where the learned President said at p.17:

"          The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed.  It has no inherent jurisdiction.  It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction and in the manner in which the Legislature authorises it to do so."

Clearly, as noted by previous cases, this Court has no power to ignore the directions of the Act in this matter.  In the matter of whether the Court can proceed with the appeal, I note in particular that s.58(3) directs that:

"… the Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular …"

I note also that in the event of any issue of any requisition against any defect, the Land Court shall also not proceed to hear the appeal unless that requisition is fully complied with.
           I therefore find that I have no jurisdiction to hear this matter, and the appeal is found to not lie with the Court.  The appeal is struck out for want of jurisdiction.

NG DIVETT
MEMBER OF THE LAND COURT