Edgecrest Pty Ltd, Harfern Pty Ltd and Lake Leo Pty Ltd as TTE and Aspenlane Pty Ltd v Department of Natural Resources, Mines and Water
[2006] QLC 34
•13 June 2006
LAND COURT OF QUEENSLAND
CITATION: Edgecrest Pty Ltd, Harfern Pty Ltd and Lake Leo Pty Ltd as TTE and Aspenlane Pty Ltd v Department of Natural Resources, Mines and Water [2006] QLC 34 PARTIES: Edgecrest Pty Ltd, Harfern Pty Ltd and Lake Leo Pty Ltd as TTE
(applicant)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)Aspenlane Pty Ltd
(applicant)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)FILE NOS.: AV2005/1829 and AV2005/1851 DIVISION: Land Court of Queensland PROCEEDING: Decision on jurisdiction DELIVERED ON: 13 June 2006 DELIVERED AT: Brisbane HEARD AT: Coolangatta MEMBER Mrs CAC MacDonald ORDER: The Land Court has jurisdiction to hear and determine the appeals. APPEARANCES: Mr RJ Goldstein for the appellants
Mr W Isdale, Crown Law, for the respondent
Background
The appellants in these two matters have appealed against the determination by the Chief Executive, Department of Natural Resources, Mines and Water (the respondent) of the unimproved value of their land as at 1 October 2004. This decision deals with a preliminary issue only, namely whether the Land Court has jurisdiction to hear and determine the appeals.
The statutory processes concerning annual valuations of land in Queensland are set out in Part 4 of the Valuation of Land Act 1944 (the Act). Section 42 provides that an owner who is dissatisfied with the valuation of her or his land may, within 42 days after the annual valuation notice has been given to the owner, object in writing against the valuation. Section 43 requires the Chief Executive to consider the objection and decide whether to disallow or allow the objection.
Section 45(1) provides that -
"45.(1) An owner who has objected pursuant to section 42 against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court against the valuation.
(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).
(3) An appeal shall be instituted by filing a notice of appeal in the Land Court registry.
(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.
(5) Such notice shall also state the amount which in the opinion of the appellant should be the valuation of the subject land.
(6) The appellant shall serve a copy of the notice of appeal on the chief executive not later than 7 days after the notice is lodged in the Land Court registry.
(9) Sections 57 to 68 and section 70 apply, with any necessary changes, to an appeal under this section.
(10) …"
The evidence indicates that, following receipt of the valuation notices for 1 October 2004, the appellants duly sent objections in writing to the respondent. The respondent's decisions on the objections were issued on 5 April 2005. By letter dated 10 May 2005, a Mr RJ Goldstein forwarded Notices of Appeal against the valuations to "The Director General, Department of Natural Resources and Mines", at the Gold Coast. The letter was faxed on 10 May 2005, and also sent by post on that day, the latter being received at the Gold Coast office of the respondent on 11 May 2005.
Mr Goldstein was acting on behalf of the appellants and gave evidence on their behalf at the hearing of the jurisdiction point. Mr Goldstein concluded his letter accompanying the Notices of Appeal as follows:
"Accordingly I enclose the Notices of Appeal and request the matter be referred to the Land Court for further action."
It is to be observed that Mr Goldstein's letter was received at the latest by the respondent on 11 May 2005, which date was well within the 42 days prescribed by s.45(2). However the appellants did not comply with s.45(3) because the Notices of Appeal were not filed in the Land Court registry.
On 1 June 2005, an officer of the Department of Natural Resources, Mines and Water wrote to Mr Goldstein advising him that it was not the responsibility of the department to lodge the notices in the Land Court on the owners' behalf.
It appears that Mr Goldstein did not lodge the appeals in the Land Court. His evidence was that, by the time he received the letter of 1 June 2005 from the department, he realised that the 42 days allowed by s.45(2) of the Act for lodging an appeal in the Court had elapsed.
Subsequently, by letter dated 15 November 2005 and received by the Land Court on 17 November 2005, the Notices of Appeal were sent by an officer of the department to the Registrar of the Land Court.
The respondent has submitted that the Land Court has no jurisdiction to hear and determine the appeals because the Notices of Appeal were received in the Land Court registry after the 42 days specified in s.45(2) of the Act.
Section 57 of the Act applies to these appeals by virtue of the operation of s.45(9). Relevantly, s.57 provides –
"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.
(2) If the owner satisfies the court under subsection (1), the court may hear and decide the appeal."
In this case, Mr Goldstein mistakenly sent the Notices of Appeal to the Gold Coast office of the department despite the fact that page 2 of the relevant form (Form 59) clearly states that the Notice should be sent to the Land Court Registrar in Brisbane. If that were all that had occurred, I would not have considered that the appellants had a reasonable excuse for filing the notice after the time stated. However, Mr Goldstein, in his letter to the department, expressly asked that the matter be referred to the Land Court for further action. He received no reply to that request until after the time for filing the Notices of Appeal in the Land Court had expired. In my opinion, it was reasonable for Mr Goldstein to expect that his request that the matter be referred to the Court would be complied with promptly, or alternatively that he would be advised promptly that it would not be complied with. Prompt advice would have enabled him to correct his mistake and file the Notices of Appeal in the Land Court registry by the due date, 17 May 2005. Mr Goldstein's subsequent failure to lodge the appeals immediately after he received the departmental letter of 1 June is also explicable for good reason.
In the circumstances, I am satisfied that the appellants had a reasonable excuse for filing the Notices of Appeal after the 42 day period. I consider therefore that the Court has jurisdiction to hear and determine the appeals.
ORDER
The Land Court has jurisdiction to hear and determine the appeals.
CAC MacDONALD
MEMBER OF THE LAND COURT
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