Elsmore, Gould v Chief Executive, Department of Natural Resources

[2000] QLC 8

[2000] QLC 8

 

 

LAND COURT

BRISBANE

22 FEBRUARY 2000

Re:     Appeals against Annual Valuations

Valuation of Land Act 1944
  Valuation Roll Nos. 34440; 32804; 40698;

40758; 40693; 40700; 40765; 40705; 40670;

40720; and 40711.

Local Government:  Pine Rivers and Caboolture

Christopher Elsmore

(AV99-1217)

Leslie J and Dorothy V Gould

(AV99-1218)

Robin L and Patricia L Blackman

(AV99-1219)

Julian R and Deborah A Lord

(AV99-1220)

Jo-Ann B Middlebrough

(AV99-1221)

John R Heinemeyer

(AV99-1222)

John L and Patricia Chambers

(AV99-1223)

Frank G and Joan M Bowman

(AV99-1224)

Ronald Verwer and Saskia E Verwer De Age

(AV99-1225)

Bernard K and Nita J Campbell

(AV99-1227)

Colin J and Victoria J Kessels

(AV99-1228)
v.

Chief Executive, Department of Natural Resources

(Hearing at Caboolture)

D E C I S I O N    ON   JURISDICTION

Background:
These 11 matters relate to properties at 13 Areca Court and 34 Pioneer Drive, Narangba; 2, 3, 7, 20, Lot 31 Moore Road; 8 Forbes Road; 8 McCormack Road and Lot 14 and No. 14 Browns Road, Kurwongbah, Parishes of Burpengary and Whiteside.  The 11 matters are part of a group of appeals by members of a concerned citizens' action group called the "Citizens Rally against Superquarries Haulage".  The matters before the Court relate to the preliminary questions of whether the Court has jurisdiction to hear the merits of the matters in respect of appeals against annual valuations at 1 October 1998 under the Valuation of Land Act 1944. With the agreements of all parties the 11 matters were heard concurrently. Mr John R Heinemeyer represented and gave evidence for the appellants. Mr J O'Rourke, Legal Officer, Department of Natural Resources, appeared for the respondent.
The Facts:
In order to understand the history of the appeals, the following chronology of events needs to be considered -

·22 March 1999 – the Chief Executive issued valuations on all 11 properties.

·14, 15, 21, 22, 29 and 30 April 1999 – the 11 appellants objected the valuations.

·4 May 1999 – due date for lodgment of objections.

·15 June 1999 – the Chief Executive issued a decision on the objection by Elsmore confirming the unimproved value at $55,500.

·28 June 1999 – the Chief Executive issued a decision on the objection by Gould confirming the unimproved value at $52,000.

·26 July 1999 – the Chief Executive issued decisions on the remaining objections confirming the unimproved values for Blackman ($143,000), Lord ($75,000), Middlebrough ($125,000), Heinemeyer ($134,000), Chambers ($88,000), Bowman ($67,000), Verwer ($132,000), Campbell ($134,000) and Kessels ($94,000).

·27 July 1999 – due date for lodgment of an appeal to the Land Court for Elsmore.

·9 August 1999 – due date for lodgment of an appeal to the Land Court for Gould.

·14 August to 1 September 1999 – 10 of the appeals (Form 59) signed by the appellants.  One appeal (Blackman) was forwarded unsigned to the Land Court.

·1 September 1999 – letter from the "Citizens Rally against Superquarries Haulage" Committee addressed to the Land Court advising that Mr John Heinemeyer would be representing 14 group action appeals in respect of the current 11 appellants, plus S Tooke, R & C Harvey and S Tupper.  The appeal by S Tupper was subsequently withdrawn, and the appeals by Tooke and Harvey both satisfied the time constraints of the Act, and are not part of this hearing in respect of jurisdiction.

·3 September 1999 – receipt for postal items despatched from the Narangba Post Office.

·6 September 1999 – due date for lodgment of an appeal to the Land Court for the remaining nine appellants.

·8 September 1999 – appeals in respect of the 11 appellants received in one envelope by the registry of the Land Court, together with the covering letter of 1 September 1999 in respect of the group action.

·13 September 1999 – Land Court registrar wrote separately to the 11 appellants notifying that the appeals appeared to be out of time, and seeking advice within 21 days whether the appellants wished to continue the appeals.

·16 September 1999 – responses received from Heinemeyer and Middlebrough advising that they would seek to satisfy the Court that failure to meet the due date for lodgment of the appeals was caused by undue delays in the transmission of mail in the ordinary course of post.

Similar responses were received from Gould and Campbell (22/9/99), Blackman (24/9/99), Kessels (29/9/99), and Chambers (30/9/99).  There were no responses from Elsmore, Lord, Bowman or Verwer.

·Advice from the registrar to the appellants, and copies to the respondent, acknowledging the appellants' responses for Heinemeyer and Middlebrough (17/9/99); Blackman (28/9/99); Gould, Chambers, Campbell and Kessels (1/10/99).  Elsmore, Lord, Bowman and Verwer were advised on 7 October 1999 that no responses had been received.  All 11 appellants were also advised that the matters would be set down to determine whether jurisdiction lay with the Court.

·4 October 1999 – due date for lodgment of responses to the registrar.

·1 November 1999 – notice from the registrar notifying that the matters of jurisdiction (11) would be heard in Caboolture on 25 November 1999.

·25 November 1999 – hearing to determine jurisdiction.

Decision:

Before considering the events surrounding the lodgment of the appeals, 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 after 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.45(2), which states that an owner may appeal within a statutory period "after the date of issue 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)."

A similar finding 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.
In the circumstances of the current matters, I turn first to the matter of the unsigned appeal form 59 for Blackman. I note that s.6 (Notice of Appeal) of the Valuation of Land Regulation 1993, directs that a Notice of Appeal is to be in the prescribed form. The approved "Notice of Appeal to the Land Court against a Determination of the Chief Executive" (Form 59) requires, for the appeal to be valid, that it be signed by the owner, owner's solicitor or authorised agent. On first reading, the lack of a signature on the Form 59 would appear to be contrary to the directions of the legislation.
           However, this Court also has a signed letter of authority from Robin and Patricia Lois Blackman of 8 November 1999, authorising Mr John Heinemeyer to represent them in their appeal.  In considering the meaning of that letter of authority, I understand it to mean that those appellants have sanctioned and approved, within the context of the Valuation of Land Act, for Mr Heinemeyer to represent their interest in their appeal, a circumstance regularly exercised in this jurisdiction.  (Strouds Judicial Dictionary 4^th Edition, p.233).
           The Valuation of Land Act is very specific in respect of how the Notice of Appeal for an annual valuation is to be completed in the matters of the grounds of appeal (s.45(4)); and the amounts appealed for (s.45(5)); but makes no direction in respect of how the appeal forms shall be authorised.  The only direction in that respect lies in s.6 of the Valuation of Land Regulations.
           It is Mr Heinemeyer's testimony that he has verbal and written authority to represent Mr and Mrs Blackman in this matter.  There is also the letter of 1 September 1999 from the action committee to that effect.  In line with common practice in this Court it could have been legal for Mr Heinemeyer to have signed the appeal form on the Blackmans' behalf.  As the matter was not challenged by Mr O'Rourke, I intend therefore to accept the Blackmans' appeal as meeting the requirements of the Act in respect of that component.
           I then turn to the matter of the non-appearance of Mr and Mrs Verwer; and the lack of any written letter of authority from them for Mr Heinemeyer to act as their agent.  It is Mr Heinemeyer's testimony that Mr Verwer was under a misunderstanding that he was to attend a preliminary conference in January 2000.  Mr Verwer apparently had concluded such a scenario, because several other appellants (Tooke and Harvey) had been given that understanding by officers of the respondent.  However, Mr Verwer, who had never appeared in this Court previously, was unclear about the question of jurisdiction in the current matters.
           Mr Verwer was also of the understanding that Mr Heinemeyer was representing the group, as outlined in the letter of 1 September 1999.  Mr Heinemeyer argues that had Mr Verwer realised the significance of an appearance at the current jurisdictional hearing, he would have supplied a written authority to that effect.  In the absence of any challenge on this matter from Mr O'Rourke, I will accept that Mr Heinemeyer is also acting for the Verwers.
           That then leads to the matter of any confusion in communication between the action committee, and the registry of the Land Court, in respect of the letter of 1 September 1999.  The action committee in that letter sought advice in respect of how the committee might process a joint hearing, and any protocol procedures that needed to be met.  The committee also sought advice as to whether other appellants could be joined in a common hearing at a later date.  Any arrangements to concurrently hear a group of similar appeals in the same locality, would be a matter for consideration by the Court when those matters are set down for hearing.
           The registry of the Land Court did not respond to the committee, but contacted each appellant individually, in accordance with its policy of dealing with appellants through the official postal address for service of notice on the appeal Form 59.  In hindsight, it may have clarified the communication lines had the registrar responded by letter to the action committee seeking clarification of the correct postal address for the service of notices, rather than the individual addresses supplied by each appellant.  However, in the context of the service addresses supplied to the Land Court, and the time constraints imposed by the Act, the registry acted correctly in dealing individually with each appellant.
           There is also the matter of whether the appellants supplied copies of their Notices of Appeal to the Chief Executive within seven days in accordance with s.56(4) of the Act.  While Mr Heinemeyer could not recall whether such copies had been despatched, there was no evidence that they had not been sent as required.  I also note that under s.60, failure to supply copies to the Chief Executive by the appellant, is not grounds to effect jurisdiction, although any adjournment of the Court occasioned by that failure, may result in an order for costs in favour of the Chief Executive.  The purpose of s.60 is to ensure that the Chief Executive is fully informed of the grounds of appeal.  Mr O'Rourke has made no such request for an adjournment, and the matter of whether copies were supplied to the Chief Executive is not a matter for this Court on this occasion.
           Mr O'Rourke argues that s.45 and s.57 of the Act are mandatory in their directions, in that they stipulate that an appeal shall not lie with the Court unless all of the conditions of those sections are fully complied with.  The Act uses the imperative word "shall" in its directions, and not the more flexible word "may".  Precedent in these matters has long been established, and I note the findings of the Land Appeal Court in WM & 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, claiming 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.
           I then turn to the initial question of whether the appellants satisfied the requirements of s.45(2) of the Act.  I note that none of the appeals were received by the Land Court within 42 days of the issuing of the decision, nine of which were due by close of business on Monday, 6 September 1999.  All of the 11 appeals were not received by the Land Court until Wednesday, 8 September 1999.  Two of the appeals, Elsmore (due 27 July 1999), and Gould (due 9 August 1999) were also received on 8 September 1999, some 43 days and 30 days respectively after the due dates.  There were no reasons given for the very late delays for Elsmore and Gould, other than that the committee had mistakenly assumed that the due date for lodgment of the appeals were the same for all 11 matters.
           I consider then whether the individual appellants satisfied the requirements of s.57(1)(a) in respect of their response to the registrar about why the appeals had arrived out of time.  I note that Elsmore, Lord, Bowman and Verwer have not responded at all.  In accordance with directions in s.57(2) I find that those four appeals are in contravention of the Act, and the appeals are found to not lie.  Each of the remaining seven responses were received by the registrar prior to the due date for response on 4 October 1999, and are found to satisfy s.57(2)(a) of the Act.  However, the owner is also required to satisfy s.57(2)(b) which states that the owner must:

"(b)      proves to the satisfaction of the Land Court that the failure to institute the appeal within the time prescribed by section 55(2) was caused by undue delay in the transmission of mail in the ordinary course of post;"

In the matter of Gould I find that there is no persuasive argument that a delay of 30 days could represent a delay in the ordinary course of post.  For that reason I find that the Gould appeal has not satisfied the requirements of the Act.  In the remaining six appeals (Blackman, Middlebrough, Heinemeyer, Chambers, Campbell and Kessels) I find there are some grounds for further consideration of the evidence.
           I turn then to the document supplied and note that Mr Heinemeyer's evidence is that he personally posted the envelope containing the 11 Notices of Appeal from the Narangba Post Office about 2.30 p.m., Friday, 3 September 1999.  The blurred postage date of receipt by Australian Post is consistent with that date.  It is also Mr Heinemeyer's evidence that he purchased a large manilla envelope at the same time for despatching the appeals, and he supplies a receipt for those payments on 3 September 1999.  A statutory declaration by Mr Graham Norman Williamson, the licensee of the Narangba Post Office, supports that statement.
           The envelope forwarded to the Land Court also has two Australia Post date stamps.  One notes that the Land Court address was "not Albert Street Private Boxes", and the second records the "Private Box Section" on 6 September 1999.  Both of those Australia Post notations support Mr Heinemeyer's conclusion that there was likely to have been some confusion by Australia Post of mail destinations in Brisbane.
           It is also Mr Heinemeyer's evidence that mail posted from Narangba to Brisbane is usually a 24-hour overnight service.  For this reason he argues it should have been the normal course of mail delivery for the appeals to be received by the Land Court on Monday, 6 September (the due date).  In hindsight Mr Heinemeyer concedes that it would have been prudent to have used registered mail with Australia Post.
           While there is some room for conjecture on these matters, the balance of doubt should be vested in the appellants' favour (Commissioner of Succession Duties v. Executor Trustee and Agency Company of South Australia & Ors (1946-47) 74 CLR 358, at 373.
           Mr O'Rourke also just notes the lack of clarity in respect of the dates of the receipt by Australia Post, but leaves final clarification to this Court.
Conclusion:
           Having considered the whole of the evidence, I conclude the following:

In respect of Appeals AV99-1217 (Elsmore); AV99-1218 (Gould); AV99-1220 (Lord); AV99-1224 (Bowman); and AV99-1225 (Verwer) I find that I have no jurisdiction to hear those matters, and those appeals are found to not lie with the Court, and are struck out for want of jurisdiction.

In respect of Appeals AV99-1219 (Blackman); AV99-1221 (Middlebrough); AV99-1222 (Heinemeyer); AV99-1223 (Chambers); AV99-1227 (Campbell); and AV99-1228 (Kessels), those appeals are found to have met the requirements of s.57(1) of the Act, and this Court has jurisdiction to hear the merits of the matters, at a separate time to be advised.

NG DIVETT

MEMBER OF THE LAND COURT