Enright v The Valuer-General

[2010] QLC 143

LAND COURT OF QUEENSLAND

CITATION:	Enright & Anor v The Valuer-General [2010] QLC 0143
PARTIES:	Phillip Massey Enright and Janette Carol Field (appellants)
v.
The Valuer-General (respondent)
FILE NO.:	VLA537-10
DIVISION:	Land Court of Queensland
PROCEEDING:	Appeal against annual valuation under Valuation of Land Act 1944
DELIVERED ON:	24 November 2010
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER	Mr BR O'Connor, Judicial Registrar
ORDER:	The Court has jurisdiction to hear this appeal.
CATCHWORDS:	Jurisdiction – late filing of appeal – whether reasonable excuse
APPEARANCES:	Mr P M Enright for the appellants Mr P Prasad (Principal Lawyer, Department of Environment and Resource Management) for the respondent

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged four days after the due date.  Section 57 of the Valuation of Land Act 1944 (VLA) allows for "reasonable excuse" as a cause for such delay.

   "57  Late Filing
   (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. The question then is whether the explanation for the late lodgement advanced by the appellants falls within the term "reasonable excuse" as interpreted by the relevant authorities, particularly those since the introduction of s.57 of the VLA as amended in 2000. 

3. The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000.  In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a case, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man". 

The parties submissions:

1. The appellants’ case was conducted by one of the landowners Mr Phillip Enright.  Mr Enright tendered a written statement outlining his intensive business and community involvement over the relevant 42 day period.  He supplemented this with oral evidence.  The key dates and activities are extracted from his statement are listed below:

   “Between the date of the Chief Executive’s revised valuation, 10 August, 2010 and the date nominated by which my appeal was required to be lodged, 21 September, 2010, I was engaged in activities which included, but are not limited to the following;

   ·    6 August, 2010 – 23 August, 20101 I and Janette Carol Field were travelling in the Northern Territory and Western Australia ( I can provide documentation to support my presence in these areas)

   ·    7 July, 2010 – 15 August, 2010, large amounts of my time were occupied in appealing a Brisbane City Council (BCC) decision denying permission to remove a tree which had dropped boughs, threatening the safety of the tenant of another of our properties at 48 New Ivo St, Nundah – a decision which was made by the BCC in breach of appropriate process.  (I attach documentation to support my assertion of my time-consuming engagement in this matter)

·    16 July, 2010 – 13 October, 2010, large amounts of time were occupied in appealing against a large double-sided, illuminated poster being erected by the Brisbane City Council (BCC) directly in front of my property at 3 Chermside St, Newstead – a decision which was made by the BCC without any consultation with me, and totally contrary to the BCC’s established procedures for erecting advertising signage.  (I attach documentation to support my assertion of my time-consuming engagement in this matter).

· Throughout the period, 10 August, 2010 and the date nominated by which my appeal was required to be lodged, 21 September, 2010, I have been engaged in numerous activities launching a new law firm, Just Family Matters Pty Ltd, the intention of which is to dramatically reduce the emotional and financial waste encountered by many involved in matters potentially involving, or involving the Family Court of Australia, as was intended by the Family Law Act Regulations 2004, but has as yet, not been realized for many applicants and respondents. ( I refer you to to support my assertion of my time-consuming engagement in this matter)

·    7 September, 2010 – current I have been engaged in removing, recruiting and training the manager of my storage business, Maximum Security Self Storage, Kallangur.  (I attach documentation to support my assertion of my time-consuming engagement in this matter)

·    14 September, 2010 – 20 September, 2010, I and Janette Carol Field were at my cousin’s sheep property, Nundle, NSW, assisting with the shearing as a result of my cousin having a serious accident occasioning brain damage (I can provide documentation to support my presence in this region)

·    In the period leading up to 17 September, 2010, in my capacity as National Coordinator, responsible for acknowledging receipt of, and judging all entries in the annual national schools competition, the closing date of the completion being 17 September, 2010.  (I refer you to to support my assertion of my time-consuming engagement in this matter)

As well, as the Court will be aware, in the period prior to 30 September, 2010, I had to prepare my appeal against the Chief Executive’s revised valuation for my property at 3 Chermside St, Newstead, file number VLA276-10.”

1. Mr Enright stresses there are a considerable number of the listed activities relating to wider community interests rather than merely his personal business interests.  This community aspect should be given, he claims, “weight in the determination of the matter before the Court”.

2. Mr Prasad, counsel for the respondent, submits that pressure from business activities have not been held to be sufficient excuse under s.57 in the past.  He cites O’Neill v Department of Natural Resources Mines and Water[1] as support.  Mr Prasad also claims that Mr Enright had ample time before the final week (when called away to assist an injured relative) within which to lodge his appeal.

   [1] [2006] QLC 0035.

Decision

1. I agree with the respondent’s submission that the pressure of personal business activities could not be considered to be a sufficient reasonable excuse.  Also, the wider community involvement of the appellant in my view would not normally qualify for a reasonable excuse, despite the commendable motive although there may be particular exceptional circumstances to conclude otherwise.)

2. In my view, the appellant is entitled to the full 42 days in which to consider and lodge his appeal.  The cases of Craven v Chief Executive, Department of Natural Resources and Mines[2] and Devine v Chief Executive, Department of Environment and Resource Management[3] support this conclusion.  If some unforseen event occurs towards the end of the period which substantially causes a delay in lodging within the prescribed time, this should be considered to amount to a reasonable excuse. 

   [2]            14 September 2001.

   [3] [2009] QLC 0121.

3. Mr Enright’s sworn evidence was that he was required to assist onsite (and physically) in the management of a property in country New South Wales owned by a relative who had sustained serious injury (including brain injury).  This, given that it occurred in the week prior to the expiry of the allowable time, is sufficient to amount to reasonable excuse.  This occurrence is outside the range of business or community activities discussed above.

Order

1. The Court has jurisdiction to hear this matter. 

BR O'CONNOR

JUDICIAL REGISTRAR