Everest Holdings Pty Ltd v Department of Natural Resources and Water
[2006] QLC 73
•22 November 2006
LAND COURT OF QUEENSLAND
CITATION: Everest Holdings Pty Ltd v Department of Natural Resources and Water [2006] QLC 73 PARTIES: Everest Holdings Pty Ltd
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO.: AV2005/0628 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against unimproved valuation DELIVERED ON: 22 November 2006 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mr BR O'Connor, Judicial Registrar ORDER: The Court has no jurisdiction hear the appeal.
CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr J Plenca for the appellant
Mr M Heather, (Senior Lawyer, Legal Services, Department of Natural Resources and Water) for the respondent
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged three 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."
The question then is whether the explanation for the late lodgement advanced by the appellant 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.
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".
Background:
There is evidence from the appellant that the Notice of Appeal was posted at Airlie Beach (North Queensland) on Friday, 12 November 2005. The 42 day expiry date for receipt of such notice in the Land Court registry closed on Monday, 15 November 2005. However, the notice was not actually received in the registry until Thursday 18 November 2005. The appellant claims that this late lodgement was caused by delay in the normal course of post.
Upon conclusion of the teleconference between the parties to decide the late lodgement jurisdiction point, I gave the appellant leave to produce written evidence from Australia Post as to the anticipated delivery times from Airlie Beach to Brisbane for ordinary postal items. (There is no suggestion by either side that Express Post was employed.) The appellant produced this material which states that normal anticipated delivery time is two business days. The respondent was also given opportunity to comment on this evidence which it did so.
I accept that there was a delay in the post resulting in the later than anticipated arrival on 18 November 2005. However this does not establish reasonable excuse for late lodgement as lodgement would not have been anticipated until Tuesday, 16 November 2005 for something posted on the previous Friday (two business days). In the absence of any postal delay, it may have been possible for the appeal to have been received in the registry in time, that is on Monday, 15 November 2005 with a Friday, 12 November posting, but on the evidence from the Australia Post material, this result is not probable. Given the above circumstances I find that reasonable excuse has not been established.
Order
The Court has no jurisdiction to hear the appeal.
BR O'CONNOR
JUDICIAL REGISTRAR
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