Fischer v The Valuer-General

[1990] QLAC 18

[1990] QLAC 18

 

  LAND APPEAL COURT,

BRISBANE

Re:                 Appeals against decisions of Land Court
  to strike out appeals for want of
  jurisdiction -
Valuation of Land Act.

W.M. Fischer and T.J. Fischer
  v.
  The Valuer-General

J U D G M E N T

There are three appeals before us by Warren Mazlin Fischer and Theodora Jeanette Fischer against the decision of the Land Court to strike out the appeals made to that Court on grounds that the Court had no jurisdiction to entertain them.  The appeals to the Land Court were against determinations of the Valuer-General in respect of the land contained in Valuation Roll No 4270 (one appeal) and Valuation Roll No 4297 (two appeals).  The decisions of the Valuer-General, the subject of the appeals, were in respect of annual valuations.  Under
s. 16J(2) of the Valuation of Land Act 1944-1987, an appeal to the Land Court "shall not lie" against a decision of the Valuer-General upon an objection "unless it is instituted within 28 days after the date of issue to the owner concerned by the Valuer-General of notice of his decision upon the objection (which date of issue shall be stated in such notice)." Sub-s. (3) of the section provides that "an appeal shall be instituted by filing a notice of appeal in the Land Court registry".
In the three subject cases, "the date of issue" as stated in each notice of the decision is 29th May, 1989. 28 clear days from such date expired on 26th June, 1989. It is not in dispute that the notices of appeal were signed and dated 26th June and that on 28th June - two days later - at 9.45 a.m. the appeals were filed in the Land Court registry by Mr Fischer by hand. The appeals were therefore filed outside the period prescribed by s.16J(2). The learned Member in the Court below held that he had no jurisdiction to entertain the appeals and struck them out. The appellants ask this Court to set aside the decision on grounds as follows:

"The decision has been made on a wrong basis in law.

The Court did not give adequate consideration to the actual effects which deposition by hand of the appeal had on Land Court Registry processes and procedures compared with processes and procedures which would ensue had the appeal been lodged in the normal course of the post.

The Court in coming to its decision did not adequately take into account the intention of the law.   "

The second ground of the appeals was not argued before us.

This Court has held on a number of occasions that the procedure set forth in s. 21 of the Act for the institution of appeals against decisions of the Valuer-General in respect of general valuations are mandatory - see Seaworld Pty. Ltd. and Ors v. The Valuer-General (1978) 5 Q.L.C.R. p. 309; Schirmer v. The Valuer-General (1974) 1 Q.L.C.R. 144; Franklin and Ors v. The Valuer-General (1978) 5 Q.L.C.R. 181. The provisions of s. 16J are analogous to the provisions of s. 21 whilst sub-s. (6) of the section provides that sub-sections (3A) to (9) (both inclusive) of s. 21 shall, with all necessary adaptations and modifications, apply to and in respect of an appeal under the section. It is in this part of the legislation that the appellants seek relief. Insofar as is relevant, sub-s. (3A) of s. 21 provides:

"(a)Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by subsection (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 subsection (2), the appeal does not lie unless he -

(i)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; and

(ii)notifies the registrar within 21 days of the date of the notification of the registrar to him of his intention to endeavour to so satisfy the Court as aforesaid.

(b)If the owner -

(i)notifies the registrar within the time prescribed and otherwise in accordance with the provisions of paragraph (a)(ii); and

(ii)proves to the satisfaction of the Land Court that the failure to institute the appeal within the time prescribed by subsection (2) was caused by undue delay in the transmission of mail in the ordinary course of post,

the appeal shall lie, subject to this section, notwithstanding that it was not instituted within the time prescribed by subsection (2), but otherwise the appeal shall not lie.   "

On the filing of the notices of appeal, the Registrar notified the appellants in terms of the subsection and the appellants notified him within the time prescribed that they would endeavour to satisfy the Court in terms of paragraph (a)(i) of the subsection.
The argument put before us by the appellants through Mr Fischer is that the subsection has application where an appellant can prove to the satisfaction of the Court that a delay in the receipt by mail of notice of the decision of the Valuer-General upon an objection was a material cause in the delay in instituting the appeal whether the filing of the notice of appeal in the registry of the Court was made by hand or by post. In these cases he said that the decisions were not received until 8th June, 1989. His evidence is, and we accept, that he was under considerable personal stress during the relevant period and that the delay in the receipt of the notices in these circumstances was of significance. It is therefore necessary to consider the framework of the Act. Under s.16J(2) time, prima facie, runs from the date of issue of the notice of the decision of the Valuer-General - "which date of issue shall be stated in such notice". S.46(8) of the Act provides that

"The date shown in a notice of valuation or notice of decision upon objection as the date of issue thereof shall be taken to be the date that such notice was issued by the Valuer-General until the contrary is proved.  "

S. 33 provides that

"Any notice or other communication by or on behalf of the Valuer-General may be served upon any person -

(a)  By causing it to be personally served on him; or
           (b)  By leaving it at his address for service; or
           (c)  By posting it in prepaid letter post addressed to him at his address for                    service, 

and in the case of paragraph (c) of this section service thereof shall be deemed to have been effected at the time when it would, in the ordinary course of post, have arrived at the place to which it was addressed, or at the post town or post office nearest to that place, whether or not it has, in fact, been received by the addressee. "

The words "(which date of issue shall be stated in such notice)" were inserted in s. 21 by the Valuation of Land Act and Another Act Amendment Act of 1971. Sub-section (8) of s. 46 was inserted by the Valuation of Land Act Amendment Act of 1975. S. 16J was inserted by the Valuation of Land Act and Other Acts Amendment Act 1985. S. 33 has remained in its present form since the Act was passed.
  In our view it is clear that the legislature in passing the amendments which define the date of issue has intended to put beyond doubt that time was to run from that date (subject only to defeasibility by evidence proving the contrary) and so avoid arguments as to whether time should run from the date of service on or receipt of any such notice by an objector.  S. 33 deals with service.  The section complements the provisions just discussed.  Together they provide for the smooth working of the machinery of the Department by, prima facie, cementing the date of issue in a fixed position and by leaving the Valuer-General with a number of options as to service, the third of which relieves him of further responsibility once notice of the decision has been placed in the mail, although if he were called upon to rely on that section to defeat an allegation that a notice was not received at all, it would be necessary for him to prove the posting of the notice by prepaid letter post.  That time runs from the date stated as the date of issue is not in dispute before us.  The submission of Mr Fischer is that the provisions of sub-s. 3A are wide enough and are intended to relieve hardship caused by a delay in the transmission of mail in the ordinary course of the post of the notices of the decision of the Valuer-General upon an objection.  He referred us to Hansard and to the speech of the Honourable the Minister for Survey, Valuation, Urban and Regional Affairs, when the Bill containing the provisions of the subsection was introduced in committee in order that we may gain an appreciation of the hardship intended to be relieved by the amendment.  Some extracts of the speech assist in illustrating the evil that was intended to be cured.

"The existing legislation provides 60 days for the institution of an appeal after the date of issue to the owner by the Valuer-General of a notice of his decision on the owner's objection.  An appeal is instituted by filing a notice of appeal in the Land Court Registry.  The 60-day period is strictly enforced by the court as it has no discretion to take account of disruption of mail services by floods, postal strikes, and so on.  "

"It also allows for an extension of the 60-day period for the instituting of an appeal if the owner proves to the satisfaction of the court that failure to institute the appeal within that time was caused by undue delay in the transmission of mail in the ordinary course of post.  When a notice of appeal is filed in the registry later than the prescribed 60 days, the registrar shall notify the owner that the appeal does not lie unless he notifies the registrar within 21 days of his intention to endeavour to satisfy the court, and actually proves to the satisfaction of the court that the failure to institute the appeal within the time prescribed, was caused by undue delay in the transmission of mail in the ordinary course of post.  "

The subsection on its primary and literal meaning is not expressed as being confined to delay in the transmission of mail in the ordinary course of post of the notices of the appeal to the Land Court.  Were this intended, the opening sentence of paragraph (a) may have read - "Where a notice of appeal is filed in the Land Court Registry by mail but not within the time........".  We can readily appreciate that in the more remote areas of the State where continuity of services is dependent upon the will of Mother Nature that a delay in the receipt of a notice of the decision of the Valuer-General upon an objection could severely limit, or in some instances, completely defeat the right of appeal if the section is not given an interpretation which it is capable of having, and without being contradictory or absurd.  In this regard, we respectfully adopt the words of Viscount Simon L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd. 3 All E.R. 549, where at p. 554 he says:

"At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result.  "

In the circumstances of this case we accept that in the relevant period the appellants were under considerable personal stress and that a delay of some seven days in the receipt of the notice of the decision of the Valuer-General upon the objection would, in those circumstances, be a material factor in the delay in the filing of the notices of the appeal.  It is not in dispute that the notices were sent by mail.  Mr Fischer says that the notices were not received until 8th June when in the ordinary course of post they should have been received a day or so after the date stated as the date of issue.  He did not keep the envelopes and could not prove that the delay in receipt was caused by a delay in the transmission of mail in the ordinary course of post.  The Valuer-General had done all that was required of him under the Act.  The only redress available to the appellants is via the subsection but they failed to prove to our satisfaction that the delay was caused by a delay in the transmission of mail in the ordinary course of post.  We are therefore of the opinion that the learned Member was correct in striking out the appeals.
  Accordingly, the appeals to this Court are dismissed and the decision of the Land Court affirmed.

J.
  Judge of the Supreme Court

Member of the Land Court

Member of the Land Court