Fourways Holdings Pty Ltd v Department of Natural Resources and Mines
[2005] QLC 60
•15 December 2005
LAND COURT OF QUEENSLAND
CITATION: Fourways Holdings Pty Ltd v Department of Natural Resources and Mines [2005] QLC 0060 PARTIES: Fourways Holdings Pty Ltd
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NOS: AV2005/1001, AV 2005/1002 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against unimproved valuation. DELIVERED ON: 15 December 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: 1. Each appeal is struck out for want of prosecution.
CATCHWORDS: Jurisdiction – late filing of appeal – no appearance – undertaking. APPEARANCES: Mr M Heather, (Senior Legal Officer), Department of Natural Resources and Mines, for the respondent
No appearance for the applicant.
Background
Both of these matters relate to appeals against the respondent's assessments of the unimproved value of certain land as at 1 October 2004 pursuant to the Valuation of Land Act 1944 ("the VLA").
Each matter has come on in the first instance to determine issues of jurisdiction. In each matter, Notices of Appeal were received by the Court by mail, on 15 September 2005.
In both matters, on 16 September 2005, the Deputy Registrar of the Court wrote to the appellant and advised that, according to his information and calculations, the 42 day period within which to file a notice of appeal had expired on 13 September 2005 and that, accordingly, the filing of the notice by post on 15 September 2005 was outside the time provided by the VLA. The letters from the Deputy Registrar notified the appellant that an appeal does not lie in circumstances where the notice of appeal is filed outside the prescribed period of 42 days unless the provisions of section 57 (1) and (2) of the VLA applied and were complied with. The letters enclosed a copy of those provisions and went on to state that the appellant should, if the provisions applied in its case, advise the Deputy Registrar in writing. An attached reply was enclosed for that purpose.
By replies each dated 17 October 2005, the appellant advised that it would, when the appeals were called on for hearing, endeavour to satisfy the court that it had a reasonable excuse for filing each notice of appeal after the prescribed time. Subsequently, by Court notice dated 25 October 2005, the appellant and respondent were notified that the hearing of the jurisdiction issue on each matter would be conducted by the Land Court on 25 November 2005 at 10 am.
The applicants failed to appear in either matter and Mr Heather for the respondent sought orders in each matter that the appeals be struck out for want of prosecution.
Mr Heather advised that the respondent would not be seeking costs in either matter. Mr Heather also gave an undertaking to the Court in the following terms:
"… I should also bring the Court's attention to subrule 3 of rule 14 which reads
'An order dismissing a proceeding for want of prosecution may be set aside only on appeal or if the parties agree to the setting aside.'
Sir I undertake that if the chief executive is notified of a reasonable excuse for the failure to attend by the appellant at the hearing today the chief executive would give that consent."
Decision
I am in no doubt that the appellant was given the appropriate notice of the proceedings on 25 November 2005. I am also satisfied that in each matter, the appellant has filed its notices of appeal out of time. The appellant has been given an opportunity to satisfy the court why the appeals should be allowed to proceed, but has failed to take advantage of that opportunity.
The respondent has been generous in both not seeking costs in either matter, and in providing the Court with the undertaking set out above. In the circumstances, I am in no doubt that each appeal should be struck out for want of prosecution.
Order
Each appeal is struck out for want of prosecution.
P A SMITH
MEMBER OF THE LAND COURT
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