Framwelgate Investments Limited v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 34
•26 April 2001
LAND COURT BRISBANE
[2001] QLC 34
26 APRIL 2001
Re:Appeal against Annual Valuation Valuation of Land Act 1944 Property ID: 468744
Local Government: GCCC-Gold Coast (AV00-419)
Framwelgate Investments Limited v.
Chief Executive, Department of Natural Resources and Mines
(Hearing at Coolangatta) DECISION ON JURISDICTION
Background:
This matter relates to land at 89 Surf Parade, Broadbeach, and described as Lots 1, 28 and 29 on B83819, Parish of Gilston. The subject land has an area of 2,114 m² and is used for the purpose of retail shopping. The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of an appeal against an annual valuation at 1 October 1999 under the Valuation of Land Act 1944.
Mr W Boston, Solicitor, appeared for the appellant. Mr R Paterson, Principal Legal Officer, appeared for the respondent.
The Facts:
The following chronology will assist in understanding the circumstances of the
appeal:
· 27 March 2000 - the Chief Executive issued a valuation of the subject land at
$4,650,000;
· 27 June 2000 - following an objection the Chief Executive confirmed the above unimproved value by notice addressed to Taylor Byrne, Valuers, c/- PO Box 1730, Southport, who were agents for the appellant;
· 27 June 2000 - Taylor Byrne received the notice of appeal (the post stamp by Australia Post was 27 June 2000);
· 19 July 2000 - Taylor Byrne forwarded a letter to Steindls, Solicitors for the appellant, seeking directions on whether to appeal the decision on objection, noting that there would appear to be sufficient grounds to sustain an appeal;
· 20 July 2000 - Steindls Solicitors, received the letter from Taylor Byrne;
· 26 July 2000 - Steindls Solicitors, sent a facsimile to the appellant in Hong Kong seeking instructions as soon as possible;
· 8 August 2000 - the appellant sent directions by facsimile to proceed with the appeal to Steindls Solicitors, which were received at 5.39 p.m. on the evening of 8 August 2000;
· 9 August 2000 - Steindls Solicitors, instructed Taylor Byrne to lodge the appeal;
· 9 August 2000 - Taylor Byrne lodged the notice of appeal by facsimile received at 14.25 p.m. in the Registry of the Land Court;
· 11 August 2000 - confirmation of notice of appeal received by post in the Land Court Registry;
· 11 August 2000 - Registrar of Land Court wrote to appellant advising that the appeal appeared to be out of time, and seeking advice within 21 days whether the appellant wished to continue the appeal;
· 17 August 2000 - letter from Steindls Solicitors on behalf of appellant received by the Registry advising that they disagreed that the notice had not been received within 42 days after the date of issue, and requesting the notification to be waived;
· 22 August 2000 - advice from the Registrar to the appellant, with copy to the respondent, advising that the matter would be set down for the purpose of initially determining whether jurisdiction lay with the Court to hear the matter;
· 12 December 2000 - notice from the Registry notifying that the matter of jurisdiction would be heard in Coolangatta on 5 February 2001;
· 5 February 2001 - hearing to determine jurisdiction;
Mr Boston argues that the appellant should not be prejudiced by the fact that the notice was delayed in coming to his attention in the due course of post, as a result of delays occasioned in the offices of its agents. Mr Boston notes that the unimproved value appealed against was of a substantial nature ($4,650,000), and the amount in contention is also of a substantial nature ($1,050,000). It is further argued that:
· the notice of appeal was lodged within the prescribed time, or alternatively;
· if the notice was found to be filed late then the Court should consider the reason for late filing in accordance with s.57 which now allows for acceptance by the Court of a "reasonable excuse" for the delay.
Decision:
(i)Was the appeal late?
I consider first whether this Court may exercise any wider discretion in respect of the late lodgment of an appeal. I am reminded that this Court is a court of statutory creation and its jurisdiction is likewise bestowed. The Court must therefore only assume jurisdiction when and in the manner in which the legislation authorises. (Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. The Valuer-General (1983) 9 QLCR 13, at 17).
Directions in respect of the filing of a notice of appeal are provided in s.55 of the Valuation of Land Act 1944 (the Act), which requires the notice to be filed with the Land Court within 42 days after the date of the issue of the notice to the owner. The calculation of the effective period for lodgment of a notice of appeal was explained fully in another decision of this Court in Fiona and Andrew R Watt v. Chief Executive, Department of Natural Resources (AV99-719), 22 February 200, unreported, and I will not repeat those findings. However, the conclusion of that matter was that the statutory period of 42 days commenced at the end of the day on which the notice was issued.
In the current matter the Chief Executive issued the decision on objection on 27 June 2000. Mr Boston gave evidence that the decision was subsequently received by Taylor Byrne as agents for the appellant, and that the letter had been postmarked by Australia Post on 27 June 2000. A statutory period commencing 28 June 2000 would expire in the office of the Registrar of the Land Court at close of business on the day on which the purpose of the Act is to be fulfilled (Acts Interpretation Act 1954 s.38(1)(b)). Therefore, by counting 42 days from 28 June 2000, the statutory period in the current matter would have expired on 8 August 2000, as determined by the Registrar in his letter of 11 August 2000. On that basis I conclude that the notice of appeal was late.
(ii) Statutory Interpretation -
If I turn then to considerations of s.57(1) as it has subsequently been amended on 1 October 2000, I find the amended s.57(1) now states:
"57(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 impact of statutory interpretation of the amendments to the Act was discussed by this Court in MJ & D Anthony v. Chief Executive, Department of Natural Resources (AV00-517), 10 November 2000, unreported. I note in particular guidance adopted by the High Court in Jackamarra v. Krakouer (1998) 195 CLR 516, per Kirby J at 539 in respect of what might be considered as a "reasonable excuse". While in Anthony the amendments to s.57(1) were found to apply retrospectively to the notice of appeal, and prospectively to the actual date of hearing on jurisdiction, the appeal was subsequently struck out for failure to meet s.58(3) in respect of responding to the requisition by the Registrar.
I note also another decision of this Court in Pavex Constructions Pty Ltd v. Chief Executive, Department of Natural Resources (AV99-1261), 18 December 2000, an ex tempore judgment which declined to allow retrospectivity of that appeal in the circumstances of that matter.
In the current matter Mr Boston seeks support for a prospective application of s.57(1) as it now stands in the authority of Rodway v. The Queen (1990) 169 CLR 515, at 518-519. In that matter the notion of whether a statute should be seen as substantive law or procedure was discussed. The Court noted at p.518:
" A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations."
Mr Paterson argues that to retrospectively apply s.57(1) as it now stands, would in fact disadvantage the respondent, who is entitled to consider that the matter was determined and closed as a consequence of failure by the appellant to satisfy s.55 in respect of the statutory time limit. Indeed, in Rodway the High Court went on to say at p.519:
"Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become
barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural."
However, as noted in Anthony (supra) at p.6, it is not simply a matter of determining whether a statute is either procedural or substantive which determines how it may be applied. There is always the need to ensure that no injustice should be done to either party. The purpose of the amendment to s.57(1) was not to extend the statutory period of 42 days within which an appeal must be lodged. Its only purpose was to allow greater scope for the Court to consider what might constitute a "reasonable excuse" for failing to meet such a deadline.
In exercising that wider scope for consideration of a "reasonable excuse" the Court must ensure that the excuse reflects some substantial nature in the particular circumstances of the matter.
I note also that in deciding whether s.57(1) as it now stands should be treated retrospectively, the distinction between statutes which are seen as substantive by modifying or abolishing rights or liabilities, or statutes which deal with the pursuit of remedies, has led to the understanding "that if a statute is concerned only with the way in which certain rights are enforced or is quite literally concerned with the court procedures, it will operate retrospectively" (Statutory Interpretation in Australia, Third Edition, Pearce and Geddes, p.189).
If I adopt a broader understanding of the amendment to s.57(1) which now allows for the extension of a "reasonable excuse" in explaining why a notice of appeal was late, I could consider that amendment as only conditioning the way in which the rights of the appellant are to be exercised. While I must also consider the rights of the respondent in such a process, I believe the substantial, or insubstantial nature, of what might be construed as a "reasonable excuse" could be seen as protecting the legitimate rights of the respondent. On that basis I will allow consideration of a "reasonable excuse" in the facts of the current matter.
(iii) A Reasonable Excuse -
On the facts before me I accept that most of the delays in receiving the notice of the decision on objection by the appellant lay with the agents for the appellant. However I note that while an appellant may be found to be blameless in lodging an appeal and responsibility for a delay may be entirely with his solicitor (or agents), there is no fixed general rule that such circumstances necessarily amount to sufficient
cause for extending a time limit (Sophron v. Nominal Defendant (1956-57) 96 CLR 469, at 474).
If I look then at the circumstances of the relevant steps in the decision on objection reaching the appellant, I find that the respondent issued the advice to the address of the agents at Southport. Mr Paterson argues that was in accordance with directions found in s.84 of the Valuation of Land Act which states:
"Address for Service
84. The address for service last given to the chief executive by any person shall, for all purposes under this Act and its regulations, be the person's address for service, but where no address for service has been given to the chief executive, or where the departmental records disclose that such person has subsequently changed the person's address, and the person has not notified the chief executive either in a return or by separate written advice of such change, then the address of the person as described in any record in the custody of the chief executive shall be the person's address for service."
Mr Boston advises that the postal address was care of the valuer, Taylor Byrne at Southport, and that postal address was later confirmed on the notice of appeal lodged with the Court on 9 August 2000. There was no documented evidence that an address care of Hong Kong was also not available.
Mr Paterson also draws attention to s.39A of the Acts Interpretation Act which
states:
"39A(1) If an Act requires or permits a document to be served by post, service -
(a) may be effected by properly addressing, prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved."
The actual delivery of the notice on objection in the current matter is therefore deemed to have been delivered when it reached the recorded postal address. Mr Paterson advises that under the first limb of s.84 of the Valuation of Land Act the address last given to the Chief Executive by any person shall be the person's address for service. As Taylor Byrne had acted as agent for the appellant during the objection conference, it must be assumed that the Chief Executive saw that address at Southport as the most appropriate address for the delivery of the decision on objection.
The key to the delays in activating the notice of appeal lies overall with a delay of 23 days in the office of the valuer, seven days in the office of the solicitor, and 13 days in the Hong Kong office of the appellant himself. It is also noted that the facsimile received from the appellant to their solicitors was received at 17.39 Eastern Standard Time on 8 August 2000. As a result of that late receipt of instructions to proceed, the formal appeal was not lodged until 9 August 2000. It is also noted that the electronic despatch from Hong Kong was likely to have been about 15.39 Hong Kong time on 8 August 2000, perhaps a contributing factor in the late directions to proceed.
Whatever the circumstances for the delays, it is apparent that there was adequate time for the appellant to have exercised his option to appeal well within the statutory 42 days. That he chose to do so only at the last minute reflects the possible priority that the appeal occupied in his overall businesses. The delays occasioned by the two agents for the appellant no doubt contributed to the matter, but they were not the only reasons for the late lodgment of the appeal.
The matter of Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (A97-09), 25 June 1998 to be reported, can be distinguished in respect of an extension of time to lodge and serve a notice of appeal. In that matter the Land Appeal Court noted the reason for the delay was solely the responsibility of the solicitor who overlooked to lodge the appeal at the eleventh hour. The appellant had done everything that should have been expected of him. In the current matter the appellant also contributed to the delays. On that basis I find that the reasons provided do not satisfy the requirement of being a "reasonable excuse".
Conclusion:
Having considered the whole of the evidence I find that the appellant has failed to meet the statutory provisions of the legislation. The appeal is dismissed, as I find I have no jurisdiction to hear the matter.
NG DIVETT MEMBER OF THE LAND COURT
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