Gillis v Department of Natural Resources and Mines

[2005] QLC 61

LAND COURT OF QUEENSLAND

CITATION:	Gillis v Department of Natural Resources and Mines   [2005] QLC 0061
PARTIES:	Glen W Gillis (appellant)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NOS:	AV2005/1024
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation.
DELIVERED ON:	19 December 2005
DELIVERED AT:	Brisbane
HEARD AT:	Ipswich
MEMBER:	Mr PA Smith
ORDERS:	The Court has jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse.
APPEARANCES:	Mr W Gillis, in person Mr C P Rabaa of Counsel.

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged six days after the due date. Section 57 of the Valuation of Land Act1944 ("the VLA") allows for "reasonable excuse" as a cause for such delay:

   "57.(1)  If a notice of appeal is filed in the Land Court registry after the time stated in s.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 cases, particularly those since the introduction of s.57 as amended in 2000.

2. 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 cause, 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

1. At the hearing, Mr Gillis presented a mix of written (Exhibit 1) and oral evidence.  The respondent tendered two documents (Exhibit 4 and 5) but did not otherwise call any evidence.

2. There is common ground between the parties on a number of points, which can be summarised as follows:

   ·The decision on objection was issued on 2 August 2005.

   ·The appellant completed a Form 58 and filed it with the respondent on 12 September 2005.

   ·The last day for filing of an Appeal was 13 September 2005.

   ·On 15 September 2005 an officer from the Department of Natural Resources and Mines contacted the appellant to advise that the wrong form had been used by the appellant.

   ·On 15 September 2005, following advice from the Department of Natural Resources and Mines , the appellant completed the appropriate Appeal Form (Form 59) which he posted to the Land Court on 16 September 2005 and faxed a copy to Department of Natural Resources and Mines on 16 September 2005 as well.

3. The appellant initially used an objection form (Form 58) instead of the correct appeal form (Form 59).  As a consequence of his reliance on the wrong form, the appellant says that he was not aware that an appeal is to be filed in the Land Court.  The appellant claims that his error is not of his own doing, but arose as a consequence of his following the directions provided to him both in the objection decision and in completing the objection form forwarded to him.

4. The decision on objection (Exhibit 2) provided to the appellant states in part as follows:

   "The Valuation of Land Act 1944 provides that unless you appeal to the Land Court within 42 days after the Date of Issue of this notice, such valuation amount shall be deemed to be determined.

   An Appeal Form may be obtained electronically from the Department's Web site at The Appeal Form may also be obtained from your local NR&M office by phone as listed below."

5. The appellant's evidence is that he subsequently contacted Department of Natural Resources and Mines Ipswich and spoke to a woman.  During cross examination by Mr Rabaa the following evidence was given with respect to that telephone conversation and the actions that the appellant says he subsequently took after the phone call:

   "Mr Rabaa
   You would agree with me that if I said to you she worked in the department for quite some time, that if you used the term "objection" she'd know what you were talking about or if you used the term "appeal" she would know what you were talking about? --  Well I wasn't taking that for granted.  That's why I went through a story with her that I had received a decision on objection , that I had their valuation and that I didn't agree with it and, in accordance with their decision that they had sent out to me, I would like the form where I had to appeal to the Land Court.  I was trying not to leave it to anyone's interpretation.

   Those two forms, would you not agree with me, are headed explicitly as to who the receiver is to be? --  That is correct.

   And when you said that you got the objection form, you filled it in and sent it back to the department.  Is that the procedure that you adopted? --  That's correct, because I was told to make sure I followed the procedures that were on the form.

   You have just said that you wanted to appeal to the Land Court.  Can I ask you why you would fill in the objection form and send it back to the department when it seems to have been clear in your mind that the appeal form should have gone to the Land Court?  --  I was taking it on face value that the department was advising me correctly on the procedure that was required to appeal their valuation and hence they supplied materials to me which I filled in and used in accordance with their requirements."[1]

   [1]            Transcript – 6 December 2005 p. 6

6. The appellant admitted during cross examination that he did not know the difference between an objection and an appeal when he was speaking to the officer of the Department of Natural Resources and Mines.  Indeed, in evidence in chief, the appellant referred to the appeal process as "an objection to their valuation."[2]

   [2]            Transcript 6 December 2005 p. 2

7. In my view, what was or was not said during the appellant's phone call with the female officer of the Department of Natural Resources and Mines, Ipswich, is of significant importance.  Therefore, the appellant's further evidence on this point is relevant:

   "I would like to put to the Court that when I was talking to the department – the inquiries officer – I did make it quite clear that I had received their decision on objection, that that changed the value of my land from 67 to 62.  I did say that I did not agree with their valuation and that I wished to appeal it in accordance with this form where it said an appeal form may be obtained from your office and I was therefore ringing up to find out what this form was, can I get hold of it and how do I apply and that's what was sent to me, the Form 58.  I accept that, yes, this is the wrong form and it may be upon me to go into it a lot more deeper than I actually did, but I took it at face value that the information that would have been received from this public servant was correct and that the forms that would be supplied to me by the department would also be the correct forms.  After receiving advice from the department that I had filled in the wrong form, I went to great efforts to ensure that everything was correctly filed as quickly as possible and this was turned around within one day."[3]

   [3]            Transcript 6 December 2005 p. 8

8. During his evidence, the appellant also makes the point that an officer of the Department of Natural Resources and Mines Ipswich took three days to advise him that he had used the wrong form in attempting to appeal, and that his appeal was now out of time.  The appellant complains that had he received more timely advice of his error from Department of Natural Resources and Mines, he would have had time to file the appropriate appeal form in the Land Court prior to time expiring.  The appellant further complains of what he refers to as the "gloating" and "sarcastic" manner in which the Department of Natural Resources and Mines officer advised him that his appeal was out of time.

Conclusion

1. I do not accept the complaints made by the appellant against the Department of Natural Resources and Mines officer regarding the time lines of the advice that the wrong form had been used for an appeal, and the manner in which the officer is said to have spoken to the appellant.

2. The obligation rests with the appellant to institute an appeal process.  Even if there was an obligation on the chief executive to advise the appellant that he had used the wrong form in his appeal (and I make no finding, as it is unnecessary for me to do so, that any such obligation exists), the fact that the appellant was advised by telephone of his mistake only three days after lodging the wrong form is a matter for which the Department of Natural Resources and Mines officer should be, on the evidence before me, complemented.  It was not that officer's fault that the appellant chose to institute his appeal process late in the 42 day appeal period.  A three day turnaround in advice would in normal circumstances be viewed as very timely.  Further, the Department of Natural Resources and Mines officer was "filling in" for another officer when he responded to the appellant, which further weighs in favour of the officers response.

3. Whether or not the Department of Natural Resources and Mines officer spoke to the appellant in a gloating or sarcastic manner is a highly subjective opinion and, in light of my view that the officer contacted the appellant in a timely manner, an issue on which nothing turns.

4. I now turn to the crux of this matter. Do the circumstances surrounding the appellant's use of the wrong form in instituting his appeal, and ultimately appealing out of time, amount to a "reasonable excuse" pursuant to s.57 of the VLA?

5. In contending that the appellant's actions in this matter do not amount to a "reasonable excuse", Mr Rabaa referred me specifically to Anthony's case, referred to earlier in this discussion, Kallinicos & Ors v Department of Natural Resources and Mines [2005] QLC 0030, and Romano v Department of Natural Resources and Mines [2005] QLC 0042.

6. The Romano decision chiefly concerns the issue of illness of an appellant as being a basis for establishing "reasonable excuse".  In that case, Judicial Registrar O'Connor found that a reasonable excuse had been established.  The facts in Romano offer little assistance in deciding the current matter.

7. Kallinicos is more relevant to the facts of the matter under consideration. In that matter, immediately after receiving the decision on objection, Mr Kallinicos contacted a valuer in the Department of Natural Resources and Mines and advised him of certain matters which he felt should have been taken into account in the objection decision. The valuer said that he would get back to him, but never did. Judicial Registrar O'Connor found Mr Kallinicos had not established a reasonable excuse. Mr O'Connor found, correctly in my view, that there was nothing preventing Mr Kallinicos lodging his appeal within time. Importantly, Mr O'Connor also found, at paragraph 10, that:

   "Unlike other cases where reasonable excuse has been established, there does not appear to exist any indication of misleading conduct by the Department sufficient to influence Mr Kallinicos' action in lodging an appeal outside the prescribed time limits."

8. One such case is that of Zolgaze Pty Ltd v Chief Executive, Department of Natural Resources and Mines, 22 August 2001.

9. Like the facts in this matter, the appellant left it until late in the appeal period to lodge an appeal.  Judicial Registrar O'Connor found it not desirable to leave matters late, but not fatal to the appellants case.  I agree.  Further, in the matter under consideration, although the appellant left the lodging of his appeal until late in the 42 day period, he had made his request of the office of Department of Natural Resources and Mines for a form early in the period.

10. Judicial Registrar O'Connor accepted the evidence on behalf of Zolgaze that the Department of Natural Resources and Mines, despite a number of requests and assurances, failed to provide an appeal form to the appellant.  On the facts of that case, Mr O'Connor found that a reasonable excuse had been made out.

11. In the matter under consideration, I have no evidence to contradict that given by the appellant.  Although I have some doubt as to the terminology used by the appellant when speaking to the female officer of the Department of Natural Resources and Mines, Ipswich, and although I do consider it likely that he used phraseology such as "objection to the valuation" when speaking to the officer, on balance, I also accept the appellant's evidence that he stated that he had received a decision on objection, that he did not agree with the decision, and that he wanted the form referred to in the decision on objection so that he could challenge the decision.

12. Had the appellant received the correct form, I am in no doubt that the appeal would have been properly lodged in the Land Court within time.  The appellant relied upon the form he received from the Department of Natural Resources and Mines.  The decision on objection did not make specific reference to Form 59 for the purposes of an appeal, but only to "the Appeal Form"  (See Exhibit 2).  He lodged the form he received (Form 58) in accordance with the advice sent out on that form.  His actions in doing so are understandable.

13. Further, as soon as the applicant became aware that he had used the wrong form, he took immediate steps to obtain the correct form and lodge same in the Land Court.

14. In all the circumstances of the current case, I am prepared to find, on balance, that a reasonable excuse can be made out.  In so finding, like Judicial Registrar O'Connor in Menon & Anor v Department of Natural Resources and Mines [2003] QLC 079, I am conscious of the need for consistency in reasonable excuse decisions founding jurisdiction and the danger of creating an undesirable precedent. Like the case in Menon, the decision in this case should cause neither of these concerns.  As Mr Rabaa pointed out, the relevant officers in the Department of Natural Resources and Mines are experienced.  Instances of breakdown in communication between a prospective appellant seeking a form 59 and/or a mistake by Department of Natural Resources and Mines officers in forwarding the incorrect form should be rare.

Order

1. Having considered the tests outlined in the authorities and the facts in those cases, I conclude that a reasonable excuse has been established in the circumstances of the present case.  Accordingly, I find that the court has jurisdiction to hear the appeal.

P A SMITH

MEMBER OF THE LAND COURT