Giorgas v Department of Natural Resources and Mines
[2005] QLC 66
•16 November 2005
LAND COURT OF QUEENSLAND
CITATION: Giorgas v Department of Natural Resources and Mines [2005] QLC 0066 PARTIES: Michael Giorgas as Trustee
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: AV2005/0108 DIVISION: Land Court of Queensland DELIVERED ON: 16 November 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane PROCEEDING: Appeal against annual valuation. MEMBER: Mr JJ Trickett, President ORDERS: 1. The appeal is dismissed for want of prosecution under Rule 14(1) of the Land Court Rules 2000.
2. No order as to costs.
CATCHWORDS: Practice and procedure – Application to dismiss appeal for want of prosecution – Failure to comply with order of the Court - Land Court Rules 2000 Rule 14. APPEARANCES: Mr J Panaretos, consultant, for the appellant
Mr M Heather, for the respondent
This is an application by the respondent Chief Executive, Department of Natural Resources and Mines, to dismiss the appeal by Mr Michael Giorgas as Trustee (the appellant), for want of prosecution.
Background
Mr Michael Giorgas, as Trustee, appealed to the Land Court on 12 May 2005 against the unimproved value of $2,200,000 applied by the respondent to the appellant's land as at 1 October 2004. The appellant contended for an unimproved value of $1,600,000.
In keeping with its usual practice in valuation appeals, the Land Court offered the appellant a Court supervised preliminary conference by letter dated 16 May 2005. The appellant accepted that offer and by letter dated 1 June 2005, the parties were advised that a Court supervised preliminary conference would be held on 8 July 2005 at Level 10, 259 Queen Street, Brisbane.
On the day of the scheduled conference, the respondent was represented by registered valuer, Ms J Manners. However, Mr Giorgas did not attend the conference or give notice that he would not attend.
On 12 July 2005, the Deputy Registrar of the Land Court made a file note that Mrs Giorgas had advised that Mr Giorgas was overseas, but would be available for a further preliminary conference after 19 September 2005. The Deputy Registrar also noted that Ms Manners (on behalf of the respondent) had agreed to the matter being brought on for a preliminary conference on Tuesday 27 September 2005. Accordingly, the Deputy Registrar advised the parties that the preliminary conference had been adjourned to a further preliminary conference to be held on 27 September 2005.
Once again, on the appointed day Ms Manners appeared for the respondent, but there was no appearance on behalf of the appellant. By letter dated 27 September 2005, the Registrar advised the parties that as the appellant had failed to appear at scheduled preliminary conferences on two occasions, the matter would be set down for hearing. Then on 6 October 2005, the Registrar received a letter from Mr Giorgas stating that he had been unable to attend the two scheduled preliminary conferences because he had been overseas. He requested that a further preliminary conference be scheduled. On 25 October 2005, the Registrar advised Mr Giorgas that no further preliminary conferences would be arranged and that the matter would be set down for hearing. The parties were later advised that the hearing would be held on Friday, 9 December 2005.
However, the respondent has bought this application that the appeal be dismissed for want of prosecution, on the grounds that the appellant has failed to attend two preliminary conferences, without offering any explanation as to why he failed to attend; further, the appellant did not attend an objection conference arranged by the respondent under s.43 of the Valuation of Land Act 1944.
At the hearing of this application, Mr M Heather, senior legal officer, appeared on behalf of the respondent, while Ms Manners gave evidence. The appellant was represented by Mr J Panaretos and gave evidence himself.
The Respondent's Application
Mr Heather submits that by twice failing to appear before the Land Court when required to do so, without satisfactory explanation, Mr Giorgas has failed to take a step in the proceeding, or has failed to comply with an order of the Court within the stated time. Therefore, he submits, the Court should dismiss the appeal under Rule 14(2) of the Land Court Rules 2000.
Ms Manners gave evidence that Mr Giorgas had failed to attend an objection conference arranged by the respondent on 9 March 2005, after requesting such a conference in the notice of objection to the valuation.
The case for the appellant
Mr Giorgas admits that he received the notification from the Land Court dated 1 June 2005 to attend the first preliminary conference on 8 July 2005. However, he said that was preparing to go overseas on 12 June 2005 and forgot to tell the Court that he would be unable to attend. He also admitted that his wife received the notification regarding the second preliminary conference arranged for 27 September 2005, but she had forgotten to tell him until it was too late. He then wrote the letter received by the Land Court on 6 October 2005, explaining his non-attendance and requesting a further preliminary conference.
Mr Panaretos submitted that there was a great deal of confusion on Mr Giorgas' part. He did not fully realise that he was dealing with the Land Court, but thought that the preliminary conferences were merely an extension of the Department's objection conference. In the circumstances, Mr Panaretos submitted that the Court should refuse the respondent's application to dismiss the appeal.
Decision
I accept that Mr Giorgas may not have appreciated that he was dealing with the Court, but thought that the preliminary conferences were part of an extended objection process arranged by the respondent. That could explain why his letter of 6 October 2005 regarding his non-attendance was addressed to "The Chief-Executive, Department of Natural Resources and Mines", but addressed to the Land Court post office box.
However, the fact remains that an appeal that has been lodged to the Land Court and, notwithstanding that there may be some confusion on the appellant's part, there are legal consequences which flow from the lodgement of an appeal.
It is submitted on behalf of the respondent that the appeal should be dismissed for want of prosecution under Rule 14 of the Land Court Rules 2000. That rule states:
"Failure to Prosecute Proceedings
"14.(1) A respondent in a proceeding may apply to the court for an order dismissing the proceeding for want of prosecution if –
(a)the applicant is required under these rules to take step in the proceeding, or is required to comply with an order of the court, within a stated time; and
(b) the applicant does not do what is required within the time stated.
(2)The court may dismiss the proceeding or make another order it considers appropriate on an application under subrule (1).
(3)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.
(4)Despite subrule (3), the court may vary or set aside an order dismissing a proceeding for want of prosecution made in the absence of the applicant, on terms the court considers appropriate, and without the need for an appeal."
The question arises as to whether a preliminary conference is a step in the proceeding.
In recent years, preliminary conferences have become an integral part of the process of the Land Court in dealing with the vast majority of appeals against valuations under the Valuation of Land Act 1944, except where one or other of the parties requests that a matter proceed directly to a formal hearing. Preliminary conferences are provided for in s.36 of the Land Court Act 2000 and are used as an adjunct to the more orthodox ADR processes provided for in the Supreme Court Act 1991 and the Uniform Civil Procedure Rules 1999, as modified by s.37 of the Land Court Act 2000.
Section 36 provides that a Member or Judicial Registrar of the Land Court may "arrange" for each party to attend a preliminary conference (subsection (1)), to identify and discuss the issues in an attempt to negotiate a settlement (subsection (2)), but in that process the Member or Judicial Registrar has the powers of the Court (subsection (7)).
Therefore, although the preliminary conference is not required in all cases, it can be arranged at the discretion of a Member or Judicial Registrar. When such a conference has been arranged, it becomes a step in the process which is required to be taken. When an appellant fails to take that step, in my view, the respondent may apply to the Court for an order dismissing the appeal for want of prosecution under Rule 14.
In this case, the appellant failed to take that step by not attending the preliminary conference on 8 July 2005. However, the respondent did not seek to invoke the provisions of Rule 14, but agreed to the preliminary conference being rescheduled for 27 September 2005. Again there was no appearance by the appellant. Once again he failed to take a step in the process which was required to be taken. The respondent has now sought to have the appeal dismissed for want of prosecution.
I accept that Mr Giorgas was under the impression that the preliminary conferences were but an extension of the objection process. However, the fact remains that the preliminary conference was arranged as a step in the appeal process and he has failed to take the step which was required of him. In those circumstances, I must dismiss the appeal for want of prosecution.
Failure to attend the objection conference
For the sake of completeness, I should deal with the contention in Ms Manners' affidavit that the appellant, then an objector, failed to attend an objection conference convened by the respondent. Mr Giorgas has given evidence that he thought that he had been represented by a valuer, instructed by his solicitor. However, Ms Manners could not recall a valuer appearing and her notes of that aborted conference were to that effect.
In my view, I can have no regard to what did or did not happen at that stage. The Court's jurisdiction was enlivened only after the owner who had objected, appealed against the decision of the Chief Executive upon the objection: Section 45(1) of the Valuation of Land Act 1944. The circumstances relating to the objection process are irrelevant considerations in any subsequent appeal.
Costs
The application by the respondent seeking that the appeal be dismissed for want of prosecution does not seek an order for costs. Nor does the respondent seek an order for costs thrown away as a result of the two aborted preliminary conferences.
Orders
1. The appeal is dismissed for want of prosecution under Rule 14(1) of the Land Court Rules 2000.
2. No order as to costs.
J J TRICKETT
PRESIDENT OF THE LAND COURT
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