Grace v Department of Natural Resources and Mines

[2005] QLC 45

LAND COURT OF QUEENSLAND

CITATION:	Grace v Department of Natural Resources and Mines [2005] QLC 0045
PARTIES:	Ignazia & Michael John (appellants)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NO.:	AV2005/0337 and 0338
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation
DELIVERED ON:	31 August 2005
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER	Mr BR O'Connor
ORDER:	The Court has no jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse
APPEARANCES:	Ms I Grace for the appellants Mr M Heather, Senior Legal Officer, Department of Natural Resources and Mines

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged one month after the due date. Section 57 of the Valuation of Land Act 1944 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 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 question then is whether the explanation for the late lodgement advanced by the appellants 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".

The parties submissions

1. Ms Grace states that on her receipt of the Department's decision on objection, she phoned the Department as to the procedure to adopt for an appeal to the Land Court.  She was advised to download the relevant appeal form from the Department Internet site and lodge copies (there were two appeal properties) with the Department and the Court.  She was given by the Department two facsimile numbers – one for the Department and one for the Land Court. 

2. Ms Grace further states that she subsequently facsimiled the appeal forms to the Department and Court on Friday 6 May 2005, well within the 42 day time limit.  She has obtained copies from the Department of the two appeal forms received by it and tendered them in evidence.  However there is no record of such being received by the Court about that time.  Further Ms Grace says there are no records held by her via the Council of Union facsimile records of a facsimile sent to the Court.  Also no facsimile was returned to her having been sent to the wrong facsimile number.

3. Ms Grace produced a written notation she had made of the Land Court facsimile number (3247 4635), but she fairly conceded this may have been done at a later date and given to her by the Court and not by the Department on 6 May.  She has no clear record of the number given to her for the Court by the Department. 

4. Mr Heather states he is prepared to accept that Ms Grace attempted to facsimile the Land Court as well as the Department on 6 May 2005.  However he submits that there are three possible alternative explanations as to why the Land Court has no record of such:

   ·    The Department may have given Ms Grace the wrong facsimile number;

   ·    Ms Grace could have dialled the wrong number for the Court;

   ·    The facsimile could have been correctly sent to the Court and misplaced there.

5. Mr Heather correctly stresses that the onus of proof of establishing reasonable excuse lies with the appellant, and that in the absence of further evidence from Ms Grace, that onus has not been so established. 

6. Mr Heather has no instructions for the Department to make any further concessions on the present issue.  He refers to the Anthony decision (supra) and in particular where an appeal was sent to the wrong address.  There it was held that such an error did not amount to a reasonable excuse even if done in good faith.  He argues a similar conclusion should be applied in current circumstances.  He states there is no obligation on the Department to communicate with the Land Court to ensure an appeal is lodged properly by the appellant.  Also, while the Department answers enquiries on an appeal, it does not send out appeal forms with the objection decision so an appellant can commence action against the Department.  Appeal forms can be obtained by the Department's Internet site or could otherwise be posted on request.  Mr Heather states that the Land Court details including address is in the White Pages for any appellant to so follow through with any appeal.

Decision:

1. A search by Registry staff of the Land Court record of facsimiles received on 6 May 2005 indicates nothing was received from Ms Grace's Queensland Council of Union's facsimile number.  This thus eliminates the third possible alternative advanced by Mr Heather.  As to the other two alternatives, Ms Grace has no Queensland Council of Union facsimile records of a facsimile being sent to either the Land Court or another number.  Nothing was returned to her as being incorrectly sent to a wrong address.  She also has no clear record of the facsimile number given to her by the Department for the Court.

2. As the onus of proof lies with the appellant to prove reasonable excuse, in all the current circumstances I am unable to conclude that a reasonable excuse has been established on the evidence. 

3. Two more general points warrant mention.  First, it appears that the current process for lodging appeals with the Court seems to be working reasonably well.  In most years more than 800 appeals are lodged with the Court with only a handful experiencing problems which may result in jurisdictional issues.  Second, while not directly related to the jurisdictional issue, it does seem unusual that the Department's 2003 valuations for the Grace properties are considerably higher than those values applied for the 2004 valuations.  It may be this apparent anomaly can still be resolved between the appellant and the Department informally even though the Court now has no jurisdiction to hear the 2003 appeal valuations. 

Order:

The Court has no jurisdiction to hear the above appeals.

BR O'CONNOR

JUDICIAL REGISTRAR