Henry and Edith Burk v Department of Natural Resources and Mines

[2006] QLC 33

LAND COURT OF QUEENSLAND

CITATION:	Henry and Edith Burk v Department of Natural Resources and Mines   [2006] QLC 33
PARTIES:	Henry and Edith Burk (appellant)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NO:	AV2005/1728
DIVISION:	Land Court of Queensland
PROCEEDING:	Appeal against an annual valuation of land under the Valuation of Land Act1944.
DELIVERED ON:	24 May 2006
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr P A Smith
ORDER:	The Court has jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Reasonable excuse – Not blameless – Health difficulties – Actions understandable .
APPEARANCES:	Mr and Mrs H Burk, in person for the appellant Ms C Liu (Legal Officer) Department of Natural Resources and Mines, for the respondent

1. MR SMITH: Ex tempore, I'll now proceed to my decision in this matter. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged after the due date. Section 57 of the Valuation of Land Act 1944, ("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."

2. The question is then whether the explanation for the late lodgement advanced by the appellants falls within the term 'reasonable excuse' as interpreted by the cases.  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."

3. At the hearing Mr and Mrs Burk gave evidence. The respondent did not call any evidence but did tender a number of documents. I find the relevant facts as follows: on 5 April 2005 the appellants lodged the Notice of Objection with the respondent. Included in the Notice of Objection was a notation that the appellants would be overseas from 8 April to 27 May. On 8 April 2005 the appellants departed for Germany. On 14 June 2005 the Chief Executive issued the decision on objection. On 27 July 2005 the 42-day appeal period prescribed by s.45(2) of the VLA expired. On 23 September 2005 the appellants returned from Germany. On 31 October 2005 the appellants lodged a Notice of Appeal with the Land Court Registry.

4. They are the key dates in this matter but a few other factors need also to be taken into account in my findings and I so find as follows:  the appellants travelled to Germany because of business commitments linked to their continuing German citizens' status and Australian residency.  It was a requirement of the German authorities that the appellants spend a certain period of time in Germany each year.  The appellants were unable to complete their business requirements during the six-week period and on a number of occasions, approximately three, they had to change their flight arrangements back to Australia.  After arriving back in Australia, although the time is not stated (it would appear a relatively short time after their return) they travelled to their property in New South Wales.  At the time of travelling overseas the appellants made arrangements with their neighbour to collect their mail.  The appellants, and in this regard I note from the evidence that the chief instructions to the neighbour came from Mr Burk, was that important mail should be brought to their attention and particular reference was also made to correspondence from the Land Court.  Of course, Mr Burk is in error in this regard as the next correspondence would not be from the Land Court but from the respondent.  The appellants' neighbour suffered health problems and it would seem some unreliability caused by his health difficulties during their stay and because of difficulties they were experiencing in receiving their mail, or at least such mail as was deemed important, they made fresh arrangements with friends to take care of their mail and inform them of matters which needed their attention.  The evidence of Mrs Burk is that the extension of their stay to meet the requirements of the German authorities made a great difference to the way they had intended to conduct their affairs, changing what was to be a six-week trip into one that ended up taking many, many months.  It would appear that their mail was handled well after the arrangements were made with their friends but the inference I draw is that the letter from the Chief Executive of 14 June 2005 in all probability arrived while their neighbour was still looking after the mail arrangements and before the new arrangements were made with their friends. 

5. I also note that the same difficulties with mail were experienced by the Land Court in dealing with the appellants after the Notice of Appeal was received in that the response to the Registrar's letter was on forwarded twice before finally catching up with the appellants.  I further note the correspondence from the appellants dated 28 March 2006 advising of difficulties that occurred with their neighbour actually having passed away due to the illness that was referred to in the mid 2005 period.

6. Further facts are relevant in this matter.  The appellant Mr Burk is aged 76 and his wife Mrs Burk 73.  They have no family resident in Australia, their family all being resident in Germany.  In a period between 2000 and 2002 Mr Burk suffered from a number of strokes which have impacted his mental capacities somewhat.  It was clear to me during the early part of the hearing of this matter that Mr Burk was relatively confused about the nature of the proceedings today and what was required of him to establish a reasonable excuse which is consistent, I find, with the medical conditions that he has suffered in the last few years.  I also make the observation that Mrs Burk does appear to have retained a high level of competence in her dealing with matters, as she said in cross-examination by Ms Liu. I also note that Mr Burk continues to try to take care of his own arrangements wherever possible, but now with more difficulty due to his health issues.

7. I now turn to the crux of this matter; do the appellants' reasons for appealing out of time amount to a reasonable excuse pursuant to s.57 of the VLA. In this regard Ms Liu for the respondent has referred me specifically to the case of Parnell v. Department of Natural Resources and Mines [2003] QLC 84. In that case Judicial Registrar O'Connor had this to say at paragraph 7:

   "The appellants are certainly entitled to take extended holidays.  However, it could set an undesirable precedent if the circumstances of the present case were held to satisfy 'reasonable excuse', which has been fairly tightly interpreted.  Having planned to be absent for an extended period of time, the appellants perhaps should have inquired of the Department before they left of the state of their appeal or, alternatively, made more detailed arrangements with someone to attend to such matters in their absence."

8. There is certainly a body of precedent in the Land Court that supports the finding by Judicial Registrar O'Connor in Parnell.  I note that Judicial Registrar O'Connor also had this to say in Parnell at paragraph 5:

   "Mr Parnell states he had made no arrangements for his mail to be either forwarded to a North Queensland address or to be dealt with by a family member or agent during his absence.  His son was instructed merely to collect the mail and keep it in safe custody until his parents' return."

9. In the case of Menon & Anor v Department of Natural Resources and Mines [2003] QLC 79 Judicial Registrar O'Connor had this to say at paragraph 8:

   "…the decision of the Land Appeal Court in the case of Director-General, Department of Transport v Congress Community Development and Education Unit Ltd (A97-09) 25 June 1998, unreported, suggests that the remedial provisions like s.57 of the Valuation of Land Act should be construed to give the fullest relief which the fair meaning of its language will allow. For reasonable excuse, the applicant does not have to be blameless."

10. In my view Judicial Registrar O'Connor's words in Menon have particular relevance in this case.  I certainly do not find the appellants blameless in the manner in which they have come to lodge their appeal late.  However I do find that their conduct is understandable in this matter.  It is then a matter as to whether or not that understandable but not blameless conduct is sufficient to establish a reasonable excuse.

11. As Judicial Registrar O'Connor said in Parnell, it is not sufficient to simply make arrangements for mail to be collected while one is absent.  The appellants in this matter, unlike Mr Parnell, did not have family they could fall to to look after their mail, but even failing having family to refer to they made arrangements with their neighbour to collect their mail.  They went further than was the case in Parnell by giving instructions that important mail was to be opened and also to look particularly for mail from the Land Court.  In giving this instruction Mr Burk was of course wrong and therefore not blameless.  However, there is also evidence that there were a number of telephone discussions between the appellants and their neighbour regarding the state of their mail and that on Mr and Mrs Burk becoming aware that their mail was falling into difficulty and that their neighbour was suffering from health issues, from which he subsequently died, they made arrangements for friends to take over the collection of the mail to ensure that all important mail was attended to.  A prudent thing for the appellants to have done at that time would have been to have their friends take all of the mail from their neighbour and check to see if anything important had been missed in the mail that had existed up until that point of time, but of course it's always easy to be wise after the event and more difficult to make such arrangements from Germany.  I also note the health difficulties suffered by the appellants and their advanced years and their lack of any family in Australia. 

12. Regarding the health issues I refer specifically to the case of Jones v Department of Natural Resources and Mines [2006] QLC 9 and also to the decision of Trenkner v Department of Natural Resources, Mines and Water [2006] QLC 27 which deals with an appellant's husband suffering from Alzheimer's disease and the difficulties that occur as a result of that ailment.

13. In the circumstances then of this matter I certainly am not satisfied that the appellants are blameless and I believe that it is actually a fine balancing matter as to whether or not they fall within "reasonable excuse".  I do find their actions understandable, and given the comments by Judicial Registrar O'Connor referred to earlier about giving the legislation a fair meaning of its language, that a reasonable excuse on balance has been established in the circumstances of this matter.  I am conscious of the need for consistency in reasonable excuse decisions in finding jurisdiction and the dangers of creating any undesirable precedent.  I do however feel that in the peculiar circumstances of this case that those concerns don't arise.  I would not expect we will ever again run into two appellants who are required for German citizenship reasons to travel and are linked with the difficulty in health of somebody who they had put in charge of their mail and the change in those circumstances linked to their difficulties and two Australian addresses. 

14. I would also formally commend Ms Liu for her submissions in the case which in a normal case, failing the overseas and health issues present in this matter, would certainly have been sufficient to satisfy me that a reasonable excuse had not been established, and in particular for the way Ms Liu conducted herself during the cross-examination of Mr and Mrs Burk who clearly were not familiar with Court processes and the way to deal themselves in the witness box.  I think it should be stated on record that the evidence that they have presented in this matter, which has ultimately been to their benefit in proving their case, would not have come out had Ms Liu not undertaken her duties to the Court in conducting the cross-examination in the way that she did, and for that she is to be highly commended. 

15. Accordingly, for all the reasons set out above, in light of the authorities, and the facts I've found, I find that the Court has jurisdiction to hear the appeal in this matter.

P A SMITH

MEMBER OF THE LAND COURT