Hinchinbrook Island Pty Ltd v Chief Executive, Department of Natural Resources
[1997] QLC 163
•15 October 1997
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BRISBANE
15 OCTOBER 1997
Re: Determination of unimproved value -
Local Authority: Cardwell
RV97-94
Hinchinbrook Island Pty Ltd
v.
Chief Executive, Department of Natural Resources
(Hearing at Innisfail)
D E C I S I O N - J U R I S D I C T I O N
The above matter was brought before the Court in Innisfail on 29 September 1997 for the purpose of initially determining whether the Court had jurisdiction to hear the appeal which appeared to the Registrar of the Court to have been filed out of time. The appellant was not represented at the hearing, and the respondent Chief Executive was represented by Mr Kevin N Allan, who is a Senior Valuer in the employ of the Department of Natural Resources stationed in Cairns.
Insofar as the question of jurisdiction is concerned, the Court is indebted to Mr Allan for supplying the following chronological order of events:
1.Decision on objection by owner issued from the Department of Natural Resources on 28 February 1997.
2.The 28-day period within which it was competent for the owner to appeal to the Land Court against the decision expired 1 April 1997.
3.Notice of appeal was filed by the owner in the Land Court (by post) on 3 April 1997.
4.Notification to the owner of filing of notice of appeal out of time issued by the Registrar of the Court on 24 April 1997.
5.Prescribed period of 21 days from the date of the notification during which it was competent for the owner to advise the Registrar that it would endeavour to satisfy the Court that the delay in filing the appeal was caused by delay in the transmission of mail in the ordinary course of post (vide s.57(1) of the Valuation of Land Act 1944) expired on 15 May 1997.
6.The owner replied on 15 May 1997 to the notification and notified its intention to satisfy the Court that there was delay in the ordinary course of post.
In the absence of evidence from the appellant, and in accordance with the powers of the Court (s.41(2) of the Land Act 1962), I decided to research the Land Court file in an endeavour to establish if there has been any apparent delay in the ordinary course of post.
The notice of appeal is dated 27 March 1997. The envelope within which the notice was conveyed to the Court Registry by post is attached to the file (as is the customary Land Court Registry procedure) and the envelope is clearly date stamped at the Toowong Post Office 27 March 1997. Why then did it not arrive in the Land Court Registry until 3 April 1997?
A calendar research reveals that Easter 1997 intervened between the date of the posting of the notice of appeal (Thursday before Easter) and the date of the receipt of the notice of appeal in the Registry (Thursday after Easter). The last day of the period within which it was competent for the owner to file the notice of appeal (1 April 1997) was the Tuesday after Easter.
Since the appeal did not arrive by post in the Registry till 3 April 1997, and it could be expected that mail posted in a Brisbane Suburb Post Office should reach its Brisbane City destination the next working day, I am prepared to find that there was delay in the transmission of mail in the ordinary course of post, and accordingly the Court is seized of jurisdiction to hear the appeal on merit.
But since the appellant company failed to appear, it could not satisfy the onus of proving the grounds of appeal which rests upon it in accordance with the provisions of s.45(4) of the Valuation of Land Act 1944. Consequently, upon an application made by Mr Allan, the appeal was struck out for want of prosecution.
CH CARTER
MEMBER OF THE LAND COURT
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