Hope v Brisbane City Council

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Hope v Brisbane City Council  [2012] QLAC 9

PARTIES:

Roy and Delia Hope
(appellants)

v.

Brisbane City Council
(respondent)

FILE NO:

LAC008-12

DIVISION:

Land Appeal Court

PROCEEDING:

Application as to competency of appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

14 December 2012

DELIVERED AT:

Brisbane

HEARD AT:

Written submissions

THE COURT:

Peter Lyons J
CAC MacDonald
PA Smith

ORDER:

The appeal is struck out.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND - Determination of compensation - Acquisition of Land Act 1967

PRELIMINARY POINT - Jurisdiction - Appeal to Land Appeal Court - Time for service - Within 42 days after order containing the decision under appeal is made by the Land Court - Appeal served on respondent one day late - Whether appeal rendered incompetent - Whether power to excuse non-compliance - Land Court Act 2000, ss. 64 and 65

Acquisition of Land Act 1967
Land Act 1962
Land Court Act 2000
Land Court Rules 2000

COUNSEL:

Mr A Skoien for the appellants
Mr M Hinson SC for the respondent

SOLICITORS:

McCarthy Durie Lawyers for the appellants
Brisbane City Legal Practice for the respondent

THE COURT:    

1. The substantive proceedings in this matter concern an application for the determination of compensation for the compulsory acquisition of land under the Acquisition of Land Act 1967.  Compensation was determined by the Land Court by decision delivered on 28 August 2012.  The applicants for compensation, Roy Hope and Delia Hope (the appellants), appealed against the determination of the Land Court by notice of appeal to the Land Appeal Court filed in the registry of the Land Appeal Court on 9 October 2012.  The notice of appeal was served on the solicitors for the respondent constructing authority, Brisbane City Legal Practice, on 10 October 2012. 

2. Sections 64 and 65(1) of the Land Court Act 2000 (the Act) provide that -   

   "64 Right of appeal to Land Appeal Court

   A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.

65 Notice of appeal

(1)  A party intending to appeal against a decision of the Land Court must, within 42 days after the order containing the decision is made by the court, serve notice of appeal against the decision on -

(a)  all other parties to the proceeding on which the decision was made;  and

(b)  the registrar of the Land Appeal Court."

1. It is not in contention that the notice of appeal to the Land Appeal Court was filed within 42 days after the order containing the decision under appeal was made by the Court, having been filed on the 42^nd day after delivery of that decision.  It is also not in contention that the notice of appeal was served on the respondent on the 43^rd day after the order was made by the Land Court. 

2. This decision deals with an application by the respondent…