Hope v Brisbane City Council - [2013] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:

Hope & Anor v Brisbane City Council [2013] QCA 198

PARTIES:

ROY HOPE
DELIA HOPE
(applicants)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 743 of 2013
LAC No 7 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Land Appeal Court

ORIGINATING COURT:

Land Appeal Court at Brisbane

DELIVERED ON:

23 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2013

JUDGES:

Muir and Gotterson JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal is refused.

2. The applicants pay the respondent’s costs of the application.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – GENERALLY – where the applicants’ land was taken by the respondent under the Acquisition of Land Act 1967 (Qld) – where the applicants served the respondent with a notice of appeal out of time – where the applicants apply for leave to appeal a decision of the Land Appeal Court – where the applicants contend that the Land Appeal Court made an error or mistake of law in construing the Land Court Act 2000 (Qld), s 64, s 65 and s 57(c) – whether an appeal to the Land Appeal Court is incompetent if the applicants fail to serve the notice of appeal on the respondent within 42 days after the order was made – whether serving the respondent with a notice of appeal out of time can be cured by an order of the court under the Land Court Act 2000 (Qld), s 57

Acquisition of Land Act 1967 (Qld), s 20(2)
Judicature Act 1876 (Qld), s 9, s 10, O 56 r 6, O 57 r 2
Land Court Act 2000 (Qld), s 64, s 65, s 57(c), s 74(1)(a), s 74(2)
Land Court Rules 2000 (Qld), r 3, r 7
Rules of the Supreme Court 1900 (Qld), O 70 r 2, O 70 r 4
Supreme Court Act 1867 (Qld), s 38
Uniform Civil Procedure Rules 1999 (Qld), r 8(1)

Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38, cited
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited
Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39, cited

BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216, cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, cited
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43, cited
Gordon v Tolcher (2006) 231 CLR 334; [2006] HCA 62

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCA 198
Decision Date: 23 July 2013

CaseChat Overview and Summary

In the matter of Hope v Brisbane City Council, the applicants, Hope, sought to appeal a decision of the Land Appeal Court, which upheld a decision of the Land Court. The dispute arose from the respondent, Brisbane City Council, acquiring the applicants’ land under the Acquisition of Land Act 1967 (Qld). The applicants served a notice of appeal out of time, and subsequently applied for leave to appeal the decision of the Land Appeal Court. The applicants contended that the Land Appeal Court erred in its construction of certain sections of the Land Court Act 2000 (Qld). The central issue before the court was whether the applicants’ failure to serve the notice of appeal within the prescribed 42-day period rendered their appeal incompetent, and if so, whether this defect could be rectified by an order of the court under the Land Court Act 2000 (Qld), s 57.

The court examined the statutory framework governing the timeliness of appeals in land acquisition cases, particularly the requirement under the Land Court Act 2000 (Qld), s 64 and s 65 for a notice of appeal to be served within 42 days of the Land Court’s order. The court also considered the discretionary power of the court under s 57(c) to extend the time for serving a notice of appeal. The applicants argued that the error in the Land Appeal Court’s interpretation of the statutory provisions warranted relief. However, the court held that the statutory time limits for appealing a decision of the Land Court are mandatory and cannot be extended by the court under the Act. Consequently, the applicants' out-of-time notice of appeal was ineffective, and their application for leave to appeal was dismissed.

The court found that the applicants’ appeal to the Land Appeal Court was incompetent due to the failure to comply with the statutory time requirement for serving a notice of appeal. The court emphasised the importance of adhering to statutory deadlines in the context of land acquisition proceedings, given the significant public interest in the timely resolution of such matters. The court also noted that the discretion under s 57(c) of the Land Court Act 2000 (Qld) does not extend to curing the fundamental defect of an out-of-time notice of appeal. Thus, the application for leave to appeal was refused, and the applicants were ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicants pay the respondent’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hope & Anor v Brisbane City Council [2013] QCA 198
PARTIES:	ROY HOPE DELIA HOPE (applicants) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	Appeal No 743 of 2013 LAC No 7 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from the Land Appeal Court
ORIGINATING COURT:	Land Appeal Court at Brisbane
DELIVERED ON:	23 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2013
JUDGES:	Muir and Gotterson JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is refused. 2. The applicants pay the respondent’s costs of the application.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – GENERALLY – where the applicants’ land was taken by the respondent under the Acquisition of Land Act 1967 (Qld) – where the applicants served the respondent with a notice of appeal out of time – where the applicants apply for leave to appeal a decision of the Land Appeal Court – where the applicants contend that the Land Appeal Court made an error or mistake of law in construing the Land Court Act 2000 (Qld), s 64, s 65 and s 57(c) – whether an appeal to the Land Appeal Court is incompetent if the applicants fail to serve the notice of appeal on the respondent within 42 days after the order was made – whether serving the respondent with a notice of appeal out of time can be cured by an order of the court under the Land Court Act 2000 (Qld), s 57 Acquisition of Land Act 1967 (Qld), s 20(2) Judicature Act 1876 (Qld), s 9, s 10, O 56 r 6, O 57 r 2 Land Court Act 2000 (Qld), s 64, s 65, s 57(c), s 74(1)(a), s 74(2) Land Court Rules 2000 (Qld), r 3, r 7 Rules of the Supreme Court 1900 (Qld), O 70 r 2, O 70 r 4 Supreme Court Act 1867 (Qld), s 38 Uniform Civil Procedure Rules 1999 (Qld), r 8(1) Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38, cited Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39, cited BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216, cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, cited David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43, cited Gordon v Tolcher (2006) 231 CLR 334; [2006] HCA 62