Horsburgh v Valuer-General

[2024] QLC 11

LAND COURT OF QUEENSLAND

CITATION:

Horsburgh and Anor v Valuer-General [2024] QLC 11

PARTIES:

Ailsa Margaret Haig Horsburgh and John Richard Horsburgh

(applicants)

v

Valuer-General
(respondent)

FILE NO:

LVA017-24

DIVISION:

General Division

PROCEEDING:

Jurisdiction – appeal against annual valuation

DELIVERED ON:

29 May 2024

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 8 March 2024

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDER:

The Court has jurisdiction to hear and determine the appeal.1.       

CATCHWORDS:

PRACTICE AND PROCEDURE – failure to appeal to Land Court in time – failure to lodge – whether reasonable excuse is established – where jurisdiction found to lie.

Land Valuation Act 2010, s155, s157, s158

AG Russell v TheCrown (1992-93) QLCR 202, applied.

Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 12 QCLR 153
Stevens v. Motor Vehicle Insurance Trust (1978) WAR 232

APPEARANCES:

Not applicable

1. In this application the Court must determine if it has jurisdiction pursuant to s 157 of the Land Valuation Act 2010 (the LVA) to hear and determine an appeal against an annual valuation as at 1 October 2022. The subject property is located at Peeramon within the Tablelands Regional Council local government area. 

1. On 29 November 2023 an objection decision notice was issued by the respondent in respect of the unimproved value of the subject property. The notice of appeal forwarded by the applicants is endorsed as having been filed on 31 January 2024. It is not in dispute that the final day for lodgement of the proposed appeal was 29 January 2024.

1. The Land Court registry emailed the parties on 31 January 2024 advising that to establish jurisdiction, s 158 of the LVA required that reasonable excuse must be established for not filing the notice within the appeal period.

1. On 9 February 2024 the Court issued directions for the filing of materials and submissions regarding the preliminary question of reasonable excuse. With the agreement of the parties this application is to be decided “on the papers” without the need for an oral hearing.

Legislation

1. Section 157 (2) of the LVA provides:

“(2) Subject to section 158, an appeal cannot be started after 60 days after the day of issue stated in the objection decision notice (the appeal period).”

1. Section 158 of the LVA provides:

“158 - Late filing
(1) This section applies if a valuation appeal notice is filed after
       the appeal period has ended.
(2) The Land Court can hear the appeal only if—

(a) the valuation appeal notice was filed 1 year or less after

the objection decision notice was issued; and

(b) the appellant satisfies the court there was a reasonable

excuse for not filing the notice within the appeal period.

Example of reasonable excuse—

The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post.”

Evidence

1. The applicants are not legally represented and rely on a one-page typed statement signed by Mr JR Horsburgh. This statement was filed on 22 February 2024 and attached an email from FNQ Plastic Surgery dated 24 January 2024. The evidence of the respondent comprises an affidavit of Ms SR Di Mauro filed on 8 March 2024.  There being no objections, the statement[1] of Mr Horsburgh and the affidavit[2] of Ms Di Mauro are admitted into evidence.

   [1]Ex 1.

   [2]Ex 2.

1. The evidence of Mr Horsburgh details the following matters in support of a finding of reasonable excuse:

i.      On 12 January 2024 he was diagnosed as having a Level 4 melanoma. This diagnosis was not expected by him.

ii.      At this time, he was advised that the melanoma should be excised as soon as possible.

iii.      He was distracted from the Notice of Appeal by the urgency of the treatment during the next few weeks and days.

iv.      Surgery was scheduled for Tuesday 30 January 2024 in Cairns.

1. The attachment to Mr Horsburgh’s statement indicates preliminary imaging was to be scheduled prior to the surgery. The surgical procedure is referred to in the attachment as “wide local excision melanoma + SNLB” and was to be undertaken with a general anaesthetic.

1. The affidavit of Ms Di Mauro on behalf of the respondent addresses topics including background/orders, Australia post tracking information, correspondence between the applicants and respondent and notes that the applicant has previously lodged an appeal in respect of the subject property.

Applicant’s submissions

1. No additional submission or contention was filed by or on behalf of the applicants.

Respondent’s submissions

1. The respondent contends that a finding of reasonable excuse should not be made. The respondent’s submissions address the following matters:

i.      The applicants have not provided any reason or excuse or supporting documentation (i.e medical certificate) that they were incapacitated or otherwise unfit prior to Mr Horsburgh’s surgery to complete and file the notice of appeal.

ii.      The applicants have not provided any reasons in their submissions or supporting documentation to support a reasonable belief that posting the notice of appeal by ordinary domestic post would result or likely result in its arrival and filing by 29 January 2024 to satisfy the court that a reasonable excuse has been established.

iii.      It is critical that the submissions identify the excuse for the delay, supported by a satisfactory explanation and with probative evidence that on an objective assessment can be deemed a cause consistent with a reasonable standard of conduct, the kind of thing which one might expect to delay the taking of action by a reasonable man.

iv.      With respect, the applicants second reason for the late filing of their appeal does not amount to “reasonable excuse”. The applicants filed the notice of appeal by ordinary domestic post. Postage by this method has an estimated delivery time of three to four business days. The tracking information for the latter shows it arrived in advance of the estimated delivery time.

Conclusion

1. In AG Russell v The Crown,[3] the Land Appeal Court made the following observation regarding the determination of reasonable excuse:

“Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation.”[4]

[3]AG Russell v The Crown (1992-93) 14 QLCR 202.

[4]Ibid at 204.

1. It is not in dispute that on 12 January 2024 the applicant was diagnosed as having a Level 4 Melanoma and was required to undergo surgery and SLNB in Cairns on 30 January 2024. In this regard the applicant states that “the urgency of the treatment during the next few weeks and days distracted me from the notice of appeal”. This diagnosis is corroborated by an email from the office of applicant’s treating surgeon. This correspondence also details the nature of the treatment to be undertaken and sets out preparatory steps and patient related information.

1. Given the seriousness of the diagnosis and the urgency of the surgery it is hardly surprising that Mr Horsburgh was distracted. His evidence and the email from FNQ Plastic Surgery are neither fanciful nor inherently improbable. The Court is therefore unable to accept the submission on behalf of the respondent that a finding of reasonable excuse is precluded because “the applicant has not provided any reason or excuse or supporting documentation (i.e. medical certificate) that they were incapacitated or otherwise unfit.”

1. The materials and submissions have been considered fully. The Court is satisfied that the melanoma diagnosis and the scheduled treatment toward the end of the appeal period are matters of a substantial nature that did preclude the filing of the notice of appeal. Viewed objectively, it is considered that these matters are the type of thing that would be likely to the delay the taking of action by a reasonable person.[5] It therefore must follow that the Court has jurisdiction to hear the appeal.

   [5]Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 12 QCLR 153.  see also Stevens v. Motor Vehicle Insurance Trust (1978) WAR 232.

Order

The Court has jurisdiction to hear and determine the appeal.1.