Hughes v Department of Natural Resources and Water
[2007] QLC 129
•18 December 2007
LAND COURT OF QUEENSLAND
CITATION: Hughes v Department of Natural Resources and Water [2007] QLC 0129 PARTIES: Peter M & Jane AS Hughes
(applicants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO.: AV2007/0814 DIVISION: Land Court of Queensland – General Division PROCEEDING: Jurisdiction - appeal against annual valuation Valuation of Land Act 1944. DELIVERED ON: 18 December 2007 DELIVERED AT: Brisbane HEARD AT: Mackay MEMBER Mr RP Scott ORDER: The Court does not have jurisdiction to hear and decide the appeal. CATCHWORDS: Valuation of Land Act – late filing of Notice of Appeal – s.45(2) – s.57(1) and (2) – whether "reasonable excuse" demonstrated – no cause particularised. APPEARANCES: Mr B Taylor, (Emanate Legal) by telephone and
Mr V Campbell, of Macrossan & Amiet Solicitors, town agent for Emanate Legal for the applicants.
Mr G Smith, Senior Legal Officer, Department of Natural Resources and Water for the respondent.
Pursuant to the provisions of the Valuation of Land Act 1944 (the Act) the respondent placed a valuation on property owned by the applicants. The applicants objected to that valuation amount. The objection was disallowed and the solicitors for the applicants, Emanate Legal, filed a Notice of Appeal in the Land Court Registry. That Notice of Appeal was filed was filed by facsimile by 26 September 2007, whereas the last date for institution of the appeal in accordance with the Act was 25 September 2007. Section 45(2) of the Act provides:
"(2)Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 42 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive’s decision upon the objection (which date of issue shall be stated in such notice)."
Notwithstanding the strictness of s.45(2) there is provision in the Act for a late lodgement of appeal to be excused:
"57 Late filing
(1) If a Notice of Appeal is filed in the Land Court registry after the time stated in section 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) If the owner satisfies the court under subsection (1), the court may hear and decide the appeal."[1]
[1] s.57 applies to s.45(2) by virtue of s.45(9).
The applicants contend that the late lodgement of the Notice of Appeal should be excused and jurisdiction to hear the appeal on the merits be found to lie. The respondent resists the application. The application was heard on 29 November 2007, notice of which issued on 23 October 2007.
The circumstances submitted by the applicant as being relevant to establish jurisdiction were provided in the affidavit of Anthony James Douglas. That affidavit included:
"1.I am a Lawyer, employed by Emanate Legal and have conduct of this matter on behalf of the Appellant.
2.On 14 August 2007 the Notice of Objection was issued to the Appellant.
3.This Notice was forwarded to the Appellant's address, however as the Appellant is a grazing operation property owner they do not collect the mail daily.
4.The Appellant forwarded the Notice of Valuation to the Appellant's solicitors.
5.As the Appellant's solicitors were in the process of establishing a new practice – Emanate Legal.
6.The Appellant's solicitor Mr Barry Taylor did not receive the notice in a timely manner.
7.As the file for this matter was boxed for removal and was not unpacked until the afternoon of 25 September 2007.
8.Upon unpacking boxes it was Notice was immediately reviewed and the appropriate action taken.
9.Instructions were received from the Appellant to lodge the Notice of Appeal.
10.The Notice of Appeal was lodged on 26 September 2007."
Whilst clause 2 of the affidavit refers to a "Notice of Objection" I understand from perusal of the Notice of Appeal that what is referred to is the "decision on objection" sent to the applicant by the Chief Executive. A "Notice of Objection" is the form lodged by a landowner to commence objection proceedings (s.42). Clause 4 of the affidavit refers to the "Notice of Valuation". Perusal of s.41A of the Act indicates that such a notice appears to be one that issues from the Chief Executive following the making of the initial valuation and prior to any objection. Nevertheless, in the context of the affidavit it appears that the deponent may be referring to the "decision on objection".
Mr Taylor was able to supplement Mr Douglas's affidavit by informing the Court that Emanate Legal was "set up" on August 31 2007. Apart from that, Mr Taylor said that he relied on the affidavit as the evidence in the application.
Mr Douglas' affidavit suggested that "the reason for the late lodgement of one day was a direct result of the file being boxed for removal". Mr Taylor's submission to the Court was based on the same proposition. He submitted that the lateness of filing of Notice of Appeal was an administrative slip that should be sheeted home to his firm and not to the client. Direct reliance was not placed on clause 3 of the affidavit (collection of mail) or clause 6 (receipt of notice by Mr Taylor not timely). Those clauses were seemingly included for the purpose of context, only. For completeness, however, I should mention that the grounds of appeal in the Notice of Appeal say that the decision on objection was received on or about 15 August 2007.
The heart of the applicant's case appears to lie in clauses 7 – 10 of the affidavit. From those clauses I understand that "appropriate action was taken" on 25 September 2007. What "appropriate action" was taken, was not made clear to me. Mr Smith, for the respondent, suggested that it was clear from clause 9 that instructions to lodge an appeal were not received until 25 September 2007. Mr Taylor claimed no personal knowledge of the date that instructions were given apart from what was deposed to in the affidavit. On my reading of the affidavit I cannot conclude that it leads to an equivocal or even apparent understanding that instructions were received on 25 September 2007. The fact that clause 8 refers to "appropriate action" and not specifically to instructions, tends to indicate that instructions were not received until after 25 September 2007. The clauses of the affidavit are drawn in a quite normal chronological form. I notice also that clause 4 makes no mention of the purpose of the "notice of valuation" being supplied to the applicants' solicitors. There was no mention of instructions being provided at that time.
It was submitted for the respondent that as, on Mr Smith's construction of the affidavit, instructions were not received until the last day for filing a Notice of Appeal (25 September) responsibility for late filing did not arise from an administrative slip of the solicitors for the applicants but from the applicants. There are two prongs to that submission as I understand it. The first is the obvious one that the lateness of the client providing instructions resulted in the solicitors not being able to prepare and file the Notice of Appeal until the following day (26 September). Assuming for the moment that instructions were given on 25 September, the conclusion suggested by Mr Smith involves an inference that is not borne out by the affidavit. Mr Douglas does not depose that there was insufficient time to prepare and file a Notice of Appeal on 25 September. Indeed, it may have been the case that the solicitors for the applicants proceeded on the basis that 25 September was not the last day for filing the Notice of Appeal. As much was asserted by the solicitors for the applicants in a covering letter to the Notice of Appeal at the time of its lodgement.
The other prong to Mr Smith's submission appears to be that as Emanate Legal commenced on 31 August 2007, the applicants had sufficient time to provide instructions prior to the last date for filing. Therefore, it follows, the fault lay with the applicants not with the solicitors. If I correctly understand that to be the submission then I reject it. The ameliorative affect of s.57(1) and (2) on the strictness of s.45(2) would be emasculated if such a view were to be accepted. It would have the effect of a substantive cause amounting to a "reasonable excuse" late in the period allowed by s.45(2) being rejected because the appeal could have been lodged earlier. There is no implicit requirement that a Notice of Appeal should be lodged on any day prior to the last day for lodgement.
In Jackamarra v Krakourer and Anor [1998] 195 CLR 516, applicable principles for procedural time defaults are canvassed in some detail in the decision of Kirby J. I need not descend into the detail of those principles and will refer to three matters only in His Honour's reasons.
"The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus if a rule requires such 'special reasons' or 'special circumstances' be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application.' (footnotes deleted)." (at 539)
"It is for the party seeking to persuade the decision –maker to show that it should be granted." (at 540)
"Courts have often drawn a distinction between the approach which they take time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (dec'd) [1981] Ch 167 at 175, Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) with procedural rules typically found in rules of court:
'[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules.'" (at 540)
It is important to notice that in the present case the statute does not grant the Court an unfettered discretion to excuse non-compliance with s.45(2). The jurisdiction that is granted in s.57(2) requires the Court to be satisfied that a reasonable excuse is demonstrated on the evidence. And that requirement is a substantive one provided for in the Act, not in the Rules.
The phrase "reasonable excuse" and other similar phrases have been considered in a number of authorities many of which are collected in the judgment of Muir J in Director General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 19 QLCR 168 at 171. The phrases considered in the authorities referred to by His Honour include "reasonable cause for explanation"; "reasonable cause" and "reasonable excuse". I might usefully refer to one of the authorities relied upon by His Honour that being Pascoe v The Nominal Defendant (Qld) No. 2 [1964] Qd R 373 at 378 in which Mansfield CJ said –
"What is to be determined is whether the applicant has shown any cause which
can be deemed by the court to be a reasonable excuse. I think this means cause
which a reasonable man would regard as an excuse, a cause consistent with a
reasonable standard of conduct, the kind of thing which might be expected to
delay the giving of notice by a reasonable man."
It can be understood from this quotation that for a Court to conclude that a "reasonable excuse" exists for the delay there must first be identified an actual cause or causes of the delay. I cannot conclude that a case has been made out that the fact that the file was boxed for removal was the cause of the lateness of filing of the Notice of Appeal. There is an absence of particularity as to the true nature of the cause. The affidavit does not depose that a Notice of Appeal could not have been filed within time on 25 September 2007 when boxed material was unpacked, nor why it was not filed that day. The Notice of Appeal was filed on 26 September 2007 by facsimile with the receiving machine in the Land Court registry recording a filing time of 12:24 pm that day.
In AG Russel v The Crown [1992] 14 QLCR 202 the Land Appeal Court was dealing with an application for extension of time to lodge an appeal. That involved a consideration of s.44(11)(a)(b) for the Land Act 1962 which permitted an extension of time if the applicant demonstrated a "reasonable cause or explanation". At 204 the Court said:
"Mr Conroy submitted that the reason for the late compliance with s.44(11)(a) and (b) was his client's ill health. Unfortunately, in spite of questioning from the bench, no particulars were given as to the nature of this illness, its duration, and what medical treatment if any had been received. There is no medical evidence and no certificate is produced, and the appellant himself has not sought to explain to this Court his circumstances, notwithstanding that two letters have already been sent to the appellant and Mr Conroy, informing them that the appellant must establish this matter before the appeal can proceed." (emphasis added)
Even if the discretion granted to the Court was unfettered there would be a need for a satisfactory explanation.[2]
[2] See, for example, Beil v Mansell (No. 1) (2006) 2 QdR 199, [41].
Mr Taylor referred to a number of cases in which jurisdiction has been found in instances of late lodgement of Notices of Appeal. None of those authorities is of assistance to me as each is concerned with consideration of whether or not identified cause amounts to a "reasonable excuse". I was referred also to Melville & Ors v Townsville City Council [2003] QCA 456, however also find that to be of no assistance in the present matter. That case was concerned with a question of the construction of s.65(1) of the Land Court Act 2000.
I need not consider submissions from Mr Taylor as to the fact that the Notice of Appeal was lodged one day late only, nor as to whether the respondent would suffer any prejudice should late filing in this instance be excused. Those are matters that may arise only when the cause of late filing is identified.
It gives me no satisfaction to draw the conclusion that I have, but I must conclude that no reasonable excuse for the late filing of the Notice of Appeal has been demonstrated and that, accordingly, the Court has no jurisdiction to hear the appeal.
RP SCOTT
MEMBER OF THE LAND COURT
3