ISPT Pty Ltd v Valuer General

[2012] QLC 48

LAND COURT OF QUEENSLAND

CITATION:	ISPT Pty Ltd v Valuer General [2012] QLC 0048
PARTIES:	ISPT Pty Ltd (appellant)
v.
Valuer General (respondent)
FILES NO:	LVA245-12, LVA246-12, LVA247-12, LVA248-12 & LVA249-12
DIVISION:	General Division
PROCEEDING:	Jurisdiction - appeals against unimproved value
DELIVERED ON:	7 September 2012
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
PRESIDENT:	CAC MacDonald
ORDER:	The Land Court has jurisdiction to hear and decide the appeals.
CATCHWORDS:	Practice and Procedure - failed to appeal to Land Court in time - whether reasonable excuse - Land Valuation Act 2010, ss.157, 158.
APPEARANCES:	Mr RG Bain QC and Mr RJ Anderson of Counsel, for the appellant Mr G Smith, Principal Legal Officer, Advocacy Group, Department of Natural Resources and Mines
SOLICITORS:	Otto Martiens Lawyers for the appellant

1. The appellant in these five proceedings, ISPT Pty Ltd, has filed appeals against the Valuer-General's determination of the unimproved value of five properties in the Brisbane Central Business District as at 1 October 2010, under the provisions of the Land Valuation Act 2010 (the Act). 

2. The Notices of Appeal were filed on 31 May 2012. Section 157(2) of the Act provides that, subject to s.158, an appeal cannot be started after 60 days after the date of issue stated in the objection decision notice. The date of decision on objection in each of these matters was 22 February 2012. Accordingly, the time period for filing the appeals expired on 22 April 2012 and, therefore, the Notices of Appeal were filed out of time.

3. This decision deals with applications, pursuant to s.158 of the Act, for an order that the five appeals be heard notwithstanding that the Notices of Appeal were filed after the expiry of the applicable period of limitation.

4. Section 158 relevantly provides that -

   "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."

5. The appellant accepts that the appeals were filed out of time. The respondent has informed the Court that a finding of jurisdiction in respect of these appeals is not opposed. Nevertheless, it is necessary to consider the circumstances pertaining to the late filing of the appeals as s.158(2)(b) provides that the Land Court can hear the appeals only if the appellant satisfies the Court that there was a reasonable excuse for not filing the notices in the appeal period.

The appellant's evidence

1. The facts as deposed to by Mr SE Hopewell, a member of the firm of Gadens Lawyers, were that in July 2011, the appellant retained Gadens Lawyers to act for it in relation to its proposed objections to the Valuer-General's valuations of various properties including the subjects.  Notices of Objection were duly lodged by Gadens on behalf of the property owner and objection conferences were held in December 2011 and January 2012.  It also appears that the appellant had instructed Gadens, by 25 January 2012, to brief counsel to prepare for the filing of appeals on at least some of the subject properties when the objection decisions were received.  On 22 February 2012 decisions on objection were issued by the respondent to Gadens who had been nominated as the appellant's agent for the purpose of service. 

2. Mr Hopewell said that the decisions on objection were scanned and emailed to his address on 23 and 24 February 2012.  However, Mr Hopewell has no recollection of receiving and viewing the objection decisions.  He also said that it did not appear that any other solicitor working on the file was notified of the decisions.  The decisions were filed without being physically given to himself or any other solicitor working on the file.  The firm's standard procedure in relation to dealing with decisions on objection is that the notices of decision were given to Mr Hopewell personally, appeal dates were diarised, the client notified and instructions sought as to whether appeal rights are to be further considered.

3. As Mr Hopewell was unaware that the objection decisions had issued and been sent to him, he emailed the Valuer-General's delegate, Mr M McGarry, on 28 March 2012 and 18 April 2012 requesting advice as to when the decisions would issue.  On 18 April 2012 Mr McGarry replied saying there had been a backlog, that he would have the status of decisions checked and advise, the next day, when they were issued or likely to issue.  No further advice was received from Mr McGarry.

4. It was not until 3 May 2012, when Mr Hopewell had occasion to report to the appellant on the status of the 2010 objections, that he discovered that the decisions on objections dated 22 February 2012 were held on his firm's files.  Mr Hopewell notified the appellant on 8 May 2012, for the first time, of the objection decisions.

5. On 10 May 2012 the appellant advised Mr Hopewell by email that it would engage other lawyers to prepare and lodge appeals out of time.  Gadens subsequently delivered the relevant files to the appellant.  As noted above the appeals were filed on 31 May 2012.

6. An affidavit was also sworn by Ms LJ Hunniford, the senior legal counsel for the appellant, who confirmed that ISPT had not been advised that the relevant objection decisions had been received until she opened Mr Hopewell's email on 8 May 2012.

Appellant's submissions

1. Counsel for the appellant, Mr RG Bain QC, submitted that the appellant had a reasonable excuse, within the meaning of s.158(2)(b), for not filing the notice within the appeal period, because the appellant had entrusted its solicitors with responsibility for the matter, and did not itself know of the issue or delivery of the objection decisions until after the appeal period had expired. The appellant had done all that could reasonably have been expected of it. In particular, after notification by Gadens on 8 May 2012 that the decisions had been issued, the appellant had acted promptly in appointing new solicitors and counsel and in filing the appeals by 31 May 2012.

Respondent's submissions

1. The respondent filed no evidence in relation to this application.  Mr G Smith for the respondent, provided an explanation as to why the respondent had not responded to Mr Hopewell's inquiries as to the issue of the objection decisions in March and April 2012.  However as these are matters of fact about which no evidence was given, I am not prepared to deal with the matters raised in his explanation.  It is sufficient to say that such evidence as there is as to the response of the respondent to Mr Hopewell's enquiries has not affected my decision in this matter. 

Legal Principles

1. There are a number of authorities relevant to a consideration of the issues in this case. 

2. In Union Fidelity Trustee Company of Australia Ltd v The Co-Ordinator-General,[1] the Land Appeal Court considered s.44(11)(d) of the Land Act 1962 which provided that if a notice of appeal to the Land Appeal Court was not lodged in the Land Court within the prescribed period and the appellant satisfied the Land Appeal Court that there was a reasonable cause or explanation for the lateness of the lodgement, the appeal should lie.  The notice of appeal was lodged one day late in circumstances where, the Court held, there could be no doubt that the solicitor's conduct was not that of a reasonable, careful and prudent legal adviser.  The solicitor's conduct, therefore, did not provide a reasonable cause or explanation for the late lodgement of the notice of appeal. 

   [1] (1988) 12 QLCR 153.

3. The Court noted that counsel for the appellant in that case did not contend that the appellant's actions should be distinguished from the acts of its solicitor nor that the appellant had acted reasonably by placing the matter in the hands of respectable solicitors, and that reasonable cause within the meaning of s.44(11)(d) might include unreasonable conduct on the part of the solicitors which the appellant had no reason to anticipate.[2] 

   [2]        At 163.

4. The Court held that where, as in that case, the solicitors concerned were the appellant's solicitors at the hearing before the Land Court and the appellant's solicitors for the purpose of instituting the appeal, the solicitors were to be regarded as the "alter ego" of the appellant so that the appellant was bound by anything that the solicitors did or did not do in the same way as if the appellant had done or not done the thing itself … .[3]

   [3]        At 163.

5. In Director-General, Department of Transport v Congress Community Development and Education Unit Limited[4] the Land Appeal Court again considered whether an appeal should lie under s.44(11)(d), where the notice of appeal had been filed after the prescribed period.  In that case, the care and conduct of the proposed appeal had been entrusted to a solicitor who, through inadvertence contributed to by the pressures of work, did not file the appeal until the first business day after the time limited for the appeal.

   [4] (1998) 19 QLCR 168.

6. Muir J said that[5] -     

   "In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself) or its agents, be blameless.  The expressions under consideration are broad in meaning and quite apt to cover a "slip" of the nature of that made by the employee of the Crown Solicitor.  One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of s 44(11)(a) and (b)  …"

   [5]        At 171.

7. Having considered a number of authorities as to the meaning of the phrase "reasonable cause or explanation", Muir J went on to say[6] -      

   "Those authorities … offer assistance in an assessment of whether any given conduct satisfies the statutory test but each application must be considered on its own merits and by reference to its own facts.  In my view, the conduct discussed above is consistent with a reasonable standard of conduct.  It is the kind of thing which might be expected to delay the "taking of action by a reasonable man"."

   [6]        At 172.

8. Muir J, therefore, allowed the application.  He also said that, having regard to his conclusion, it was not necessary for him to consider, whether on an application such as this, the applicant is necessarily fixed with his agent's conduct to the extent that an agent's conduct is in all respects treated as that as the applicant.  He noted that there is persuasive authority which supports a more flexible approach citing Quinlivan, Coulson v Dunn[7] and the cases collected by Sangster J in Mavra v Logan.[8]

   [7]        (1966) Tas SR (NC) 292.

   [8] (1980) 24 SASR 567.

9. The other Members of the Court (Mr Wenck and Dr Divett) agreed that the application should be allowed, but for different reasons.  They said[9] -   

   "That does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal.  The reasonable cause and explanation of the lateness of the service and lodgement of the notice and payment of the prescribed fee, is, in our opinion, the fact that the solicitor failed in the duty entrusted to her.  The applicant had done everything that should have been expected of him."

   The learned Members held that the authorities referred to by Muir J were sufficiently persuasive to enable them to take the more flexible approach referred to by Muir J.

   [9]        At 173.

10. The difference in reasoning of the Members of the Land Appeal Court in the Congress Community Development case was considered by the then President of this Court, Mr JJ Trickett, in Trust Company of Australia Limited v Department of Natural Resources and Water.[10]  In that case the solicitors had miscalculated the final date for instituting an appeal to the Land Court under the provisions of the Valuation of Land Act 1944, which resulted in the notice of appeal being filed one day late.  The solicitors conceded that the fault was theirs and that the applicant had promptly given instructions to lodge the appeal.  Mr Trickett came to the conclusion that the more flexible approach taken by the Land Appeal Court in the Congress Community Development case should be followed.  Muir J had found that there was reasonable excuse for the slip of the solicitor in that case.  In Mr Trickett's view, the same could be said for the slip of the solicitor in the case before him.[11]  However if that were not sufficient to constitute a reasonable excuse, Mr Trickett adopted the reasoning of Mr Wenck and Dr Divett to the effect that in a case where the fault lies with the solicitors, but the applicant has done everything that could be expected of a "reasonable man" in entrusting the institution of the appeal to its solicitors, the applicant has satisfied its obligation to establish a reasonable excuse for the late filing of the notice of appeal.[12]

    [10] (2007) QLC 0045.

    [11] At [45].

    [12]       At [46, 47].

11. In these matters the appellant's submissions have been presented on the basis that the appellant's actions should be distinguished from the acts of the solicitor.  The decision in the Union Fidelity case can be distinguished on that basis as the Court there said expressly that that submission had not been made to the Court. 

12. The evidence before me in the present matters has not established to my satisfaction that the former solicitors for the appellant had fulfilled their duty to deal with these appeals in an appropriate way.  While there does appear to have been a reasonable system in place designed to ensure that the appeal period did not lapse without the notices of appeal having been filed, there has been no explanation as to how the notices of appeal came to be placed on Mr Hopewell's files without his knowledge.  Presumably further internal inquiries could have been made to establish how that occurred.  If such inquiries were made, the result has not been disclosed.  In those circumstances I am not prepared to find that there was a reasonable excuse for the slip of the solicitor. 

13. On the basis that any fault lies with the solicitors, I am satisfied that the appellant has done everything that could be expected of a reasonable person in entrusting the conduct of the appeals to competent and experienced solicitors.  I am therefore satisfied that there was a reasonable excuse for not filing the Notices of Appeal within the appeal period. 

ORDER
                 The Land Court has jurisdiction to hear and decide the appeals.   

CAC MacDonald

PRESIDENT OF THE LAND COURT