JMK Investments Pty Ltd v Chief Executive, Department of Natural Resources

[1998] QLC 55

[1998] QLC 55

 

  LAND COURT

BRISBANE

22 May 1998

Re:     Appeal against Annual Valuation -
Valuation of Land Act 1944 -
  Valuation Roll No: 6433
  Local Government:  Brisbane City - Belmont.
  (AV97-366)

JMK Investments Pty Ltd
  v.
  Chief Executive, Department of Natural Resources

DECISION ON JURISDICTION

Introduction:

This matter relates to a property located at 1396 Creek Road, Carina, Brisbane, and described as Lot 12 on RP 205465. This decision relates to a preliminary question as to whether the Court has jurisdiction to hear the merits of the case in relation to an annual valuation of the subject at 1 October 1996, in accordance with the provisions of the Valuation of Land Act 1944.
           Mr J Kozik appeared and gave evidence for the appellant.  Mr G Harper appeared for the respondent.

The Facts:
           In order to understand the basis of the matter of jurisdiction for the Court, the chronology of events is as follows:

•17 March 1997 - The Chief Executive, Department of Natural Resources, issued a valuation of the subject at $380,000.

•12 August 1997 - Following an objection the Chief Executive confirmed the valuation at $380,000.

•18 September 1997 - The Land Court Registry received a notice of appeal dated 9 September 1997 by post, appealing against the valuation, and noting the grounds of the appeal.

•22 September 1997 - The Registry of the Land Court wrote to the appellant advising that the notice of appeal appeared to be defective.The notice of appeal appeared to have not been lodged within 28 days as defined by Section 57(1) and (2) of the Valuation of Land Act. The appellant was forwarded details of the requirements of Section 57(1) and (2), and was invited to advise if the appellant intended to address the Court in respect of any extenuating circumstances for the delay in complying with the Act.

•A reply was required within a prescribed period of 21 days, or else the notice of appeal would be declared invalid.  A copy of this was also forwarded to the respondent.

•3 October 1997 - A reply dated 2 October 1997 to the notice from the Registry was received by the Registry, noting that the appellants sought leave to satisfy the Court in respect of the undue delay in lodging the appeal.

•6 October 1997 - The Registry notified the appellant of the receipt of their reply, and that the matter would be set down for hearing at the first available sitting of the Land Court in Brisbane.  A copy was also sent to the respondent.

•6 March 1998 - The Registrar issued a court notice for a hearing on 14 May 1998, initially to decide whether the Court had jurisdiction to hear the appeal.  If jurisdiction was found to lie, then the matter would be set down for a further hearing to decide the merits of the appeal.  A copy of the notice was also sent to the respondent. 

•The matter was then listed for hearing on 14 May 1998.

The Evidence:

Mr Kozik provided the following statement of the chronology of events as they occurred within the appellant's business arrangements:

•18 March 1997 - Notice of valuation dated 17 March 1997 received by his accountant, GA Crokidas.  Mr Kozik took delivery of that document on 20 March 1997.

•20 March 1997 - Objection to the valuation posted to the Department of Natural Resources.

•1 April 1997 - Acknowledgment of receipt of objection dated 26 March 1997, received by G Crokidos.  Mr Kozik took delivery of that document on 7 April 1997.

•14 August 1997 - Disallowance of objection dated 12 August 1997, received by GA Crokidas.  Posted to Mr Kozik on 18 August 1997.

•21 August 1997 - Mr Kozik telephoned Department of Natural Resources (Mr Pennington), requesting advice on how to appeal to the Land Court.  Mr Pennington posted a notice of appeal form direct to Mr Kozik to save time.

•25 August 1997 - Mr Kozik received notice of appeal form.

•9 September 1997 - Notice of appeal form posted to the Registrar of the Land Court.

In summarising Mr Kozik believes that, considering the procedure that an appellant has to follow, and as he had no previous experience in these matters, he had attended to the appeal in a diligent and timely manner, and he sought the indulgence of the Court to consider the appeal.  Mr Harper argues that the provisions of the Legislation are mandatory and the appeal should be rejected as it did not meet the statutory period of 28 days in which to lodge the appeal.  Mr Kozik argues that his normal course of business operations is for correspondence to be forwarded through his accountant, Mr GA Crokidas.  Accordingly, he argues that the notice of the objection to the valuation was in the normal course of mail until it reached him from his accountant.

Decision:
Before considering the impact of the events surrounding the lodgment of the appeal, I turn to the Valuation of Land Act, and note that in respect of an annual valuation Section 41(1) provides for a dissatisfied person to appeal to the Land Court, and Section 45(2) states:

"45.(2)  Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 28 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).   "

Any such appeal is to be lodged with the Registry of the Land Court under Section 45(3) and the burden of proof is placed upon the appellant under Section 45(4).  I note also that the procedure to start an appeal is covered by Section 56, and the responsibilities of the Land Court Registry and the owner in the late filing of an appeal are covered in Section 57.  I note particularly Section 57(1) which says:

"57.(1)  Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by section 55(2), the registrar of the court shall notify the owner that, as the notice of appeal was not filed in the Land Court registry within the time prescribed by section 55(2), the appeal does not lie unless the owner -

(a)proves to the satisfaction of the court that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post; "

In the event that the owner satisfies the response to the Registry in respect of the timing of due responses, and to the Land Court that the failure to institute the appeal was the result of acceptable delays within the Legislation, then the appeal shall lie, but otherwise under Section 57(2) the appeal shall not lie.
           I note also that Section 45(2) has been amended from 28 days to 42 days by Natural Resource Legislation Amendment Act No. 78 of 1997, with effect from the date of proclamation of 18 December 1997.  The due date of lodgment of the appeal was 9 September 1997, which pre-dates that amendment, and therefore the relevant period for lodgment was 28 days after the date of issue to the owner on 12 August 1997.
           I note that the notice of appeal was dated 9 September 1997, but the appeal was not lodged with the Land Court Registry until 18 September 1997.  The envelope containing the appeal was postmarked at 6p.m. on 17 September 1997.  Whatever the reasons for the delay between 9 September and 17 September, it is clear that they did not relate to "undue delay in the transmission of mail in the ordinary course of post".
           I now consider Mr Kozik's claim that, because of his business arrangements, the normal course of mail includes the intervening personal arrangements where his mail passes through his accountant before reaching him.  By his calculation the notice of rejection of his objection was not received by him personally until some time about 21 August 1997, when he contacted Mr Pennington.  If that could be accepted then his lodgment of the appeal on 18 September 1997 could be seen to meet the statutory period.
           In considering whether Mr Kozik's "special" mail arrangements meet the criteria of the ordinary course of post, I turn to the ordinary use of the words "ordinary course of post" (see "The Shorter Oxford English Dictionary").  The word "ordinary" may be taken to mean "regular, normal, customary or usual".  It may also be taken to mean "of the usual kind, not singular or exceptional" (page 1461).  In the context of the delivery of mail, it is likely to relate to a general service applicable to the general community.  The word "course" may be interpreted to mean "the line, path, or way, along which anything runs or travels, or the onward movement in a particular path" (page 442).  In the context of the delivery of mail it is likely to define the regular process by which mail is delivered between two parties.  The word "post" in the context of the delivery of mail should be interpreted to refer to the postal services which conduct the mail, and therefore related to the postal charges for so carrying the mail to be delivered.
           In that context, the "postal service" would involve all such activities as fall within the responsibility and control of the organisation responsible for delivering the mail.  In the current matter that would relate to Australia Post and its services from the mailing of the mail to the receipt by the appellant at their address noted for dispatch; i.e. Mr Crokidas.  Any on-forwarding by Mr Crokidas is the responsibility of that person, and beyond the ordinary course of post.
           I am aware that an undue delay in the ordinary course of post can occur either at the beginning of the statutory period, when the Chief Executive issues his decision on an objection, as well as at the end of the period, when the appellant forwards his notice to the Court.  I am also aware that jurisdiction was held to exist by the Land Appeal Court in WM and TJ Fischer v. Valuer-General (1990-91) 13 QLCR 129, because there had been an unusual delay of ten days in the mail from the Chief Executive to the objector. While the facts of that matter supported the initial delay in the process, there is no similar evidence of delays in the mail on the known chronology of events in this matter.
           Mr Harper has drawn my attention to the findings of the Land Appeal Court in Seaworld Pty Ltd and Others v. Valuer-General (1978) 5 QLCR 309, which found that part of the reason for a delay in lodging an appeal occurred while the notice remained under the control of the solicitors for the appellant. Although during that period a telephone request had been lodged with the courier who was to deliver the notice to the Court, "no transmission had taken place and the request for the service could have been cancelled" (page 312).

The Land Appeal Court dismissed the appeal.  The analogy with Mr Crokidas and his responsibility to on-forward the documents to Mr Kozik, is obvious.
           On that presumption then I find that the notice of appeal should have been received by the Land Court Registry on or about 9 September 1997.  That the appeal did not arrive until 18 September 1997 does not appear to satisfy the requirements of Section 57(1)(a).
           I consider now whether this Court has any power to extend that statutory period, and I note in JJ Bidner v. The Valuer-General [1992-93] 14 QLCR 88 where the learned Member found at page 93:

"As has been noted in previous cases, the Land Court is a court of statutory creation and its jurisdiction is bestowed by statute.  It has no inherent jurisdiction.  Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature.  (See Gold Coast Milk Pty Ltd and South Coast Co-Operative Dairy Association Limited v. The Valuer-General (1983) 9 QLCR 13 at 17). "

That was also found in KW Fry v. Commissioner of Water Resources (1986-87) 11 QLCR 92, in respect of the statutory period for lodgment; AJ and E Schirmer v. The Valuer-General (1974) 1 QLCR 144 in respect of other details missing on a notice of appeal; RG Ubank v. Queensland Housing Commission (1954-55) 25 CLLR 5 in respect of failure to meet the statutory time limits for lodging of an appeal; and also CM Conroy v. The Valuer-General (1986) 11 QLCR 25, where the appellant failed to provide adequate information to define the quantum of the amount appealed for.

Summary:
           In summary this Court is a body of statutory powers, and as such can only exercise such powers in accordance with the directions of the Legislation.  There is no discretion to assume powers beyond those limits.  As the lodgment of the notice of appeal has not met the requirements of the Act, I find I have no jurisdiction to proceed with the appeal on its merits.  The appeal is struck out for want of jurisdiction.

(NG Divett)          
  Member of the Land Court