Jockheim v Department of Natural Resources and Mines

[2004] QLC 83

LAND COURT OF QUEENSLAND

CITATION:	Jockheim v Department of Natural Resources and Mines [2004] QLC 0083
PARTIES:	Ludwig Benignus Jockheim (applicant)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NO:	AV2004/0108
DIVISION:	Land Court of Queensland
PROCEEDING:	Appeal against annual valuation under Valuation of Land Act 1944
DELIVERED ON:	28 September 2004
DELIVERED AT:	Brisbane
HEARD AT:	Proserpine
MEMBER	Dr NG Divett
ORDER:	The appeal is dismissed as the Court has no jurisdiction to hear the matter.
CATCHWORDS:	Statutory valuation – Valuation of Land Act 1944 – Practice and Procedure – Jurisdiction – Jurisdiction not found to lie.
APPEARANCES:	Mr Jockheim appeared on his own behalf.  Mr A Cradick, Legal Officer, appeared for the respondent.

Background:

1. This matter relates to rural lands about 32 kilometres west of Proserpine, and described as Lot 31 on C 11757, Lot 15 on C 1746, Lot 13 on C 1769, and Lot 16 on SP 100959, Parish of Macartney;  and Lots 2 and 3 on SP 112425, Lot 565 on H 12454, Lot 1480 on H 12456, Lot 36 on HR 262, Lots 65 and 66 on H 393 and Lot 2 on RP 711541, Parish of Andromache.  The subject land is used as a cattle property and is valued under s.17 of the Act.  The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of an appeal of an annual valuation at 1 October 2002 under the Valuation of Land Act 1944.  Ludwig Benignus Jockheim appeared on his own behalf.  Mr A Cradick, Legal Officer, appeared for the respondent, calling evidence from Ross Malcolm Bein, the registered departmental senior valuer responsible for determining the objection on the valuation. 

The Facts:

1. The following chronology assists in understanding the circumstances of the appeal.  The Chief Executive issued a valuation of the subject land in March 2003 at $1,250,000.  Following an objection by the owner within the required period of 42 days, an objection conference was arranged between the parties.  A decision on the objection was then issued by the Chief Executive on 24 February 2004. 

2. Following that decision on objection, the appellant wrote to the Chief Executive on 27 April 2004 seeking a further conference and inspection to discuss issues still at difference between the parties.  (Exhibit 4).  Mr Bein advises that attempts by telephone were made with Mr Jockheim to arrange another conference, but that was not able to be arranged, due to the unavailability of the appellant at a certain time.  Mr Jockheim advises that he had then waited for further response from the Department to no avail.

3. The closing date for appeal was 42 days after the date of issue of the decision on objection, or 6 April 2004, which passed without any appeal lodged by the appellant.  An appeal was subsequently lodged with the Court on 16 June 2004, after being processed by Australia Post at the Proserpine Post Office on 9 June 2004.  (Exhibit 1).  A copy of that late appeal was also sent to the Chief Executive on 10 June 2004.

4. On 16 July 2004 the registrar of the Court wrote to the appellant advising of the apparent filing of the Notice of Appeal out of time, requesting advice under s.57(1) and (2) of the Act as to the reasons why the appeal had been lodged after the required date for lodgement.  (Exhibit 2).  There was no response to that letter from the appellant.  On 10 August 2004 the matter was set down for hearing of the matter of jurisdiction in Proserpine on 26 August 2004. 

5. At the hearing on 26 August 2004 Mr Jockheim provided a statement to the Court advising that, due to the pressures of the worst drought in the history of his property, he had overlooked lodging the appeal on time.  (Exhibit 3).  Mr Jockheim advises that he was aware that a statutory period of 42 days existed, within which an appeal had to be lodged, having received that advice from the Chief Executive in his decision on objection on 24 February 2004.  (Exhibit 4). 

6. In respect of his normal office procedures, Mr Jockheim concedes that it is not his usual practice to maintain records of relevant dates, such as the date within which to appeal, although he agrees that he maintains a timetable for the processing of cattle movements or marketing of stock.  Mr Jockheim has operated the 12,000 hectares (30,000 acres) cattle property for many years, and currently the property carries about 2,400 head of cattle.  He advises that he does not normally seek legal assistance in such matters, due mainly to the costs involved.  Because of a limited personal education, Mr Jockheim has difficulty sometimes with complex documentation, but concedes that he could have readily processed a notice of appeal application (form 59) to the Court.

7. Mr Jockheim further agrees that he suffers from no debilitating physical problems which might have prevented his lodgement of the appeal on time.  He advises that he occasionally visits Proserpine township for personal purposes, usually at night after completing his responsibilities on the property.  He advises that normal household shopping excursions are undertaken by his wife.  Mr Jockheim agrees that he could have made a special effort to lodge the appeal on time, had he remembered, but that would have resulted in his temporary neglecting his cattle responsibilities.  He concedes that his other business activities with the property overrode his need to complete the appeal on time.

Decision:

Statutory Interpretation -

1. I note first that in respect of the lodging of an appeal against a decision on objection, s.45(2) of the Act directs:

   "45.(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)." 

2. I consider then whether this Court may exercise any wider discretion in respect of the late lodgement of the appeal.  The ability of the Court to exercise further discretion arises from recent amendments to s.57(1) of the Act, which took effect from 1 October 2000.  Prior to those amendments the power of this Court to consider delay in lodging an appeal, after the statutory 42 days from the date of issue of a decision by the Chief Executive on an objection, were more circumscribed.  Section 57(1), as it then was, allowed only that "an acceptable delay may be allowed by the court if it may have occurred through the normal course of post". 

   The amended s.57(1) now states:

   "57.(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."

3. The key to understanding the statutory interpretation of such matters was outlined in another decision of this Court in MJ and D Anthony v Chief Executive, Department of Natural Resources (AV00-517), 10 November 2000, to be reported.  The important matter then for consideration now is to determine whether Mr Jockheim's explanation of his lodgement of the appeal may be seen as "a reasonable excuse". 

The ordinary course of post –

1. Before examining Mr Jockheim’s excuse for late lodgement, I note that it is agreed that the appeal notice was processed through the Proserpine Post Office on 9 June 2004, which is itself well beyond the statutory period for lodgement.  I note that the understanding of "ordinary course of post" was explored by the High Court of Australia in Bowman & Anor v Durham Holdings Pty Ltd (1973) 131 CLR 8, where Stephen J said at 14:

   "When clause 19(a) refers to 'the ordinary course of post', it is not, I think, concerned with the particular idiosyncrasies of a particular addressee but rather with the general delivery practice of the postal service.  It does not concern itself with particular circumstances of an addressee which may, if known to the postman on his round, deter him from attempting to effect delivery to a particular addressee;"

   Guidance from those findings infers that the delivery of the notice of decision by the Chief Executive should cease when it has been delivered by the postal service to the address on the correspondence.  The explanation of such a service as ordinary course of post, in my opinion, would suggest that delivery would equate to the level of service that the ordinary person would reasonably expect to occur. 

   On the evidence there is nothing to support any claim that delays in the ordinary course of post could have contributed to this matter. 

Discretion of the Court –

1. If I turn then to the level of discretion afforded to this Court, I note that it must be exercised judicially according to reason and justice, and not arbitrarily or capriciously according to private opinion.  That was found by the High Court in House v The King (1936) 55 CLR 499 where the Court said at 504, 505:

   "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

2. Section 66 of the Valuation of Land Act provides to this Court powers to determine a valuation as it sees fit in accordance with the evidence provided.  Those powers are unfettered by the legislation, as noted in Middleton v Freier & Ors (1958) QdR 351, where Philp J, (later CJ) said at 357:

   "… where an unfettered discretion is given by statute or a rule no court can by its decision impose conditions upon the free exercise of that discretion by another court."

   (See also Townsville City Council v Moyses and Morris (1979) 6 QLCR 271, at 274).

3. In seeking guidance on what may be referred to as a reasonable excuse for the failure to meet the deadline required by the legislation, I note also the findings of this Court in Anthony v Chief Executive, Department of Natural Resources (supra) at pages 7 to 10.  In that matter the appellants had entrusted the dealings with the Notice of Appeal to an agent, but had previously inadvertently forwarded the Notice of Appeal to the wrong address.  In the end the Court found that the excuse then offered for failure to meet the statutory period for lodgement, was not seen to be a reasonable excuse, and jurisdiction was not found to lie. 

4. In Anthony, the Court followed guidance in AG Russell v The Crown (1992-93) 14 QLCR 202; Gold Coast Milk Ltd and South Coast Co-operative Dairy Association Limited v The Valuer-General (1983) 9 QLCR 13 at 20; Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 19 QLCR 168; Stevens v Motor Vehicle Insurance Trust (1978) WAR 232, at 235; and Jackamarra v Krakouer and Anor (1998) 195 CLR 516.

5. In the matter of Russell v The Crown (supra) that dealt with failure by the appellant to meet the strict time limitations imposed under s.44(11)(a) and (b) of the Land Act 1962.  In the circumstances then prevailing under the Land Act 1962, the Land Appeal Court found at 204: 

   "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 section 44(11)(a) and (b), or that he believed what he did amounted to due compliance.  The Land Appeal Court must be satisfied that there is a reasonable cause or explanation."

6. The Land Appeal Court rejected the claim by the appellant that ill health had been the reason for the late lodgement of the appeal, noting any lack of particularity to support such claim.  During its deliberation the Land Appeal Court considered the findings of Union Fidelity Trustee Company of Australia Limited v The Co-ordinator General (1988-89) 12 QLCR 153, and RM Denning v Council of the City of Ipswich (1988-89) 12 QLCR 171; both of which are discussed in Director-General, Department of Transport v Congress Community Development and Education Unit Limited (supra). 

7. In Jackamarra that was a case dealing with personal injuries to a child, and the delay in lodging an application to a hearing of an appeal to the Supreme Court of Western Australia.  I note in particular in Jackamarra, guidance was provided by the High Court per Kirby J, commencing at 549, and summarised in Anthony at 9 and 10. 

8. I note also in Jackamarra that the practice of the Courts in determining a reasonable excuse was outlined in Brennan CJ and McHugh J at 519 to 521. When referring to an application to extend the time for appealing, the High Court took guidance from R v Secretary for the Home Department;  ex parte Mehta [1975] 2 All ER 1084; where Lord Denning said at 1088:

   "“We often like to know the outline of the case.  If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly.  If it appears to be a flimsy case and weak on the merits, we may not extend the time.  We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."

9. Brennan CJ in Jackamarra also noted that to grant an application for an extension of time is to put at risk the vested right of the respondent.  Brennan CJ went on to say at 521: 

   "It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.  …  But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.  The merits are examined at the end of the process, not during its course."

10. In the current matter I find that while the appellant has demonstrated that he has a very sincere intention to prosecute the appeal, and that there is no evidence of any arbitrariness or vexatiousness, his failure to effectively meet the directions of the legislation is fatal to his case.  What Mr Jockheim did in this matter was, in my opinion, appear to have been pre-occupied by other matters. 

Conclusion:

1. Having considered the whole of the evidence, I find that the appellant has failed to meet the statutory obligations of the legislation.  The appeal is dismissed, as I find I have no jurisdiction to hear the matter.

NG DIVETT

MEMBER OF THE LAND COURT