Jones v Department of Natural Resources and Mines

[2006] QLC 9

LAND COURT OF QUEENSLAND

CITATION:	Jones v Department of Natural Resources and Mines   [2006] QLC 9
PARTIES:	Lorraine Jones (appellant)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NOS:	AV2005/1812
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation.
REASONS DELIVERED ON:	3 March 2006
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr PA Smith
ORDERS:	The Court has jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse.
APPEARANCES:	Mr L N Massey, Agent, for the appellant Mr R Patterson for the respondent.

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged nine days after the due date. Section 57 of the Valuation of Land Act1944 (“the VLA”) allows for "reasonable excuse" as a cause for such delay:

   "57.(1)  If a notice of appeal is filed in the Land Court registry after the time stated in s.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."

   The question then is whether the explanation for the late lodgement advanced by the appellant falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 of the VLA as amended in 2000.

2. The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000.  In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a cause, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man". 

Background

1. At the hearing, Mr Massey gave evidence on behalf of the appellant.  The respondent did not call any evidence.

2. Mr Massey has been the appellant’s neighbour for many decades.  The appellant is a widowed pensioner.  Mr Massey, who is 88 years old, is a retired Chartered Accountant.  It is clear that Mr Massey assists his neighbour whenever he is able in a range of issues, in particular matters such as this.  As Mr Massey testified at the hearing:

   “My home address since 1948 is ….. which is next door to the Jones family.  They have lived there for nearly 50 years, too.  They are a very unfortunate family in that they have a terrible disease known as Huntington’s chorea.  Mrs Jones’s husband died of the disease.  His father died of the disease.  They are a plain working-class family who do not understand law very well.”[1]

   [1]  Transcript, 13 December 2005, p.3.

3. After hearing the matter, I found that the appellant had established a reasonable excuse for the late filing of the appeal, and I therefore ordered that the Court has jurisdiction to hear the appeal in the subject matter.  It was apparent during the hearing that Mr Massey was having some difficulty hearing and understanding the proceedings.  Indeed, it was only with the assistance of Mr Patterson, for which the Court is grateful, that Mr Massey was able to understand the details of the order that I made regarding jurisdiction.  Given the special circumstances of this matter as set out below, in my view it was appropriate to make the orders immediately but not deliver ex-tempore reasons, which I was certainly in a position to do.  Mr Patterson supported my view, and Mr Massey offered no objection.  These are the reasons for my making of the order at the conclusion of the hearing that the Court has jurisdiction to hear the appeal.

1. Following cross-examination of Mr Massey, it became evident that common ground exists between the parties on the facts, which can be summarised as follows:

   ·The decision on objection was issued on 20 September 2005.

   ·The appellant completed a Form 59 Notice of Appeal dated 8 November 2005.  The Notice of Appeal was subsequently posted to the Land Court and received by the Court on 10 November 2005.

   ·The last day for filing of an Appeal was 1 November 2005.

   ·The appellant is an aged pensioner and cares for her invalid son.  Her family has suffered from Huntington’s chorea, which claimed the life of her husband and father-in-law.

   ·Mr Massey, her next door neighbour and Agent in this matter, assists the appellant with her affairs.

   ·During the Appeal period, the appellant was away from her residence on a holiday provided by her sister.  Her holiday had commenced prior to the Decision on Objection being received at her residence.

   ·Mr Massey is himself an appellant against his valuation.  He had assumed, wrongly, that the appellant’s Decision on Objection would have been received by the appellant at about the same time as he received his Decision on Objection.  Mr Massey calculated the time period he had to complete his appeal, and assumed the same time period would apply for the appellant.   In fact, Mr Massey’s Decision on Objection was dated two weeks after the appellant’s.

   ·The Appellant returned from holidays and subsequently gave her Decision on Objection to Mr Massey to take care of.  Although the date that the appellant gave Mr Massey the decision on Objection is unknown, Mr Massey’s evidence is that he received it shortly before the appeal period expired.

   ·Mr Massey was unable to complete a Notice of Appeal on behalf of the appellant until shortly after the appeal period had ended.

   ·Mr Massey has numerous, serious health issues which delayed his completion of the appellant’s Notice of Appeal.  If anything, during the jurisdictional hearing Mr Massey tended to downplay his own difficulties.

   ·Mr Massey is an 88 year old war veteran.  He is a Grade 2 diabetic.  His diabetes requires constant medical attention and treatment.  He has melanomas.  In mid/late October 2005 he had surgery to remove two melanomas.  An x-ray in October 2005 discovered that he had two fractured vertebrae as a result of a fall.   In late October 2005 Mr Massey was admitted to hospital suffering from bronchial pneumonia.  Also in October 2005, Mr Massey had significant dealings with the RSL advocate sorting out major difficulties Mr Massey was having with Veterans Affairs regarding hearing aids which he requires for both ears.  Again in October 2005, Mr Massey was in the care of a podiatrist.  Fitting of specialist shoes for him at this time occupied four full days.

   ·Quite apart from his own health issues, Mr Massey is also his wife’s carer.  Mr Massey’s wife suffers from dementia and depression.

Conclusion

1. I now turn to the crux of this matter. Do the circumstances surrounding the appellant's appealing out of time, amount to a "reasonable excuse" pursuant to s.57 of the VLA?

2. There is no doubt that the obligation rests with the appellant to institute an appeal process.  Mr Patterson in his submissions referred to a number of authorities.  He referred me to Parnell & Anor v Department of Natural Resources and Mines [2003] QLC 84. Parnell concerned an appellant who did not appeal in time due to an absence on holidays. Judicial registrar O’Connor found that  “reasonable excuse” had not been made out.  Mr Patterson then referred to other authorities, including Wills & Anor v Department of Natural Resources and Mines [2002] QLC 83, which related to agents failing to undertake their duties to appellant to lodge an appeal in time. In Wills, Dr Divett found that a reasonable excuse had been made out.

3. This case is perhaps best described by Mr Patterson for the respondent during his submissions when he said:

   “Sir, it may well be that the circumstances of this case are such that a reasonable excuse has been established for the purposes of s.57(1)…”[2]

   [2] Transcript, 13 December 2005, p. 11

4. I agree with Mr Patterson. While some of the facts taken in isolation do not amount to a reasonable excuse, I am in no doubt that the facts in their entirety establish a reasonable excuse for the purposes of s.57 of the VLA.

5. In so finding, like Judicial Registrar O'Connor in Menon & Anor v Department of Natural Resources and Mines [2003] QLC 079, I am conscious of the need for consistency in reasonable excuse decisions founding jurisdiction and the danger of creating an undesirable precedent. Like the case in Menon, the decision in this case causes neither of these concerns.  Indeed, given the circumstances surrounding Mr Massey’s health in October/November 2005, and the appellant’s circumstances, it is amazing that Mr Massey was only outside the appeal period by nine days.

Order

1. Having considered the tests outlined in the authorities and the facts in those cases, I concluded at the jurisdictional hearing of this matter that a reasonable excuse had been established.  Accordingly, for the reasons which appear above, I found that the court has jurisdiction to hear the appeal.

PA SMITH

MEMBER OF THE LAND COURT