Kallinicos v Department of Natural Resources and

[2005] QLC 30

LAND COURT OF QUEENSLAND

CITATION:	Kallinicos & Ors v Department of Natural Resources and Mines [2005] QLC 0030
PARTIES:	D, JG, EG, MG Kallinicos & S Kalligeros (appellants)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NO:	AV2005/0219
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction - Appeal against Unimproved Valuation
DELIVERED ON:	16 June 2005
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
JUDICIAL REGISTRAR:	Mr BR O'Connor
ORDER:	The Court has no jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction - Late filing of appeal - Whether reasonable excuse
APPEARANCES:	Mr J Kallinicos for the appellants Ms K Watkins (Legal Officer) for the respondent

[1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged one day after the due date. Section 57 of the Valuation of Land Act 1944 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 appellants falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.

[2] The appellants initially claimed their appeal was lodged within 42 days (on the forty- second day). However, at the hearing they conceded their appeal was one day late. Section 39(1) of the Acts Interpretation Act 1954 is the statutory guide for calculation of time. It provides:

"38 Reckoning of time

(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act, or event, and -

(a)	if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled; and
(b)	in any other case - by including the day on which the purpose is to be fulfilled."

[3]              An application of this test to the current circumstances confirm the appeal was lodged on the forty-third day.

[4]              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

[5]              Mr Kallinicos, in a combination of written and oral evidence, makes the following points in his claim for reasonable excuse:

• The issue of the valuation notice (for land tax purposes only) was several months later than is the standard practice.

• He was advised that the Department, at least for the 2003 valuation, was not allowing objection conferences for cases unless the appellants provided sales evidence or unless the appellants were represented by valuers.

• The day he received the decision on objection he spoke to Mr Van Hees, the respondent's valuer. He raised certain heritage issues with Mr Van Hees relevant to the property and claimed allowance should have been properly made for such feature (as had been made in previous valuations). Mr Van Hees undertook to get back to Mr Kallinicos on the matter without nominating any timeframe.

• To date neither the Department nor Mr Van Hees have contacted Mr Kallinicos.

• Mr Kallinicos was hopeful of resolving the matter as he had done with cases in previous years without the need to proceed to appeal to Court.

Decision

[6]              For present purposes I am prepared to accept the facts as outlined by Mr Kallinicos. However in my view, they are not sufficient to establish reasonable excuse.

[7]              The late issue of the notice by the Department should not have any real effect on the capacity to lodge an appeal within 42 days from the date of issue of the decision on objection. Similarly, the non-granting of an objection conference to the appellants and the reason for such does not impact on the present matter.

[8]              While Mr Van Hees or another person from the Department should have made further contact with Mr Kallinicos after Mr Van Hees' alleged earlier undertaking to do so, again this does not really impact on Mr Kallinicos' ability to file a notice of appeal within the prescribed time. There was no indication by Mr Van Hees that no appeal should be lodged until further discussions took place between the parties. Also, after the initial contact with Mr Van Hees, Mr Kallinicos did not attempt to recontact the respondent prior to the expiry of the appeal time limit.

[9]              There was nothing to prevent Mr Kallinicos from lodging a protective appeal within time (at no cost) and later withdrawing such an appeal if the case was settled.

[10]            Unlike other cases where reasonable excuse has been established, there does not appear to exist any indication of misleading conduct by the Department sufficient to influence Mr Kallinicos' action in lodging an appeal outside the prescribed time limits.

[11]            Wider issues raised by Mr Kallinicos as to the merits of an allowance for heritage listing are not really relevant to the question of jurisdiction now being considered.

[12]            While this decision effectively prevents an appeal to the Land Court, it would still be open to the appellants to further approach the Department for consideration of the heritage issue.

[13]            The Department could still make an adjustment if it considered that an error had been made.

Order

The Court has no jurisdiction to hear the appeal in the subject matter.

BR O'CONNOR
JUDICIAL REGISTRAR