Kenneth Edward Masterson v The Valuer-General
[2010] QLC 142
•22 November 2010
LAND COURT OF QUEENSLAND
CITATION: Kenneth Edward Masterson v The Valuer-General [2010] QLC 0142 PARTIES: Kenneth Edward, Edward John & Ian James & Joseph John Masterton & Ors
(appellants)v. The Valuer-General
(respondent)FILE NO.: VLA467-10 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation DELIVERED ON: 22 November 2010 DELIVERED AT: Brisbane HEARD AT: Atherton MEMBER 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 K Masterson, appeared on behalf of the appellants.
Mr P Prasad, Principal Legal Officer, Department of Environment and Resource Management, for the respondent
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged three days 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 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."
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.
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".
The parties submissions
Mr Kenneth Masterson appearing for the appellants claims the reasons for the late lodgement (three days late) were:
“We had written on our calendar to lodge the appeal by the 45th day which was the 10th September. We mistakenly thought there was 45 not 42 days to lodge the appeal.
We had also been extremely busy fencing our Nature Refuge at that time, hence leaving it to what we thought was the last day.”
He points out that the time period for the lodgement of objections with the Valuer-General against the initial decision is 45 days, rather than the 42 days for lodgement of the Land Court appeal. Mr Prasad, counsel for the Valuer-General argues that the Court should conclude reasonable excuse is not established. He refers to a range of previous Court decisions on this point. Perhaps the most relevant of these to the current circumstances is O’Neill Developments v The Chief Executive, Department of Natural Resources[1] where the only evidence offered to establish reasonable excuse was an oversight due to the heavy work schedule of the appellant. Reasonable excuse was found not proven.
[1] [2006] QLC 0035.
Decision:
Despite the appeal being outside the allotted period by only a short time, the legislation still specifies reasonable excuse must be established. The onus of proving such lies on the appellant. I am satisfied, on a consideration of the current circumstances and the relevant authorities, that reasonable excuse cannot be held to exist in the present case.
The decision on objection notice issued to the appellants outlining the reasons for refusing the objection clearly stated that a 42 day time limit applied for lodging appeals to the Land Court. The oversight by the appellant in confusing the time limits cannot amount to reasonable excuse. There is no suggestion of any negligent or misleading conduct by the Valuer-General or other representatives of the parties responsible for late lodgement. As the departmental legal representative observed in Parnell v Department of Natural Resources and Mines[2] if reasonable excuse was held to exist in circumstances similar to the present, s.57 providing for reasonable excuse might as well be repealed.
[2] [2003] QLC 0084.
It should be noted in passing that the time limits for both objections and appeals under the new Land Valuation Act 2010 have been extended to 60 days (s.109 and s.157(2). However this does not apply to the current matter which was activated well before the new legislation came into force on 20 September 2010 (the savings provision in the 2010 Act, (s.269) makes this clear.)
Order:
The Court has no jurisdiction to hear this appeal.
BR O'CONNOR
JUDICIAL REGISTRAR
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