Keyworth v Chief Executive, Department of Natural Resources

[1996] QLC 25

[1996] QLC 25

 

  LAND COURT

BRISBANE

15 March 1996

Re: Appeal against annual valuations
of the Chief Executive
Local Authority: Gold Coast  - Albert

AV95-228
Eric AC and Pauline KEYWORTH
v
Chief Executive, Department of Natural Resources

(Heard at Coolangatta)

DECISION ON JURISDICTION

Introduction

The only question to be answered in this case is whether the Land Court has jurisdiction to hear the appeals against the annual valuation of the subject land as at 1 January 1995.

The question arises because the Notice of Appeal was filed in the Land Court registry some 10 days after the appeal period had expired.

Statutory provisions

The provisions of the Valuation of Land Act 1944 (the "Act") relevant to the issue in this case state that:

(a)an owner of land who is dissatisfied with the valuation of that land made by the chief executive in the course of making an annual valuation may (within 28 days after the date specified in an advertisement under the Act) post to or lodge with the chief executive an objection in writing against that valuation (section 42);

(b)the chief executive must issue written notice of the decision to disallow the objection or to allow it (section 43);

(c)if the owner is dissatisfied with the decision of the chief executive, the owner may appeal to the Land Court against the valuation (section 45(1));

(d)an appeal:

(1)"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)"; and

(2)shall be instituted by filing a notice of appeal in the Land Court registry (section 45(2), (3));

(e)where a notice of appeal is filed in the Land Court registry but not within the prescribed time, the Registrar of the Land Court shall notify the owner that the appeal does not lie unless the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post (section 57(1);

(f)if the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post, the appeal shall lie "but otherwise the appeal shall not lie".

It is clear from those provisions that the Court can only hear the appeal in this case if the owners can prove to the satisfaction of the Court that the failure to institute the appeal within 28 days after the date on the decision on objection was caused by undue delay in the transmission of mail in the ordinary course of post.

By written notice dated 12 February 1996, the appellants were informed that the matter would be brought before the Land Court at 10.15 am on 12 March 1996 to determine whether the Court has jurisdiction to hear the appeal. When the matter was called on for hearing, the appellants did not appear.  In their absence, the matter could have been struck out for want of prosecution.  The Court decided, however, that this was a case in which it was appropriate to give a decision in reliance on the documentary material available from the Court file and the records of the chief executive.

The facts

With the co-operation of the chief executive's representative the following documents were marked as exhibits:

.the Notice of Appeal dated 19 July 1995 (Exhibit 1)

.the completed "Reply to Notification Dated 25 July 1995" signed by Mr Keyworth and dated 30 July 1995 (Exhibit 2)

.Mr Keyworth's letter to the Department of Lands dated 13 July 1995 (Exhibit 3)

.a letter from the Director of Valuation, Mr Tooley, to Mr Keyworth dated 17 July 1995 (Exhibit 4)

.a letter from Mr Keyworth to the Registrar of the Land Court dated 15 February 1996 (Exhibit 5).

Mr McGrory for the chief executive noted his concern that, despite section 57(3) of the Act, a copy of the document marked Exhibit 2 had not been furnished to the chief executive.

The following picture emerges from the documents.

On 13 June 1995 the appellants were notified in writing that their objection against the valuation of their land by the chief executive had been allowed in part and the value had been reduced from $131,000 to $117,000.  The appellants had 28 days from 13 June (that is, until 11 July 1995) in which to appeal to the Land Court.

On 13 July Mr Keyworth wrote to the Department of Lands, South Coast Region, advising that he wished "to appeal once more at the size of the increase from my last valuation". In his response dated 17 July 1995, Mr Tooley reiterated that the appellants had 28 days from the date of the decision on objection in which to lodge an appeal to the Land Court. He enclosed two appeal forms and noted that the appeal "must be filed with the Land Court Registry in Brisbane ... within the time prescribed." By that stage, the time for filing the appeal had passed and it would have been impossible for the appellants to comply with the requirements of the Act.

Mr Keyworth acted promptly.  The Notice of Appeal was dated 19 July 1995 and the envelope in which it was enclosed bore a postmark with that date. It was received by post in the Land Court registry on 21 July 1995.  Because it appeared to the Registrar of the Land Court that the appeal was filed out of time, he wrote to the appellants inviting them to advise him whether they would attempt to satisfy the Court that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. 

The reply to the Registrar's letter seems to confuse the correspondence with the Department of Lands and the filing of the appeal in the Land Court.  Mr Keyworth stated:

"You will observe that my letter was dated 13 July, and should have been post marked the same day at Bundall since it was posted before 1 pm at Isle of Capri sub-P.O.  I have to agree that 28 days after 13 June is 11 July and I had mistakenly thought of 13 July as the closing date for submission.  Presumably the 19 July postmark you refer to was applied to the local Lands Office submission."

In his letter dated 15 February 1996 responding to the Court notice, Mr Keyworth stated, in part:

"If the whole opposition hinges upon my late notice of appeal I can go no further."

Again the letter seems to confuse the effect of correspondence with the Department of Lands and the filing of a Notice of Appeal in the Land Court. 

Mr Keyworth is in his 80th year.  He expressed concern at the prospect of having to come to Court.  In effect, he asked that his letter be treated as "my continuance of the appeal".  It has been so treated.

Conclusion

It is clear from the Act that unless an appeal is made within 28 days after the date of issue of the notice of the decision on objection then the decision of the chief executive would be deemed to be determined.

No argument could be made that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. It follows from the clear words of the Act that the Land Court has no jurisdiction to hear the appeal.

The result is unfortunate for the appellants and may appear to them to be unfair. Disappointed as they may be, the law is clear. The Land Court is created by statute 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 matter authorised by the Legislature. The requirements of sections 45 and 57 of the Act are mandatory and constitute conditions precedent to the jurisdiction of the Court.

Order
The appeal is struck out for want of jurisdiction.

GJ Neate
  Member of the Land Court