Lade v Department of Natural Resources, Mines and Water
[2007] QLC 40
•23 May 2007
LAND COURT OF QUEENSLAND
CITATION: Lade v Department of Natural Resources, Mines and Water [2007] QLC 0040 PARTIES: William A Lade
(appellant)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)FILE NO: AV2006/0308 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against unimproved valuation. DELIVERED ON: 23 May 2007 DELIVERED AT: Brisbane HEARD AT: Mackay MEMBER: Mr RP Scott ORDER: The Court has no jurisdiction to decide this purported appeal. CATCHWORDS: Valuation of Land Act 1944 – late response to requisition of Registrar – late filing of appeal – operation of s.58(3), s.45 and s.57.
Jurisdiction – late lodgment of appeal – initial failure to answer requisition – power of Court to accept – implied time limits – reasonable excuse.
APPEARANCES: The appellant in person.
Ms C Liu, Senior Legal Officer, Natural Resources, Mines and Water, for the respondent.
Pursuant to the provisions of the Valuation of Land Act 1944 (the Act) the Chief Executive placed a valuation on land owned by the appellant as at a valuation date of 1 October 2005. The appellant lodged an objection with respect to that valuation and by notice of a decision on objection dated 6 June 2006 the Chief Executive advised that the objection was disallowed. Section 45 of the Valuation of Land Act relevantly provides:-
45 Appeal
(1) An owner who has objected pursuant to section 42 against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court against the valuation.
(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).
(3) An appeal shall be instituted by filing a notice of appeal in the Land Court registry.
(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.
(5) Such notice shall also state the amount which in the opinion of the appellant should be the valuation of the subject land.
(6) The appellant shall serve a copy of the notice of appeal on the chief executive not later than 7 days after the notice is lodged in the Land Court registry.
(9) Sections 57 to 68 and section 70 apply, with any necessary changes, to an appeal under this section."
In purported reliance on the right to appeal, the appellant filed a notice of appeal in the Land Court Registry on 20 July 2006, that is outside the 42 day period provided for in s.45(2). On my calculation the 42 day period would have required the lodgement of the appeal by 18 July 2006. I return to that issue below. A second copy of the notice of appeal was lodged on 24 July 2006. The relevance of that document will become apparent in due course. Section 58(1) of the Act provides:
"58 Defect in notice of appeal – action of registrar
(1) Where it appears to the registrar of the Land Court that a notice of appeal filed in the registry does not comply in all respects with the requirements of 56 or is otherwise defective in a material particular, the registrar shall issue or cause to be issued to the appellant a requisition specifying the non-compliance or defect and requiring the appellant to comply in all respects with the requirements of section 56 or remedy the defect, as the case may be, by filing in the registry within 21 days of the date of the requisition an answer to it so that the requirements of section 56 are satisfied or the defect is remedied, as the case may be."
In accordance with s.45(9) of the Act the reference in s.58(1) to s.56 is to be taken as a reference to s.45(4) and (5). Pursuant to s.58(1) the registrar provided to the appellant by way of a letter and attachment dated 20 July 2006, a requisition saying that the notice of appeal form as lodged appeared to be defective in not including the grounds of appeal nor the amount which, in the opinion of the appellant, should be the valuation of the land. That requisition was responded to by the appellant, the response being received in the Land Court Registry on 4 August 2006 and whilst the reply purported to include grounds of appeal it did not state the amount which, in the opinion of the appellant, should be the value of the land. By a letter sent that day the registrar advised the appellant of the deficiency in the appellant's response to the earlier requisition. The appellant provided a further letter which was received in the Land Court Registry on 7 September 2006 and which stated amongst other things, "the estimate of the amount of valuation of my title land is of no concern to the Land Court". The registrar acknowledged the response of the appellant, advising that it did not fully comply with the requirements of the earlier requisition and advising that in any event, the reply was outside the 21 days provided in s.58(1) of the Act.
By court notice issued on 30 March 2007 the parties were advised that the matter of the purported appeal was set down for hearing in Mackay on 18 May 2007 the first question for consideration by the Court being whether jurisdiction lay to allow the matter to go to hearing on the merits. The notice made reference to s.57(1) of the Act which provides:
"57 Late filing
(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 reference to s.55(2) in s.57 should be understood as being a reference to the 42 days provided for in s.45(2). Subsequent to that court notice a further letter was provided by the registrar on 28 April 2007 advising the parties that in addition to the question of jurisdiction referred to above, the Court would need to consider the question of the timing of responses to the requisition of the registrar discussed above and whether the circumstances of the requisition and reply are effected by s.58(3) of the Act:
"(3) If the appellant does not fully comply with the requirements of the requisition to the satisfaction of the registrar within the prescribed time, the Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular or that, where in its opinion a requisition was properly issued, the requirements of the requisition have been complied with to the extent that, taking such compliance into consideration in conjunction with the notice of appeal as first filed, the requirements of section 56 have been complied with and there is no defect in any material particular."
The reference to s.56 can be understood to be a reference to the requirements in s.45 and, in particular, to the requirement to state grounds of appeal and the amount which in the opinion of the appellant should be the valuation of the subject land.
On 30 April 2007 there was filed in the Land Court Registry a notice of appeal in the form of Form 19 to the Land Court Rules 2000 and otherwise complying with the provisions of s.45 and s.56 of the Valuation of Land Act in that the document together with attachments included both grounds of appeal and the appellant's estimate of the unimproved value of the land. Whilst the documents to which I have referred do not appear to have been filed in response to the Registrar's earlier requisition nor were described in the documents to constitute such a response, the documents do satisfy the requirements of the Act insofar as they include the essential elements described in s.45(4) and (5). However the documents were filed outside the 21 days provided for in s.58(1) and the 42 days provided for in s.45(2). The first question that I need to consider is whether the provision of the documents by the appellant is sufficient to enliven the jurisdiction of the Court to hear the appeal on its merits.
That question can be answered by reference to s.58(3). Section 58(3) may be broken into three parts. The first provides:-
"If the appellant does not fully comply with the requirements of the requisition to the satisfaction of the registrar within the prescribed time, the Land Court shall not proceed to hear and determine the appeal"
The effect of this first part is that it is the decision of the registrar as to whether he is satisfied that the requisition has been complied with. That decision determines whether the Land Court should proceed to hear the appeal.
The second part to s.58(3) is expressed as an exception to the first part:-
"unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular"
The effect of the second part of the provision is that the Court may consider the question of the adequacy of the notice of appeal and whether it was valid when first lodged; and consequently whether any requisition of the registrar was unnecessary. No issue of time arises with respect to this exception as the question is simply one of the adequacy of the notice of appeal as first filed.
The third part of s.58(3) comprises another exception to the first part and provides:-
"or that, where in its opinion a requisition was properly issued, the requirements of the requisition have been complied with to the extent that, taking such compliance into consideration in conjunction with the notice of appeal as first filed, the requirements of section 56 have been complied with and there is no defect in any material particular."
In this exception to the first part of s.58(3) the Court may decide that a requisition did properly issue but that the decision of the registrar that he was not satisfied with the response to the requisition may be supplanted by the opinion of the Land Court to the effect that the Court may proceed to hear and determine the appeal. One aspect of the third part to s.58(3) is that it neither makes reference to "the prescribed time" nor expressly refers to any other temporal requirement. The question which has exercised my mind is whether in considering a requisition and compliance with it under the third part of s.58(3) the Court may form the view that the requisition was adequately addressed whenever it was responded to. Indeed, if time is irrelevant to this third part, the documents filed by Mr Lade on 30 April 2007 might be treated as being in compliance of the requisitions made on 20 July 2006. One difficulty with placing that construction on this part is that it would vest in the Land Court jurisdiction to consider compliance at any time up to the date of hearing even though a notice of appeal lodged in proper form would need to be filed within the 42 days provided for in s.45(2). That would be an incongruous result and cannot be what the legislature intended. Neither can it have been intended by the legislature that the 21 day requirement in s.58(3) displaces the 42 day requirement in s.45(2). If it did, the effect would be that a defective notice of appeal not corrected within the 21 days but filed correctly within 42 days of the notice of decision on objection would be invalid.
I think the proper construction to place on the third part of s.58(3) is that the Court may decide whether a requisition has been complied with and, if it has, whether that has occurred within the 42 days provided for in s.45(2) or such extended time as permitted in accordance with s.56(1) discussed below. I have already said that the notice of appeal filed on 30 April 2007 satisfies s.45(4) and (5) therefore meets part of the requirement of the third of s.58(3). I now need to consider the application of s.57 which provides:-
"57 Late filing
(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."
In the present context this provision refers to s.45(2). There is usefully collected in Anthony v Chief Executive, Department of Natural Resources,[1] the authorities on the term "reasonable excuse" or similar expressions. 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".
[1] (AV00-517) 10 November 2000.
Mr Lade gave evidence that when he attempted to file the notice of appeal in July 2006 he apparently placed an incorrect address on the envelope which was returned to him with its original contents. He re-sent the document to the correct address and that it was that document which was received in the Court registry on 24 July 2006. My reading of the Court file is that Mr Lade had served a notice of appeal on the Chief Executive who had forwarded that notice to the Court. It was that document which was received in the registry on 20 July 2006.
I need not consider whether the reason given for the late filing of the notice of appeal on either 20 July 2006 or 24 July 2006 amounts to a "reasonable excuse" as the notice of appeal filed was deficient in not complying with s.45(4) and (5). The response to the registrar's requisition received in the registry on 4 August 2006 was also incomplete. The only question I need to address is whether the lateness of the notice of appeal filed on 30 April 2007 was justified, being based on a "reasonable excuse".
In response to questions from me Mr Lade said that a reason for the ongoing failure to satisfy the Registrar's requisition was that forms sent to him were headed by a State Government logo, not a Crown Crest. That is not correct on the evidence and even if it were, that would not, in my view, provide the basis for a "reasonable excuse" for not curing the deficiency in the notice of appeal within the time provided for in s.45(2). Neither is Mr Lade's mistaken postal address of the Land Court which frustrated his attempt to lodge a notice of appeal in July 2006 a reason that extends to a notice of appeal filed in April 2007. Obviously he became aware of the correct address, hence the lodgement of the appeal on 24 July 2006.
There is in s.59 a provision for the Land Court to deal with defects in notices of appeal which have not been noticed by the registrar and requisitioned; however, the contents of that provision do not impact upon my understanding of the power given to the Court under s.58(3).
On 17 May 2007 at the Land Court Hearings in Mackay I said:
"Mr Lade, my conclusion is that based on the lateness of lodgement of a complete appeal and the out of time response to the requisition of the Registrar of the Land Court that the appeal wasn't lodged in time or corrected sufficiently in time and that the matter ought to be struck from the list. That's the conclusion but I will publish reasons and I will send them to you."
Accordingly, I publish these reasons. My order is that the Court has no jurisdiction to decide this purported appeal.
RP SCOTT
MEMBER OF THE LAND COURT
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