Lake Maroona Pty Ltd v Department of Natural Resources and Mines
[2006] QLC 11
•3 March 2006
LAND COURT OF QUEENSLAND
CITATION: Lake Maroona Pty Ltd & Ors v Department of Natural Resources and Mines [2006] QLC 11 PARTIES: Lake Maroona Pty Ltd, Parksville Holdings Pty Ltd and Beaumont Investments Pty Ltd
(applicants/appellants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO.: AV2005/0717, AV2005/0718, AV2005/0719,
AV2005/0720, AV2005/0721, AV2005/0722,DIVISION: Land Court of Queensland PROCEEDINGS: Jurisdiction – appeal against unimproved value under the Valuation of Land Act 1944 DELIVERED ON: 3 March 2006 DELIVERED AT: Brisbane HEARD AT: Gladstone MEMBER Mr RS Jones ORDER: The Court has jurisdiction to hear the appeals. CATCHWORDS: Jurisdiction - Late filing of appeals – whether reasonable excuse exists APPEARANCES: Mr M Sheehan (Valuer) for the applicants
Mr M Heather, Principal Legal Officer for the respondent
Background:
The background facts concerning the jurisdictional matters before me are brief and largely without controversy. In respect of the relevant facts, I find as follows:
(i)Mr Sheehan, a registered valuer of considerable experience, was retained by the various applicants to act on their behalf in respect of these appeals;
(ii)Mr Sheehan's offices are located at Rockhampton, and the subject properties are located generally within the Central Queensland area;
(iii)One of the duties Mr Sheehan was retained to perform was to lodge appeals against the unimproved values attributed to the various properties owned by the applicants.
(iv)The appeal period against the objection decision of the respondent (dated 12 July 2005) expired on 23 August 2005.
(v)On 22 August 2005 the Notices of Appeal were delivered by one of Mr Sheehan's office staff to the Post Office at Frenchville, a suburb of Rockhampton. The Notices of Appeal were sent by registered post to the Registrar of the Land Court. In the usual course of events that would have resulted in the Notices of Appeal being received by the registry of the Land Court on the last day of the appeal period. For reasons that Mr Sheehan was unable to explain, the documents were not forwarded on from the Post Office until 23 August 2005, being the last day of the appeal period. At the end of the day nothing eventually turned on this point as Mr Heather was prepared to concede for the purposes of these proceedings that if the Notices of Appeal had been sent to the correct address they would have been received within time.
(vi)Mr Sheehan used for the purposes of each appeal a pro-forma document printed by the respondent. Unfortunately the address for the registry of the Land Court as set out in the pro-forma document was the previous postal address applicable when the Land Court was located in Tank Street, Brisbane.
(vii) By the time the Notices of Appeal reached the previous postal address for the Land Court, the arrangements put in place for the forwarding on of mail from the old postal address to the new postal address of the registry of the Land Court had expired. This resulted in all of the documents being returned to Mr Sheehan on or about 25 August 2005. Mr Sheehan then arranged for the documents to be forwarded to the registry of the Land Court by way of facsimile on 29 August 2005, 6 days outside of the prescribed appeal period.
There is no direct evidence about how old the pro-forma documents used by Mr Sheehan were or how long they had been in his possession. It would appear that he had taken a number of the documents from the offices of the respondent on a previous visit. Mr Sheehan did not say when this occurred.
Legislation and decided cases
Section 57(1) of the Valuation of Land Act 1944 (VLA) is relevant and provides:
"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."
In the context of the factual background set out above, the real issue as I see it is whether or not Mr Sheehan's reliance on the postal address for the registry of the Land Court as prescribed in the outdated pro-forma documents amounts to a reasonable excuse for the delay.
In AG Russell v The Crown (1992-93) 14 QLCR 202 the Land Appeal Court was concerned with the failure by the appellant to meet the requirements imposed under s.44(11)(a) and (b) of the Land Act 1962 as it then was. At 204 the Land Appeal Court said:
"Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements … or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation."
Similar language was used by Burt CJ in Stevens v Motor Vehicle Insurance Trust (1978) WAR 232 (FC), where his Honour at 235 said in respect of the legislation before him which gave the Court power to grant relief where it considered the delay "… was occasioned by mistake or by other reasonable cause":
"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 might be expected to delay the 'taking of action' by a reasonable man …"
It is also important to recognise that sections such as 57(1) of the VLA are meant to be remedial and ameliorative in nature. In Director-General, Department of Transport v Congress Community Development and Education Unit Limited (unreported decision of the Land Appeal Court (A97-09, 25 June 1998), the Court was concerned with the operation of s.44(11)(d) of the Land Act 1962, as it then was, which in part provided:
"… and the appellant satisfies the Land Appeal Court that there is a reasonable cause or explanation for the lateness, service, lodgement or payment …".
At pages 5-6 of his reasons Muir J said:
"… The expressions under consideration are broad in meaning and quite apt to cover a 'slip' of the nature of that made by the employee of the Crown Solicitor. One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of (the legislation) … An excuse is not necessarily unreasonable because the maker of the excuse has made a mistake or omitted to do something through an oversight or misapprehension as to the question of fact or law. …."
In a separate decision, the other members of the Court in Congress Community, Mr Wenck and Dr Divett, after expressing their general agreement with the reasoning of Muir J went on to say:
"We have had the benefit of reading the draft judgment of Muir J and agree that the application should be allowed and agree with the order proposed by his Honour. That does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal. The reasonable cause and explanation of the lateness of the service and lodgement of the notice and payment of the prescribed fee is, in our opinion, the fact that the solicitor failed in the duty entrusted to her. The applicant had done everything that should have been expected of him."
In the circumstances of these appeals the applicants entrusted the conduct of their proceedings to Mr Sheehan, who Mr Heather accepted as a person whose profession was consistent with that trust and reliance given by the applicants.
In Jackamarra v Krakouer and Anor (1998) 195 CLR 516, Kirby J at 539 to 543 made a number of observations concerning the facts and matters that might be relevant in the consideration of the principles applicable for procedural time limit defaults. These observations, in my view, are relevant here and include:
(i)While the party seeking the indulgence bears the burden of persuading the Court to grant the relief sought, the current attitude of the Courts is to give more focus to the need for some flexibility in the avoidance of overdue technicality.
(ii)However, the Courts must be aware of and alert to the need to ensure the efficient operation of the Court and its business and to ensure procedural fairness to all parties.
(iii)Would the exercise of the discretion cause a prejudice to the other party? In these matters Mr Heather conceded that his client would not be prejudiced by the exercising of the discretion in favour of the applicants.
(iv)Was the delay the result of intentional or contumelious behaviour or the consequence of a bona fide mistake or blunder. I find that in the circumstances of these applications the fault of Mr Sheehan involved a bona fide blunder or mistake.
(v)Was the delay caused by the litigant or by his or her agent, the consequences of which should not be visited upon the litigant? I pause here to observe that this issue was certainly a matter the Land Appeal Court considered as relevant in Community Congress.
In this case, the blunder or mistake of Mr Sheehan was to accept the correctness of the postal address shown on the pro-forma documents without further investigation. Misinformation and confusion caused by the actions of the respondent have often been regarded as factors tending to favour the party seeking the indulgence of the Court. However, here the circumstances are complicated by the fact that there is no evidence to say how long ago Mr Sheehan obtained the documents from the offices of the respondent and therefore how likely it was that the information contained in them was out of date. No evidence was led as to when the documents used first came into print.
Mr Heather submitted that it was not reasonable for Mr Sheehan to have adopted the course of action that he did. Mr Heather in support of this submission relied on the Decision on Objection letter from the respondent to Mr Sheehan dated 12 July 2005 (Exhibit 2). This letter relevantly stated:
"… An appeal form may be obtained from … (select "Land Court" then "form 59 …") or your local NR & M office, or by phoning the number listed above."
Mr Heather contended that if Mr Sheehan had taken up the offer contained in that letter it was extremely unlikely that the problem of the incorrect address would have arisen. That is arguably correct. However it is equally true that the forms in fact used by Mr Sheehan were identified as being "Form 59" and the correspondence did not give the new postal address and nor did it warn the recipient of the letter that the address of the Land Court had changed and that it would be dangerous to rely on outdated pro-forma documents. In this context I note that the change of the postal address of the registry of the Land Court may not be an issue limited to only these appeals, however there is no direct evidence about this. This is not meant in any way to be a criticism of the respondent regarding the information contained in that correspondence but it does tend to identify that the correspondence itself is far from a conclusive piece of evidence.
Having regard to the evidence before me and the principles established by the authorities referred to above I have reached the conclusion that the applicants themselves should not be faulted for placing their affairs in the hands of Mr Sheehan. To use the words of Mr Wenck and Dr Divett in Community Congress they had done that which should be reasonably expected of them. Also, in the circumstances of these applications I accept that the excuse offered by Mr Sheehan was one of substance and acceptably consistent, but only just, with the actions of a reasonable person having the duties and responsibilities that he held. Accordingly, I find that the Court has jurisdiction to hear these appeals.
I would however point out that I found these applications to be quite difficult ones to decide. The responsibilities of those charged with the obligation of meeting appeal time limits are very serious ones and the risks associated with taking matters, such as the appropriate address for service for granted are significant.
Orders:
The Court has the jurisdiction to hear appeals AV2005/0717; AV2005/0718; AV2005/0719; AV2005/0720; AV2005/0721; AV2005/0722.
RS JONES
MEMBER OF THE LAND COURT
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