Lebeter v Department of Natural Resources and Mines
[2002] QLC 92
•15 November 2002
LAND COURT OF QUEENSLAND
CITATION: Lebeter & Anor v Department of Natural Resources and Mines [2002] QLC 92
PARTIES: Benjamin Adam and Sara-Jane Lebeter
(applicants)
vChief Executive, Department of Natural Resources and Mines
(respondent)
FILE NO: AV2002/0291
DIVISION: Land Court of Queensland
PROCEEDING: Appeal of jurisdiction under the Valuation of Land Act 1944
DELIVERED ON: 15 November 2002
DELIVERED AT: Brisbane
HEARD AT: Ipswich
MEMBER: Dr NG Divett
ORDER: 1. The Court has no jurisdiction to hear the matter, and the appeal is struck out for want of jurisdiction.
CATCHWORDS: Statutory Valuations – appeals
Practice and Procedure – jurisdiction of the Court – failure to lodge within time
Valuation of Land Act 1944 ss.45(2); 57(1)
APPEARANCES: Mr BA Lebeter for the appellants
Mr D O’Connor for the respondent
Background:
This matter relates to land at 14 to 16 Lachlan Place, Karalee, and described as Lot 76 on SP 123963, Parish of Chuwar. The matter for determination relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter under the Valuation of Land Act 1944 (the Act). The unimproved value relates to a valuation at 1 October 2001. In seeking to understand the circumstances of the lodgment of the Notice of Appeal, the following chronology of events is of assistance.
The Facts:
On 25 February 2002 the Chief Executive issued an annual valuation of the subject land at $61,000. Following an objection the Chief Executive amended the unimproved value to $53,000 on 4 June 2002.
Under s.45(2) of the Act, the closing date for acceptance of a Notice of Appeal (Form 59) from the appellant was 16 July 2002, being 42 days following the issuing on the decision on objection. The appellants lodged the Notice of Appeal with the registrar of the Land Court on 25 July 2002.
On 25 July 2002 the registrar wrote to the appellants advising that the Notice of Appeal would appear to have been filed with the Court out of time as required by the Act under s.57(1) and (2). The registrar attached a copy of s.57(1) and (2) for the information of the appellants; together with a suggested draft reply for signature by the appellants. The draft reply indicated that the appellants would seek to satisfy the Court that the appellants had a reasonable excuse for filing the notice after the prescribed time. There was no reply to that letter of 25 July 2002.
On 15 August 2002 the registrar wrote to the appellants advising that, as no reply had been received to the registrar’s requisition of 25 July 2002, the matter would be set down for determining whether the Court had jurisdiction to hear the merits of the matter. By Court Notice of 16 August 2002 the matter of jurisdiction was set down for hearing on 14 October 2002. At the hearing on 14 October 2002, Mr Lebeter appeared for the appellants. Mr D O’Connor appeared for the respondent.
Mr Lebeter provides a statement outlining the reasons why the Notice of Appeal had been delayed in arriving at the Court. He advises that he had inadvertently sent the Notice of Appeal to the office of the Chief Executive. It is noted that the Notice of Appeal was dated 8 July 2002, and relied upon the appellants’ estimate of the unimproved value, and their grounds of appeal relied upon correspondence with the respondent department.
Attached to the Notice of Appeal to the Court was a copy of a letter from the appellants to the respondent of 8 July 2002, referring to the decision on their objection, and requesting a review of the objection decision. Also attached to the Notice of Appeal was a copy of the decision on objection by the respondent of 4 June 2002. That letter also advised that if the appellants wished to appeal the decision on objection, then they should do so to the Land Court, on a copy of the appeal form (Form 59). Details of how to access the Form 59 were also provided.
Mr Lebeter explains that, until recently, he had not been fully aware of the separation of powers which defines the Land Court as a separate identity from the respondent department. As a consequence of that confusion he had initially assumed that the Notice of Appeal sent to the respondent, would be onforwarded to the Land Court. He now has a clear understanding of that misconception.
Mr Lebeter advises that when he later became aware that the appeal should have been filed with the Land Court of Queensland, he immediately faxed a copy of the Notice of Appeal on 25 July 2002. Mr Lebeter does not explain how he became aware of his previous error in lodging the Notice of Appeal.
Mr Lebeter also confirms that his place of residence of 14 to 16 Lachlan Place, Karalee is the correct address for the issuing of correspondence on this matter; and there was therefore no delays caused in the normal course of post.
The Legislation –
Before considering the circumstances of this matter I refer to the directions of the legislation. It is noted that in respect of an annual valuation, an appeal to this Court against a decision of the Chief Executive is exercised under s.45, which states relevantly:
“45.(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.”
Where a Notice of Appeal appears to have not been lodged within the prescribed 42 days, actions in respect of the registrar of the Land Court are established in s.57 which states:
“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.
(2) If the owner satisfies the court under subsection (1), the court may hear and decide the appeal.”
Where a defect in a Notice of Appeal is apparent, then the registrar is directed by s.58(1) which states:
“58.(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.”
If an appellant does not fully comply with the requirements of the registrar, then the Land Court shall not proceed to determine the appeal under s.58(3) unless it is satisfied that the Notice of Appeal complies with s.45 in the current matter.
The Evidence –
The sole reason for the delay would appear to be the appellants’ failure to correctly identify the correct address for filing with the Land Court. The eventual filing with the Court by facsimile on 25 July 2002 is an acceptable lodgment procedure under rule 7(2) of the Land Court Rules 2000. However it is also noted that in effecting such a procedure there are also requirements established under s.122 of the Uniform Civil Procedure Rules 1999, which state:
“Special requirements for service by fax
122.(1) A document served by fax must include a cover page stating the following:
(a) the sender’s name and address;
(b) the name of the person to be served;
(c) the date and time of transmission;
(d) the total number of pages, including the cover page, transmitted;
(e) the telephone number from which the document is transmitted;
(f)the name and telephone number of a person to contact if there is a problem with the transmission;
(g) that the transmission is for service under a stated rule.”
In considering what might constitute a “reasonable excuse” in such circumstances I note that the lodging of a Notice of Appeal to an incorrect address has been found to not satisfy the intentions of the Act. Guidance of what might constitute a “reasonable excuse” was clarified by the High Court of Australia in Jackamarra v Krakouer and Anor (1998) 195 CLR 516, where Kirby J relevantly noted at page 539:
“1. The first rule is that there are no rigid rules … each case must depend upon its own particular circumstances.
2. … The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. … But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application. …
3. … Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and to those appropriate to procedural rules.”
The matter of an incorrect address was also rejected in RJ Claybourn v Chief Executive, Department of Natural Resources (AV99-431), 22 February 2000, unreported, at page 6. The circumstances of that matter closely paralleled those of the current matter in that, because of a lack of full understanding of the separate role of the Land Court, the Notice of Appeal had been sent incorrectly to the Chief Executive. The Court dismissed the appeal, finding that it had no jurisdiction as the Notice of Appeal had not been lodged in accordance with the requirements of the legislation.
In the circumstances of the current matter the appellants would appear to have seriously jeopardised their appeal, through the simple mistake of not fully reading the directions for lodging the Form 59. The separation of powers defining the separate roles of the judicial system from that of the role of Government, is a fundamental pillar of our free democratic system. Any confusion that those separate roles may be entwined, is unfortunately not grounds for usurping the directions of the Parliament as espoused in the Acts of Parliament. That legislation not only defines the legal rights of appellants, but also protects the rights of respondents. Where the legislation directs that the “Notice of Appeal” shall be lodged within 42 days, that is not discretionary, unless “reasonable grounds” can be demonstrated.
I am also reminded that this Court does not retain certain inherent jurisdiction, and is bound by the legislation under which it operates. That was clearly defined by the Land Court in Gold Coast Milk Ltd and South Coast Co-operative Dairy Association Limited v The Valuer-General (1983) 9 QLCR 13, where it said at page 17:
“The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed. It has no inherent jurisdiction. It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction when and in the manner in which the Legislature authorises it to do so.”
That was further emphasized by the Land Appeal Court where it said in BT Dillon v Valuer-General (1986-87) 11 QLCR 231, at page 233:
“The Legislature has not given this Court any investigatory powers under the Valuation of Land Act. If the Appellant’s case is not strong enough in its own right to establish the values contended for or to disprove the Valuer-General’s values, the Court is not empowered of its own volition to probe the fairness or correctness of the Valuer-General’s values and by this means arrive at its own estimate of value.”
Clearly the Court cannot exceed that jurisdiction.
Summary:
In summarising this matter I find that the excuse provided by the appellants does not constitute reasonable grounds for the delay in filing the Notice of Appeal. On that basis I find that I have no jurisdiction to hear the matter, and the appeal is struck out for want of jurisdiction.
NG DIVETT
MEMBER OF THE LAND COURT
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