Lester, Haines and Squire v Department of Natural Resources and Water

[2009] QLC 25

LAND COURT OF QUEENSLAND

CITATION:	Lester, Haines and Squire & Ors v Department of Natural Resources and Water [2009] QLC 0025
PARTIES:	Graeme Wallace Lester, Stephen Haines and Malcolm Squire & Ors (applicants)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO:	AV2008/0841
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – appeal against annual valuation of land under the Valuation of Land Act1944.
DELIVERED ON:	17 February 2009
DELIVERED AT:	Brisbane
HEARD AT:	Cairns
MEMBER:	Mr RP Scott
ORDER:	The Court does not have jurisdiction to hear appeal AV2008/0841.
CATCHWORDS:	Valuation of Land Act – ss 45, 57 – late lodgement of appeal – relevant date is the date of filing not date of posting
APPEARANCES:	No appearance on behalf of the appellants Mr G Smith, Acting Principal Legal Officer, for the respondent

Background

1. This is an application by landowners to endeavour to satisfy the Court that the owner has a reasonable excuse for filing a notice of appeal outside the 42 day period provided for in s.45(2) of the Valuation of Land Act 1944 (the Act).  In preference to striking the application out for want of prosecution I resorted to the Court file which contained documents which seem to me to be sufficient to allow me to consider the application on its merits.

2. The first such document is the decision on objection issued by the Chief Executive to the appellants at “150 Windy Hollow Rd, Kuranda Qld 4881” dated 29 July 2008 informing the landowners that their objection against the statutory valuation of the Chief Executive as at 1 October 2007 had been disallowed.  The Act provides that the landowner may appeal against that disallowance but provides that any such appeal must be instituted within 42 days after notice of the outcome of the objection:

   “45     Appeal

   (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. Notwithstanding the strictness of the language in s.45(2) it is also provided in the Act that a landowner lodging a notice of appeal later than the period provided for in s.45(2) may seek to convince this Court that a “reasonable excuse” existed for that lateness in filing:

   “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.

   (2)   If the owner satisfies the court under subsection (1), the court may hear and decide the appeal.”

1. A notice of appeal apparently signed for the landowners on 6 September 2008 was stamped as having been received in the Land Court on 10 September 2008. In response to the filing of that notice of appeal the Registrar of this Court sent a letter to the landowners informing that, having regard to the notice of decision on objection of the Chief Executive dated 29 July 2008 and the requirements in s.45(2) of the Act, the period of 42 days within which an owner may instituted an appeal expired on 9 September 2008; that is the day prior to the notice of appeal having been received in the Land Court registry. The Registrar drew attention to the envelope in which the notice of appeal was sent which bore an Australia Post endorsement indicating that the envelope and its contents was processed at the Cairns Mail Centre on 8 September 2008. I notice that the return address for the landowner is stated on the back of the envelope as being 150 Windy Hollow Rd, Kuranda 4881. The Registrar’s letter was however sent to 138 Windy Hollow Rd, Kuranda 4881 though it seems it was received by the landowner as it was responded to.

2. By way of a letter stamped as having been received in the Land Court on 25 September 2008 the landowner raised a number of points apparently designed to establish a “reasonable excuse”. Reference was made to the original notice from the Chief Executive concerning the new valuation which was addressed to 110 Windy Hollow Rd, Kuranda Qld 4881, not 150 Windy Hollow Rd. That evidence is irrelevant to the jurisdiction question which arises for consideration as it is the decision on objection which issued on 29 July 2008 and which was sent to the correct address at 150 Windy Hollow Rd, which is the document which triggers the running of time under s.45(2) of the Act.

3. In their letter of 25 September 2008 the landowners went on to say that “it was approximately 3 weeks before I received those lost appeal forms.  DNR mail has been a mess in all correspondence.”  It is not clear to me what the “lost appeal forms” are, however if they are forms required in a notice of appeal and if the suggestion is that they were late in arriving at the landowner’s address the difficulty I have is that there is no evidence as to when they were received.  The notice of appeal is dated as having been signed on 6 September 2008.  There was no explanation as to why it took two days for that notice to be processed by the Cairns Mail Centre.  It seems that a letter posted on either 6 or 7 September would have arrived by the due date of 9 September.

4. Further in the letter of 25 September 2008 the landowner says “… we were informed the registration date for our appeal letter was the day it is franked being 08/08/08 at Cairns Mail Centre …”.  That is wrong advice.  An appeal is instituted in accordance with s.45(3) of the Act which provides.

   “45     Appeal

   (3)     An appeal shall be instituted by filing a notice of appeal in the Land Court registry.”

1. Clearly the date of filing of the notice of appeal in the Land Court registry is the relevant date, not the date of lodgement at the post office.

2. The landowners have not convinced me that there is a reasonable excuse for the late filing of the notice of appeal.  Accordingly I conclude that the Court does not have jurisdiction to hear appeal AV2008/0841.

RP SCOTT

MEMBER OF THE LAND COURT