Massey v Chief Executive, Department of Natural Resources and Water

[2007] QLC 73

LAND COURT OF QUEENSLAND

CITATION:	Massey v Chief Executive, Department of Natural Resources and Water [2007] QLC 0073
PARTIES:	Doris M and Leslie N Massey (appellants)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO.:	AV2007/0188
DIVISION:	Land Court of Queensland
PROCEEDING:	Appeal against annual valuation under Valuation of Land Act 1944
DELIVERED ON:	12 October 2007
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER	Mr BR O'Connor, Judicial Registrar
ORDER:	The Court has jurisdiction to hear this appeal.
CATCHWORDS:	Jurisdiction – late filing of appeal – whether reasonable excuse
APPEARANCES:	Mr L Massey for the appellants Mr M Heather (Principal Lawyer, Department of Natural Resources and Water) for the respondent

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged one day after the due date.  Section 57 of the Valuation of Land Act 1944 (VLA) allows for "reasonable excuse" as a cause for such delay.

   "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. The question then is whether the explanation for the late lodgement advanced by the appellants falls within the term "reasonable excuse" as interpreted by the relevant authorities, particularly those since the introduction of s.57 of the VLA as amended in 2000. 

3. The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000.  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 case, 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". 

Background:

1. Evidence for the appellants was given by Mr Norman Massey, a former senior partner in a Brisbane firm of chartered accountants.  He states in oral evidence before the Court that he personally filed the appeal form in the Brisbane Land Court registry.  He claims he would have filed this form in the afternoon of Tuesday 10 July 2007, the final day of the 42 day permitted filing time.  (Filing any time before 5 pm would constitute valid filing in the Land Court – see Land Court Rules 2000, r.50;  contrast the 4 pm closure provided for the Supreme and other Courts in the Uniform Civil Procedure Rules 1999, r.976).

2. The appeal form bears a Land Court registry filing date of Wednesday 11 July 2007.  However, Mr Massey states he normally plays bowls on a Wednesday and would not have been able to come to the City to file the relevant form on that day.  I note also that Mr Massey's appeal form was left with the Land Court registry enclosed in an envelope.  It may not have been immediately apparent to the Registry that the envelope continued an appeal form. 

3. Mr Massey also leads other evidence of his wife's and his own health problems (he is now almost 89 years of age) and the unavailability at the relevant time of his carer-daughter to perform typing tasks for him. 

Decision

1. The health problems Mr Massey refers to are not disputed nor is the unavailability of his carer-daughter to attend to his typing needs.  However these cannot be said to have directly impacted on his ability to file the appeal documents in the time immediately prior to the cut-off date.  I do not consider these matters would in the circumstances amount to reasonable excuse. 

2. However, given the uncertainty as to whether the appeal form enclosed in the envelope was lodged on Tuesday afternoon, the 10 July 2007 (within time) or Wednesday 11 July 2007 (outside time), I am prepared to accept the evidence of Mr Massey as to his regular attendance at bowls on a Wednesday would have made it unlikely he would have attended to file on that day.  It thus follows that I accept that the document was lodged within time on Tuesday 10 July.

Order

1. The Court has jurisdiction to hear this appeal. 

BR O'CONNOR

JUDICIAL REGISTRAR