Massey v Valuer-General
[2012] QLC 62
•2 November 2012
LAND COURT OF QUEENSLAND
CITATION: Massey v Valuer-General [2012] QLC 0062
PARTIES: Massey Family Trust
(Applicant)
v
Valuer-General
(respondent)
FILE NUMBER: LVA 611-12
PROCEEDING: Jurisdiction – Appeal against Unimproved Value
DELIVERED ON: 2 November 2012
DELIVERED AT: Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDER:The Court has no jurisdiction to hear the appeal.
CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse
APPEARANCES: Mrs R Massey for the applicant.
Mrs T Johnson, Principal Lawyer, Department of Natural Resources and Mines for the respondent.
The issue for determination in this application is whether the Court has jurisdiction to hear an appeal in circumstances where the notice of appeal was filed 11 days out of time. The key dates in question are as follows:
·the Valuer-General’s decision on objection, made under s.150 of the Land Valuation Act 2010 (LVA), was notified to the applicant, as required by s.151, by notice of decision issued dated 3 July 2012.
·the applicant had a right of appeal under s.155 of the LVA against the decision but, by virtue of s.157, only if the appeal is instituted within 60 days after the date of issue.
·the appeal period expired on 3 September 2012.
·the applicant filed the notice of appeal with the Land Court on 14 September 2012.
The respondent alleges that the purported appeal was therefore filed 11 days out of time.
Accordingly, the Registrar of the Court notified the applicant in accordance with s.158 of the LVA which states as follows:
“158 Late filing
(1)This section applies if a valuation appeal notice is filed after the appeal period has ended.
(2)The Land Court can hear the appeal only if—
(a)the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and
(b)the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period.
Example of reasonable excuse—
The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post
(3)The Land Court registrar must—
(a) give the appellant a notice stating the effect of subsection (2); and
(b) give the valuer-general a copy.
(4)If the Land Court registrar receives any written response to the registrar’s notice from the appellant, the registrar must give the valuer-general a copy.”
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 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”. These authorities are equally applicable under LVA 2010.
It is not in dispute that:
· The issue date and expiry date noted in paragraph [1] are accurate.
· Mrs Massey lodged with the Department of Natural Resources and Mines (NRM) a further request to review the objection decision; this was dated 28 August 2012 and presumably received by NRM shortly after this time but within the 60 day appeal period.
· This request to review the objection decision was sent to the Rockhampton office of NRM and subsequently forwarded to the Mackay office, presumably under some administrative arrangement.
· Prue Martin from the Mackay office contacted Mrs Massey either on or before 7 September 2012, advising her that the objection material should have been sent to Brisbane and subsequently forwarded her a Form 2 appeal form as required to appeal to the Land Court.
· The Form 2 appeal form was lodged by Mrs Massey in the Land Court Brisbane on 14 September 2012.
Mrs Massey argued, in the telephone hearing before the Court on jurisdiction, that the request to consider the objection decision had been sent to the Rockhampton office as all previous correspondence had been with that office and NRM’s postal address appeared on top of the decision on objection advice. She stated that the document advising the decision on objection should state that the appeal was to be lodged with the Land Court in Brisbane. She further states that her previous dealings with the Land Court (presumably hearings) have been held in Rockhampton. Mrs Massey also states that she was unable to locate the Form 2 appeal form on the Land Court website.
Mrs Johnson, Counsel for NRM, opposes the granting of jurisdiction. She argues that the reason that the appeal procedure is not spelt out in more directive terms in the objection decision is that NRM does not wish to be seen to suggest the appeal is some sort of a mandatory process.
Mrs Johnson also argues that the appeal procedure was clearly stated in the decision on objection provided to Mrs Massey on 3 July and the latter has simply acted in contrary to the clear legislative process that is outlined there.
Conclusion:
I find that “reasonable excuse” cannot be established in the current circumstances for the following reasons:
· The decision on objection notice to Mrs Massey (a standard departmental notification) clearly stated that, if the landowner wished to appeal the decision, it was to the Land Court, rather than NRM. The decision on objection also clearly stated where the appropriate form to appeal could be sourced. If the landowner had difficulty in locating the appropriate form, a telephone contact was provided on the objection decision advice.
· I note on the Departmental website the possible confusion may have arisen because the forms for the Land Appeal Court (as opposed to the Land Court) first appear on the website and Form 2 for the former Court does relate to subpoena. However, Form 2 for the Land Court is also included subsequently.
· Of the some hundreds of appellants each year who use the process, it is very unusual for people not to be able to properly lodge correct appeal forms given the instructions.
· Form 2 clearly states where the appeal is to be lodged, namely the Land Court Registry in Brisbane (which I note Mrs Massey subsequently did after being provided with the form by Prue Martin).
· While the NRM, via Prue Martin, contacted Mrs Massey after 3 September to advise her of the proper procedure for lodging the appeal form, I do not consider that NRM were in breach of any obligation by not advising her at an earlier stage so that she could lodge material within the 60 days. I note further that Mrs Massey took a further 7 days, from 7 September to 14 September, before lodging the correct form with the Land Court.
· The 60 days for lodgement of the appeal is a relatively generous timeframe having been extended in 2010 from 42 days under previous legislation. In many other Court situations the appeal period is a mere 28 days.
· There is no other evidence before the Court which would indicate Mrs Massey has been unavoidably impeded in lodgement of the correct material within the 60 days.
Two Additional Matters
Mrs Massey claimed she was contacted in the lead up to the jurisdiction hearing by Mrs Johnson regarding certain matters relating to the appeal. She indicated Mrs Johnson gave the impression that she was acting in Mrs Massey’s interests rather than as opposing Counsel. Mrs Massey thought there may have been unethical conduct in this course. Mrs Johnson, in written reply, indicates that the purpose of the contact was merely to inform Mrs Massey of the nature of the hearing being a jurisdictional matter rather than a substantive hearing.
Mrs Johnson is an experienced Counsel and I accept her explanation and find no improper conduct on her part occurred.
The second matter is not strictly within the purview of the Courts current jurisdictional charge but may assist in providing a practical outcome to Mrs Massey’s concerns.
The substantive part of Mrs Massey’s appeal related to severe flooding on her land which she claims was not properly considered by NRM. She says no NRM valuer inspected her property. Mrs Johnson has agreed to approach the local valuers to request they contact Mrs Massey with a view to having a physical inspection of her property in the upcoming round of valuations.
Mrs Massey could then point out her specific concerns to the responsible valuer. This inspection would relate to the 1 October 2012 valuation figure and not the valuation under appeal. However, there is provision under the Land Valuation Act for the amendment of valuations, that is the current 2011 valuation, should an error be discovered. Thus there may be scope, should the valuer be satisfied the flooding was as bad as Mrs Massey claims during the 2011 relevant period, to adjust the existing valuation accordingly.
Order
1. The Court has no jurisdiction to hear the current appeal.
BR O’CONNOR
JUDICIAL REGISTRAR
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