Masters v Chief Executive, Department of Natural Resources

[2001] QLC 7

[2001] QLC 7

 

LAND COURT BRISBANE

9 MARCH 2001

Re:Appeals against Annual Valuations Valuation of Land Act 1944

Property ID: 1239634; 1313894; 1313895; 1313896;

1313894 and 1313893.

Local Government:  BCC-Brisbane and Toombul (AV00-521 to AV00-526)

Peter W Masters v.

Chief Executive, Department of Natural Resources

DECISION ON JURISDICTION

Background:

These matters relate to six appeals at:

·20 Connor Street, Kangaroo Point - Lot 24 on RP 11380 (AV00-521);

·Lewis Street, Clayfield - Lots 69 to 78, 91 to 95, 108 to 117, 127 to 140, 157 to 164 on RP 33833 and Lot 2 on RP 76640 (AV00-522 and AV00- 525);

·Lewis Street, Clayfield - Lots 165 to 168 on RP 33833 (AV00-523);

·Lewis Street, Clayfield - Lots 141 to 144 on RP 33833 (AV00-524); and

·Lewis Street, Clayfield - Lots 155 and 156 on RP 33833 (AV00-526).

An examination of (AV00-522) and (AV00-525) reveals that those two appeals relate to the same property, for the same valuation, and are clearly an oversight duplication by the appellant. For the purposes of jurisdiction the five relevant matters were heard concurrently.

The matters before the Court relate to the preliminary question of whether the Court has jurisdiction to hear the merits of the case in respect of appeals against annual valuations at 1 October 1999 under the provisions of the Valuation of Land Act 1944.

Peter W Masters appeared on his own behalf.      Miss R Trigg of Counsel appeared for the respondent.

The Facts:

The following chronology of events outlines the history of the appeals. Four of the decisions on objection issued on 27 June 2000 (AV00-521, 523, 524 and 526), while the fifth (AV00-522) was issued on 29 June 2000. The dates relevant to the appeals are as follows:

·27 June 2000 - date of issue of decisions on objections for (AV00-521, 523, 524 and 526);

·29 June 2000 - date of issue of decision on (AV00-522);

·8 August 2000 - expiry of 42 days from issue of decision, pursuant to s.55(2) of the Act;

·10 August 2000 - expiry of 42 days from issue, pursuant to s.55(2) of the Act;

·14 August 2000 - Notice of Appeals signed;

·18 August 2000 - Registrar's notice of late lodgment issued pursuant to s.57(1) of the Act

·8 September 2000 - 21 days for appellant to reply to Registrar's notice expires;

·21 September 2000 - notice of hearing by Registrar;

·10  October  2000  -  Valuation of Land Act (Amendment  Act  2000)

commenced;

·2 March 2001 - hearing on jurisdiction.

At the hearing Mr Masters outlined his normal arrangements for delivery of mail to his postal address at 24 Connor Street, Kangaroo Point. He explains that mail is delivered to a common post box, which he shares with up to 16 other people. He notes that about 60% of the time he receives mail addressed to him at that address promptly after delivery. On the rest of occasions there can be unspecified delays in his receiving mail, due to others at that address mislocating the mail accidentally. Mr Masters, however, was unable to advise the exact date that the notice on objection was likely to have been received at 24 Connor Street, Kangaroo Point.

However, he seeks the indulgence of the Court in his understanding that mail is not delivered to him until he has actually received the documents. Upon actually receiving the notices of decision, Mr Masters advises that he had quickly lodged his

appeals by hand on 14 August 2000.  The notices of appeal were also signed on 14 August 2000.

Miss Trigg argues that four of the appeals were received six days after the due date, and the fifth (AV00-522) was received four days after the due date. Miss Trigg notes that s.45(2) of the Act specifies that an appeal shall not lie unless it is lodged within 42 days after the date of issue.

Miss Trigg also argues that as the notices of appeal were lodged prior to the recent amendments of the Act on 10 October 2000, then the more stringent test then applying should be applied in considering excuse for the delay. Miss Trigg draws support for that conclusion in Pavex Constructions Pty Ltd v. Chief Executive, Department of Natural Resources (AV99-1261), 18 December 2000, unreported, at p.2.

The basis for such a conclusion rests upon an understanding that the right to bring an effective appeal is a substantive matter, and not one of procedure. While the learned member in that case found it unnecessary to decide that issue, he expressed the opinion that a later amendment should not be treated as allowing an appeal to be revived. The thrust of the amendment to s.57(1) as it became on 10 October 2000, was to allow for a "reasonable excuse" for failure to lodge on time, other than the previously restricted acceptable delay which specified only in respect of occurring through the normal course of post.

However Miss Trigg also notes that even if the Court was of a mind to adopt the less stringent interpretation of a "reasonable excuse", then there are other factors which must be considered in exercising the amended s.57(1). In that respect she directs me to the decisions of this Court in MJ & D Anthony v. Chief Executive, Department of Natural Resources (AV00-517), 10 November 2000, unreported and also AF & RD Hall v. Chief Executive, Department of Natural Resources (AV00- 611), 14 December 2000, unreported.

While both of those cases adopted the less stringent approach to a reasonable excuse for late lodgment, both followed the principles articulated by the High Court in Jackamarra v. Krakouer (1998) 195 CLR 516, per Kirby J. Key factors in those principles as they relate to the current matter involve whether the case was arguable; the attainment of justice to both parties, whether the delay was intentional or contumelious or merely as a result of a bona fide mistake or blunder; and whether the delay has occurred as a consequence of lawyers' mistakes for which the litigant should not be saddled.

In the current matter Miss Trigg notes that there was no evidence by the appellant to seek to satisfy the Court that there was a reasonable excuse. She notes there was no submission that the case was arguable on its merits, and there was no involvement by any legal adviser which may have independently contributed to the appellant's delays. Miss Trigg notes that the only argument by the appellant was that his normal mail delivery arrangements contained a large element of risk in the mail being brought to his notice. There was also no evidence that the appellant had taken steps to seek to overcome those risks to ensure prompt delivery.

Miss Trigg also notes that in exercising the Court's discretion in this matter it must be exercised judicially according to reason and justice, and not arbitrarily or capriciously according to private opinion. (Hall supra at p.6). She argues that the appellant would need to prove some factual basis to the Court, for the discretion to be exercised in his favour.  That has not occurred.

Miss  Trigg  also  draws  reference  to  F  &  AR  Watt  v.  Chief  Executive, Department  of  Natural  Resources  (AV00-517),  22  February  2000,  unreported. However, that matter deals primarily with the statutory measurement of the 42 days within which the appeal must be lodged, a matter not contested in the current matter. Decision:

There is no dispute that the only issue for resolution is whether the explanation of the delays in receiving all the appeals can be concluded to constitute a reasonable excuse. As noted, this Court is a court of statutory jurisdiction, and can only assume jurisdiction where it is granted by a statute. It has no inherent jurisdiction to grant relief outside the directions of the legislation under which it operates. Any discretion afforded by virtue of Court precedents can only be exercised judicially upon the facts. The provisions of s.55 to s.59 of the Act are mandatory. That was found in WM and TJ Fischer v. The Valuer-General (1990-91) 13 QLCR 129, at 131; Seaworld Pty Ltd

v. Valuer-General (1978) 5 QLCR 309, at 312; Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. Valuer-General (1983) 9 QLCR 13, at 17; and JJ Bidner v. The Valuer-General (1992-93) 14 QLCR 88, at 93.

As noted in Hall (supra) at p.9, the decision on objection by the Chief Executive is deemed to have been issued to the objector, when the formal notice is despatched by the ordinary postal service to the known address of the objector. That address was 24 Connor Street, Kangaroo Point. There is no argument that it was received at that address some time before the appellant personally became aware of its existence.

However, the mail handling arrangements at the postal address of the appellant is a matter well within the control of the appellant. It would apparently be within his control to provide for an individual post box for his mail, as is the normal custom of the majority of property owners. To merely say that his residence arrangements do not fit the community norm, in my opinion, provides no reasonable excuse for a failure of his personal arrangements.

The appellant's failure to respond to the requisition from the Registrar of the Court is also a matter which may prove fatal to his appeal. Under s.58(1) of the Act, where there would appear to be a defect in the notice of appeal, the Registrar of the Court is directed to issue a requisition to the appellant requiring the appellant to comply in all respects with the requirements of s.56, or to remedy the defects within 21 days. If the appellant does not fully comply with the requisition, under s.58(3) the Land Court is directed not to proceed to determine the appeal unless it satisfied that the notice of appeal does satisfy all of the requirements of s.56. Where an appellant fails to satisfy the requirements of the Land Court within the prescribed period of seven days, under s.59(3) the Court shall strike out the appeal.

In the current matter the appellant has not responded at all to the requisition from the Registrar, and provides only the excuse outlined previously. On that evidence I find that there is no reasonable excuse for either the initial failure to meet the time limit of 42 days for the lodgment of the notice of appeal, or for failing to respond to the requisition of the Registrar. Accordingly, I find that the appellant has failed to effectively meet the directions of the legislation.

Conclusion:

Having considered the whole of the evidence I find that the appellant has failed to meet the statutory provisions of the legislation. The six appeals are dismissed, as I find that I have no jurisdiction to hear the matters.

NG DIVETT MEMBER OF THE LAND COURT