Mattea v The Valuer-General
[2010] QLC 144
•24 November 2010
LAND COURT OF QUEENSLAND
CITATION:Dino Andrew and Margaret Mary Mattea v. The Valuer-General [2010] QLC 0144
PARTIES:Dino Andrew and Margaret Mary Mattea
(appellants)
v.The Valuer-General
(respondent)
FILE NO: VLA341-10
DIVISION: Land Court of Queensland
PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation
DELIVERED ON: 24 November 2010
DELIVERED AT: Brisbane
HEARD 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: Mr DA Mattea for the appellants
Ms L Hawkins-Guy, A/Principal Lawyer, Department of Environment and Resource Management
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged eight days after the due date. Section 57 of the Valuation of Land Act1944 allows for "reasonable excuse" as a cause for such delay:
"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in s.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."
The question then is whether the explanation for the late lodgment advanced by the appellants falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.
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".
The parties submissions
Evidence was given for the appellants by one of the landowners, Mr Dino Mattea. Mr Mattea also tendered a statement outlining in chronological order the key events that he claims are relevant to the current jurisdiction hearing. The list of dates extracted from this statement are as follows:
“22.03.2010 Receipt of Notice of New Valuation from DERM
22.04.2010 Telephoned DERM to request an Objection Kit (see Diary Entry)
06.02.2010 Check post. – no Kit has arrived.
07.05.2010 Called DERM again & explained non arrival to Mr Gilmartin.
10.05.2010 Objection Kit arrives from DERM
11.05.2010 Completed forms and sent with letter to DERM.
16.05.2010 Left Brisbane on overseas tour.
24.05.2010 Letter from DERM confirming objection was properly made
02.07.2010 Letter from DERM advising Disallowance of Objection.
22.07.2010 Back from Overseas.10.08.2010Called DERM to advise we wished to appeal – told to forward written advice.
13.08.2010Letter to DERM requesting appeal form.
17.08.2010Letter from DERM advising us the procedure for a Preliminary Conference and need to obtain Appeal Forms from Land Court but forms (3 pages) were in letter.
23.08.2010Completed forms and sent to Land Court with letter and also advised to DERM (in writing) that we had so.
25.08.2010Email from Land Court requesting copies of all documents – DERM has mislaid originals.
26.8.2010Letter from Land Court advising receipt of Appeal and as it Was out of time and required completion of form advising that We had a reasonable cause for late notice appeal.
27.8.2010Telephoned advice from Land Court that DERM had provided the wrong forms and that new ones in the mail.
30.08.2010New forms from Land Court completed and returned with accompanying letter.
02.09.2010Letter from Land Court acknowledging Receipt of Appeal and advising that a hearing date was to be set.
08.09.2010Advice from Land Court of Date of Hearing set for 28th October 2010.”
For the respondent an affidavit was presented by a Mr Anthony Gilmartin, an officer responsible for, amongst other things, the administration of valuation objections. His evidence is generally consistent with the Matteas’ statement except for his evidence relating to a phone call from Mrs Mattea received early August and him stating that he told her the matter should be referred to the Land Court for any future appeal action. He states this is a standard reference to any such query.
After a further letter from the Matteas dated 13 August 2010 such advice from Mr Gilmartin was confirmed by a letter dated 17 August 2010 also enclosing appeal forms for use by the proposed appellants.
Decision
The standard notice of disallowance of objection sent on 2 July 2010 clearly stated that, if the landowner wished to appeal further, the appropriate cause was to appeal to the Land Court. The 42 day period from the date of issue, such date being stated on the top of the notice, was stated as the time limit. The notice also stated that appeal forms could be obtained from the Land Court website or alternatively by ringing the Court direct and having the forms forwarded.
The 42 days from 2 July 2010 expired on 13 August 2010.
The Matteas were back from overseas on 22 July 2010 which then gave them some three weeks to attend to the appeal. There is some conflict between the Mattea evidence and that of Mr Gilmartin as to what transpired in the phone conversation in early August. I am prepared to accept Mr Gilmartin’s evidence that he issued a standard response that the matter should proceed to the Land Court. Some confusion apparently arose in the mind of the Matteas given their subsequent letter dated 13 August 2010 requesting appeal forms from Department of Environment and Natural Resources (DERM). DERM followed this request with letter dated 17 August 2010 advising or confirming that the preliminary conference was with the Land Court and forwarding them the appropriate appeal forms. Such forms were completed sent to the Land Court but were received some eight days outside the relevant time limit.
I do not consider anything turns on the fact that the wrong appeal forms were sent to the Matteas by DERM which were subsequently completed and sent to the Land Court being received on 25 August 2010. They were appeal forms to the Land Appeal Court rather than Land Court but, for present purposes, can be accepted as being appropriately lodged (the Land Court Rules have power to dispense with certain formal requirements).
Further, I do not consider anything turns on the fact that DERM misplaced certain correspondence and requested the Land Court to provide copies to it.
I do not consider any actions by DERM officers contributed to the late lodgement of the appeal notices. While there was some reference to medical problems of Mr Mattea on his return from overseas, I do not consider this amounts to a sufficient reason as to why the forms could not have been lodged within the time limit.
After careful consideration of this evidence and other evidence given at the hearing itself, I am of the view that reasonable excuse has not been established for the purposes of s.57.
Order:
The Court has no jurisdiction to hear this matter.
BR O'CONNOR
JUDICIAL REGISTRAR
0
0
0