Mayo v Department of Natural Resources and Water

[2009] QLC 24

LAND COURT OF QUEENSLAND

CITATION:	Mayo v Department of Natural Resources and Water [2009] QLC 0024
PARTIES:	John Layton and Marylyn Eve Mayo (applicants)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO:	AV2008/1020
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 AV2008/1020.
CATCHWORDS:	Valuation of Land Act – ss 45, 57 – late lodgement of appeal
APPEARANCES:	Mr J Mayo for the applicants 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). 

   “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).”

1. Notwithstanding the strictness of s.45(2) there is provision in the Act for a late lodgement of appeal to be excused.

   “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. In essence what s.57 provides is that if a cause of the late lodgement of appeal is established then the question becomes one of ascertaining whether that cause amounts to a reasonable excuse. If it does, then the jurisdiction of the Court may be found to lie. but not otherwise.

2. The evidence is that the decision on objection by the Chief Executive issued on 29 July 2008. The notice of appeal was filed on 24 October 2008 whereas the application of the 42 day requirement provided for in s.45(2) means that the notice of appeal had to be filed on or before 9 September 2008 for the appeal to be properly instituted. By way of a letter the registrar of the Court informed the applicants as to the date of receipt of the notice of appeal and the implications of its late lodgement and referred the applicants to the provisions of s.57(1) and (2) of the Act. Consequent on receipt of that letter the applicants notified the registry that they intended to endeavour to satisfy the Court that a reasonable excuse prevailed.

3. Mr Mayo appeared for the applicants and provided evidence both in the form of a short statement and orally.  The upshot of that evidence is that it appears that the original notice of appeal sent to the Court somehow went astray in the post and that upon ascertaining that fact Mr Mayo decided to send a duplicate.  It was the duplicate that was received in the registry on 24 October 2008. 

4. Mr Mayo’s evidence was that he contacted the Cairns office of the Department of Natural Resources and established that a notice of appeal had been received there on 10 September 2008. Receipt by the Department of a notice of appeal does not institute an appeal which must be effected in accordance with s.45(3).

   “45     Appeal

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

1. In cross-examination Mr Mayo candidly conceded that he could not be certain as to whether he had posted the first and original notice of appeal to the Land Court on 8 or 9 September.  It is quite clear that had he posted the notice on 9 September it would not have arrived in the Land Court registry that day and would have been out of time.

2. It is for the landowner to establish on the evidence a cause of the late lodgement of a notice appeal is such that s.57 of the Act may apply. In short the cause of the lateness in this particular case is unclear. However, what is clear is that it cannot be said with any certainty that the original notice of appeal sent by the applicants to the Land Court registry was posted in sufficient time to ensure its arrival on or before the due date of 9 September 2008. The burden is on the applicants to demonstrate that s.57 of the Act should apply. That burden has not been discharged. Accordingly, the applicants have not demonstrated that there is a reasonable excuse of the type provided for in s.57 of the Act. It follows that I must conclude that the Court does not have jurisdiction to hear the appeal AV2008/1020.

RP SCOTT

MEMBER OF THE LAND COURT