McMeniman v Department of Natural Resources and Water
[2006] QLC 63
•4 October 2006
LAND COURT OF QUEENSLAND
CITATION: McMeniman v Department of Natural Resources and Water [2006] QLC 63 PARTIES: Anthony J and Stephen McMeniman
(appellants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO.: AV2005/1302 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against unimproved valuation DELIVERED ON: 4 October 2006 DELIVERED AT: Brisbane HEARD AT: Stanthorpe MEMBER Mr BR O'Connor, Judicial Registrar ORDER: The Court has jurisdiction to hear the present case. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr S McMeniman for the appellants
Mr BG Mahoney, Senior Valuer, for the respondent
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged two days 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.(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."
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.
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:
Mr Stephen McMeniman's explanation for late lodgement essentially relates to a delay in the post. He claims he was aware of the 42 day time limit when he was making arrangements to post the letter containing the appeal at Maroochydore (to the Land Court in Brisbane) on the morning of 42nd day (4 October 2005). When enquiring at the Post Office he was advised that he could reasonably expect that the item, if immediately posted, would arrive in Brisbane that afternoon. Mr McMeniman stated that if he was not so assured (although he was not guaranteed) he would have used express post to ensure delivery within the stipulated time.
The letter including the appeal was postmarked 4 October 2005 although it did not arrive at the Brisbane Land Court registry until 6 October 2005.
The issue of collection arrangements by the Land Court registry from the Post Office box in Brisbane was not canvassed at the hearing. Mr McMeniman may have reasonably assumed that the registry had arrangements for an afternoon collection to cater for transactions such as the one now in question.
Mr Mahoney for the respondent did suggest that Mr McMeniman had ample time to send the appeal over the 42 days. However it has been previously held that there is no obligation on an appellant to forward his appeal earlier in the time period and if something arises at the very end of such period, which is unanticipated and genuinely causes a late lodgement, this can amount to a reasonable excuse.
Mr McMeniman's evidence as to his communication with the Post Office staff was not challenged by the respondent.
Decision
While in normal circumstances I consider it would not be reasonable for an appellant to expect a same day delivery by post (even if posted close to Brisbane), there is an additional factor in the instant case. The statement by a Post Office official to Mr McMeniman that same day delivery could be expected is, in my view, sufficient to amount to a reasonable excuse in the present circumstances. The issue of the collection by the Land Court registry has been considered above.
Order
The Court has jurisdiction to hear the present case.
BR O'CONNOR
JUDICIAL REGISTRAR
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