Mixhill Pty Ltd v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 31
•26 April 2001
LAND COURT BRISBANE
[2001] QLC 31
26 APRIL 2001
Re:Appeals against Annual Valuations Valuation of Land Act 1944
Property ID: 498141 and 498142 Local Government: GCCC-Albert (AV00-253 and AV00-254)
Mixhill Pty Ltd v.
Chief Executive, Department of Natural Resources and Mines
(Hearing at Coolangatta) DECISION ON JURISDICTION
Background:
These matters were heard concurrently and deal with properties at 282 and 296 Waterford/Tamborine Road, Waterford and described as Lots 2 on 3 on RP 151687, Parish of Moffatt. The matters before the Court relate to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of appeals against annual valuations at 1 October 1999 under the Valuation of Land Act 1944.
Peter Williams appeared and gave evidence on behalf of the appellant. Mr R Paterson, Principal Legal Officer, appeared for the respondent.
The Facts:
The Chief Executive issued valuations of the subject land at $215,000 (AV00-
253) and $100,000 (AV00-254). Following objections by the appellant, the Chief Executive confirmed those unimproved values on 27 June 2000. The appellant then appealed to the Land Court on 25 July 2000 in respect of both properties.
However, the notice of appeal was provided only in letter form, without the benefit of the availability of a formal notice of appeal (Form 59). The letter of appeals specified only that an appeal was formally lodged, but failed to specify any grounds of appeal, or the amount contended for by the appellant.
On 4 August 2000 the Registrar of the Land Court notified the appellant that the appeals appeared to be defective as detailed in the form of requisition which specified "the amount which the opinion of the appellant should be the valuation, and the grounds of appeal". The requisition from the registrar further sought advice by reply within 21 days after the date of the requisitions.
There being no reply to the requisitions, the Registrar advised the appellant on 4 September 2000 that the matter would be set down for the first available sittings of the Land Court at Coolangatta to determine whether the Court had jurisdiction to proceed.
On 12 December 2000 Court Notices were sent to the appellant advising that the matters of jurisdiction would be heard on 5 February 2001, which then occurred.
Mr Williams now provides evidence that he was overseas between 1 and 30 August 2000, and he did not receive the requisitions from the Registrar until he collected all of his mail on his return to Dalby, after a short period conducting other business in Brisbane on his return from overseas. For personal reasons Mr Williams had elected not to provide any power of attorney with an agent in his absence. Mr Williams notes that overseas travel is a very infrequent occurrence for him due to the very time-demanding nature of his business activities involved in some 16 separate properties throughout the State. Mixhill Pty Ltd operates as Mixhill Stud for cattle breeding.
Mr Williams advises that he then elected not to respond further to the requisition from the Registrar due to the advice in the letter of 4 September 2000 that the matter of jurisdiction would be set down for hearing. It was his understanding that the details of the lack of response would be addressed at such a hearing. As evidence of his bona fides in such a belief, Mr Williams advises that he had specially driven 13 hours in order to address the Court at the hearing on 5 February 2001.
Mr Williams questions why a simple reminder notice had not been forthcoming from the Registrar in view of the lack of response to the requisition, as he notes such a procedure would be normal business practice. However, his conclusion that the advice of a future jurisdiction hearing in the letter of 4 September 2001, would appear to follow such a practice.
Mr Williams was not familiar with the requirements of the Valuation of Land Act 1944 (the Act). However, he argues that, in his opinion, his absence overseas during the relevant period during which a response to the Registrar was required, should be considered as a reasonable excuse for failing to satisfy the requisition.
Mr Paterson argues that the postal address for the serving of notices had been changed from Beaudesert to Dalby following a formal request by the appellant on 25 July 2000. Formerly the decisions on the objections had been forwarded to the Beaudesert address on 27 June 2000. However, there is no issue in respect of that
matter. Mr Williams had shown the Dalby address on his notice of appeal in letter form.
There would appear to have been some confusion in the appellant's mind in respect of the level of information available to the Court at the time of the appeals. Mr Williams had followed guidance provided on the notice of objection (Form 58), and had shown the amount of the valuation he then contended in his correspondence with the respondent on the objection process, and for which he now appeals. He confirms that he had not attached a copy of that objection Form 58 to his notice of appeal to the Land Court.
However, Mr Williams had assumed that the former Form 58 used in the objection process would have been available on the file, and therefore known to the Court. As a lay person Mr Williams argues that the specific requirements of the law were not fully clear to him, but he had answered all letters and had sought to satisfy the requirements to the best of his ability. Mr Williams argues that the respondent was fully aware of the values contended for in these matters, and has not been disadvantaged by the appellant's failing to provide the specific value in the notice to the court.
Mr Paterson argues that there is no statutory basis for any exchange of documents as an administrative arrangement between the respondent and the Land Court. If the appellant chooses to rely upon an objection document, then the onus is upon the appellant to provide a copy of the relevant document to the Court personally under s.45(4) of the Act.
Decision:
I turn first to the legislation and note that in respect of the lodging of a notice of appeal s.45 states:
"45(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.
(5) Such notice shall also state the amount which in the opinion of the appellant should be the valuation of the subject land."
Where there is no statement of the grounds of appeal or any estimate of the valuation, then I am directed to the findings of the Land Appeal Court in WM & TJ Fischer v. The Valuer-General (1990-91) 13 QLCR 129, at 131. In that matter the Land Appeal Court determined that the procedures set forth in the relevant section of the Act (now s.45(4)) was mandatory, and must be followed by the Court. That
appeal had been lodged out of time, as had also occurred in Seaworld Pty Ltd v. The Valuer-General (1978) 5 QLCR 309. In the matter of AJ & E Schirmer v. The Valuer-General (1974) 1 QLCR 144 the Land Appeal Court found that the Land Court had no jurisdiction when there had been no estimate provided of the amount contended for; and in G Franklin & Ors v. The Valuer-General (1978) 5 QLCR 181, the Land Appeal Court found that it was not competent for an appellant to add to his grounds of appeal.
The nature of the jurisdiction bestowed upon this Court was clearly set out in Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. The Valuer-General (1983) 9 QLCR 13, where the President said at p.17:
"The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed. It has no inherent jurisdiction. It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction when and in the manner in which the Legislature authorises it to do so."
If I turn then to the use of the word "shall" in s.45(4), I note that the word used in general Acts of Parliament are to be construed imperatively, but must be read in reference to its context. (Re Davis (1947) 75 CLR 409, at 418, 419 per Starke J).
If I then refer to the Acts Interpretation Act 1954 I note that the word "must" is defined as:
"32CA.(2) In an Act, the word 'must', or a similar word or expression, used in relation to a power indicates that the power is required to be exercised."
On reading of those directions I agree with Mr Paterson that the word "shall" in the context of the current matter must be taken to be mandatory, and therefore must be complied with.
I turn then to the requisition from the Registrar and note s.58(1) which directs that a requisition be issued to the appellant, and that a response be filed with the Registrar within 21 days of the issuing of the requisition. In the event of the appellant not satisfying the requisition s.58(3) states:
"58(3) If the appellant does not fully comply with the requirements of the requisition to the satisfaction of the registrar within the prescribed time, the Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular or that, where in its opinion a requisition was properly issued, the requirements of the requisition have been complied with to the extent that, taking such compliance into consideration in conjunction with the notice of appeal as first filed, the requirements of section 56
have been complied with and there is no defect in any material particular."
The mandatory nature of s.58 is also clear, and the Court is not empowered to proceed unless it is satisfied that the appeal is not defective in any material particular. Where there is a defect in a notice of appeal the Land Court is directed by s.59 which states:
"59.(1) Where on the hearing of an appeal it appears to the Land Court that a notice of appeal does not comply in all respects with the requirements of section 56 or is otherwise defective in a material particular, the court shall require the appellant to furnish it within 7 days with particulars the absence of which constitute the failure to comply with the requirements of section 56 or the defect in the material particular.
…
(3) If the appellant fails to satisfy the requirements of the Land Court under this section within the prescribed period of 7 days, the court shall strike out the appeal."
In the current matter the appellant not only did not fully comply with the requisition, but actually made no response at all to its inquiry. Mr Paterson concedes that had there been a partial compliance with the requisition, then it may have been appropriate for the Court to exercise s.59(3), and to allow the appellant a further seven days in which to provide the missing details. Mr Williams in fact is so prepared, and did not subsequently do so only because he believed those matters would be ventilated at the subsequent hearing. He always understood that the respondent was fully informed of the specific details.
In this matter Mr Paterson directs me to the decision of CM Conroy v. The Valuer-General (1986-87) 11 QLCR 25, where the President said at p.28:
" Further, I note that the previously quoted part of Section 21(3B)(c) refers to cases where 'the appellant does not fully comply with the requirements of the requisition, to the satisfaction of the Registrar, within the prescribed time.' In my opinion the word 'fully' implies that there has been some (or part) compliance with the requisition within the prescribed time. It would extend the provisions of paragraph (c) too far to hold that they apply to cases where there has been no compliance at all within the prescribed time. It seems to me on a careful reading of the aforequoted part of paragraph (c) as a whole that the only compliance which the paragraph authorises to be considered in conjunction with the Notice of Appeal for the purposes of deciding compliance with the requirements of subsection (3) is compliance which occurred within the prescribed time. In the subject cases there is no such compliance."
The matter of a "reasonable excuse" was considered by this Court in AF & RD Hall v. Chief Executive, Department of Natural Resources (AV00-611), 14 December 2000, unreported, and also in MJ & D Anthony v. Chief Executive, Department of Natural Resources (AV00-517), 10 November 2000, unreported. In the Anthony matter the Court adopted the wider interpretation of the amended s.57(1) as it became after the filing of the notice of appeal in that matter. However, it finally rejected the appeal as it failed to meet the statutory provisions of s.58(3) in respect of a failure to respond to the requisition of the Registrar, and jurisdiction was not found to lie.
In the matter of Hall the appellants had failed to meet the statutory period for lodgment of the appeal, as a consequence of his absence overseas. During that absence overseas the appellant had left the handling of his business in the hands of his daughter, who had failed to realise the significance of the need to lodge an appeal within 42 days of the issuing of the decision on objection. The appellant had returned prior to the closing of the relevant date for lodgment of the notice of appeal, but had been preoccupied with other business. In the end, while the appellant demonstrated a very sincere intention to prosecute the appeal, his failure to effectively meet the statutory intentions of the legislation was fatal to his case.
The decision of Anthony, however, included a wide examination of the relevant findings of courts at all levels in respect of the adoption of a "reasonable excuse" in matters of this nature. Guidance in those matters is perhaps best encapsulated in the decision of the High Court in Jackamarra v. Krakouer (1998) 195 CLR 516, at 539 per Kirby J.
I look then at whether the appellant could be excused because he had not personally received the requisition from the Registrar. I find that s.58 does not provide specific directions as to how the requisition should be conveyed to the appellant. However, guidance from s.57 would suggest that the "ordinary course of post" was likely to have been contemplated by the legislature.
I note, for instance, that s.39A of the Acts Interpretation Act 1954 directs:
"39A(1) If an Act requires or permits a document to be served by post, service -
(a) may be effected by properly addressing, prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved."
The understanding of "ordinary course of post" was explored by the High Court of Australia in Bowman & Anor v. Durham Holdings Pty Ltd (1973) 131 CLR 8, where Stephen J said at p.14:
"When clause 19(a) refers to 'the ordinary course of post' it is not, I think, concerned with the particular idiosyncrasies of a particular addressee but rather with the general delivery practices of the postal service. It does not concern itself with particular circumstances of an addressee which may, if known to the postman on his round, deter him from attempting to effect delivery to a particular addressee;"
Stephen J noted the findings of Lord Esher MR in Kemp v. Wanklyn (1894) 1 QB 583, where his Lordship said at p.585:
"He is not bound to inquire whether within the district there may be some people who, by some special arrangement with the Post Office officials there, made either with or without the authority of the Post Office, have their letters delivered in an exceptional manner. Such a special arrangement would be, not the ordinary, but an extraordinary, course of post."
p.15:
In Bowman & Anor v. Durham Holdings Pty Ltd Stephen J went on to say at
"The ordinary course of post is not dependent upon the habits of the addressee, whether or not known to the postal employees concerned with letter deliveries; nor is the concept inapplicable in the case of a letter which is sent by registered post. That the phrase has meaning in its application to registered letters, just as it has in the case of the ordinary post, is clear from the several decisions concerned with appeals from revising barristers in electoral roll cases, some of which I have cited above. In TO Supplies (London) Limited v. Jerry Creighton Ltd (1952) 1 KB 42, Devlin J saw no reason, in a particular statutory context, for distinguishing between registered and ordinary mail, each was included within the 'ordinary course of post'."
Guidance from those findings infers that the delivery of the requisition from the Registrar should cease when it had been delivered by the postal service to the address of the correspondent. The explanation of such a service as ordinary course of post, in my opinion, would suggest that delivery would equate to the level of service that the ordinary person would reasonably expect to occur.
I see no grounds for consideration that the Registrar should have had to arrange for the personal arrangements of the appellant for the effective receipt of mail following delivery by the post. It would have been within the control of the appellant to have put in place suitable arrangements to ensure that urgent mail was brought to his attention promptly. That he chose not to do so is not a matter for which the Registrar should be held accountable.
Finally I consider whether I can accept the appellant's absence from Australia as a "reasonable excuse" for not receiving the requisition of the Registrar. The matter of a "reasonable excuse" was introduced into the Act by amendments with effect from 1 October 2000. However, those words are included only to condition s.57 in respect of the late filing of an appeal. There is no such reference to a "reasonable excuse" for the failure to respond to the requisition from the Registrar under s.58. Directions from Conway would dictate that failure to provide any response to the requisition, for whatever reason, would exclude the appeal.
I am also directed to the "equity and good conscience" provisions of s.7 of the
Land Court Act 2000 which states:
"7. In the exercise of its jurisdiction, the Land Court -
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts."
However, a prerequisite of the exercising of "equity and good conscience" is the need to be able to have jurisdiction to hear the matter. Failure to meet the statutory requirements of s.58 precludes consideration of the "equity and good conscience" provision. That principle was followed in Determination of the Value of Improvements - Niall Preferential Pastoral Holding (1974) 1 QLCR 180, where the Land Appeal Court said at p.183:
"The subsection contains no power to enable this Court to exercise a jurisdiction based on equity and good conscience nor do the introductory words of the subsection in the 'Notwithstanding' phrase refer to the exercise of jurisdiction. In other words the provisions operate only during the exercising of lawful jurisdiction and do not empower the Court to assume a jurisdiction or enable the Court to waiver statutory requirements precedent to its jurisdiction."
Conclusion:
Having considered the relevant guidance on this matter, I find that the appellant has failed to meet the statutory provisions of the legislation in that he has not provided details of his grounds of appeal, or his estimate of the valuation of the subject land, and he has not satisfied the requisition of the Registrar in accordance with s.58. Accordingly, while I have no doubt that the inadequacy of the appeal occurred only as a consequence of an incorrect assumption by the appellant of the
evidence then before the Court, I find the legislation is so constrained that I must reject the notice of appeal, and I find I have no jurisdiction to hear the matter.
NG DIVETT MEMBER OF THE LAND COURT
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