Moran v Chief Executive, Department of Natural Resources and Mines

[2001] QLC 47

[2001] QLC 47

 

LAND COURT

DALBY

31 May 2001

Re:     Appeals against a valuation

Valuation of Land Act 1944
  Property ID No:        3111882
  Local Government:    Tara
  (V01-74)

John P Moran

v.

Chief Executive, Department of Natural Resources and Mines

D E C I S I O N

The application before me arises under Section 57 of the Valuation of LandAct 1944 (“the Act”). It is common ground that the notice of appeal in this matter was not instituted within 42 days after the date of issue to the owner of the valuation which was determined by the Chief Executive after an objection from the land owner. Therefore, the land owner, Mr Moran, has not complied with s. 55 of the Act. The question which arises on this application is whether Mr Moran has satisfied the Court that he has a reasonable excuse for filing the notice after the time stated.
           The facts in the application are not in dispute.  Exhibit 4, which is a print-out of data held in the Department of Natural Resources computer, shows that the decision on the objection was issued on 21 November 2000.  Mr Moran states, in paragraph 10 of his affidavit, that he received a letter from the Department of Natural Resources dated 21 November 2000 that his valuation had been set at $190,000.  He states that he received this in the ordinary course of the post which means he would have received it a week or more after it was dated.  Mr Moran lives at The Belahs and his means of delivery of mail is pursuant to a mail service No. 893 originating in Dalby.  It appears that he lives in the Tara local authority area.
The date of the issue of the valuation is significant in respect of the law to be applied in this matter. S. 57 of the Act was amended by section 29 of the Valuation of Land Act Amendment Act No. 32 of 2000 (“the amending Act”). That amending section commenced on 1 October 2000. While the issue of retrospective effect has not arisen in this application and I am not convinced that the amendments to s. 57 are intended to have a retrospective effect, it appears to me that the amended section would apply to any appeal where the right to appeal has arisen after 1 October 2000. Since the right of appeal is dependant upon the decision on a duly made objection to the original valuation, it does not arise until the decision on that objection has been made. In this case, that occurred on 21 November 2000. Accordingly, I am satisfied that s. 57 in its amended form should apply to this application. S. 57 prior to the amendments, allowed an out of time appeal to proceed only in very restricted circumstances.
           The facts contained in Mr Moran’s affidavit are not challenged by the respondent chief executive, and are accepted by me in all relevant respects unless indicated otherwise in these reasons.  Mr Moran was born on 7 April 1920.  He is a grazier by occupation.  He has had very little education.  He took correspondence lessons and left school at the age of 12 and has been doing what he calls man’s work, which I take to be fairly hard labouring work, ever since that time.  As a result of his limited education, he has difficulty understanding some words and, frequently, has to rely upon a dictionary to help him understand written English.  He described himself as a practical rather than a scholarly person.  He lives on his own.  He works long hours on his property, has no answering machine for his telephone and there is only a twice weekly mail service to his property.
           Mr Moran, as indicated earlier in these reasons, received a letter from the Department of Natural Resources advising him of the valuation which had been set some time after 21 November 2000.  He did note at that time that he could appeal to the Court and that there was a 42 day limit with regard to that appeal.  He states that he obtained from the Department of Natural Resources a notice of appeal which he completed and dated 22 November 2000.  His copy of the notice of appeal is exhibited to his affidavit as is his earlier objection.  The notice of appeal received by the Court is Exhibit 1 in these proceedings.  The date of 22 November 2000 seems a little inconsistent with the fact that the notice was issued on 21 November and would not have been received by Mr Moran as at 22 November (based on the rest of the information in that affidavit).  However, it seems to me that nothing turns on that point. 
           The problem in this case arises because Mr Moran made an error in how he was to file the notice of appeal with the Registry of the Court.  He made an honest (and perhaps not unreasonable) mistake in concluding that the correct way to do this was to lodge the appeal with the Dalby office of the Department of Natural Resources.  This would not be the first time that the Court, an independent institution, has been confused with the Department which is one of its more frequent litigants.  In any event, Mr Moran lodged the appeal by delivering it to a female clerk at the Dalby office of the Department and thought no more about the matter.
           Some time later, towards the middle of January, Mr Moran spoke to a Mr Terry Wilkinson, an employee of the Department at Dalby, and was advised that the appeal notice should have been sent to Brisbane and that his 42 days was in danger of running out.  In fact, it would seem it had probably run out at that time.
           The appeal was then forwarded by Mr Moran to the Court in Brisbane.  The envelope which forms part of Exhibit 1 shows that it was stamped by the Post Office on 15 January 2001.  It was received on the following day.  The Registry, subsequently, wrote to Mr Moran advising him that it was out of time and he subsequently responded, indicating that he would seek to establish before the Court that he had a reasonable excuse.
           Mr Moran concludes his affidavit by referring to the fact that he works long hours and that he normally does not get back to his homestead until after dark.  He reiterates his self-image as a practical person with limited ability to read and write and he states, and I have no reason to doubt this, that he honestly believed he had lodged the notice of appeal in the right way.
           He also states that it was always his intention to appeal the valuation as is evidenced by the date on his notice of appeal and his prompt presentation of that notice to the Department of Natural Resources at Dalby.  I think that point is good although, as I have indicated earlier in these reasons, the date does not seem to be entirely accurate.  He also states that, as all documents he had received had the logo of the Department of Natural Resources on them and he had not been advised of any other procedure, he believed it was the right thing to do to present the notice of appeal to the Department of Natural Resources at Dalby.  I have already indicated that I am of the view that this error was not unreasonable, particularly taking into account his advanced age and limited education.
           In all the circumstances, I am satisfied by the evidence put before me that Mr Moran has a reasonable excuse for filing the notice after the required date.  I am particularly impressed by the fact that the original notice appears to have been lodged well within the 42 days and that. after becoming aware of the error which had been made, Mr Moran acted promptly. 
           In all the circumstances, I find that the Court may hear and decide this appeal.  However, today’s application has been set down for being determined simply on the matter of jurisdiction and I adjourn the further hearing of the appeal to a date to be fixed by the Registry of the Court after consultation with the parties. 

SJ KEIM

MEMBER OF THE LAND COURT