Newson v Chief Executive, Department of Lands

[1995] QLC 64

[1995] QLC 64

 

  LAND COURT

BRISBANE

3 AUGUST 1995

Re:     Appeal against Annual Valuation
Valuation of Land Act 1944
  (AV94-474)

Ian A and Karen S Newson
  v.
  Chief Executive, Department of Lands

(Hearing at Kingaroy)

REASONS FOR DECISION ON PRELIMINARY POINT OF JURISDICTION
           Mr and Mrs Newson received a notice from the delegate of the Chief Executive advising that the objection which had been lodged by them had been allowed in part only and then went on to include these words:

"Unless you appeal to the Land Court within 60 days after the date of issue of this notice in the terms of the Valuation of Land Act 1944-1987 and the regulations thereunder such decision shall be deemed to stand and the matter shall be deemed to be determined."

The date of issue of this notice was 7 July 1994. 
           In reliance on the notice of the delegate of the Chief Executive, Mr and Mrs Newson prepared a Notice of Appeal to the Land Court and lodged that through the mail.  The Land Court Registry received this Notice on 15 August 1994. 
           The matter is an annual valuation and the provisions of section 45 subsections (1), (2) and (3) apply to it:

"45. (1)An owner who has objected pursuant to section 42 against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court against the valuation.

1. Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 28 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. An appeal shall be instituted by filing a notice of appeal in the Land Court registry."

   Two things follow from this section.  The first is that the owner has 28 days only and not 60 days within which to lodge the appeal.  Given the decision on objection was 7 July 1994, the closing date for lodgment of an appeal would have been 4 August 1994.  As the Notice of Appeal was received on 15 August 1994, the appeal was not lodged within the time prescribed by the statute.  The second matter which arises from section 45 is that no appeal lies unless it is instituted within the statutory time period.  In other words, if the statutory time period is not satisfied then the Court has no jurisdiction to hear the appeal on the merits.
   The Land Court is a creature of statute and derives its jurisdiction from various statutes, in this particular instance from the Valuation of Land Act 1994. The Court is not provided by any discretion in the statute which would allow it to have regard to matters other than those expressly provided for in deciding whether jurisdiction lies or not. It is simply a matter of asking the question as to whether the provisions of the statute, in this instance section 45, had been satisfied and, if not, finding that the Court has no jurisdiction to hear the matter. Unfortunately, that is the case here. For completeness, I should mention that the Registrar of the Land Court, by letter dated 16 August 1994, advised Mr and Mrs Newson that it appeared that the Notice of Appeal had been filed out of time, and further advised that an appeal would not lie unless the provisions of sections 57 (1) and (2) of the Valuation of Land Act were complied with. These sections provide:

57. (1)Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by section 55(2), the registrar of the Court shall notify the owner that, as the notice of appeal was not filed in the Land Court registry within the time prescribed by section 55(2), the appeal does not lie unless the owner -

(a)proves to the satisfaction of the Court that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post;  and

(b)notifies the registrar within 21 days of the date of the notification of the registrar to the owner of the owner's intention to endeavour to so satisfy the Court as aforesaid.

1. If the owner -

(a)notifies the registrar within the time prescribed and otherwise in accordance with the provisions of subsection (1)(b); and

(b)proves to the satisfaction of the Land Court that the failure to institute the appeal within the time prescribed by section 55(2) was caused by undue delay in the transmission of mail in the ordinary course of post;

the appeal shall lie, subject to this section, notwithstanding that it was not instituted within the time prescribed by section 55(2), but otherwise the appeal shall not lie."

It transpired that Mr Newson did not attempt to bring the matter within the provisions of section 57 as the facts, quite clearly, could not support this.  His submission, quite simply, was that he had adhered to the time requirement specified in the notice from the delegate of the Chief Executive.
           The facts, as I have outlined them above, have been admitted by Mr Clift on behalf of the Chief Executive.  He also expressed regret at the circumstances which had given rise to the landholders being given incorrect advice regarding the time period within which to lodge the appeal and explained to the Court that the defect in the system which had allowed this to occur had subsequently been addressed.  Whilst this action is to be commended, I am aware that this is not the first occasion when incorrect advice of a similar nature has been given to would-be appellants, albeit from different offices of the Chief Executive.
Having said this, I would observe that no system is infallible yet the Valuation of Land Act does not contain a provision which would allow the Chief Executive to correct a defect such as occurred in this case and which, as I understand the evidence from Mr Newson, directly contributed to the timing of the lodgment of his Notice of Appeal. This is a matter which I would commend the Chief Executive give consideration to.
           It follows from what I have said above that I am not in a position to exercise jurisdiction in this matter, the appeal having been lodged outside the prescribed period provided for in the statute.  The appeal, therefore, has been struck out for want of jurisdiction.

RP SCOTT
  MEMBER OF THE LAND COURT