Noffke v Department of Natural Resources and Mines

[2003] QLC 28

LAND COURT OF QUEENSLAND

CITATION:Noffke v Department of Natural Resources and Mines   [2003] QLC 28

PARTIES:Fred Charles Noffke

(applicant)
  v.

Chief Executive Department of Natural Resources and Mines

(respondent)

FILE NO:  AV2002/0537

DIVISION:  Land Court of Queensland

PROCEEDING:  Jurisdiction – Appeal against Unimproved Valuation

DELIVERED ON:  8 May 2003

DELIVERED AT:  Brisbane

HEARD AT:  Emerald

MEMBER:  Mr BR O'Connor, Judicial Registrar

ORDER: The Court has no jurisdiction to hear the appeal.

CATCHWORDS:  Jurisdiction – Late filing of appeal – Whether reasonable excuse

APPEARANCES:  Mr AD Grant (Solicitor) for the applicant
  Mr PJ Haydon (Valuer) for the respondent

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged four days after the due date. Section 57 of the Valuation of Land Act1944 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 s.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 lodgment advanced by the appellant falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.

1. 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 cause, 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

1. The prescribed time for lodging this appeal expired on Monday, 12 August 2002, being the next business day after the expiry of the 42-day limit on Sunday, 11 August 2002.  Notice of Appeal was received by facsimile in the Land Court registry on Friday, 16 August 2002.  These dates reveal a period of four days exceeding the due date for lodgment.

2. Mr Noffke gave oral evidence to the Court and tendered a short written statement signed by himself outlining reasons for the delay.  Key parts of that statement read:

   "We understand that the mail is not delivered in Rolleston, it is only collected from the Post Office.  There can be quite some delay before you would receive the mail in the ordinary course as opposed to mail, which might be sent to persons in regional areas.  Excuse for delay in the ordinary course of post was previously the only excuse and so it is obviously a very relevant argument in this case also.

   The third pertinent argument is that Mr Noffke attended at Emerald on the 15th August 2002 to collect the notice and lodge it at the Emerald office, and was advised that it could not be lodged there and had to be forwarded to Brisbane.  This would explain the further delay until the 16th August for the delivery of the notice.

   The fourth argument is the ordinary pressures of work, both in the applicants business as a land owner and business proprietor.

   A further argument is that a representative advised that Mr Noffke would have to attend in Emerald himself to lodge the appeal."

3. In oral evidence Mr Noffke indicated that he did not open the decision on objection (dated 30 June) until about 15 July 2002.  He is not certain when this objection decision which indicates a 42-day appeal period was actually received by him.  However he states that his rural business operation was extremely hectic in the second week of July and he was unable to attend to many aspects during this week.

4. Mr Noffke also states that a senior representative of Agforce, Mr Murray Jones, advised him, incorrectly it seems, that he would have to go to Emerald to lodge an appeal to the Court. 

5. Due to the distance of Rolleston (Mr Noffke's nearest town) to Emerald and other factors, Mr Noffke did not attend Emerald to attempt to lodge the appeal until Thursday, 15 August 2002.  He was told in Emerald by Natural Resources and Mines office staff that he could not lodge the appeal to the Land Court there, but could fax it to the Court in Brisbane.  This he did the following day. 

6. Having considered the evidence, I am unable to identify any factor or combination of factors which would constitute a reasonable excuse as determined by recent precedent.  The hectic business period for Mr Noffke was in the early part of the 42 days (say week two of the six-week timeframe); the advice of Mr Jones from Agforce to lodge the appeal in Emerald was also given in the first half of the timeframe; there is no evidence of delay in the receipt of the objection notice in the normal course of post; and any advice NRM office staff in Emerald provided was given three days after the date of expiry.

7. I appreciate the greater difficulty that landowners in more remote localities of the State have in attending to various administrative timeframes.  However, unlike appeal times in many other matters (28 days) a more generous 42-day period in the Valuation of Land Act 1944 is allowed to cater for the far-flung location of certain possible landholder appellants.

8. The High Court authority of Brisbane South Regional Health Authority v Taylor 186 CLR 541 was cited by the appellant's solicitor as indicating certain matters to be considered by a court in exercising its discretion as to whether to extend time. Degree of prejudice to the respondent, wider issues of justice and likelihood of success were some criteria. However that case was concerned with a general residual discretion in the court to extend time (after certain pre-conditions had been first satisfied). In the current matter, no such wider discretion is granted under s.57. The requirement is that "reasonable excuse" has to be established. There seems no scope under this statutory test for importing the wider considerations outlined in the High Court authority.

Decision

1. Having considered the tests outlined in the authorities and the facts of those cases, I conclude that a reasonable excuse has not been established in the circumstances of the present case.  Accordingly, I find the Court has no jurisdiction to hear the subject appeal. 

Mr BR O'CONNOR

JUDICIAL REGISTRAR