O'Neill Developments and Investments Pty Ltd v Department of Natural Resources, Mines and Water
[2006] QLC 35
•16 June 2006
LAND COURT OF QUEENSLAND
CITATION: O'Neill Developments and Investments Pty Ltd & Ors v Department of Natural Resources, Mines and Water [2006] QLC 35 PARTIES: O'Neill Developments and Investments Pty Ltd (three matters)
(appellant)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)PARTIES: Jan Maree and Michael Daniel James O'Neill
(appellants)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)FILE NOS.: AV2005/1719, AV2995/1720 and AV2005/1721 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeals against Unimproved Valuation DELIVERED ON: 16 June 2006 DELIVERED AT: Brisbane HEARD AT: Caboolture JUDICIAL REGISTRAR: Mr BR O'Connor ORDER: The Court has no jurisdiction to decide these appeals. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr P Chand, Solicitor (Caboolture Law) as agent for H Drakos & Co., Solicitors for the appellant
Ms C Liu, Legal Officer, Natural Resources, Mines and Water, for the respondent
The issue for determination in these matters is whether the Court has jurisdiction to hear the appeals lodged some 3 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 appellant falls within the term "reasonable excuse" as interpreted by the relevant authorities, particularly those since the introduction of s.57 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 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:
The appellants' solicitors, in a letter dated 9 November 2005, confirmed that their clients' failure to lodge within the prescribed time was "simply an oversight as he had miscalculated the date". This was confirmed by Mr Chand at the hearing. Neither the appellants (nor a representative of the appellant company) appeared at the hearing nor was any additional affidavit material tendered on their behalf. Mr Chand did indicate that his client was a very busy man engaged in extensive land developments and the lodgement was overlooked in his hectic schedule. Further, Mr O'Neill's executive assistant who had been allocated certain responsibilities for the filing of the appeal was absent on leave at the critical time. There was no suggestion that the appellants' solicitors were in any way involved at this stage or responsible for the lodgement delay.
There was no dispute from the Chief Executive's side as to the facts outlined above.
Parties' submissions
Mr Chand relied on the High Court decision of Jackamarra v Krakouer and Anor [1998] 195 CLR 516, where applicable principles for procedural time defaults are canvassed in some detail in the decision of Kirby J. Four major factors identified governing the Court's discretion to extend time include: the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. Additional factors include: was the delay intentional or merely a bona fide mistake or blunder; and whether the delay is of the litigant or of its lawyers, with which the litigant should not be saddled.
Mr Chand submitted that these factors were to be considered cumulatively and not as separate individual items in assessing the worth of the appellants' case. He claimed most would weigh in the appellants' favour in the present case.
Ms Liu for the Chief Executive essentially relied on the recent Land Court authorities from Anthony and following as to what amounted to a reasonable excuse. She submitted that reasonable excuse was not established in the current circumstances.
Decision
I have perused the Jackamarra decision and note that two additional matters there addressed have a significant bearing on the current case. First, the distinction is made not only by Kirby J but also in the joint judgment by Brennan CJ and McHugh J between time limits of a substantive character and those appropriate to procedural rules. The time limit is of a substantive character when laid down in the Act itself and is not merely a procedural time limit imposed by Rules of Court which will be treated with the indulgence appropriate to procedural rules. Somewhat stricter guidelines or approaches apply when considering time limits in substantive provisions.
In the current case the time limit is imposed upon s.55 of the VLA and not merely in the supporting Land Court Rules 2000. Such a limit would therefore be considered of a substantive character and require a more stringent approach. However it is not necessary to analyse this distinction in further detail in this case because of the second matter that needs to be considered.
This second matter relates to the fettering of discretion of the Court to extend the time limit. The following statement from Kirby J in Jackamarra reveals the issue under consideration (at 539):
"2. … The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus if a rule requires such special reasons be shown as a precondition to a procedure indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application." (emphasis added).
In the current O'Neill cases, the discretion in the Court to extend time is constrained by the phrase "reasonable excuse" (s.55) VLA. The wider principles outlined above and referred to by Mr Chand in his submission provide broad guidance only, always subject to the qualification "reasonable excuse" as stipulated in the legislation.
In my view, in the circumstances of the current case, reasonable excuse for late lodgement has not been established. Unlike other recent cases where jurisdiction has been found to lie, there is no evidence here of, say, misleading information supplied by the Department to the appellant, illness of the appellant, action by the solicitors causing delay or alleged delay in the post.
Order
The Court has no jurisdiction to decide these appeals.
BR O'CONNOR
JUDICIAL REGISTRAR
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