Pacifique 121 Pty Ltd v Chief Executive, Department of Environment and Resource Management
[2010] QLC 8
•11 February 2010
LAND COURT OF QUEENSLAND
CITATION: Pacifique 121 Pty Ltd v Chief Executive, Department of Environment and Resource Management [2010] QLC 0008
PARTIES:Pacifique 121 Pty Ltd
(applicant)
v.
Chief Executive, Department of Environment and Resource Management
(respondent)
FILE NO:VLA550-09
PROCEEDING: Hearing of an application
DELIVERED ON: 11 February 2010
DELIVERED AT: Brisbane
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 M G Johnson, solicitor, FG Forde, Knapp & Johnson, solicitors, for the applicant
Mr S Fynes-Clinton, Counsel, instructed by Legal Services, Department of Environment and Resource Management, for the respondent
O’CONNOR JR: The issue for determination in this application is whether the Court has jurisdiction to hear an appeal in circumstances where the notice of appeal was filed some seven and a half months out of time. The key dates in question are as follows:
·the present applicant, by its authorised representative M3 Property, (M3), made a written objection to the valuation dated 23 April 2008. The Chief Executive’s decision on objection, made under s.43 of the Valuation of Land Act 1944 (VLA), was notified to the applicants, as required by notice of decision issued and dated 17 February 2009.
·the applicant had a right of appeal under s.45 of the VLA against the decision but, by virtue of s.45(2), only if the appeal was instituted within 42 days after the date of issue of the Chief Executive’s decision.
·the appeal period expired on 31 March 2009.
·the purported appeal was not filed in the Land Court registry until 18 November 2009.
·the purported appeal was therefore a little under eight months out of time.
The Registrar of the Court notified the applicant in accordance with s.57 of the VLA which reads as follows:
“57 Late filing
(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.
(2)If the owner satisfies the court under subsection (1), the court may hear and decide the appeal.
(2A)However, the court must not hear an appeal for which the notice of appeal was filed more than 12 months after notice of the chief executive’s decision was given to the owner.
(3)The registrar shall furnish to the chief executive a copy of a notification by the registrar to the owner and of any notification to the registrar by the owner under this section.”
(Underlining added)
The Court has jurisdiction to undertake any appeal only if the applicant satisfies the Court that they have “reasonable excuse” for filing these notices of appeal nearly eight months after the prescribed time.
Conduct of Applicant’s Agent
Affidavit evidence was tendered to the Court from Ross Bevan Perkins, the Managing Director of M3 Property, the authorised agent for the applicant and Victor Paul Patty, a Director of the applicant company. From this affidavit evidence it appears that, due to certain administrative problems within M3’s office, Mr Perkins did not become aware that the appeal had not been filed until 9 April 2009, a little over a week past the due date for filing. Mr Perkins then enquired of the respondent and told that the appeal was out of time; he also advised Mr Patty in similar vein. There is no direct evidence as to explain the delay in lodging the appeal between this time and November 18th 2009. Mr Johnson, who represented the applicant at the hearing, made some reference from the bar table that the matter was with his firm from about May 2009 and that there was some delays in obtaining necessary affidavits from relevant parties.
The key question is whether the applicant, Pacifique, can claim that it acted reasonably in all the circumstances in placing the matter in the hands of agents and by its subsequent conduct.
Cases where the applicant has relied on an agent to lodge an appeal and such being subsequently lodged out of time were recently reviewed by the Land Court President in Trust Company of Australia Limited v Department of Natural Resources and Water (Trust Company).[1] The Court stated:
"… it is clear that essentially the issue in this case is whether this Court should apply the relatively strict approach adopted by the Land Appeal Court in the Union Fidelity Trustee Company case or the more flexible approach adopted by a later Land Appeal Court in the Congress Community Development case."
After considering these two cases in some detail, it further stated:
"Having regard to the circumstances of the present case and the authorities referred to above, I am of the view that the more flexible approach taken by the Land Appeal Court in the Congress Community Development case should be followed in the present case. Muir J found that there was reasonable excuse for the 'slip' of the solicitor in that case. In my view, the same could be said for the 'slip' of the solicitor in this case." (first limb)
"However, if that was not sufficient to constitute a reasonable excuse, I would adopt the reasoning of Mr Wenck and Dr Divett. As in that case, in the present case the fault lies with the solicitors, but the applicant has done everything that could be expected of a 'reasonable man' in entrusting the institution of the appeal to its solicitors." (second limb)
In a subsequent case, Webb v Chief Executive, Department of Natural Resources and Water[2], the President noted limitation on this 'second limb':
"… this should not be taken as a precedent for the proposition that it would be reasonable for a landowner in all circumstances to entrust the lodgement of an appeal to their professional advisors. There may be other circumstances in which the action of the appellants or the actions of their professional advisors would not be regarded as a reasonable excuse for the late lodgement of an appeal. Each case must be dealt with on its own merits."
[1] (2007) QLC 0045.
[2] [2007] QLC 0082.
After a review of these decisions, my view is that, if the appeal had been lodged shortly after the time at which the company’s director had been made aware by Mr Perkins of the delay in filing, the second limb of the Trust Company decision could be reasonably applicable. However, I note the limitations suggested on this second limb in the Webb decision. Given that the onus of proof in this matter lies on the applicant, my view is that the very lengthy period from when the company’s director was made aware of the non-lodgement of the appeal until it was eventually lodged takes the matter outside the limits of what could be considered “reasonable” conduct in the absence of further explanation. I thus conclude that reasonable excuse has not been established in present circumstances.
Substantive or Procedural
It was argued at the hearing for the applicant that the late filing issue before the Court was more a “procedural” one and that the Court had certain discretion in determining whether the appeal could be allowed. The High Court decision of Jackamarra[3] was referred to, to support this contention:
[3] Jackamarra v Krakouer and Anor [1998] 195 CLR 516.
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 present case, this discretion in the Court to extend time is not conferred in unlimited terms but fettered by the phrase “reasonable excuse” (s.55 VLA). The wider principles referred to by Mr Johnson in his submission provide broad guidance only, always subject to the qualification “reasonable excuse” as stipulated in the legislation. As stated above, in current circumstances, I do not consider “reasonable excuse” to be established.
Decision
The Court has no jurisdiction to proceed with this appeal.
BR O’CONNOR
JUDICIAL REGISTRAR
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