Parnell v Department of Natural Resources and Mines

[2003] QLC 84

LAND COURT OF QUEENSLAND

CITATION:Parnell v Department of Natural Resources and Mines  [2003] QLC 0084

PARTIES:Raymond H and Valma R Parnell

(applicants)
  v.

Chief Executive, Department of Natural Resources and Mines  

(respondent)

FILE NO:  AV2003/0724

DIVISION:  Land Court of Queensland

PROCEEDING:  Jurisdiction – Appeal against Unimproved Valuation

DELIVERED ON:  4 December 2003

DELIVERED AT:  Brisbane

HEARD AT:  Brisbane

JUDICIAL REGISTRAR:          Mr BR O'Connor

ORDER:1.     The Court has no jurisdiction to hear the appeal.

CATCHWORDS:  Jurisdiction – late filing of appeal – whether reasonable excuse

APPEARANCES:  Mr RH Parnell for the applicants
  Mr G Smith (Senior Legal Officer), for the respondent

[1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged 15 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 16 September 2003.  Mr and Mrs Parnell's Notice of Appeal was received by post in the Court Registry on 1 October 2003 having been postmarked on 30 September 2003.  These dates reveal a period of 15 days exceeding the due date.

2. Mr Parnell gave oral evidence in the teleconference in this matter.  His explanation for late lodgment was that he was absent from his normal residential mail address from 17 July 2003 until 26 September 2003.  He and his wife were on a trip to North Queensland which was part holiday/part business.  Upon his return he arranged for an appeal form to be sent to him, completed same and posted it to the Land Court Registry.  The Notice of Appeal was received by the Registrar of the Land Court on 1 October 2003.

3. Mr Parnell states he had made no arrangements for his mail to be either forwarded to a North Queensland address or to be dealt with by a family member or agent during his absence.  His son was instructed merely to collect the mail and keep it in safe custody until his parents' return.

4. The Department of Natural Resources and Mines, through their Senior Legal Officer, Mr Graham Smith, argues that the current circumstances do not amount to reasonable excuse.  Mr Smith refers to the decision of Branch v Chief Executive, Department of Natural Resources dated 7 November 2002 where jurisdiction was not found in circumstances somewhat similar to the current matter.  In fact, the Branch case perhaps comes somewhat closer to reasonable excuse as the appellants there were in a remote location, out of contact for some weeks during the appeal period.  Further, their appeal was only six days late, compared to the 15 days late here.  Mr Smith further argues that if absence because of holiday alone amounts to reasonable excuse, the section in the Act requiring that reasonable excuse be established may as well be repealed.

5. The appellants are certainly entitled to take extended holidays.  However, it could set an undesirable precedent if the circumstances of the present case were held to satisfy "reasonable excuse", which has been fairly tightly interpreted.  Having planned to be absent for an extended period of time, the appellants perhaps should have inquired of the Department before they left of the state of their appeal or, alternatively, made more detailed arrangements with someone to attend to such matters in their absence.

6. "Reasonable excuse" may well have been established if something unforseen had occurred on their trip or if their home "agent" had failed to properly carry out instructions.

7. Having considered the evidence before the Court, I am not convinced a reasonable excuse has been established.  Unlike other recent cases such as Zolgaze (decision of 22 August 2001),Craven (decision of 14 September 2001) and Gerber (decision of 14 September 2001) where there was some evidence of departmental conduct, which could have misled the appellants, none is apparent here.  There is no other evidence of delay in the post or of sickness or other personal circumstances of the appellants which would amount to "reasonable excuse".

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. 

BR O’CONNOR

JUDICIAL REGISTRAR