Pavex Construction Pty Ltd v. Chief Executive, Department of Natural Resources

[2000] QLC 83

LAND COURT

MT ISA

18 DECEMBER 2000

Re:	Appeal against Annual Valuation
Valuation of Land Act 1944
Valuation Roll No: 4391/8900
Local Government: Mount Isa
(AV99-1261)

Pavex Construction Pty Ltd
v.

Chief Executive, Department of Natural Resources

DECISION ON JURISDICTION

This is an appeal against a determination of the Chief Executive of a valuation pursuant to the Valuation of Land Act 1944 (“the Act”). The matter has come on in the first instance to determine issues of jurisdiction. The notice of appeal was received by the Registrar of the Court on 21 September 1999. The post mark of the envelope in which that appeal was received shows a date of 17 September 1999 which indicates that there has been little or no delay other than one would expect in the normal course of post for a document apparently posted in Mt Isa and travelling to the Registry of the Court in Brisbane.

On 27 September 1999, the Registrar of the Court wrote to the appellant and advised that, according to his information and calculations, the 42 day period within which to file a notice of appeal had expired on 8 September 1999 and that, accordingly, the filing of the notice by post on 21 September 1999 was considerably outside the time provided by section 55 of the Act. The letter from the Registrar, which is Exhibit 2, notified the appellant that an appeal does not lie in circumstances where the notice of appeal is filed outside the prescribed period of 42 days unless the provisions of subsections 57(1) and (2) of the Act applied and were complied with. The letter enclosed a copy of those provisions and went on to state that the appellant should, if the provisions applied in its case, advise the Registrar in writing within 21 days pursuant to paragraph 57(1)(b) of the Act. An attached reply was said to be enclosed for that purpose.

It appears from the file that no reply was received and this is indicated by Exhibit 3, a letter dated 21 October 1999 from the Registrar to the appellant, which referred to the earlier notification and noted that no reply had been received. The letter advised the appellant that the matter would be set down for the first available sittings of the Land Court in Mt Isa when the question of whether or not the Court has jurisdiction to proceed and determine the appeal would be raised as a preliminary point, due notice of which would be given to the appellant.

I am satisfied from Exhibits 5 and 6 that the appellant was given due notice of the hearing today. The Deputy Registrar, Mr Hayden, has attempted to contact the officer of the appellant who, he understood and had been informed, was handling the matter to enquire as to whether the appellant intended to be represented at the hearing today. Mr Hayden’s enquiries were unable to result in his speaking to the person in question.

In any event, no appearance has occurred on the part of the appellant and I have caused the Deputy Registrar to call out the name of the person with whom he dealt with as well as the name of the appellant at the entrance to the Court House. No contact with anyone on behalf of the appellant was able to be made.

I am asked by Mr Paterson, who appears on behalf of the respondent, either to make a finding of the absence of jurisdiction and/or strike the matter out for want of prosecution. Mr Paterson also seeks an order for costs which he asks the Court to fix in the sum of $1,850.00.

An issue arises with regard to the effect of the amendments to section 57 of the Act which have occurred as a result of the Valuation of Land Amendment Act 2000 (“the amending Act”) which has commenced in recent times, namely, on 10 October 2000. Mr Paterson submits that the amendment to section 57 which gives the Court a greater discretion to allow appeals to proceed and be heard should be given effect to but that the appeal should be found to fall outside the concept of reasonable excuse which is provided in the current provision as a result of the amending Act. Alternatively, Mr Paterson submits that the matter should be determined according to the law as it applied prior to the amending Act in which case the appellant is clearly outside the benefit of those provisions.

It is unnecessary for me to decide the matter. However I would indicate that, in my view, this is a matter which can be distinguished from the case of Director-General, Department of Transport v Hibiscus Holdings Pty Ltd (1994-5) 15 QLCR 408 at 414-415. That case dealt with amendments which allowed new evidence to be received by the Land Appeal Court and, in that matter, those provisions were held to be procedural and therefore to have retrospective effect in the sense that they could apply to matters which had already commenced prior to the amendment but which came on for hearing before the Land Appeal Court after those amendments took effect.

In my view, the circumstance that an appeal is deemed by the earlier provisions not to lie unless the provisions of subsections 58(1) and (2) are complied with has the effect that the right to bring an effective appeal has already been lost and that that is a matter of substantive rights. In those circumstances, a later amendment should not be treated as allowing that appeal to be revived. In my view, that would create an injustice in that it would be contrary to the expectation of the respondent to an appeal who could reasonably expect that the appeal rights had been lost and the valuation, the subject of the appeal, had irrevocably come into effect.

In my view, these circumstances are not dissimilar to the facts in the leading case on retrospectivity Maxwell v Murphy (1957) 96 CLR 261. I would also refer to such cases as Worrall v Commercial Banking Co of Sydney Limited (1979) 24 CLR 28 and Myer Melbourne Ltd v Hammond [1984] VR 40.

If section 57, as it applied prior to the amendments, does apply to this case, then the appellant clearly has not satisfied its terms and I would hold that the appeal does not lie. It follows that there is no jurisdiction to go ahead to hear the appeal on its merits.

If I am wrong in this and I should give the appellant the benefit of the greater discretion contained in section 57 as it currently reads after the amendments have come into effect, then the appellant by its non-appearance and by not responding to any of the earlier correspondence has clearly failed to satisfy the Court that the appellant has a reasonable excuse for filing the notice after the time stated and, therefore, the Court should dismiss the appeal rather than go on to hear and decide it.

There is a jurisdiction in Rule 14(1) of the Land Court Rules 2000 to dismiss an appeal for want of prosecution where an applicant is required to take a step or is required to comply with an order of the Court within a stated time and the applicant does not do what is required within the time stated. Mr Paterson rightly submits that the Court is entitled, in the present circumstances, to dismiss these proceedings pursuant to that Rule for want of prosecution on the part of the appellant.

In my view, it is preferable, in the present case, to make a finding that the Court does not have jurisdiction to proceed to hear the matter or, alternatively, make the finding that section 57, in its more generous and current interpretation, has not been complied with which has a similar result.

If I were wrong in either of those bases, I would in any event dismiss the matter for lack of prosecution on the part of the applicant not only for its failure to attend today but also its failure to comply with section 57 of the Act.

Mr Paterson, on behalf of the respondent, seeks an order for costs. Section 70 of the Act allows the Court to order costs in circumstances where the value of the land has been finally determined. In the present case, where the valuation has not been finally determined in that sense, it is preferable in my view to determine the question of costs pursuant to section 34 of the Land Court Act 2000 which provides that the Court may order costs for a proceeding in the Court as it considers appropriate. That discretion is expressed to be subject to the provisions of that Act or any other Act to the contrary. I have no difficulty in finding that the provisions with regard to the awarding of costs constitute, indeed, a procedural matter and, to the extent that applying the Land Court Act 2000 is said to be retrospective, it is appropriate to apply it retrospectively in the present case.

In circumstances where the appellant has lodged an appeal out of time and has taken absolutely no steps either to prosecute the matter or to discontinue the matter and where the appellant has caused the respondent to run up costs for what in the end has proved to be no purpose, I have no difficulty at all in exercising the jurisdiction to award costs in favour of the respondent.

As indicated earlier, Mr Paterson has asked for costs to be awarded in the sum of $1,850.00. More than half of that sum is said to relate to his air fare to attend Court for that purpose. A smaller amount of $60 is said to relate to vehicle travel and the balance is said to be the time incurred by Mr Paterson (at $25 per hour) and the valuer Mr Quaite (at a rate of $22.50 per hour). In my view, the costs asked for are quite generously low on the part of the respondent and I have no difficulty setting those costs in the sum asked by Mr Paterson.

Accordingly, the orders of the Court will be as follows:

(1)	a finding that the appeal does not lie for failure to comply with sections 55, 56 and 57 of the Valuation of Land Act 1944;
(2)	an order that the appellant pay the respondent’s costs fixed at $1,850.00.

SJ KEIM
MEMBER OF THE LAND COURT