Penfold v Department of Natural Resources and Water

[2009] QLC 23

LAND COURT OF QUEENSLAND

CITATION:	Penfold v Department of Natural Resources and Water [2009] QLC 0023
PARTIES:	Peter Sutton Penfold (appellant)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO:	AV2008/0690 AV2008/0691
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – appeals against annual valuations of land under the Valuation of Land Act1944
DELIVERED ON:	17 February 2009
DELIVERED AT:	Brisbane
HEARD AT:	Cairns
MEMBER:	Mr RP Scott
ORDER:	The Court does not have jurisdiction to hear the appeals AV2008/0690 and AV2008/0691
CATCHWORDS:	Valuation of Land Act – ss 45, 57 – late lodgement of appeal
APPEARANCES:	The appellant in person Mr G Smith, Acting Principal Legal Officer, for the respondent

Background

1. This is an application by a landowner to endeavour to satisfy the Court that the owner has a reasonable excuse for filing a notice of appeal outside the 42 day period provided for in s.45(2) of the Valuation of Land Act 1944 (the Act). 

   “45     Appeal

   (2)     Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 42 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive’s decision upon the objection (which date of issue shall be stated in such notice).”

1. Notwithstanding the strictness of s.45(2) there is provision in the Act for a late lodgement of appeal to be excused.

   “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.”

1. In essence what s.57 provides is that if a cause of the late lodgement of appeal is established then the question becomes one of ascertaining whether that cause amounts to a reasonable excuse. If it does then the jurisdiction may be found to lie, but not otherwise. The application of s.57 does not involve any consideration of the merits of the appeal; that is, as to whether the grounds of appeal are substantial and could lead to a reduction in the respondent’s valuation.

2. The evidence is that the decision on objection by the Chief Executive issued on 2 July 2008. The notice of appeal was filed in the Land Court registry on 26 August 2008 whereas the application of the 42 day requirement provided for in s.45(2) means that the notice of appeal had to be filed on or before 13 August 2008 for the appeal to be properly instituted. By way of a letter the registrar of the Court informed the appellant as to the date of receipt of the notice of appeal and the implications of its late lodgement and referred the appellant to the provisions of s.57(1) and (2) of the Act. Consequent on receipt of that letter the appellant notified the registry that he intended to endeavour to satisfy the Court that a reasonable excuse prevailed.

3. Mr Penfold appeared on his own behalf and provided evidence both in the form of a statement and orally.  In summary that evidence was that he delayed the lodgement of his notice of appeal as he wished to give objective and clear consideration to the grounds of appeal.  He said in his statement “as it happened, other events took my attention, and believing that I still had time to lodge a response, I delayed past the 42 days.”  His summary of the reason for the lateness of the lodgement of the notice of appeal was that it was “… due to oversight”.

4. The phrase “reasonable excuse” and other similar phrases have been considered in a number of authorities many of which are collected in the judgment of Muir J in Director General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 19 QLCR 168 at 171. The phrases considered in the authorities referred to by His Honour include “reasonable cause for explanation”; “reasonable cause” and “reasonable excuse”. I might usefully refer to one of the authorities relied upon by His Honour that being Pascoe v The Nominal Defendant (Qld) No. 2 [1964] Qd R 373 at 378 in which Mansfield CJ said –

   “What is to be determined is whether the applicant has shown any cause which can be deemed by the court to be a reasonable excuse.  I think this means cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.”

1. It can be understood from this quotation that for a Court to conclude that a “reasonable excuse” exists for the delay there must first be identified an actual cause or causes of the delay.

2. In summary the cause of the late lodgement in these cases is simply that of delay and oversight – not a cause which, I think, amounts to a reasonable excuse.  Whilst such causes of lateness may be common, and I cannot say with any certainty that they are, they cannot be said to be consistent “with a reasonable standard of conduct”.

3. I accept that Mr Penfold honestly holds the view that he has grounds of appeal which support his view that the Chief Executive’s valuations in these matters are too high. It is important, however, that I stress that a consideration of this Court of the terms of s.57(1) and (2) of the Act must focus only on the question of the lateness of filing of a notice of appeal and not with whether the appeal seems to be founded in substantial grounds or on grounds which would appear to justify a reduction in the Chief Executive’s valuation.

4. Accordingly I conclude that this Court does not have jurisdiction to hear these appeals.

RP SCOTT

MEMBER OF THE LAND COURT