Perrett v Chief Executive, Department of Natural Resources

[2000] QLC 73

[2000] QLC 73

 

LAND COURT,

BRISBANE

28 November 2000

Re:     Appeal against annual valuation
Valuation of Land Act 1944
  Valuation Roll No:  2583
  Local Government:  Cooloola
  (AV99-444)

John E and Marcelline Perrett
v.
Chief Executive, Department of Natural Resources

(Hearing at Gympie)

DECISION  ON  JURISDICTION

Background:
This matter relates to land at 83 River Road, Gympie, and described as Lot 1 on MPH24070 and Lots 27, 51 and 57 on CP855375, Parish of Gympie.  The subject land is used as a motel site.  The matter before the Court is the preliminary question of whether the Court has jurisdiction to hear the matter in respect of a valuation determined under the Valuation of Land Act 1944.
           There was no appearance by the appellant.  Ms T Quinlan appeared for the respondent.  There being no appearance by the appellants, the Court acceded to an application by Ms Quinlan, and directed that the matter be struck out for want of prosecution.  The respondent sought no costs in the matter.

The Facts:
           On 1 March 1999, the Chief Executive issued a valuation of the subject land at $280,000.  Following an objection the Chief Executive confirmed that figure on 3 June 1999.  The appellants then appealed to this Court by notice of appeal form signed on 19 July 1999, and posted on 20 July 1999, and received by the Court on 21 July 1999, some six days after the due period of 42 days from the date of issue of the decision.  The period for appeal expired on 15 June 1999.
           On 23 July 1999, the Registrar of the Land Court wrote to the appellants advising that the appeal appeared out of time, and seeking advice from the appellants whether they would seek to convince the Court of the reason for the delay in lodging the appeal.  That letter of the Registrar was responded to by the appellants by a notification signed on 26 July 1999, posted on 27 July 1999, and received by the Registrar on 28 July 1999.
           On 29 July 1999, the Registrar acknowledged the response from the appellants, and advised that the matter would be set down for the hearing on whether the Court had jurisdiction at a date to be advised.  By Court Notice of 4 October 2000 the Registrar advised that the matter was set down for hearing of jurisdiction on 16 November 2000.  The hearing commenced on 16 November 2000.
           When there was no appearance by the appellants the Registrar of the Court contacted the motel at 83 River Road to ascertain whether the appellants were in transit to the Court.  Information was provided by a lessee of the motel that the appellants were now resident at the Sunshine Coast, and that mail forwarded to 83 River Road for the appellants, was generally held and on-forwarded when the appellants visited the premises.  There was no advice that the Court Notice had been received or on-forwarded to the appellants.  However, it is noted that the Court Notice was not returned to the Court by Australia Post.
           Further enquiries to a telephone number provided to the Registrar by the lessee revealed that Mr Perrett was not available that day, and Mrs Perrett was unaware of the Court Notice.
           While the matter was struck out for want of prosecution, the relevant legislation affecting the matter is as follows:

• This Court is a court of statutory creation and jurisdiction.  That was found in Gold Coast Milk Pty Ltd and South Coast Co-Operative Dairy Association Limited v. Valuer-General (1983) 9 QLCR 13 where the President said at page 17:

"The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed.  It has no inherent jurisdiction.  It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction when and in the manner in which the Legislature authorises it to do so."

• The Land Court has jurisdiction given to it under any Act.  (Land Court Act 2000, section 5(1)).
• A notice of appeal against an annual valuation is exercised under the Valuation of Land Act 1944, section 45(2) which states:

"45(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)."

• Where a late filing of an appeal has occurred, directions to the Court are included in section 57 which states:

"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 and

(2)  If the owner satisfies the court under subsection (1), the court may hear and decide the appeal.  "

• The meaning of a "reasonable excuse" has long been examined, and is taken to refer to a reason of some substantial nature.  That was found by the Land Appeal Court in AG Russell v. The Crown (1992-93) 14 QLCR 202. That matter dealt with failure by the appellant to meet the strict time limitations imposed under s.44(11)(a) and (b) of the Land Act 1962.  In the circumstances then prevailing under the Land Act 1962, the Land Appeal Court found at p.204:

"Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial.  The test is an objective one.  It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance.  The Land Appeal Court must be satisfied that there is a reasonable cause or explanation."

The Land Appeal Court rejected the claim by the appellant that ill health had been the reason for the late lodgment of the appeal, noting any lack of particularity to support such a claim.  During its deliberations, the Land Appeal Court considered the findings of Union Fidelity Trustee Company of Australia Limited v. The Co-Ordinator General (1988-89) 12 QLCR 153, and also RM Denning v. Council of the City of Ipswich (1988-89) 12 QLCR 171; both of which are discussed in Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (A97-09), 25 June 1998, to be reported.
           A delay in the delivery of the decision by the Chief Executive has been considered to constitute a reasonable excuse for a delay in the ordinary course of post to the appellants.  That occurred in the matter of WM and TJ Fischer v. Valuer-General (1990-91) 13 QLCR 129, where the Land Appeal Court said at page 135:

"On a literal reading of s.21(3A)(a)(i) there is no reason why undue delay in the transmission of mail from the Valuer-General to the owner cannot cause a failure to institute the appeal in time.  It may not be as obvious an instance as that where undue delay in the mail makes the difference between the Registrar receiving it in time or out of time.  However we would hold that undue delay in the mail is capable of causing a failure to institute the appeal within time whether it occurs at the beginning of the appeal period or the end of it, and whether it relates to postage from Valuer-General to owner or owner to the Court."

However in the current matter there is no evidence that the ordinary course of post between Brisbane and Gympie was other than one or two days duration.  Those previous communications would suggest, in the absence of evidence to the contrary, that the ordinary course of post was not the reason for the delayed receipt of the notice of appeal by the Court.
           The appeal is dismissed.

(NG Divett)
Member of the Land Court