Peter J & Marilyn a Jackson v. Chief Executive, Department of Natural Resources

[1996] QLC 24

LAND COURT

BRISBANE

15 March 1996

Re: Appeal against annual valuations
of the Chief Executive

Local Authority: Gold Coast - Albert

AV95-330
Peter J and Marilyn A JACKSON
v

Chief Executive, Department of Natural Resources

(Heard at Coolangatta)

DECISION ON JURISDICTION

Introduction

The only question to be answered in this case is whether the Land Court has jurisdiction to hear the appeals against the annual valuation of the subject land as at 1 January 1995.

The question arises because the Notice of Appeal was filed in the Land Court registry after the appeal period had expired.

Statutory provisions

The provisions of the Valuation of Land Act 1944 (the "Act") relevant to the issue in this case state that:

(a)

an owner of land who is dissatisfied with the valuation of that land made by the chief executive in the course of making an annual valuation may (within 28 days after the date specified in an advertisement under the Act) post to or lodge with the chief executive an objection in writing against that valuation (section 42);

(b)

the chief executive must issue written notice of the decision to disallow the objection or to allow it (section 43);

(c)

if the owner is dissatisfied with the decision of the chief executive, the owner may appeal to the Land Court against the valuation (section 45(1));

(d)

an appeal:

(1)	"shall not lie unless it is instituted within 28 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)"; and
(2)	shall be instituted by filing a notice of appeal in the Land Court registry (section 45(2), (3));

(e)

where a notice of appeal is filed in the Land Court registry but not within the prescribed time, the Registrar of the Land Court shall notify the owner that the appeal does not lie unless the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post (section 57(1);

(f)

if the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post, the appeal shall lie "but otherwise the appeal shall not lie".

It is clear from those provisions that the Court can only hear the appeal in these cases if the owners can prove to the satisfaction of the Court that the failure to institute the appeal within 28 days after the date on the decision on objection was caused by undue delay in the transmission of mail in the ordinary course of post.

The facts

Mr Jackson's oral evidence about the chronology of events was, in summary, as follows. He went to Sydney on about 10 July 1995 for medical treatment and from there he travelled to Hong Kong. He returned to his home on about 27 July 1995. On the day of his return he received by post a notice dated 10 July 1995 from PF Tooley, Director of Valuation, advising the Jacksons that their objection to the valuation of their property had been disallowed. The notice concluded:

"Unless you appeal to the Land Court within 28 days after the date of issue of this notice in the terms of the VALUATION OF LAND ACT, 1944-1994 and regulations there under, such decision shall be deemed to be determined."

The notice was sent to the appellants' home address. The envelope containing the notice (Exhibit 4) bore no numerical postmark. Along the bottom of the front of the envelope was printed a series of short parallel pink lines which were described as a bar code. It was not possible for Mr Jackson, the chief executive's representatives in Court, or the Court to ascertain what the bar code signified nor who was responsible for applying it to the envelope. Mr Jackson's evidence about the date of receiving the envelope and its contents in the post was not disputed.

Mr Jackson said that he skimmed the letter and noted the mention of a 28 day period within which to appeal. For reasons of fatigue and the pressure of other more immediate concerns, he put the letter aside and reconsidered it some days later. At that time he realised the significance of the 28 day period and the fact that the period ran from 10 July 1995.

A week or so after he returned from Hong Kong he rang the Brisbane office of the Department of Lands and was advised that if he wished to appeal he would have to file a notice of appeal by 7 August 1995.

On 9 August 1995 he sent to the Registrar of the Land Court by facsimile a Notice of Appeal signed and dated 9 August 1995 and a letter of that date. In the letter he explained that the decision on objection had been delivered on 26 July. The Notice of Appeal was received by post in the Land Court registry on 14 August 1995.

Mr Jackson argued that, because of the delay in the delivery of the notice of decision on objection, he had less than 28 days within which to lodge the appeal. Given the unusual medical and financial circumstances applying to Mr Jackson last July which were uppermost in his mind, he submitted that he "could have done with more time".

Mr McGrory for the chief executive submitted that, as the appeal was dated and filed out of time, the Court does not have jurisdiction to hear the appeal. Also, he submitted, if the notice of decision on objection arrived on 27 July 1995, the appellants had two weeks within which to file their Notice of Appeal. I infer that he was submitting that the period was sufficient for the purpose.

As noted earlier, the respondent did not challenge Mr Jackson's evidence about when the notice of decision on objection arrived by post at the appellants' home. Nor did the respondent seek to establish when the notice was sent.

In submissions, neither party's representative referred to any decided cases. Apparently neither was aware of the decision of the Land Appeal Court in WM and TJ Fischer v The Valuer- General (1990) 12 QLCR 129.

In that case the appellants (who had filed their notice of appeal after the final date) argued that, to use the words of the relevant section of the Valuation of Land Act 1944 (now section 57(1)(a)), "the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post". The Land Appeal Court reviewed the history of the relevant sections of the Act and noted that the Legislature had put beyond doubt that the time within which to file an appeal runs from the date of (and appearing on) the notice of decision on objection. The Land Appeal Court accepted the submission that a provision in the same terms as section 57(1)(a) of the Act (as appearing in Reprint No 2) is wide enough to relieve the hardship caused by a delay in the transmission of mail in the ordinary course of the post of the notices of the decision upon objection. As the Court stated, the sub-section

"on its primary and literal meaning is not expressed as being confined to delay in the transmission of mail in the ordinary course of post of the notices of the appeal to the Land Court. ... On a literal reading ... there is no reason why undue delay in the transmission of mail from the Valuer-General [now the chief executive] 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. 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. It will therefore be a question of fact whether the appellant has shown any undue delay in the transmission of mail, and whether such delay caused the present failure to institute the appeal in time." ( 12 QLCR at 135-6)

The facts in the Fischer case were, in summary, that:

.	the notices of decisions on objection were sent to the appellants by mail;
.	there was no contest that the notices were received about 10 days after the date on the notices;
.	the appellants were under considerable personal stress at the time when the notices were received; and
.	the notices of appeal were filed 2 days late.

The Land Appeal Court held that the only reasonable inference to be drawn from the date of delivery of the notices was that the delay in receipt was caused by a delay in the transmission of mail in the ordinary course of post. The loss of 8 or 9 days out of a practically available period of 26 or 27 days was at least a significant cause of the eventual lateness in the receipt by the Registrar of the Notice of Appeal.

The facts in the present case are very similar to those in Fischer. In particular:

.	the notice of decision on objection was sent to the appellants by mail;
.	there was no contest that the notice was received about 16 days after the date on the notice;
.	the appellants were under some stress at the time when the notice was received; and
.	the Notice of Appeal was filed 2 days late.

The only reasonable inference to be drawn from the date of delivery of the notice was that the delay in receipt was caused by a delay in the transmission by mail in the ordinary course of post. The loss of about 15 days from a practically available period of about 27 days was at least a significant cause of the eventual lateness in the receipt by the Registrar of the Notice of Appeal.

It is clear that the legal principle enunciated by the Land Appeal Court in Fischer and the factual circumstances in which the principle operates apply in this case.

Order merits.

GJ Neate
Member of the Land Court