Ralph Lauren 57 Pty Ltd v Valuer-General

[2010] QLC 148

LAND COURT OF QUEENSLAND

CITATION:  Ralph Lauren 57 Pty Ltd & Ors v Valuer-General [2010] QLC 0148

PARTIES:  Cindy Ann Fleming as TTE & James Murray & Kylie Maree Forbes as TTE & Ors (VLA438-10), Ralph Lauren 57 Pty Ltd (VLA439-10), Douglas Sydney and Misako Tai James (VLA440-10), Cindy Ann Fleming as TTE and Ralph Lauren 57 Pty Ltd (VLA441-10), Ralph Lauren 57 Pty Ltd as TTE (VLA442-10), Ralph Lauren 57 Pty Ltd as TTE (VLA443-10), Body Corporate for "Macmillan Mews" Community Titles Scheme (VLA444-10), PJP Properties Pty Ltd as Trustee and Ralph Lauren 57 (VLA445-10), Ralph Lauren Pty Ltd (VLA446-10), Ralph Lauren Pty Ltd as TTE (VLA447-10), Ralph Lauren 57 Pty Ltd (VLA448-10), Ralph Lauren 57 Pty Ltd (VLA449-10), Ralph Lauren 57 Pty Ltd (VLA450-10)

(applicants)

v.

Valuer-General

(respondent)

PROCEEDING:  Jurisdiction – Appeal against Unimproved Value

DELIVERED ON:                  23 December 2010

DELIVERED AT:                   Brisbane

MEMBER:Mr BR O’Connor, Judicial Registrar

ORDER:The Court has no jurisdiction to determine the appeals.

CATCHWORDS:                  Jurisdiction – Late filing of appeal – Whether reasonable excuse

APPEARANCES:                  Mr R. Anderson instructed by F.G. Forde, Knapp & Johnson Lawyers, for the applicant

Ms T. Johnson, Principal Lawyer, Department of Environment and Resource Management for the respondent.

1. The issue for determination in this application is whether the Court has jurisdiction to hear appeals in circumstances where the notices of appeal were filed eight days out of time.  The key dates in question are as follows:

   ·the Valuer-General’s decision on objection, made under s.43 of the Valuation of Land Act 1944 (VLA), was notified to the applicants, as required by that section by notice of decision issued dated 20 July 2010

   ·the applicants had a right of appeal under s.45 of the VLA against the decision but, by virtue of s.45(2), only if the appeal is instituted within 42 days after the date of issue

   ·the appeal period expired on 31 August 2010

   ·the applicant lodged notices of appeal with the Land Court received on 8 September 2010

2. The respondent alleges that the purported appeals were therefore filed eight days out of time.

3. Accordingly, the Registrar of the Court notified the applicant in accordance with s.57 of the VLA which states as follows:

   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.

   (2A)However, the court must not hear an appeal for which the notice of appeal was filed more than 12 months after notice of the chief executive’s decision was given to the owner.

   (3)The registrar shall furnish to the chief executive a copy of a notification by the registrar to the owner and of any notification to the registrar by the owner under this section.

Background

1. A detailed affidavit of Robert John James was tendered on behalf of the appellants.  Mr James is either a director or an authorised agent and power of attorney of the appellant companies (referred to with others as “the Group”).  He is the largest investor in most of the entities and primarily responsible for the day to day management of the Group and its investments.  I have perused the affidavit of Mr James and extract the following clauses most relevant to the issue in dispute:

   "9.As a result of those increased and associated costs, it was decided this year, for the first time, to file all Notices of Appeals without the assistance of Solicitors, in an effort to reduce the Group’s legal costs.

   12.On 28 July 2010, DERM forms entitled “Decision on objection” were received in relation to sixteen of those properties (“the forms”).  The forms were dated 20 July 2010, but only received at our offices by ordinary mail on 28 July 2010.

   13.At that point in time, I made an erroneous calculation recognizing 8 September 2010 as the latest date for the filing of Notices of Appeal.

14.I had mistakenly misread the forms, perceiving that the Notices of Appeal could be filed within 42 days of the date of receipt of the forms, instead 42 days from the date of issue of the forms.

15.Ordinarily this misinterpretation would not be all that significant however, the unusual eight (8) day delay between the date of issue and the date of receipt meant approximately 20% of the time available to consider whether or not to file a Notice of Appeal was not available to me.

16.This was also further compounded by the number of properties I had to deal with.

17.I am not conscious of exactly why I misread the forms at the time however, during all relevant times, two of my most important staff members (who are both chartered accountants) were not contributing greatly to the running of the business, and my work burden was unusually heavy.

18.As outlined in paragraph 9 of this Affidavit, all Notices of Appeals have been handled by lawyers in previous years and, as such, I was not used to handling these type of matters without legal assistance.

23.All Notices of Appeals lodged by the Group in previous years have been successful in reducing the annual valuations issued by DERM.

24.Based on this record, and my assessment of the merits of the Notices of Appeal relating to the properties the subject of this judicial review, my expectation is that those Notices of Appeal will also be successful in reducing the annual valuations issued by DERM.

26.Any decision not to allow the Notices of Appeal to proceed will result in substantial prejudice to the Group based on a purely technical mistake as to time in circumstances where: -

a.I had made a misguided decision not to use Solicitors in a effort to save legal costs.

b.I had misread the form and misunderstood the time limits available during a period where I was under an unusually heavy workload

c.The minimum statutory time available to us had been substantially reduced through no fault of ours.

d.A deliberate decision was made to lodge the Notices of Appeal on the very last day waiting for important decisions from DERM in relation to four other comparable properties."

Decision

1. There is no real dispute between the parties that Mr James is a director or power of attorney of most of the appellants, the largest investor and presently primarily responsible for the day to day management of the appellants' activities.  It is not suggested that he is an external professional agent for the appellants to whom the conduct of the appeals has been given (as solicitors or valuers may be so considered).  If he was able to be so categorised, authority indicates that the appellants may have a defence in the current circumstances (see Trust Company of Australia Limited v Department of Natural Resources and Water[1]).

   [1] (2007) QLC 0045.

2. It is acknowledged that the eight days between the date of issue of the Notice of Decision on Objection and the receipt by the appellants is probably longer than is normally the case.  However, the Decision on Objection clearly states that the time is to run from the date of issue (and not the date of receipt).  Also, Mr James deposes that the reason for the late lodgement was his misapprehension that the time ran from date of receipt.  Thus, even if notice had been received earlier, say, within three days of the date of issue, it is probable he still would have been late in lodging the appeals.  If the receipt was much later than the date of issue (say, two to three weeks) that may well amount to reasonable excuse as the time for consideration of the question of whether to lodge or appeal may have been unfairly truncated; however, that is not the case here. 

3. Mr James also refers to the general pressure of work within this period and the absence of two of his key staff.  Reasons of the nature alone have not been held to amount to reasonable excuse (see O'Neill Developments and Investments Pty Ltd & Ors v Department of Natural Resources, Mines and Water[2]).  The position would be otherwise should some unforseen occurrence happen close to the date for lodgement.  (See Enright v Valuer-General[3]). 

   [2] [2006] QLC 0035.

   [3] [2010] QLC 0139.

4. Counsel for the appellants refers to two decisions which he claims are particularly relevant to the present considerations.  The first is Director General, Department of Transport v Congress Community Development and Education Unit Limited[4].  Justice Muir noted in that case that the relevant conduct does not need to be blameless and includes such as overlooking of the (as in the instant case) correct date for filing.  See the judgement at page 6: 

   “An excuse is not necessarily unreasonable because the maker of the excuse has made a mistake or omitted to do something through an oversight or misapprehension as to the fact question of fact or law.”

   [4] [1998] 19 QLCR 168.

5. However, it should be noted that Justice Muir was in the minority in that decision on this particular point; the majority allowed the appeal for another reason relating to agency and would not have allowed the appellant to have succeeded on the basis of the “slip” rule.  While the Community Congress case could be distinguishable from the present one, I consider the majority view should be followed until overruled.

6. Counsel for the respondent also referred to Devine Nominees Pty Ltd v Chief Executive, Department of Environment and Resource Management[5].  There the Court determined that 42 days from the date of receipt was a reasonable period in which to allow an owner to seek advice and make a decision on whether to embark on the costly process of lodging an appeal. 

   [5] [2009] QLC 21 at p. 16.

7. However, the rather unusual facts in the Devine case are distinguishable from those at present.  There the date of issue ceased to be a key question after allowance was made for the fact that the appellant’s solicitors had not lodged an appeal within time.  The key question in Devine was how long the appellant should have from when a notice was reissued (but with the original issue date) – whether it should have lodged an appeal as quickly as possible giving the original date of issue or whether it had the standard time to proceed to properly consider any grounds for appeal.

8. The Court decided that the latter course was appropriate and allowed 42 days.  Perhaps some slight reduction could have been made in Devine to the 42 day period to allow for the standard lapse in time between the date of issue and receipt.  However, the appellant in Devine had indicated to the Department that, once the failure to lodge by its solicitors had come to its knowledge, and a replacement notice issued (with the original date of issue), it proposed to take 42 days from the receipt of such notice to consider fully whether to appeal; the Department did not dispute this.  Thus, I do not consider Devine to be directly relevant to the circumstances of the present case. 

9. Counsel for the respondent cites the decision in Parnell v Department of Natural Resources and Mines[6] as a decision when an appellant calculated the time limit from the date of receipt rather than date of issue.  This was held not to amount to a reasonable excuse. 

   [6] [2002] QLC 79.

10. Given some of the wider items raised in the affidavit of Mr James (e.g. the strength of the case and the likelihood of success), it is appropriate to refer to the High Court decision of Jackamarra v Krakouer and Anor [1998] 195 CLR 516, where applicable principles for procedural time defaults are canvassed in some detail in the decision of Kirby J. Four major factors identified governing the Court's discretion to extend time include: the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. Additional factors include: was the delay intentional or merely a bona fide mistake or blunder; and whether the delay is of the litigant or of its lawyers, with which the litigant should not be saddled.

11. However, two additional matters addressed in Jackamarra have a significant bearing on the current case. First, the distinction is made, not only by Kirby J., but also in the joint judgment by Brennan CJ and McHugh J., between time limits of a substantive character and those appropriate to procedural rules. The time limit is of a substantive character when laid down in the Act itself and is not merely a procedural time limit imposed by Rules of Court which will be treated with the indulgence appropriate to procedural rules. Somewhat stricter guidelines or approaches apply when considering time limits in substantive provisions.

12. In the current case, the time limit is imposed upon s.55 of the VLA and not merely in the supporting Land Court Rules 2000. Such a limit would therefore be considered of a substantive character and require a more stringent approach. However, it is not necessary to analyse this distinction in further detail in this case because of the second matter that needs to be considered.

13. This second matter relates to the fettering of discretion of the Court to extend the time limit. The following statement from Kirby J in Jackamarra reveals the issue under consideration (at 539):

    "2. … The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus if a rule requires such special reasons be shown as a precondition to a procedure indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application." (emphasis added).

14. In the current cases, the discretion in the Court to extend time is constrained by the phrase "reasonable excuse" (s.55) VLA. The wider principles on time extension outlined above provide broad guidance only, always subject to the qualification "reasonable excuse" as stipulated in the legislation.

15. It is not disputed that the delay in the current cases was slight and is explicable as an innocent and honest mistake.  However, on a review on the relevant authorities, I do not consider this case could be properly come within the term “reasonable excuse”. 

Order
         The Court has no jurisdiction to determine the appeals.

BR O’CONNOR

JUDICIAL REGISTRAR