Reitze v Chief Executive, Department of Natural Resources
[1998] QLC 17
•12 February 1998
|
CAIRNS
12 February 1998
Re: Appeal against an annual valuation
of the Chief Executive
Local Government : Cairns-Mulgrave
(AV97-113)
Roger N and Jennifer M REITZE
v
Chief Executive, Department of Natural Resources
(heard at Cairns)
DECISION ON JURISDICTION
(Extempore Decision)
Introduction
The only question to be answered in this case is whether the Land Court has jurisdiction to hear the appeal against the annual valuation of the subject land as at 1 October 1996.
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:
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);
the Chief Executive must issue written notice of the decision to disallow the objection or to allow it (section 43);
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));
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));
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));
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” (section 57(2)).
It is clear from those provisions that the Court can only hear the appeal in this case 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
The appellants objected against the valuation of their land. They were unsuccessful. The notice of decision to disallow their objection was dated 9 May 1997.
The appellants completed a Notice of Appeal. Although it was dated 6 June 1997, it was posted in Cairns on Thursday 5 June 1997. The envelope containing the Notice was postmarked at Cairns Mail Exchange at 6 pm that day. The Notice was received in the Land Court registry on Tuesday 10 June 1997. Monday 9 June was the Queen’s Birthday Holiday.
The appeal period of 28 days from 9 May 1997 expired on 6 June 1997. The Notice of Appeal was received outside the appeal period.
On 30 June 1997, the Registrar of the Land Court wrote to the appellants notifying them that the Notice of Appeal was received by mail in the registry office on 10 June 1997 and that it would appear that the notice had been filed out of time. He enclosed a copy of the relevant provisions of the Valuation of Land Act and invited the appellants to advise him if those provisions apply in this case. In a letter dated 10 July 1997, and received by the Registry within the prescribed 21 days period, one of the appellants, Mr Reitze, wrote:
“Australia Post claim that mail posted before 6 pm will be delivered Brisbane the next day. In the ordinary course of business, this appeal would have been delivered to your address on Friday 6 June 1997, complying with all legal definitions of being lodged in time. This interpretation has been adopted by the courts for at least a hundred years.”
That assertion was not supported by evidence. During the hearing of the jurisdictional matter in Court on 12 February 1998, the other appellant, Mrs Jennifer Reitze gave oral evidence and provided the Court with a written statement prepared by the other appellant Mr Roger Reitze but which she adopted as her own and was marked Exhibit 4. The thrust of that evidence was that the appellants had been unable to obtain an interview of the Department of Natural Resources until 3 June 1997. Accordingly it was submitted, the appellants had been unable to prepare their appeal until that date. They wasted no time in completing the Notice of Appeal and no criticism is made of them for not posting it until 5 June.
I note, however, that although a conference with departmental officers may be appropriate or even desirable in some cases, it was not a prerequisite to the legally valid completion of a Notice of Appeal. In that respect the appellants may have misunderstood what was required to prepare the Notice of Appeal. Mrs Reitze said she and Mr Reitze had spoken recently with an employee of Australia Post in Cairns. They had gone to the Mail Exchange and had asked for the “guy in charge” Mrs Reitze was unable to identify the person further. According to Exhibit 4 that person advised them that mail would have been sorted on the evening of 5 June and would have been sent by night flight to Brisbane that evening. “Mail for post boxes would probably go into the box Friday (6 June)”.
Mrs Reitze acknowledged that, although it was possible that the letter could have been deposited in the Court’s Post Office box on 6 June, in the ordinary course of post a letter posted in Cairns would be delivered in Brisbane on the second business day after posting.
Mrs Reitze also acknowledged that the letter was posted by ordinary mail and was not sent by express post, courier or transmitted by facsimile. I do not suggest that appellants should have to employ such measures, but in this case it would have been appropriate to have used a more expeditious method of post.
As noted earlier in these reasons the question in this case is whether the Land Court has jurisdiction to hear the owners’ appeal. By jurisdiction, it is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. The issue whether this Court has jurisdiction to hear the appeal must be resolved by reference to relevant statutory provisions because it is those provisions which identify the matters with which the Court has authority to deal.
As has been noted in previous cases, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute. The Court clearly has jurisdiction to deal with appeals against valuations made by the Chief Executive under the Valuation of Land Act but because it is a Court of limited jurisdiction, the Court can only assume jurisdiction when and in the manner authorised by the legislature. In other words the Court will only have jurisdiction to hear a particular appeal and so be able to exercise its powers and performance functions in respect of that appeal if the appeal is properly made under the relevant statutory provisions. I have already summarised development provisions of the Valuation of Land Act.
The Land Appeal Court has held that on a number of occasions that the procedures set out in those sections are mandatory. The practical consequences to the appellants is that this Court can hear this appeal only if the requirements of that section have been satisfied. It is clear from the Act that unless an appeal is made within 28 days after the date of issue of the notice of decision on objection, then the decision of the Chief Executive would be deemed to be determined. The Notice of Appeal was not filed in the registry of the Land Court within the period prescribed by law. Accordingly the appeal is struck out for want of jurisdiction.
Conclusion
It is clear from the Act that unless an appeal is made within 28 days after the date of issue of the notice of the decision on objection then the decision of the Chief Executive would be deemed to be determined.
Order
The appeal is struck out for want of jurisdiction.
GJ NEATE
MEMBER OF THE LAND COURT
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