Roberts v Chief Executive, Department of Natural Resources

[1997] QLC 71

[1997] QLC 71

 

LAND COURT BRISBANE 22 MAY 1997

Re:Appeal against an unimproved valuation Valuation of Land Act 1944

City of Townsville (AV96-552)

George Vivian Roberts and Dalva Ellen Roberts v.

Chief Executive, Department of Natural Resources

(Hearing at Townsville) DECISION AS TO JURISDICTION

Under the provisions of s.45 of the Valuation of Land Act 1944 (“the Act”), Mr and Mrs Roberts have appealed to the Land Court against the valuation of $160,000 determined by the respondent Chief Executive for their property situated at 26 Cleveland Terrace, Melton Hill, Townsville. However, before the merits of that appeal can be dealt with, it is first necessary to determine whether the Court has jurisdiction to hear the appeal.

The Facts

On 11 October 1996 a completed Notice of Appeal to the Land Court was received in the Registry of the Land Court. That Notice of Appeal indicated that Mr and Mrs Roberts appealed against the Chief Executive’s determination of the unimproved value of the land at

$160,000. The postal address shown on the Notice was:

“C/- P.O. Box 952 TOWNSVILLE. QLD. 4810.”

As the date of the decision by the Chief Executive on the owners’ objection was 11 September 1996, the 28-day period for the lodging of valid appeals closed on 8 October 1996. The Registrar of the Land Court concluded that the appeal was filed out of time. In accordance with the provisions of s.57(1) of the Act, by letter dated 18 October 1996 sent to Mr and Mrs Roberts at the abovementioned postal address, the Registrar advised the owners that as the appeal was filed in the Land Court Registry outside the prescribed 28 day period, the appeal does not lie unless they prove to the satisfaction of the Court that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course

of post.

In accordance with the Registrar’s instructions, Mr GW Eales, as authorised agent for the owners, advised that they would so try to satisfy the Court.

The Evidence

At the hearing as to jurisdiction in Townsville on 11 April 1997, Mr GV Roberts gave

evidence that on 11 April 1996 he prepared and signed on behalf of his wife and himself a notice of objection to the valuation made by the Chief Executive. On the same day he wrote a letter to the Townsville office of the respondent’s Department enclosing the notice of objection and advising that Messrs Collins & Eales, Real Estate Valuers, would be acting for his wife and himself in the matter and that all correspondence should be addressed to them. The postal address on the notice of objection was shown as “G & DE Roberts, c/- Collins & Eales, 112 Denham Street, Townsville 4810".

The respondent’s decision upon their objection dated 11 September 1996 was forwarded to the owners at that address. It was date stamped as received on 16 September 1996.

Mr GW Eales, a registered valuer and principal of the firm Collins & Eales, gave evidence that the date stamp had been applied by one of his staff, whose duties included collecting the mail at 8.30 a.m. each morning. Mr Eales said that at the time he was on holidays, his last working day being 13 September. He did not return to work until Tuesday, 8 October 1996.

Mr Eales said that upon his return to work he took verbal instructions from Mr Roberts, prepared the appeal, dated it 9 October 1996 and forwarded it to the Land Court at Brisbane that day. A copy of the postal book confirms that a letter was sent to the Land Court in Brisbane on 9 October 1996.

Mr Eales tendered a document entitled “Queensland Delivery Timetables”. This document was issued in March 1996, and indicates that mail which was posted from Townsville City would be delivered to an address in Townsville City the next day.

Mr Eales was unable to explain why a letter posted on 11 September 1996 was not delivered on 12 September or, at very latest, on 13 September 1996. He concluded that either the decision on objection did not issue on 11 September, as stated on the letter or that there had been undue delay in the transmission of mail.

However, s.96(10) of the Act contains a statutory presumption that:

“Dates shown in a notice of valuation or notice of decision upon objection as the date of issue thereof shall be taken to be the date that such notice was issued by the chief executive until the contrary is proved.”

Therefore, in the absence of any evidence to rebut that presumption, the date of issue must be accepted as 11 September 1996.

The Arguments

As it must be assumed that the notice of decision issued on 11 September 1996, it remains to be determined whether 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.

Mr Eales’ submitted that if the notice of decision on objection had arrived on Thursday the 12th, the day after it was issued (posted), or even Friday the 13th, he would have attended to the appeal before going on holidays. He contended that the 28-day period is short enough in any circumstances and that the appellants should be entitled to the whole time in order to lodge

their appeal. Any delay in the post which caused the appeal to be filed out of time should come within the exception from the otherwise mandatory requirement that a Notice of Appeal be filed within the prescribed time, which is provided for in s.57(1) of the Act.

Mr D Grealy, counsel for the respondent Chief Executive, offered no evidence in relation to this matter. He submitted that there was no evidence that there was any delay in the ordinary course of post.

I note that the decision upon objection was, in accordance with the details on the completed Notice of Objection, addressed to the office address of Collins & Eales at 112 Denham Street, Townsville, and not to the firm’s Post Office box number.  However, Mr Eales gave evidence of the diligence with which his staff members attend to the date stamping of mail collected from the Post Office. I think it would be open to infer that the same staff would be no less diligent in date stamping mail which was delivered to the office.

Therefore in the absence of any evidence to the contrary, I find that the notice of decision upon objection was stamped on the day on which it was received.   As a consequence, I find that it was received five days after the date upon which it was issued and four days after it would normally have been delivered in the ordinary course of post.

It was pointed out that 11 September 1996 was a Wednesday, and that a weekend intervened between the date of issue and the date of receipt of the notice of decision upon objection. It would, therefore, be reasonable to assume that any mail not delivered on the Friday would not have arrived at the office of Collins & Eales until the following Monday, 16 September 1996.

Was there undue delay in the ordinary course of post?

The evidence establishes that there was delay in the course of post. However, was there “undue delay”? The dictionary definitions of the word “undue” vary from “excessive” to “unwarranted”. In the present case I do not think that the word “undue” adds significantly to the meaning of “delay”. In the circumstances I feel that any delay in the transmission of mail in the ordinary course of post could be described as “undue delay”.

Was the delay the cause of the late filing?

Some assistance can be gained from the decision of the Land Appeal Court in WM & TJ Fischer v. The Valuer-General (1990) 13 QLCR 129. In that case three appeals were filed in the Land Court Registry on 28 June 1989, some two days after the closure of the date for valid appeals.

According to the appellants, the Valuer-General’s decisions on their objections did not arrive by mail until some 10 days after the date of issue. The Court accepted the appellants’ statements that the only reasonable inference was that the delay in receipt of those decisions was caused by a delay in the transmission of mail in the ordinary course of post.

In that case the Land Appeal Court considered the history of the relevant provisions, including the earlier limitation periods for the lodging of appeals under the Act. Initially it was 42 days but in 1971 it was changed to 60 days. Then in 1985 a new scheme requiring the Valuer-General to make annual valuations was introduced. The time for appeal was reduced to 28 days after the date of issue of the notice of decision on objection.

The Land Appeal Court went on to hold at p.135:

“On a literal reading of s.21(3A)(a)(i) [the predecessor to the present section] 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 at 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.”

In Fischer’s case there was evidence that the appellant was under severe stress because of family circumstances at the relevant time. The Land Appeal Court held that the explanation by Mr Fischer “helps to make it acceptable that a loss of eight or nine days out of a practically available period of 26 or 27 days was at least a significant cause of the eventual two days’ lateness in the receipt by the Registrar of the Notice of Appeal” (p.136).

The Land Appeal Court went on to say at p.137:

“ The Valuer-General has done all that is required of him under the Act, but the limited time for appeal (28 days) was appreciably reduced by Mr Fischer’s delayed receipt of the notice of decision, and he has satisfied us that this was a substantial cause of the failure to institute the appeal within time.”

In the present case there was a loss of four days and the circumstances are affected not by family stress but by Mr Eales being on holidays at the critical time.

In accordance with the reasoning in Fischer’s case, I find that the delayed receipt of the notice of decision on objection was a cause of the failure to institute the appeal within time. The 28-day period for lodging appeals is substantially shorter than the previous period of 60 days. There is little room for error, particularly where a professional representative must seek instructions from his principal. In some cases, such as the present, a delay can have serious consequences.

Accordingly, I find that the Court has jurisdiction to hear the appeal on its merits.  That appeal will be  set down  for hearing at  the next  available sittings of the Land  Court at Townsville.

JJ TRICKETT PRESIDENT OF THE LAND COURT