Robinson v Chief Executive, Department of Natural Resources
[1998] QLC 53
•22 May 1998
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BRISBANE
22 May, 1998
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No: 959
Local Government: BCC-Balmoral
(AV98-51).
Olga Robinson
v.
Chief Executive, Department of Natural Resources
DECISION ON JURISDICTION
Background:
This matter relates to a property located at 4 Power Street, Norman Park, and described as Lot 136 on RP 54571, Parish of Bulimba. The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the case in respect of an appeal against an annual valuation of the subject at 1 October 1996, under the provisions of the Valuation of Land Act 1944.
Mr Denis Robinson provided a statement to the Court in respect of the appellant, but declined to appear at the hearing for jurisdiction. Mr G Harper appeared for the respondent.
The Facts:
In order to examine the history of the appeal I set out the following chronology of events:
•17 March 1997 - The Chief Executive issued a valuation of the subject at $182,500.
•11 April 1997 - An objection mailed by the appellant.
•16 April 1997 - The Chief Executive acknowledged the objection.
•2 December 1997 - A decision on the objection issued by the Chief Executive, reducing the valuation to $170,000.
•30 December 1997 - Facsimile forwarded to the office of the Chief Executive seeking an extension of time to lodge an appeal.
•14 January 1998 - Facsimile of 30 December 1997 acknowledged by Chief Executive, advising that the request had been referred to the Land Court. The Land Court received the facsimile on 14 January 1998.
•14 January 1998 - Land Court Registry telephoned appellant advising that there was no provision to grant an extension of time. A notice of appeal form was faxed to the appellant, who completed the form and returned the completed form by facsimile to the Court on 14 January 1998. The appeal form was signed on 14 January 1998.
•23 January 1998 - Registrar of the Land Court wrote to the parties, noting receipt of the appeal, and offering a supervised preliminary conference, subject to approval by the parties.
•1 February 1998 - Appellant responded to the Registry of the Land Court accepting the offer of a preliminary conference.
•11 February 1998 - Land Court Registrar advised that the appeal would appear to be out of time, and can only be considered in accordance with Section 57(1) and (2) of the Valuation of Land Act (extracts of which were supplied to the appellant). The appellant was advised to respond within 21 days should she choose to seek to satisfy the Land Court under Section 57(1)(b).
•17 February 1998 - Letter to Mr T Fenwick, Director-General, Department of Natural Resources, setting out the history of developments related to the appeal, and seeking the personal attention of the Chief Executive.
•18 February 1998 - Letter dated 17 February 1998 received by the Land Court Registry, noting the matter had been referred to the Department of Natural Resources.
•24 February 1998 - Reply (dated 23 February 1998) to Court letter of 11 February 1998 received by the Court Registry.
•4 March 1998 - Letter from Registrar noting the response of appellant of 24 February 1998, and advising that the matter would be set down initially for determining the point of jurisdiction.
•17 March 1998 - Letter to Mr Denis Robinson advising that the matter is now before the Land Court, and the Chief Executive has no jurisdiction over the Court. Mr Fenwick noted the delay in responding to the appellant's facsimile of 30 December 1997, and that the "Department will offer no opposition to any jurisdiction hearing".
•28 April 1998 - Court Notice from the Registry advising that the matter was set down for mention on 14 May 1998 with a view to determining a date for hearing.
•7 May 1998 - Facsimile from Mr Denis Robinson received by the Land Court Registry, seeking advice on the purpose of the hearing on 14 May 1998, and advising that, in the absence of any opposition in respect of the lateness of the appeal, his assumption that a jurisdictional hearing should not be necessary.
•7 May 1998 - An amended Court Notice from the Registry that the purpose of the hearing on 14 May 1998 would be initially to determine whether the Court had jurisdiction to hear the matter.
•12 May 1998 - Letter dated 11 May 1998 received by the Registry advising that the delay in lodging the appeal was not caused by undue delay in transmission of the mail, but due to late receipt of the mail. Mr Robinson also advised that, in view of the lack of opposition to the appeal from the Chief Executive, he did not intend to appear on 14 May 1998.
•12 May 1998 - Facsimile dated 12 May 1998 received by Registry, providing a copy of Mr Robinson's letter to the Chief Executive of 17 February 1998.
Mr Robinson had telephone discussions with Registry staff on 6, 7 and 12 May 1998 during which he was informed of the need for him to ensure that the interests of the appellant were safeguarded in the jurisdictional matter. The matter for jurisdiction was heard in the absence of the appellant, or her agent on 14 May 1998.
In view of the undertaking by the Director-General not to oppose the matter at any jurisdiction hearing, Mr Harper did not seek to have the matter set aside for want of prosecution. The Court reserved its decision for consideration.
Decision:
Before considering the events surrounding the lodgment of the appeal, I turn to the Valuation of Land Act. I note that in respect of an annual valuation Section 45(1) provides for a dissatisfied person to appeal to the Land Court, and Section 45(2) states:
"45.(2) Except as hereinafter by this section provided, an appeal 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). "
Any such appeal is to be lodged with the Registry of the Land Court under Section 45(3), and the burden of proof is placed upon the appellant under Section 45(4).
I note also that the procedure to start an appeal is covered by Section 56, and the responsibility of the Land Court Registry and the owner in the late filing of an appeal is covered in Section 57. I note particularly Section 57(1) which states:"57.(1) Where a notice of appeal is filed in the Land Court registry but not within the time prescribed by section 55(2), the registrar of the court shall notify the owner that, as the notice of appeal was not filed in the Land Court registry within the time prescribed by section 55(2), the appeal does not lie unless the owner -
(a)proves to the satisfaction of the court that 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; "
In the event that the owner satisfies the response to the Registry in respect of the timing of due responses; and to the Land Court that the failure to institute the appeal was the result of acceptable delays within the Legislation, then the appeal shall lie, but otherwise under Section 57(2) the appeal shall not lie.
I note also that Section 45(2) was amended from 28 days to 42 days by the Natural Resources Legislation Amendment Act No 78 of 1997, with effect from the date of proclamation of 18 December 1997. The due date of the lodgment of the appeal relates to the date of issue. The right for an owner to appeal against a valuation is provided for under Section 42(1), which states that an owner may appeal within a statutory period "after the annual valuation notice is given to the owner". In the current matter the notice of the valuation was issued to the owner on 2 December 1997. The required statutory period for lodgment of the appeal is therefore 28 days from 2 December 1997, or 30 December 1997. In respect of any reason why the lodgment of the appeal may be considered beyond the statutory period which ended on 30 December 1997, I note the direction of Section 57(1). I note also that Mr Robinson in his letter to the Registry of 12 May 1998 advised that the delay was "not caused by undue delay in transmission of the mail". That the delay was therefore caused by some other reason beyond the normal mails is not disputed.
I now consider Mr Robinson's claim that the delay was contributed to by a series of events, partially which relate to a lack of action by the Department and partially to a delay in the personal receipt of the notice of the rejection from the Chief Executive. I note specifically that the notice of rejection of the objection was issued on 2 December 1997, and in the normal course of mail arrangements should have been received at the nominated address of the owner on or about 3 December 1997. That it did not do so until just prior to the 30 December 1997, would appear to be outside the normal mail service.
I note also that, for whatever reason, Mr Robinson chose to communicate initially with the Department seeking advice on how to lodge an appeal to the Court. Because of unspecified reasons, that request from the owner was not relayed to the Land Court, and the appellant, until 14 January 1998, following which an appeal was immediately lodged with the Court.
On the evidence before me, it is clear that a formal notice of appeal was not received by the Land Court within the specified statutory period under Section 45(2), and reasons for the delay do not appear to satisfy Sections 57(1)(a).
I consider now whether this Court has any power to extend that statutory period, and I note in JJ Bidner v. The Valuer-General [1992-93] 14 QLCR 88, where the learned Member found at page 93:"As has been noted in previous cases, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute. It has no inherent jurisdiction. Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature. (See Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Ltd v. The Valuer-General (1983) 9 QLCR 13, at 17). "
That was also found in KW Fry v. Commissioner of Water Resources (1986-87) 11 QLCR 92 in respect of the statutory period for lodgment; AJ and E Schirmer v. The Valuer-General (1974) 1 QLCR 144, in respect of other details missing on a notice of appeal; RG Ubank v. Queensland Housing Commission (1954-55) 25 CLLR 5 in respect of failure to meet the statutory time limits for lodgment of an appeal; and also CM Conroy v. The Valuer-General (1986) 11 QLCR 25, where the appellant failed to provide adequate information to define the quantum of the amount appealed for.
I am aware that an undue delay in the ordinary course of post has not been claimed by the appellant but I also note that a delay can occur either at the beginning of the period when the Department issues the notice of rejection to the owner, or at the end when the owner appeals to the Court. I note for instance in WM and TJ Fischer v. Valuer-General (1990-91) 13 QLCR 129, the Land Appeal Court found in favour of the owner where there had been an unusual delay of ten days in the mail from the Chief Executive to the objector.
In the current matter, however, there is no suggestion of an undue delay in the mail from the Chief Executive to the owner. The delay would appear to relate to some personal arrangements put in place by the appellant during her absence on holidays.
In this regard my attention is drawn to the findings of the Land Appeal Court in Seaworld and Others v. Valuer-General (1978) 5 QLCR 309, which found that part of the reason for a delay in lodging an appeal occurred while the notice remained under the control of the solicitors for the appellants. Although during that period a telephone request had been lodged with the courier who was to deliver the notice to the Court, no transmission had taken place and the request for the service could have been cancelled (page 312).
The Land Appeal Court dismissed the appeals. The analogy with the current appellant is obvious. Whatever the appellant's personal mailing arrangements during the holidays, those were outside the ordinary course of post. While there was also some less than perfect communication by the Chief Executive's staff between 30 December 1997 and 14 January 1998, the only impact upon the appellant was to further delay her opportunity to appeal by 30 December 1997.
That the appellant did respond and lodged her appeal on 14 January 1998, is evidenced by the appellant's capacity to act quickly, using information technology, once she became aware of the correct procedure. Had the Departmental staff responded to the appellant's request on 30 December 1997, it is more than likely that the appellant would have completed her appeal before 5p.m. on 30 December 1997. I note that the facsimile to the Chief Executive occurred at 8.29a.m. on 30 December 1997.
While the onus to lodge the appeal within the specified time is clearly upon the appellant under Section 45(2) and 45(4), I can well understand the reluctance of the Chief Executive in respect of opposing the matter of jurisdiction. However, it is the role of this Court to determine the facts in the context of direction by the Legislation. That the staff of the Chief Executive may have been a factor in inhibiting the timely response of the appellant, does not negate the owner's responsibility under the Act. There is a direct analogy between the actions of the Department in this matter, and the actions of the owner's solicitors in Seaworld Pty Ltd v. Valuer-General (supra).
Conclusion:
In summary this Court is a body of statutory powers, and as such can only exercise such powers in accordance with the directions of the Legislation. There is no discretion to assume powers beyond those limits. As the lodgment of the notice of appeal has not met the requirements of the Act, I find I have no jurisdiction to proceed with the appeal on its merits. The appeal is struck out for want of jurisdiction.
(NG Divett)
Member of the Land Court
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