Romano v Department of Natural Resources and Mines
[2005] QLC 42
•4 August 2005
LAND COURT OF QUEENSLAND
CITATION: Romano v Department of Natural Resources and Mines [2005] QLC 0042 PARTIES: M and AT Romano
(appellants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: AV2005/0218 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction - Appeal against Unimproved Valuation DELIVERED ON: 4 August 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane JUDICIAL REGISTRAR: Mr BR O'Connor ORDER: The Court has jurisdiction to hear the appeal in the subject matter. CATCHWORDS: Jurisdiction - Late filing of appeal - Whether reasonable excuse APPEARANCES: Mr A Romano (Solicitor) for the appellants
Mr M Heather (Senior Legal Officer) for the respondent
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged one day after the due date. Section 57 of the Valuation of Land Act1944 allows for "reasonable excuse" as a cause for such delay:
"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in s.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."
The question then is whether the explanation for the late lodgement advanced by the appellants falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.
The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000. In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a cause, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man".
Background
Mr Alfio Romano, Solicitor and son of the appellants appeared for the two appellants. He tendered an affidavit by his father which listed the following factors in support of allowing jurisdiction in the current circumstances:
"1.I am, together with my wife, Antonia Teresa Romano, the appellants against a valuation of our property at 225 Kent Street, New Farm.
2. I am 79 years of age having been born on the 30th of May 1926.
3.At some time in the week commencing the 11th of April 2005 I received a copy of a decision on my objection against the valuation from the Department of Natural Resources and Mines. That same week on the 14th of April 2005 I had a fall from a ladder onto concrete which gave me concussion and I broke three ribs. I subsequently spent over a week at the Wesley Hospital suffering great pain and also had to undergo removal of fluid from my lungs. Subsequent to my release from hospital I have been having several tests and x-rays and doctors visits whilst at the same time trying to convalesce and recuperate after my injuries. I am still not fully recovered from this accident.
4.I fully intended to lodge an appeal against the valuation but as a result of the injury that I incurred and the subsequent pain and suffering I have had to endure the lodgement of the appeal slipped my mind for some time.
5.It was only when my son reminded me of whether I wished to appeal that I recalled the letter I had received in mid April and immediately instructed him to proceed to lodge the appeal.
6.I believe that I have good prospects in relation to my appeal having obtained a valuation from Herron Todd White as at the 1st of October 2003 being the date of the valuation which clearly supports my objection."
Mr Romano (Solicitor) in address to the Court also stressed that although his father's actual hospitalisation was in the early part of the relevant 42 day period, his recuperation from the injury continued for a substantial period after release. Also Mrs Romano, the co-appellant, was suffering from illness at this time and further, as part of the Italian culture for people of their era, she was never involved in any family business-related matters.
Mr Romano (Solicitor) also indicated that while he had attended an earlier objection hearing with his father, he had not been instructed to lodge an appeal at that stage. It was only when he reminded his father close to the 42 day period cut-off that he was then instructed to lodge the appeal.
Mr Heather, Counsel for the Department of Natural Resources and Mines, tendered a brief written submission to the Court which he complemented with oral submissions. He did not press the point that Mrs Romano as co-appellant should perhaps also have been able to lodge an appeal if her husband was unable to do so. He accepted the explanation offered to the Court by Mr Romano (Solicitor). Mr Heather argued that Mr Romano's injury and hospitalisation occurred in the early part of the 42 day period and that he had adequate time upon release from hospitalisation to lodge the appeal.
Decision
While Mr Romano (appellant) was injured and hospitalised in the early part of the relevant 42 day period, it is likely that a person of his age would have taken considerable time to recuperate. The Department properly concedes that a valuation appeal would not have been foremost in his mind during this particular period. Once reminded by his son of the prospective appeal, he immediately instructed that it be lodged. Ultimately it was lodged by hand only one day late. In all the circumstances, I am prepared to hold that reasonable excuse has been established.
I am also prepared to accept the explanation offered by the appellants as to why Mrs Romano did not play any role in dealing with the appeal.
Order
The Court has jurisdiction to hear the above appeal.
BR O'CONNOR
JUDICIAL REGISTRAR
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