Russell v The Crown
[1992] QLAC 28
•5 August 1992
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SL 05/33408
BEFORE:
Mr Justice Lee (Chairman)
Mr D.J. Barry (President)
Mr R.E. Wenck
TOWNSVILLE, 5 AUGUST, 1992
(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau).
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IN THE MATTER OF an appeal to the Land Appeal Court by
Adrian Glen Russell from the decision of the Land Court in
the matter of the determination of the rent to be charged for
Special Lease No 05/33408, Bowen District, during the
third period of the lease thereof.
Adrian Glen Russell
v.
The CrownJ U D G M E N T
CHAIRMAN: The appellant wishes to appeal from the decision of the Land Court, handed down on 12th April, 1991, in the matter of the determination of the rent to be charged for special lease number 05/33408 Bowen district, during the third rental period. Mr Conroy of Conroy and Associates, Valuers of Airlie Beach, appears and acts on behalf of the appellant.
A preliminary question has arisen as to whether the appeal is competent having regard to the provisions of section 44(11)(a), (b) of the Land Act 1962 as amended, and having regard to the strict time limitations therein imposed. Those paragraphs require three steps to be taken, all within a period of 42 days from the date of the decision, the last day for compliance being 24 May 1991.
The first requirement is service of a notice of appeal within that period on the other party directly affected by the decision. The second requirement is the lodgement with the Registrar of the Land Court, a copy of the notice of appeal within that period. The third requirement is the payment to the Registrar of the prescribed fee within that same period. Thus, all three steps are necessary conditions precedent to the due and timely institution of the appeal, which is a right given by Statute, the terms of which must be obeyed.
The first step was not complied with. Mr Conroy informed the Court that on 24 May, 1991, he sent by post a notice of appeal to the Lands Department in Mackay. Mr Paterson who appears for the respondent, informed the Court that the notice was not received until 28 May, 1991, from the Lands Department in Mackay. There is the further point submitted by Mr Paterson, that s.44(11)(c) of the Land Act requires service of the notice of appeal on the Secretary of the Commission in Brisbane, and not on the Lands Department in Mackay. Mr Conroy said that he believed he had 7 days after service on the Registrar, to serve the notice of appeal on the respondent. This clearly is not the case.
As to the second point, on 24 May, 1991, the last day of the mandatory period, the appellant - by Mr Conroy, sent to the Registrar of the Land Court at Brisbane by facsimile transmission, a copy of the notice of appeal bearing date 23 May, 1991. No point was taken by Mr Paterson as to this method of service of the copy on the Registrar. However, the original of the notice of appeal and the prescribed fee of $43 were not received by the Registrar until 27 May, 1991, so the prescribed fee was not paid in time. Thus, two essential conditions have not been complied with.
On 4 June, 1991, the Registrar by letter advised the appellant of the foregoing and of the necessity for the appellant to demonstrate that there is reasonable cause or explanation for non-compliance. On 9 July, 1992, a similar letter was sent by the Registrar to Mr Conroy, who was acting for the appellant.
Section 44(11)(d), in its present form, was enacted in 1981. It was designed to ameliorate in certain defined circumstances, the strict nature of the requirements of s. 44(11)(a) and (b).
This paragraph was dealt with by this Court in Union Fidelity Trustee Company of Australia Limited v. The Coordinator-General (1988-1989), 12 Q.L.C.R. 153, and in R.M. Denning v. The Council of the City of Ipswich (1988-1989) 12 Q.L.C.R. 171. It provides in relevant respects that if, within a further limited period of 28 days after the expiration of the mandatory 42 day period prescribed by section 44(11)(a) and (b), the appellant, who has the onus of doing so, demonstrates that there is a reasonable cause or explanation for the lateness of compliance, the appeal shall lie notwithstanding any Act, law or practice.
Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s. 44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation.
Mr Conroy submitted that the reason for the late compliance with s.44(11)(a) and (b) was his client's ill health. Unfortunately, in spite of questioning from the bench, no particulars were given as to the nature of this illness, its duration, and what medical treatment if any had been received. There is no medical evidence and no certificate is produced, and the appellant himself has not sought to explain to this Court his circumstances, notwithstanding that two letters have already been sent to the appellant and Mr Conroy, informing them that the appellant must establish this matter before the appeal can proceed.
Mr Conroy said that he heard of the decision of the Land Court some days before 24 May 1991, but that he was only instructed by his client as late as 23 May 1991 to lodge a notice of appeal. He produced no diary notes giving details of his contact with the appellant concerning the decision. He conceded that he made an error in believing that he had 7 days after service on the Registrar of the Land Court, to serve the notice of appeal on the respondent.
Having considered all of the submissions, including the submissions by Mr Paterson on behalf of the respondent, this Court is of the view that the appellant has not discharged the onus of establishing a reasonable cause or explanation for non-compliance with the mandatory requirements of s.44(11)(a) and (b). Accordingly, this Court has no jurisdiction to proceed with the appeal. The matter is dismissed.
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