Russell v The Crown - [1992] QLAC 28

[1992] QLAC 28

IN THE LAND APPEAL COURT OF QUEENSLAND

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 Crown
J 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russell v The Crown

Details

AGLC: Russell v The Crown [1992] QLAC 28
Case: [1992] QLAC 28
Decision Date: 5 August 1992

CaseChat Overview and Summary

The case of Russell v The Crown involves an appeal by Adrian Glen Russell against the decision of the Land Court concerning the determination of rent for Special Lease No 05/33408 in the Bowen District for the third rental period. The appeal was heard by the Land Appeal Court of Queensland, presided over by Mr Justice Lee, Mr D.J. Barry, and Mr R.E. Wenck. The central issue before the court was whether the appeal was valid given the strict compliance requirements set out in section 44(11)(a), (b) of the Land Act 1962 as amended.

The court was required to determine whether the appellant, represented by Mr Conroy, had complied with the statutory requirements for lodging an appeal, which included serving a notice of appeal, lodging a copy with the Registrar, and paying the prescribed fee all within 42 days of the Land Court's decision. Mr Conroy acknowledged that the notice of appeal was not served on the correct respondent until after the deadline and that the original notice and fee were not received by the Registrar on time. The court further had to consider whether the appellant could provide a reasonable cause or explanation under section 44(11)(d) for the non-compliance.

The court found that Mr Conroy failed to establish a reasonable cause or explanation for the late compliance, as he did not provide any particulars regarding the appellant's alleged ill health. The court noted that the appellant himself did not offer any explanation to the court. Given the failure to meet the statutory requirements and the lack of a reasonable explanation, the court concluded that it lacked the jurisdiction to proceed with the appeal. Therefore, the appeal was dismissed.

This decision underscores the importance of strict compliance with statutory requirements for lodging appeals and the necessity for appellants to provide substantial and objective reasons for any non-compliance. The court's dismissal of the appeal highlights the rigorous nature of statutory compliance in legal proceedings.

Orders