Shop Distributive & Allied Employees Association Union of Employees v Department of Natural Resources and Water

[2007] QLC 59

LAND COURT OF QUEENSLAND

CITATION:	Shop Distributive & Allied Employees Association Union of Employees v Department of Natural Resources and Water [2007] QLC 0059
PARTIES:	Shop Distributive & Allied Employees Association Union of Employees (applicant)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO:	AV2007/0352
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction - Appeal against annual valuation of land under the Valuation of Land Act 1944.
DELIVERED ON:	4 September 2007
HEARD AT:	Brisbane
DELIVERED AT:	Brisbane
MEMBER:	Mr RS Jones
ORDERS:	The Court has jurisdiction to hear and decide the appeal.
CATCHWORDS:	Jurisdiction – late filing of appeal – whether reasonable excuse exists
APPEARANCES:	Mr N Murphy (valuer) for the applicant. Mr G Smith, senior legal officer, for the respondent.

Background

1. The background facts concerning the jurisdictional matter before me are brief, largely without controversy and are:

   i.     Mr Murphy is a registered valuer employed by the valuation firm Savills (Qld) Pty Ltd.

   ii.     Mr Murphy was responsible for handling a large number of objections made by various landowners against the annual valuation of their land by the respondent pursuant to the Valuation of Land Act 1944 (VLA).

   iii.     From these objections Mr Murphy was then charged with the responsibility of preparing and filing some twenty to thirty appeals. 

   iv.     The appeal period against the objection decision of the respondent (dated 12 June 2007) expired on 24 July 2007.

   v.     The subject appeal was filed one day late on 25 July 2007. 

   vi.     On the afternoon of 24 July 2007 Mr Murphy filed all of the notices of appeal he was responsible for save for the subject appeal.  According to Mr Murphy that appeal was completed at the same time as all of the other appeals however, when he gathered up from his desk the notices of appeal to be filed the subject appeal was somehow separated and left behind on his desk. 

   vii.    After filing the other notices of appeal Mr Murphy left the registry of this Court but did not return to his office and went home.  It was not until the next working day that he realised what had occurred and filed the subject notice of appeal. 

2. Mr Smith did not really challenge any of the assertions of fact made by Mr Murphy.  However, he argued that what had occurred was not a substantial explanation and no more than an administrative oversight or error and that that was not sufficient to constitute a "reasonable excuse" for the purposes of s.57(1) of the VLA. 

3. The only issue that I have to decide is whether or not the explanation provided by Mr Murphy for the one day delay in the filing of the notice of appeal amounts to a "reasonable excuse" for the purposes of s.57(1) of the VLA. 

Legislation and decided cases

1. Section 57 of the VLA relevantly provides:

   "(1)If a notice of appeal is filed in the Land Court registry after the time stated …, 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.  …

   (2)If the owner satisfies the court under subsection (1), the court may hear and decide the appeal."

2. In dealing with language similar to that used in s.57(1) of the Act, the Land Appeal Court in Russell v The Crown[1] said in respect of s.44(11)(a) and (b) of the Land Act 1962 as it then was:

   "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.  …  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."  (emphasis added)

   [1] (1992 – 93) 14 QLCR 202 at 204.

3. However, it is important to recognise that sections such as 57(1) are meant to be remedial and ameliorative in nature.  In Director General, Department of Transport v Congress Community Development and Education Unit Limited[2] the Land Appeal Court was concerned with the operation and effect of s.44(11)(d) of the Land Act 1962 as it then was where, in circumstances described by Muir J as a combination of work pressure, inexperience and possibly bad luck, the notice of appeal was not filed until the first working day after the due date.  Section 44(11)(d) then relevantly provided:

   "… and the appellant satisfies the Land Appeal Court that there is a reasonable cause or explanation for the lateness of the service, lodgement or payment …"

   [2] (1998) 19 QLCR 168 (LAC): See also Trust Company of Australia Ltd v DNRW [2007] QLC 0045.

4. At page 171, after reviewing a number of authorities, Muir J relevantly said: 

   "In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the appellant (by itself or its agent) be blameless.  The expressions under consideration are broad in meaning and quite apt to cover a 'slip' of the nature of that made by the employee of the Crown solicitor.  One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of failure to comply with the requirements of s.44(11)(a) and (b) …"

5. There is no doubt that Mr Murphy has been guilty of what could be described an administrative oversight or slip.  However, it is my opinion that the wording of s.57(1) is sufficiently broad to cover a "slip" of the nature made by Mr Murphy. 

6. In the circumstances of this case, it is my opinion that the excuse provided by Mr Murphy for the one day delay in the filing of the notice of appeal is a reasonable one.  Accordingly, I find that the Court has the jurisdiction to hear and decide the appeal. 

Order

The Court has jurisdiction to hear and decide the appeal.

RS JONES

MEMBER OF THE LAND COURT