Steele v Chief Executive, Department of Natural Resources
[1999] QLC 49
•14 May 1999
LAND COURT
[1999] QLC 49
BRISBANE
14 May 1999
Re: LA99-32 – Appeal under section 428 of Land Act 1994 –
Application to extend the period for filing of the notice of appeal.
John Gilbert Steele and Christine Ann Mills
(Appellants/Applicants)
v.
Chief Executive, Department of Natural Resources
(Respondent)D E C I S I O N
The applicants in this matter had applied to the Minister for a review of a decision in relation to the purchasing price offered for part of Special Lease No 26/44486, being Lot 1 on Plan CWL 3624, Parish of Meunga, and also for review of the area the subject of the offer.
By letter dated 10 December 1998, addressed to the applicants at “C.M.B., Kennedy Q 4816” they were advised that the original decision had been reviewed. The letter contained the following advice:
“The purchase price offered has been determined taking into account those grounds listed in your application for internal review as well as the inclusion of an additional area of about 5 hectares. If you are dissatisfied with the amount of the reviewed valuation, you may appeal the amount of the purchase price by lodging an appeal to the Land Court within 42 days from the date of this letter.”
A notice of appeal dated 27 January 1999, executed by John Hill, solicitor for the appellants, was filed with the Registrar of the Land Court, by facsimile, of even date. The 42 day period from the date of the letter of advice of the review decision expired on 21 January 1999. The notice of appeal included the request – “that the time within which to file this notice of appeal be extended”.
Section 421 of the Land Act 1994 (the Act) provides:“(1). A person who has a right to appeal against a decision under this Act must be given written notice of the person’s right to appeal against the decision and how the appeal is started.
(2)The notice must be given when notice of the decision and the reasons for the decision are given to the person.”
Section 426 of the Act then provides:
“(1) After reviewing the original decision, the Minister must make a further decision (the “Review Decision”) to confirm the original decision, amend the original decision or substitute a new decision.
(2) The Chief Executive must immediately give the applicant written notice of the decision.
(3) The notice must state –
(a) the day the notice is given to the applicant (the “Review Notice Day”)
and
(b)if the Review Decision is not the decision sought by the applicant –
(i)the reasons for the decision; and
(ii)that the applicant may appeal against the decision to the Court within 42 days after the review notice day.”
The procedure for the institution of an appeal to the Court is set out in Section 428 of the Act which relevantly provides:
“ (3) The notice of appeal must be filed within 42 days after the review notice day under section 426 and
(5)The Court may, whether before or after the time for filing the notice of appeal ends, extend the period for filing the notice of appeal.”
As there is planned, in the near future, a sittings of the Court in Cairns, the parties were advised that the application for an extension of the appeal period would be dealt with on the papers. The parties have responded to the orders given for submissions and reply within the period provided.
Through Mr Hill, the applicants advised by way of a Statutory Declaration that the letter dated 10 December 1998 had been received by Christine Mills on 18 December 1998. Mr Hill advised that on 30 December 1998 he had informed, by facsimile, an officer of the Department of Natural Resources that an appeal would be lodged, requesting at the same time “information to assist” him. No response had been received and, being aware that there was provision in the legislation for the appeal period to be extended, (he thought by a further 28 days), a further facsimile was transmitted to the relevant officer on 27 January 1999 requesting confirmation that the earlier transmission had been received and again requesting the information previously sought. However, becoming concerned about “the potential lapse of time within which to file the appeal” a notice of appeal was transmitted by facsimile and filed with the Registrar of the Court on the same day – 27 January 1999. The application for extension of time was included in the notice of appeal, the reason for the application being, according to Mr Hill, that in the letter containing the review advice, it had been stated that the 42 day appeal period commenced from the date of that letter.
Mr Hill now submits that it is not possible for the notice to state the day the notice was given to the applicant, the reasons suggested being that “for something to be given to someone, the recipient must receive what is given”; that “there is a complete and total nexus between giving and receiving” and “a message is not communicated until it is received”. Mr Hill advised that it is the custom of the applicants to collect their mail from the Kennedy Post Office once per week, on Thursdays or Fridays. Their residential address is “some miles from town”. The letter was collected on Friday, 18 December 1998 but it is suggested that the earliest “Review Notice Day” from which the appeal period might have commenced, was Thursday 17 December 1998. Had the letter been collected on that day, then it is submitted that the 42 day period would have ended on 28 January 1999. It is further submitted therefore that the appeal was filed within time.
Section 426(3), in its present form, was inserted by section 60 of the Natural Resources and Other Legislation Amendment Act No 78 of 1997 while sub-sections (3) and (5) of section 428, in their present form, were inserted by section 61 of the same Amendment Act. The respondent submitted that there had been no reference in the explanatory notes accompanying the Amendment Act, to clarify Parliament’s intention, in its use of language in section 426(3)(a) of the Act “except that it was intended to remove any doubt as to the commencement of the appeal period”.
That intent obviously miscarried, at least according to Mr Hill. However, the respondent submitted that the language of section 426(3)(a) means that the “Review Notice Day” is the date of the letter in which notice of the Minister’s decision was conveyed to the applicant. It is submitted that the notice cannot state some unknown date in the future when the notice might be received by the applicants. Section 14A of the Acts Interpretation Act 1954, provides that statutes must be given an interpretation that best achieves their purpose. It was submitted that the interpretation which best achieves the purpose of section 428(3) of the Act is to read section 426(3)(a) to mean that the appeal period runs from the date of the Minister’s letter (i.e. in this case, from 10 December 1998).
In the alternative, the respondent submitted that if, as provided by section 39 of the Acts Interpretation Act, the giving of the notice required or permitted it to be served on a person, then the notice may be served by sending it by post to the address of the place of residence or business of the person, last known to the person serving the notice. The respondent then made a submission in which was estimated the date on which the notice may have been accepted as having been given in the ordinary course of post. On the basis of that estimation, it was submitted that, even if section 426(2) was to be interpreted as had been by Mr Hill, the appeal would still have been filed out of time.
In my opinion, it is unnecessary to consider the estimate (or rebuttal of that estimate) of the date when the notice might have been received, by the applicants. Section 426(2) requires the chief executive to “immediately give the applicant written notice of the decision”, the written notice must state the day the notice is given to the applicant (sub-section (3)(a)) and that is the “Review Notice Day”. While it may be that the language employed is not as clear in establishing the commencement date of the appeal period as those responsible for its drafting may have intended, there would be an absurd result if any day other than the day of the notice was intended as the day on which the appellant is “given” written notice. (See section 14B of the Acts Interpretation Act). It is my interpretation of the ordinary meaning of “Review Notice Day” that it could only be the day stated in the notice of the decision. It is observed that the period of 42 days referred to in section 428(3) was by the amendment referred to earlier, extended from “28 days after the day the applicant receives notice of the Review Decision or the decision is taken to have been made” (emphasis added). In that same Amendment Act, the period by which the Court may extend the appeal period in sub-section (5) was altered from 28 days to an open period. The first amendment referred to above appears to me to have been an attempt to overcome the ambiguity between reference to the receipt of the decision and the making of the decision. No reference is now made to the receipt of the notice, but the harshness of the period has been softened by its extension to 42 days.
In the applicants’ submission there is a suggestion that an applicant might well be disadvantaged if there is, for whatever reason, undue delay in receipt of the notice. It seems to me that an applicant who receives the notice so late that appeal rights within the 42 day period, as interpreted, would be jeopardised, may then have those rights reinstated through the general discretion provided the Court to extend the appeal period.
Finding as to “Review Notice Day”
I find that the “Review Notice Day” in this matter was 10 December 1998 as stated in the notice of decision. The appeal was not filed with the Registrar within 42 days after the “Review Notice Day” and was therefore filed out of time on 27 January 1999.
Application for Extension of Appeal Period.
The applicants received the notice of review on 18 December 1998, and Mr Hill had clearly received instructions and was aware of the contents of the notice at least by 30 December 1998. Mr Hill, in his submission on behalf of the applicants, broached the question of the merits of the appeal. I do not find it necessary to consider his submissions in that regard nor the merits of the appeal in deciding the issue before me.
The respondent submits that no objective basis has been established by the applicants for an exercise of the Court’s discretion to extend the period. It is submitted that circumstances which might give rise to an exercise of the discretion in the applicants’ favour would include (without being exhaustive) “fire, flood or tempest, accident or misadventure, community disturbance and circumstances of this nature”. Those words are borrowed from the decision of the learned former President of the Land Court, Mr Smith, in the matter Gold Coast Milk Pty Ltd and South Coast Co-Operative Dairy Association Ltd v. The Valuer-General (1983) 9 QLCR 13 at pp20-21. Mr Hill correctly replied that the President was, in that particular matter, considering a limited discretion given the Court pursuant to the Valuation of Land Act 1944, enlivened only by “extraordinary or unusual circumstances”.
The respondent in submitting that the applicants have not demonstrated any objective basis upon which the discretion might be exercised by the Court, referred also to the finding of the Land Appeal Court in AG Russell v. The Crown (1992-93) 14 QLCR 202 at p.204. That matter concerned lateness in compliance with the procedural requirements of section 44(11) of the Land Act 1962 and the appeal period prescribed for an appeal to the Land Appeal Court from a decision of the Land Court. Section 44(11)(d) provides that where it appears to the Land Appeal Court that, within a stipulated further period after the time prescribed for lodgment of the appeal and its notice is then filed or any other defect eliminated, and the appellant further satisfies the Land Appeal Court that there is “a reasonable cause or explanation” for the lateness of the procedural requirements, then the appeal shall lie.
In Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (unreported judgments delivered on 25 June 1998) the Land Appeal Court found that reasons given by a solicitor for lateness of the service and lodgment of the notice of appeal constituted in the circumstances of that particular matter, “a reasonable cause or explanation”. Reference was made to the following words of Sholl J in Quinlivan v. Portland Harbour Trust (1963) VR 25 at p.30:
“In the present case, the applicant, having reasonably left the matter to a reputable solicitor, ought, in my opinion, to be held to have had a reasonable excuse for not giving notice (by the date). I will follow the views of Reed and Pape, JJ, in holding that a reasonable cause may include, so far as an applicant is concerned, the unreasonable conduct of his agent which he had no reason to anticipate. ”
Mr Hill in this matter argued strenuously that there was no inaction or unreasonable conduct on his part; he had advised the respondent of the intention to file a notice of appeal and had deliberately left the filing of the appeal until “the last moment” (if his interpretation of the “Review Notice Day” had been correct).
Mr Hill also stated that he “had difficulty discussing the sense and sensibility and prospects of an appeal with the Valuer” (the respondent’s valuer) “over the Christmas/New Year period”. While it is not raised by the applicants as a reasonable cause for the notice being filed out of time, it seems to me that it could have been argued that the chief executive’s notice of decision might not have satisfied the instruction in section 426(3)(b)(i), that the reasons for the decision must be stated. The notice stated that “the purchase price offered has been determined taking into account those grounds listed in your application for internal review, as well as the inclusion of an additional area of about 5 hectares”. The Court has not been informed of the grounds listed in the application for internal review. However, while the notice advises the manner in which the review procedure took place, that advice could not, in my opinion, on the limited facts before the Court, be categorised as stating the “reasons” for the decision. Clearly, giving of reasons is intended to permit the applicant for the review, the opportunity to consider whether or not to institute the appeal, within the time permitted.
The question of “reasons for the review decision” was discussed by my learned colleague, Mr Scott, in the as yet unreported decision in Re: Special Lease No 06/47783, Brisbane District – Lessee: Korab and Co Pty Ltd, delivered on 23 August 1996. Mr Scott was of the view that “the notice of decision must include reasons which are sufficient to lay an intellectual foundation for the decision arrived at”. I agree that the ordinary meaning of section 426(3)(b)(i) should be interpreted as to provide such a result.
In the circumstances of the issue before the Court in this matter, I would not go so far as to say that the probable defect in the notice denies the Court jurisdiction to determine the appeal, at least until the legislative instruction to give reasons is met. However, in considering the background to this matter and because it seems arguable that the chief executive failed to give reasons for the review decision, it is seen as probable that an application to have the period extended until after reasons were given would have been successful.
The Court has an unfettered discretion to extend the appeal period, provided that it exercises that discretion judicially. It seems to me that although the Court’s discretion is not limited to the “reasonable cause or explanation” test such consideration should be included in deciding a matter such as this.
The cause and explanation for the lateness of the filing of the notice, is clearly that the applicants’ solicitor has applied an interpretation to the “Review Notice Day” which has not been accepted in this decision. However, the applicants having reasonably left the matter in the hands of their solicitor, ought, in my opinion, to be held to have had a reasonable excuse for giving late notice.
In exercising the Court’s discretion pursuant to section 428(5) of the Land Act 1994, the period for filing the notice of appeal is extended until 27 January 1999, the day when it is accepted that the appeal was filed with the Registrar.
The appeal therefore lies and will be set down for hearing on its merits, at a time to be advised during the two weeks sittings of the Land Court in Cairns commencing on 1 June 1999.
(RE Wenck)
Member of the Land Court
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