Stenton v Chief Executive, Department of Natural Resources

[1996] QLC 26

[1996] QLC 26

 

  LAND COURT

BRISBANE

15 March 1996

Re: Appeal against annual valuations
of the Chief Executive
Local Authority:  Gold Coast

AV95-557
Ingeborg B and Anthony W STENTON
v
Chief Executive, Department of Natural Resources

(Heard at Coolangatta)

DECISION ON JURISDICTION

Introduction

The only question to be answered in this case is whether the Land Court has jurisdiction to hear the appeals against the annual valuation of the subject land as at 1 January 1995.

The question arises because the Notice of Appeal was filed in the Land Court registry after the appeal period had expired.

Statutory provisions

The provisions of the Valuation of Land Act 1944 (the "Act") relevant to the issue in this case state that:

(a)an owner of land who is dissatisfied with the valuation of that land made by the chief executive in the course of making an annual valuation may (within 28 days after the date specified in an advertisement under the Act) post to or lodge with the chief executive an objection in writing against that valuation (section 42);

(b)the chief executive must issue written notice of the decision to disallow the objection or to allow it (section 43);

(c)if the owner is dissatisfied with the decision of the chief executive, the owner may appeal to the Land Court against the valuation (section 45(1));

(d)an appeal:

(1)"shall not lie unless it is instituted within 28 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive's decision upon the objection (which date of issue shall be stated in such notice)"; and

(2)shall be instituted by filing a notice of appeal in the Land Court registry (section 45(2), (3));

(e)where a notice of appeal is filed in the Land Court registry but not within the prescribed time, the Registrar of the Land Court shall notify the owner that the appeal does not lie unless the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post (section 57(1);

(f)if the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post, the appeal shall lie "but otherwise the appeal shall not lie".

It is clear from those provisions that the Court can only hear the appeal in this case if the owners can prove to the satisfaction of the Court that the failure to institute the appeal within 28 days after the date on the decision on objection was caused by undue delay in the transmission of mail in the ordinary course of post.

The facts

Mr Anthony Stenton gave evidence about the circumstances surrounding the late filing of the appellants' Notice of Appeal. 

The appellants objected against the valuation of their land.   They were unsuccessful.  The notice of decision to disallow their objection was dated 18 September 1995.  Mr Stenton thought he would have received it by post about 20 September 1995.  At the time, he and his wife were suffering considerable amounts of stress.  Mrs Stenton contracted cancer in August that year.  She had undergone surgery and was receiving therapy.  Apart from the strain of the treatment, Mrs Stenton was affected by the loss of her mother and sisters due to cancer.  The knowledge of that loss was the cause of considerable distress.  Mr Stenton had to provide continuous care for his wife.  During that period he was rarely away from his wife and, as he put it, he "lost track of time".

Despite the pressure of his family commitments, Mr Stenton managed to complete the Notice of Appeal.  It was dated 18 October 1995.  He confirmed that that was the date of the Notice and said that he had run to the corner to post it.  The envelope containing the Notice was postmarked 18 October 1995.  The Notice was received in the Land Court registry on 19 October 1995.

The appeal period of 28 days from 18 September expired on 16 October 1995.  Both the completion and the receipt of the Notice of Appeal were outside the appeal period.

Conclusion

It is clear from the Act that unless an appeal is made within 28 days after the date of issue of the notice of the decision on objection then the decision of the chief executive would be deemed to be determined.

No argument could be made that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. It follows from the clear words of the Act that the Land Court has no jurisdiction to hear the appeal.

The result is unfortunate for the appellants and may appear to them to be unfair. Disappointed as they may be, the law is clear. The Land Court is created by statute and its jurisdiction is bestowed by statute. It has no inherent jurisdiction. Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the matter authorised by the Legislature. The requirements of sections 45 and 57 of the Act are mandatory and constitute conditions precedent to the jurisdiction of the Court.

Order
The appeal is struck out for want of jurisdiction.

GJ Neate

Member of the Land Court