Surfers Paradise Resort Hotel Pty Limited v Department of Natural Resources and Mines
[2004] QLC 64
•28 July 2004
LAND COURT OF QUEENSLAND
CITATION: Surfers Paradise Resort Hotel Pty Limited v Department of Natural Resources and Mines [2004] QLC 0064 PARTIES: Surfers Paradise Resort Hotel Pty Limited
(applicant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO:
RV2003/0753, AV2003/0754 and AV2004/0066
DIVISION: Land Court of Queensland PROCEEDING: Determination of Jurisdiction DELIVERED ON: 28 July 2004 DELIVERED AT: Brisbane HEARD AT: Coolangatta MEMBER Mr BR O’Connor, Judicial Registrar ORDER: The Court has no jurisdiction to hear the appeals in any of the three matters. CATCHWORDS: Practice and Procedures – Jurisdiction – Late lodgement of objection – Acknowledgment by Chief Executive, Department of Natural Resources, Mines and Energy – Whether acknowledgement binding APPEARANCES: L Hinkfuss solicitor (appellant)
M Heather Legal Officer (respondent)SOLICITORS: Gadens (Lawyers)
Legal Counsel, Department of Natural Resources, Mines and Energy
The Chief Executive has challenged the jurisdiction of the Court to hear these matters on the basis that the appellant’s objection against a decision of the Chief Executive was lodged out of time. It is claimed that, if no valid objection is made, there is no proper decision on objection against which to appeal.
The initial valuation decision was issued on 27 February 2003 with the permitted 42 days in which to object (under s.42 of the Valuation of Land Act1944) expiring on 11 April 2003. The objections were not lodged until 7 August 2003 some four months late. No reason has been advanced by the appellant for such late lodgement.
On 10 September 2003 the Chief Executive acknowledged receipt of the objection in relation to the larger Lot (Property ID 459958) in a notice issued to the appellant. On 3 October 2003 the Chief Executive advised the appellant that the objections in relation to the larger and smaller (ID 7029550) Lots were invalid on the basis of being lodged by a company not the owner of the Lots at the time of the issue of the notice; the rejection was not on the basis of late lodgement. The question of the appropriate owner for lodgement purposes ceased to be an issue when it was clarified that there was merely a change of corporate name, no transfer of ownership. On 2 March 2004 a notice was issued to the appellant in relation to the larger Lot advising that its objection had been dismissed. The appellant lodged two separate appeals to the Land Court on the larger Lot, one after the 2003 notification and one after the March 2004 decision on objection. In effect, they relate to the same matter. Only one appeal was lodged in relation to the smaller lot.
The appellant argues that the notice of 10 September 2003 amounts to a valid acceptance of the late objection which the Chief Executive cannot now retract or challenge. Further, the apparent retraction on 3 October related merely to a confusion over the appropriate body with authority to lodge and was not purporting to challenge the late objection. Also, the letter advising the outcome of the objection on 2 March, it is argued, confirmed the earlier acknowledgment or acceptance of the objection.
The power of the Chief Executive to accept late objections is derived from s.44 of the Valuation of Land Act 1944 which states:
“44(1) This section applies if -
(a) as person was entitled to make a timely objection about a valuation of the person’s land but failed to do so; and
(b) the person objects in writing to the valuation within 1 year after -
(i)if the person alleges that the person did not receive an annual valuation notice or notice of valuation for rental or land tax purposes – the first advertisement about the valuation under section 41(1); or
(ii)in any other case – the date the annual valuation notice or notice of valuation for rental or land tax purposes was given to the person; and
(c) the person is, at the time of the late objection, the owner of the land.
(2) If the chief executive is satisfied that the person’s failure to make a timely objection happened through no fault of the person, the chief executive must accept the late objection.
(3) A late objection accepted by the chief executive is to be dealt with under this part as if it were a timely objection.
(4) In this section -
“late objection” means an objection mentioned in subsection (1)(b).
“timely objection” means an objection under section 42 within the time stated in that section.”
Subsection 3, of s.44 the appellant argues, is not dependent on subsection 2 first being satisfied but is a freestanding section giving an unfettered discretion (apart from s.44(1)) to accept a late objection. Once acceptance is communicated, it cannot be later withdrawn or disputed.
The Chief Executive argues that s.44 must be read as a whole and that ss.(3) is really only complementary to ss.(2) in stating that, once a late objection is allowed (implicitly under ss.2), such then is to be treated as a timely objection.
Consideration of Issues and Conclusion
I have carefully considered the competing arguments of the parties. I have come to the conclusion s.44(3) does not stand alone to confer a wide discretion on the Chief Executive to accept late objection. It would seem illogical that such a wide provision would follow the constrained one in ss.(2) without further clarification. The purpose of ss.3 seems to be merely to grant the otherwise late objection with the status of a timely objection once ss.(2) is satisfied.
Such an interpretation of s.44 is consistent with the provisions of s.57 relating to allowing a late lodgement of appeal to the Court. Such is not allowable unless a precondition – reasonable excuse – is established. No wider power to allow late appeals is vested in the Court.
Finally, in my view, any power to dispense with the time limits for lodging objections would need to be provided for under the Valuation of Land Act. I do not consider the Chief Executive could, under the guise of a type of estoppel, be bound by a purported acceptance of a late objection if such was not in accord with the relevant legislative scheme.
The only difference between the larger and smaller Lots as far as the objection process is concerned was that there was no equivalent to the 10 September acknowledgement with the smaller lot, nor was there an equivalent of a 2 March letter dismissing the objection. However, for the reasons above, the late objection cannot be overcome with either lot.
It may still be open to the appellant to argue a case based on s.44(2) if it can satisfy the Chief Executive that the failure to lodge a timely objection was not due to a fault of the landowner.
However on the current facts before the Court, I find that there is no jurisdiction to hear the appeals.
Order
The Court has no jurisdiction to hear the appeals in any of the three matters.
BR O’CONNOR
JUDICIAL REGISTRAR
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