Trenkner v Department of Natural Resources, Mines and Water

[2006] QLC 27

LAND COURT OF QUEENSLAND

CITATION:	Trenkner v Department of Natural Resources, Mines and Water [2006] QLC 27
PARTIES:	Jean M Trenkner (appellant)
v.
Chief Executive, Department of Natural Resources, Mines and Water (respondent)
FILE NOS:	AV2005/1919
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation.
DELIVERED ON:	11 May 2006
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr PA Smith
ORDERS:	The Court has jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse.
APPEARANCES:	Mrs Trenkner, appellant, in person Mr R Paterson for the respondent.

1. The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged after the due date. Section 57 of the Valuation of Land Act1944  allows for "reasonable excuse" as a cause for such delay:

   "57.(1)  If a notice of appeal is filed in the Land Court registry after the time stated in s.55(2), 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.

   Example of 'reasonable excuse' -

   The notice of the chief executive's decision or the notice of appeal was lost or delayed in the ordinary course of post."

   The question then is whether the explanation for the late lodgement advanced by the appellants falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.

2. The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000.  In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a cause, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man". 

Background

1. At the hearing, Mrs Trenkner gave evidence.  The respondent did not call any evidence.

2. There is common ground between the parties on most issues.  I find the relevant facts as follows:

   ·    The decision on objection was issued on 20 September 2005.

   ·    On 20 October 2005, the appellant posted a notice of appeal, together with a covering letter, to the respondent.

   ·    The notice of appeal was received by the respondent on 23 October 2005.

   ·    The 42 day time period for lodging an appeal with the Land Court expired on 1 November 2005.

   ·    On 12 December 2005, the appellant completed a duplicate notice of appeal, which was received by the Land Court on 13 December 2005.

   ·    The appellant’s husband suffers from Alzheimer’s disease.  His condition has been progressively worsening for 15 years.  The appellant is his full time carer.

   ·    The appellant is now 77 years of age.  Although she has generally good health, she tends to get confused.

   ·    The appellant takes care of all aspects of life for herself and her husband.  In her words, in day to day life she copes “always with difficulty”.

Submissions

1. I now turn to the crux of this matter. Do the appellant's reasons for appealing out of time, that is, that she got confused, amount to a "reasonable excuse" pursuant to s.57 of the VLA?   

2. There is no doubt that the obligation rests with the appellant to institute an appeal process.  Mr Paterson in his submissions referred to a number of authorities, starting with the principles set out in Anthony.  Mr Paterson then referred to other authorities, including Claybourn v Chief Executive, Department of Natural Resources Land Court 22 February 2000 and Jones v. Department of Natural Resources and Mines  [2005] QLC 0009.

3. The facts of Claybourn bear close resemblance to this matter.  In that case, the appellant was a retired man of 79 years of age, who became confused with the appeal process, and only provided his appeal to the respondent during the relevant time period and not to the Land Court.  Land Court Member Dr Divett found that the Court did not have jurisdiction.  However, it is important to note that Dr Divett’s decision pre-dated the 1 October 2000 amendments to the VLA.  At that time, the question of jurisdiction for appeals lodged out of time centred on delays in the post.  Accordingly, due to the different legislative provisions, the decision in Claybourn is distinguishable.

4. In relation to Jones, Mr Paterson submitted that there were close similarities between that case and the present case relating to health issues interfering with the appellant’s ability to commence an appeal, such that I might find that a reasonable excuse has been established in this matter.  Mr Paterson’s submissions in this regard are understandable, and I can certainly sympathise with the circumstances which resulted in the appellant’s appeal being lodged late.

5. In my view, although there are certain differences between the facts in the matter at hand and Jones, with respect to health issues there are similarities.  In Jones, there was no issue of lodging the appeal with the wrong entity; it was simply a matter of the appeal being lodged late.  The circumstances which caused that appeal to be lodged late arose from quite extreme health issues of the appellant’s agent, as well as special difficulties affecting the appellant herself.  In the matter at hand, the appellant completed the notice of appeal in time but she only lodged the appeal with the respondent and not with the Land Court.  I am satisfied that the appellant failed to properly lodge her appeal due to a combination of factors including her care for her ill husband and her general confusion resulting from her age and the stresses her husband’s condition causes.

6. On balance, I agree with Mr Paterson. I find that the appellant has established a reasonable excuse for the purposes of s.57 of the VLA.

7. In so finding, like Judicial Registrar O'Connor in Menon & Anor v Department of Natural Resources and Mines [2003] QLC 0079, I am conscious of the need for consistency in reasonable excuse decisions founding jurisdiction and the danger of creating an undesirable precedent. Like the case in Menon and Jones, the decision in this case causes neither of these concerns.  Reasonable excuse has been found due to age and health circumstances impacting heavily on the appellant.

Order

1. Having considered the tests outlined in the authorities and the facts in those cases, I conclude that a reasonable excuse had been established in the circumstances of the present case.  Accordingly, I find that the court has jurisdiction to hear the appeal.

P A SMITH

MEMBER OF THE LAND COURT