Tropic Bird Pty Ltd v Chief Executive, Department of Lands

[1995] QLC 119

[1995] QLC 119

 

  LAND COURT

BRISBANE

12 OCTOBER 1995

Re:     VC95-31, 32, 33 -
  Jurisdiction of Court -
  Appeals against categorisation of leases -
Land Act
  Local Government:           Whitsunday

Tropic Bird Pty Ltd
  v.
  Chief Executive, Department of Lands

(Hearing at Proserpine)

D E C I S I O N

In each of these matters, by correspondence addressed to No 4 Coral Esplanade, Cannonvale, and dated 11th January, 1995, the appellant company was advised by the Department of Lands that objections against certain lease categorisations for the rental period commencing 1 July 1994, had been disallowed.             Appeals against those decisions were filed in the Land Court on 16th February, 1995.  The relevant appeal provisions were, at the time, found in s.235A of the Land Act 1962, ss.(7) of which states:

"The appeal must be filed within 28 days of the lessee receiving the notice ..."

The lessee company was advised by the Registrar of the Court that - "It would appear ... that the appeals have been filed out of time," and that before the appeals could be heard on their merits, the Court would first have to be satisfied that it had jurisdiction to hear the appeals.
           The matters have now been brought before the Court for the purpose of deciding that question of jurisdiction.  Mr Conroy, registered valuer, who had lodged the appeals represented the appellant company and called Mr K.W. Bowe, its managing director, to explain the circumstances relating to the receipt of the notices of decision.
           Mr Bowe said that he had left the Coral Esplanade address, on an interstate holiday and business trip, prior to Christmas, 1994.  He had left instructions with the Airlie Beach Post Office to have all his mail redirected to an interstate address, until 24th January, 1995.  Mail had been redirected during the first part of that period.  However, when he returned home on 6th February, 1995, he collected "three bundles" of mail from his Post Office Box at Airlie Beach.  He said because he was well known at the Post Office that it was common practice for all mail, even that addressed to his home, to be placed in the Post Office Box.  It was not until 10th February, that he dealt with the bundle of mail containing the notices from the Department.  He then arranged with Mr Conroy to have the appeals filed.  His inquiries at the Airlie Beach Post Office indicated that, by mistake, and during a very busy postal period, none of his mail had been redirected as instructed from about the 14th of January, 1995.
The question is then, when did the lessee "receive" the notices? Part 10 of the Acts Interpretation Act 1954 deals with the service of documents. Section 39(1) provides -

"If an Act requires or permits a document to be served on a person, the document may be served -

(a)on an individual -

.......

(b)on a body corporate - by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate."

The meaning of service by post is then dealt with in s.39A of that Act.  Subsection (1) provides:

"If an Act requires or permits a document to be served by post,

service -

(a)may be effected by properly addressing, prepaying and posting the document as a letter; and

(b)is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved."

The evidence in this matter suggests that the notices would have been delivered "in the ordinary course of post" on or about 13th January, 1995. 
The purpose of the provision in the relevant section of the Land Act, that the period for the filing of appeals within a period from the date of "receipt" of the notice, rather than, for example, the more precise date of "issue" is a matter to be considered, for s.14A(1) of the Acts Interpretation Act provides:

"In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."

It seems logical that the purpose of the reference to "receiving" was to ensure that a lessee aggrieved by a categorisation decision was not denied the right to appeal that decision in cases where the ordinary course of post consumed, by normal standards, an unusually long period of time.  In circumstances then, when the ordinary course of post has, for whatever reason, not delivered on time, then such event needs to be proved.
           Although the standard of proof here would have been strengthened by some advice from the Post Master, Mr Bowe has given evidence, under oath, that, for the temporary period from late December 1994 to 24th January, 1995, the ordinary course of post should have involved redirection of a letter addressed to the office of the lessee.  Through an error, by others, and over which Mr Bowe had no control, and after having conducted the affairs of the company in a businesslike manner, the notice was not "received" (at least in the practical sense) until 6th February, 1995.  I accept, on Mr Bowe's evidence, that the redirection instructions were given, but that the notices in relation to these matters were not redirected as they should have been.
           Had Mr Bowe merely been absent and not collected or made arrangements for the collection of the mail, then the appeals would be seen to be out of time.  Once a date of "receipt" is known, then the period for filing the appeal is mandatory.             In the circumstances of these appeals I will accept that the date on which the period of 28 days for the filing of the appeals should commence, due to the failure of delivery by ordinary course of post, was, at least, not before the last date for redirection of the mail - i.e. 24th January, 1995.  The appeals would then have been filed within the prescribed period.
           The Court is therefore found to have jurisdiction to hear the appeals on their merits.

RE WENCK
  MEMBER OF THE LAND COURT