Trust Company Limited v Chief Executive, Department of Environment and Resource Management

[2010] QLC 7

LAND COURT OF QUEENSLAND

CITATION:  Trust Company Limited v Chief Executive, Department of Environment and Resource Management [2010] QLC 0007

PARTIES:Trust Company Limited

(applicant)

v.

Chief Executive, Department of Environment and Resource Management

(respondent)

FILE NO:VLA451-09

PROCEEDING:  Hearing of an application

DELIVERED ON:                  11 February 2010

DELIVERED AT:                   Brisbane

MEMBER:Mr BR O’Connor, Judicial Registrar

ORDER:The Court has jurisdiction to hear the appeal.

CATCHWORDS:                  Jurisdiction – Late filing of appeal – Whether reasonable excuse

APPEARANCES:                  Mr A Crawford, Valuer, Chestertons, for the applicant

Mrs T Johnson, Principal Lawyer, Department of Environment and Resource Management, for the respondent

1. O’CONNOR JR:  This case was heard in conjunction with 50 Long Pty Ltd & Arras Pty Ltd v Chief Executive[1] and it was agreed by the parties that relevant evidence in that case could also be considered in the hearing of the instant application.

   [1] [2010] QLC 0006.

2. The issue for determination in this application is whether the Court has jurisdiction to hear an appeal in circumstances where the notice of appeal was filed some eleven months out of time. The key dates in question are as follows:

   ·A notice of objection was lodged by Chestertons, on behalf of the applicant, on 1 May 2008.

   ·The applicant had a right of appeal under s.45 of the Valuation of Land Act 1944 (VLA) against the decision but by virtue of s.45(2) only if the appeal was instituted within 42 days after the date of issue.

   ·The appeal period expired on 11 November 2009.

   ·When no decision on objection had been received by Chestertons by 21 August 2009, the latter made enquiry of the Department as to the situation.  A copy of the decision on objection was subsequently received by Chestertons on 27 August 2009. 

   ·The appeal was filed in the Land Court registry on 7 October 2009.

3. Unlike the Long & Arras case there is not dispute that the decision on objection was addressed to Chestertons.  The issue in dispute is to whether it was received by them at any time prior to their inquiry of 21 August 2009.

4. At the current hearing evidence was given by Thomas John Peter Walton, Land Economist for Chestertons, and Graham John Jacobsen, Land Officer for the Department of Environment and Resource Management.  Mr Jacobsen gave evidence of the departmental procedures in issuing notices of objection and the fact that no notice had been returned in the current case as unclaimed.  He also referred to the fact that certain outside providers had a part to play in the printing and enveloping the relevant notices and that there was no subsequent intra-departmental check that all these notices were eventually set out in proper form. 

5. Counsel for the respondent again stressed the onus of proof in these matters lying on the applicant and the presumption of receipt of mail correctly addressed provided in s.39 of the Acts Interpretation Act.  These contentions were not disputed. 

6. The issue before the Court at present seems to be whether the presumption of service can be sufficiently rebutted.  This turns on the detailed evidence given by Mr Walton.  On consideration of his evidence I am prepared to find, on the balance of probabilities, that the notice of decision on objection was not received by Chestertons prior to Mr Walton’s enquiry of the Department on 21 August 2009.  My reasons for this conclusion are the following:

   ·     Mr Walton’s evidence regarding the detailed manual and electronic systems used to check relevant dates for appeals and objections. 

   ·     The relatively small office in which only three people would have been concerned with the handling of such matters, namely Mr Crawford, the Principal, Mr Walton and an experienced secretary.

   ·     The experience of each of these people in handling substantial numbers of appeals of this nature.

   ·     The fact that 164 objections had been lodged in the relevant period and the current case was the only one that was not properly accounted for as having been received.

   ·     Three other notices of decision on objection have been accounted as having been received by Chestertons with the same day of issue as the subject case.

   ·     Unlike my conclusion in the Devine[2] case on this aspect, I am satisfied that there is sufficient detail from the appellants to arrive at this conclusion.

   [2] [2009] QLC 0121

7. On this basis, what happened to the notice allegedly sent by the Department on 30 September 2008 remains a mystery.  However, I cannot be critical of any departmental systems given that the vast majority of these notices obviously reach their intended destination.

8. As in the 50 Long Pty Ltd & Arras case, I note the two further points:

   Counsel for the respondent was critical of the extensive time period between the date of issue of the decision on objection, namely 30 September 2008 and the eventual lodgement of the appeal on 7 October 2009.  However, Chestertons were not aware of the decision on objection until 27 August 2009 and there is evidence that it is not unusual for some decisions on objection to be outstanding for over a year. The second point is that, as I concluded in the Devine[3] decision, the appellants’ representatives were entitled to take a further 42 days to lodge the appeal from the date from which they were actually made aware of the notice of decision on objection.  This period would allow for consideration of whether the expensive process of an appeal should be undertaken.

   [3]        supra.

Conclusion

1. In all the circumstances, I find that reasonable excuse has been established in this case.

Decision

1. The Court has jurisdiction to proceed with this appeal.

BR O’CONNOR

JUDICIAL REGISTRAR