Trust Company of Australia Limited v Department of Natural Resources and Water
[2007] QLC 45
•7 June 2007
LAND COURT OF QUEENSLAND
CITATION: Trust Company of Australia Limited v Department of Natural Resources and Water [2007] QLC 0045 PARTIES: Trust Company of Australia Limited
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO: AV2006/0799 DIVISION: Land Court of Queensland PROCEEDING: The hearing of an application DELIVERED ON: 7 June 2007 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr JJ Trickett, President ORDER: The application is allowed and the Land Court may hear and decide the appeal.
CATCHWORDS: Practice and Procedure – Failure to appeal to Land Court in time – Reasonable excuse - Error by solicitors in calculation of final date for appeal - Valuation of Land Act 1944, ss.45, 57
Statutory interpretation – Reasonable excuse – Whether owner bound by actions of solicitors
APPEARANCES: Mr A Cradick, solicitor, for the applicant
Mr T Quinn, of counsel, for the respondentSOLICITORS: Gadens Lawyers for the applicant
Legal Services, Department of Natural Resources and Water for the respondent
This is an application by a landowner to endeavour to satisfy the Court that the owner has a reasonable excuse for filing the notice of appeal outside the 42-day period provided for by s.45(2) of the Valuation of Land Act 1944.
Trust Company of Australia Limited (the applicant) appealed against the unimproved value applied to its property situated at 10 Eagle Street in the Brisbane Central Business District (the CBD) as at 1 October 2003, under the provisions of the Valuation of Land Act 1944 (the Act). That appeal was dismissed, as the Land Court found that it did not have jurisdiction to hear the matter because the Chief Executive, Department of Natural Resources and Water (the respondent) had not issued a valid notice of valuation. The decision of the Land Court was delivered on 16 January 2006.
On 31 March 2006, the respondent issued a valid notice of valuation as at 1 October 2003 for the property. On 26 April 2006, the solicitors for the applicant lodged an objection on its behalf. A decision on that objection was issued some five months later on 2 October 2006. On 14 November 2006, the solicitors for the applicant filed a notice of appeal to the Land Court against the respondent's decision on the objection.
By letter dated 14 November 2006, the registrar of the Land Court advised the applicant's solicitors that the 42-day period within which an owner may institute an appeal expired on 13 November 2006 and it appeared therefore that the notice of appeal had been filed out of time. By letter dated 16 November 2006, the applicant's solicitors conceded that an administrative error had occurred which had resulted in the late filing of the notice of appeal. The solicitors requested that the Court exercise its discretion under s.57 of the Act to hear and decide the appeal. That is the subject of the present application.
The Relevant Legislation
Section 45 of the Act provides:
"(1) An owner who has objected pursuant to section 42 against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court against the valuation.
(2) Except as hereinafter by this section provided, an appeal shall not lie unless it is instituted within 42 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).
(3) An appeal shall be instituted by filing a notice of appeal in the Land Court registry."
However, there is a provision in the Act dealing with the late filing of a notice of appeal. Section 57 of the Act relevantly provides:
"(1) If a notice of appeal is filed in the Land Court registry after the time stated … 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.
(2) If the owner satisfies the court under subsection (1), the court may hear and decide the appeal."
The Evidence for the Applicant
Mr A R Lonergan, a solicitor employed by the firm Gadens Lawyers, solicitors for the applicant, gave evidence that he was the solicitor responsible for the day-to-day carriage of the appeal and other appeals in the CBD. Essentially, Mr Lonergan's evidence was to the effect that following the annual valuation of the subject land as at 1 October 2003, an appeal had been instituted against that valuation. However, on 16 January 2006, the Land Court found that no valid appeal had been instituted, because a notice of assessment had not been given to the owner as required by the s.41A of the Act.
Correspondence between the solicitors and the respondent followed, resulting in a new notice of valuation being issued by the respondent on 31 March 2006. On 26 April 2006, the applicant lodged an objection to the valuation. Then followed further correspondence between the solicitors and the respondent concerning the delay in the issue of the decision on the objection. On 4 October 2006, the solicitors received a decision on the objection advising that the objection had been disallowed. The date of issue stated on the decision on objection was 2 October 2006.
Mr Lonergan explained the procedure which had been adopted by the solicitors for the processing of decisions on objection and the preparation and lodging of any notices of appeal. During that process written instructions were received from the applicant on 5 October 2006 to lodge an appeal against the valuation. A diarised reminder was brought to Mr Lonergan's attention on 14 November 2006 and the appeal was filed on 15 November 2006. However, an administrative error had occurred. The final date for lodging an appeal had been calculated from the date the decision on objection was received, not from the date of issue of the decision as required by s.45(2) of the Act. That error was the reason for the filing of the notice of appeal one day late.
There is no dispute that an error has occurred in calculating the final date to institute an appeal. The solicitors have conceded that the fault was theirs. The applicant had promptly given instructions to lodge an appeal. The issue is whether in these circumstances the applicant should suffer for the error of its solicitors.
The Applicant's Submissions
On behalf of the applicant, Mr Cradick submitted that it is appropriate in these circumstances for the Court to exercise its discretion and allow the appeal to be heard. He referred to the extent to which the applicant had to go to prosecute the appeal. Therefore, he argued, it was not a case where the respondent could suggest that it had been taken by surprise.
In Mr Cradick's submission, respondent should not, in the absence of actual prejudice, insist on taking the technical point of procedure, as it cannot be seriously contended that the one day delay has caused any prejudice to the respondent.
Mr Cradick referred to the substantial delay that had been occasioned to the owner in finally receiving the decision on objection from the respondent. It would be extraordinary, he submitted, for the respondent to hold any substantive objection to the finding of jurisdiction.
Because of an error of the respondent in issuing the valuation notice in the first place, the applicant had not been given a notice of valuation as required by s.41A of the Act. Mr Cradick submitted that had the respondent complied with the provisions of the Act at that time, the applicant may not have found itself in its current position.
In conclusion, Mr Cradick submitted that the applicant has shown that it had a reasonable excuse for filing the notice of appeal one day after the statutory time allowed. Otherwise, the appeal was competent in all respects. The discretion to hear and determine the appeal must, he argued, be exercised in the context of the equity and good conscience provision in s.7(b) of the Land Court Act 2000.
Essentially, the applicant's case was based on two key points:
·the applicant was entitled to rely on its solicitors; and
·there was no prejudice to the respondent.
The Submissions for the Respondent
Counsel for the respondent, Mr Quinn, made submissions concerning the sufficiency of the evidence. While there was an affidavit filed and evidence given by Mr Lonergan, there was no affidavit or other evidence from any direct employee of the applicant. Mr Quinn referred to the promptness with which instructions were sought by the solicitors and received from the applicant for the lodgement of the notice of appeal. However, there was no explanation why the appeal could not have been filed promptly after instructions had been given.
Mr Quinn suggested that it could be inferred that there had been instructions to delay the institution of the appeal for tactical reasons. There was evidence that the applicant did not wish other appeals in the CBD, including the subject appeal, to proceed further pending the determination of five CBD appeals, the decisions in which were reserved.
I must say that I cannot draw such an inference. There was simply no evidence to that effect. I accept Mr Cradick's submission that no further evidence was called because there was nothing anyone else could say to add to Mr Lonergan's evidence.
The principal issue raised by the respondent is the extent to which a corporation may distance itself from the default of those engaged to perform acts on behalf of the corporation, in this case a firm of solicitors.
Mr Quinn argues that the applicant is fixed with its solicitors' conduct. He contends that there is a fundamental difference between the position of a natural person and that of a corporation which can act only through others. Therefore, he submits that the cases dealing with personal injuries, where a person was able to distance himself or herself from the default of his or her solicitor failing to give notice within time, should be distinguished.
As to the question of whether there was "reasonable excuse", Mr Quinn submits that the authorities indicate that reasonable excuse more aptly refers to any physical or practical difficulties in complying with a requirement. Here there were no physical or practical difficulties in complying with the time limit. Rather, he submits, the applicant through its solicitors, had decided to delay filing the notice of appeal, in consequence of which it became vulnerable to overlooking the time limit, or according to Mr Lonergan's evidence, miscalculating it. The applicant, he contends, was the author of its own misfortune.
The Arguments Considered
Although s.45(2) of the Act provides that an appeal shall not lie unless it is instituted within 42 days after the date of issue of the respondent's decision upon objection, s.57(1) provides that the Court may hear the appeal if the owner satisfies the Court that it has a reasonable excuse for filing the notice after the time stated.
The applicant argues that it entrusted the matter to its solicitors, which was all it could reasonably do in the circumstances. However, the respondent argues that it was not reasonable for the solicitors to wait until the last moment, which was miscalculated, resulting in the late filing. The respondent further argues that the applicant cannot distance itself from actions of its solicitors, as it is fixed with its solicitors' conduct.
The matter of what is a reasonable excuse was considered by the Land Appeal Court in Director-General, Department of Transport v Congress Community Development and Education Unit Limited.[1] That case concerned the interpretation of s.44(11)(d) of the Land Act 1962, where there had been the late lodgement of a notice of appeal to the Land Appeal Court. The applicant in that case sought leave to appeal out of time. However, in order to do so, it was necessary to satisfy the Land Appeal Court that there was "reasonable cause or explanation" for the lateness of the lodgement.
[1] (1998) 19 QLCR 168.
In that case, the matter had been entrusted to a solicitor employed by the Crown Solicitor. However, through what Muir J described as a combination of pressure of work, physical tiredness, inexperience and, possibly, bad luck on the part of the solicitor, the appeal deadline was missed.
In that case, Muir J reviewed the authorities relating to the meaning of the phrase "a reasonable cause or explanation", particularly those mentioned in the Union Fidelity Trustee Company of Australia Limited v The Co-Ordinator General,[2] where the Land Appeal Court considered the meaning of the phrase at some length.
[2] (1988) 12 QLCR 153.
His Honour concluded that the words "reasonable excuse" do not equate with "lawful excuse". He also referred to cases which considered the words "without reasonable excuse" in s.10(1) of the Securities Industry (Victorian) Code, relating to the production of material, which had been interpreted as being referrable to matters "such as the physical or practical difficulties which may be involved in their production": Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs;[3] Australian Securities Commission v Ampolex.[4]
[3] (1984) 156 CLR 385 at 392;
[4] (1995) 18 ASCR 735 at 748 and 756.
His Honour then went on to say:
"In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself or its agents), be blameless. The expressions under consideration are broad in meaning and quite apt to cover a 'slip' of the nature of that made by the employee of the Crown Solicitor. One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of s44(11)(a)(b); cf Bull v Attorney-General (NSW) (1913) 17 CLR 370"[5].
[5] (1998) 19 QLCR 168 at 171.
His Honour referred to circumstances in that case which are somewhat similar to those of the present case:
·lodgement took place early on the first business day after the last day for lodgement;
·the delay was slight;
·the applicant, by its agent, the Crown Solicitor, had put in train processes designed to affect the lodgement and service of the notice of appeal prior to the expiration of the statutory period;
·the matter was entrusted to a solicitor in the Crown Solicitor's office who took normal steps to ensure the carrying out of the applicant's instructions;
·procedures were in place to ensure that time requirements such as lodgement dates were not exceeded;
·those procedures miscarried.
Muir J came to the conclusion that there was a reasonable explanation for non-compliance. His Honour added:
"Meanings for the expression 'reasonable cause' and 'reasonable excuse' given in the authorities referred to above cannot displace the actual words in subsection (11)(d) nor provide alternative statutory tests. Those authorities though, offer assistance in an assessment of whether any given conduct satisfies the statutory test but each application must be considered on its own merits and by reference to its own facts. In my view, the conduct discussed above is consistent with a reasonable standard of conduct. It is the kind of thing which might be expected to delay the 'taking of action by a reasonable man'. An excuse is not necessarily unreasonable because the maker of the excuse had made a mistake or omitted to do something through an oversight or misapprehension as to a question of fact or law."[6]
[6] (1998) 19 QLCR 168 at 172.
The other Members of the Land Appeal Court in the Congress Community Development case, Mr Wenck and Dr Divett, agreed that the application should be allowed, but added:
"That does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal. The reasonable cause and explanation of the lateness of the service and lodgement of the notice and payment of the prescribed fee, is, in our opinion, the fact that the solicitor failed in the duty entrusted to her. The applicant had done everything that should have been expected of him."[7]
[7] (1998) 19 QLCR 168 at 173.
The Members referred to the earlier Land Appeal Court decision in the Union Fidelity Trustee Company case, where the Court adopted the interpretation of "reasonable cause" by Scholl J in Quinlivan v Portland Harbour Trust[8] as being a cause which a reasonable man would regard as sufficient.
[8] [1963] VR 25 at 28.
The respondent relies on the Union Fidelity Trustee Company case for the submission that the solicitors are to be regarded as the "alter ego" of the company, in circumstances which were similar in many respects to the subject matter.
In the Union Fidelity Trustee Company case, the issue was whether the appellant could satisfy the Land Appeal Court that there had been a reasonable cause or explanation for the lateness of the institution of an appeal. The notice of appeal was not lodged within the time as a result of an administrative problem in the office of the solicitor for the appellant, resulting from the absence from the office of the solicitor who was handling the matter. The solicitor who had taken over the matter from him admitted that she was unaware of the time limit prescribed by the Land Act.
After referring to authorities on the term "reasonable cause", the Court concluded:
"… 'a reasonable cause' in sub-s.44(11)(d)(i) prescribes an objective test and means a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the service or lodgement of a notice of appeal or the payment of the fee beyond the prescribed time by a reasonable man."[9]
[9] (1988) 12 QLCR 153 at 161 - 162.
The Land Appeal Court in that case came to the conclusion that the solicitor's conduct was not that of a reasonable, careful and prudent legal advisor. Ignorance of the law was not a reasonable cause and the solicitor's conduct in that matter did not provide a reasonable cause or explanation for the late lodgement of the notice of appeal.
In that case, the Court found that the solicitors were to be regarded as "the alter ego" of the company, which was bound by anything the solicitors did or did not do. However, the Court then went on to say:
"It must not be thought that in this case the Court is imposing any rigid formulae as to what is or is not reasonable cause or reasonable explanation. Each case will be decided on its own facts." [10]
[10] (1988) 12 QLCR 153 at 163.
Mr Quinn argues that two cases Corporate Affairs Commission (NSW) v Yuill[11] and Jovanovic v Australian Securities and Investment Commission[12] are authority for the proposition that the expression "reasonable excuse" more aptly refers to any physical or practical difficulties in complying with a requirement, such as that found in s.57(1) of the Act in the present case. Although the words "reasonable excuse" are contained in different legislation, it is the same expression and, he contends, those cases provide some useful guidance as to what it means in the present case. Here there were no physical or practical difficulties standing in the way of compliance.
[11] (1991) 172 CLR 319.
[12] [2001] TASSC 6.
However, I accept the submissions on behalf of the applicant that the cases of Yuill and Jovanovic are of limited utility in this case, because they are in the context of corporations legislation requiring persons to produce documents, with sanctions for those who fail to comply without a reasonable excuse. The statutory framework was different.
Conclusion
After considering the submissions on behalf of the parties, it is clear that essentially the issue in this case is whether this Court should apply the relatively strict approach adopted by the Land Appeal Court in the Union Fidelity Trustee Company case or the more flexible approach adopted by a later Land Appeal Court in the Congress Community Development case. The other cases cited are useful in indicating the approach of various Courts to the same or similar phrases, but in my view, the outcome of this case depends on which of the Land Appeal Court authorities is applicable.
In the Congress Community Development case, Muir J considered the decision in the Union Fidelity Trustee Company case, along with other authorities before concluding that the conduct of the solicitor in that case was consistent with a reasonable standard of conduct, the kind of thing that might be expected to delay the taking of action by a reasonable man.
However, Muir J did not find it necessary to consider whether the applicant was necessarily fixed with is agent's conduct to the extent that the agent's conduct was in all respects to be treated as that of the applicant. He noted that there is persuasive authority which supports a more flexible approach. The other Members of the Court agreed that the authorities are sufficiently persuasive to take the more flexible approach referred to by Muir J.
However, the other Members agreed with the result but not the reasoning of Muir J. They were of the opinion that there was no reasonable excuse for the conduct of the solicitor, but there was a reasonable excuse for the applicant. He "… had done everything that should have been expected of him,"[13] by entrusting the matter to the Crown Solicitor. They expressly declined to follow the "alter ego" finding of the Court in the Union Fidelity Trustee Company case, presumably distinguishing that case on the facts.[14]
[13] (1998) 19 QLCR 168 at 173.
[14] (1998) 19 QLCR 168 at 174.
Having regard to the circumstances of the present case and the authorities referred to above, I am of the view that the more flexible approach taken by the Land Appeal Court in the Congress Community Development case should be followed in the present case. Muir J found that there was reasonable excuse for the "slip" of the solicitor in that case. In my view, the same could be said for the "slip" of the solicitor in this case.
However, if that was not sufficient to constitute a reasonable excuse, I would adopt the reasoning of Mr Wenck and Dr Divett. As in that case, in the present case the fault lies with the solicitors, but the applicant has done everything that could be expected of a "reasonable man" in entrusting the institution of the appeal to its solicitors.
Accordingly, I am satisfied that the applicant had a reasonable excuse for the filing of the notice of appeal one day out of time and am of the opinion that the application should be allowed. There was no suggestion that the respondent would be prejudiced by the granting of the application.
Order
The application is allowed and the Land Court may hear and decide the appeal.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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