Walsh v Valuer-General
[2012] QLC 29
•20 June 2012
LAND COURT OF QUEENSLAND
CITATION: Walsh v Valuer-General [2012] QLC 0029
PARTIES:Martina Larissa Walsh
(appellant)
v.
Valuer-General
(respondent)
FILE NO:LVA105-12
DIVISION:General Division
PROCEEDING: Jurisdiction - appeal against valuation
DELIVERED ON: 20 June 2012
DELIVERED AT: Brisbane
HEARD AT:Brisbane
HEARD ON: 7 June 2012
MEMBER:Mr WA Isdale
ORDER:The Court has no jurisdiction to hear this appeal.
CATCHWORDS: Land Valuation Act 2010, s.158
Whether reasonable excuse for not filing the Notice of Appeal with the Land Court within the appeal period
Adrian G Russell v The Crown (1992-93) 14 QLCR 202, followed
Anthony v Chief Executive, Department of Natural Resources, Land Court, 10 November 2000, referred to
APPEARANCES: The appellant appeared in person
Ms L Pham, Legal Officer, appeared for the respondent
On 8 February 2012 the appellant’s Notice of Appeal against a valuation made by the respondent was filed in the Land Court. The land, at 116 Heritage Drive, Clagiraba, was valued at $420,000 as at 1 October 2010 and the appellant contends for a valuation of $300,000.
In accordance with s.158 of the Land Valuation Act 2010 (the Act) the Land Court Registrar sent a letter dated 4 April 2012 to the appellant advising that the prescribed time to lodge the appeal appeared to have expired on 29 October 2011 so the matter was listed to come before the Court on 7 June 2012 for the purpose of determining whether the Court has jurisdiction to hear the appeal.
By s.158(2)(b) of the Act it is provided, relevantly, that if an appeal notice is filed after the appeal period has ended:-
“The Land Court can hear the appeal only if—
…(b) the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period.”
Evidence was given by the appellant who was also cross-examined. Affidavit evidence was introduced, without objection, on behalf of the respondent.
A Decision on Objection dated 30 August 2011 from the Valuer-General, Department of Environment and Resource Management (the Department), was sent to the appellant. The return address on this letter is PO Box 4297 Robina Town Centre 4230. It informed the addressee, who is the appellant, that her objection against the valuation had been disallowed and provided reasons for that. It went on to say that the decision could be appealed to the Land Court and set out the address of the Land Court in Brisbane. A copy of that letter became Exhibit 3.
Exhibit 1 is the Affidavit of Tiffany Lesleigh-Anne Potter, an administrative officer of the Department of Natural Resources and Mines (the new name for the Department) at 14 Edgewater Court, Robina. On 3 February 2012 she received a telephone call from the appellant who inquired whether the Department had made a decision about her valuation. Ms Potter’s search led her to a Notice of Appeal to the Land Court of Queensland which is stamped as being received by the Department at Robina on 3 October 2011. In the part of the form provided for Grounds of Appeal the appellant has written, inter alia:-
“As I have also informed you many times … ” and “Kindly please inform me how and on what grounds (comparable sales) have you (sic) arrived at the valuation … ”.
The Land Court is a judicial body completely separate from the Department and what has been written in the Notice of Appeal is not consistent with grounds of appeal to a Court but is clearly written to the authority which prepared the valuation, and which received the Notice of Appeal on 3 October 2011 after it sent Exhibit 3 to the appellant on 30 August 2011.
The Affidavit of Terrence James Wilkinson of 14 Edgewater Court, Robina, became Exhibit 2. Mr Wilkinson affirms that he is a Senior Land Officer employed by the Department. He received the Notice of Appeal that is stamped as being received on 3 October 2011 and confirms that it was received on that day. On or around 10 February 2012 he also received the copy of the Notice of Appeal that is stamped as being filed in the Land Court on 8 February 2012.
A perusal of these documents discloses that they are, apart from those stamps, identical and the document received on 10 February 2012 appears to be a photocopy of the one received on 3 October 2011, the operative difference being that the one received on 10 February 2012 was stamped as having been received by the Land Court on 8 February 2012.
Exhibit 4 is a copy of the Notice of Appeal stamped received by the Department at Robina on 3 October 2010 and Exhibit 5 is the original of that document. It appears to be identical to what was filed in the Land Court on 8 February 2012, apart from the date stamp.
The appellant gave evidence that she posted her Notice of Appeal on 30 September 2011. She was sure that she would have posted it to the Land Court. She wrote her sender’s return address on the envelope and it was not returned to her. It is clear from the evidence that the appellant posted this one Notice of Appeal on or about 30 September 2011. She said that she kept a copy of what she sent. She telephoned the Robina office of the Department to enquire about this matter. It is clear from Exhibit 1 that this is the call received by Ms Potter on 3 February 2012.
The appellant identified Exhibit 5 as the Notice which she posted. In view of there being evidence of one such document being sent on or about 30 September 2011 and of the Notice of Appeal being received by the Department on 3 October 2011 it is clear that this must be what the appellant posted.
In view of what has been written in the Grounds of Appeal portion of the Notice of Appeal it is clear that this was written to the body that actually received it. While the appellant believes that she would have sent the notice to the Land Court it arrived at the Robina office of the Department a few days after being posted. There is no evidence to explain why it arrived there if it was addressed to the Land Court in Brisbane. The Robina office was the one with which the appellant had been dealing and which sent Exhibit 3 to her.
On the evidence, I am not able to accept that the Notice of Appeal which arrived at the Department at Robina on 3 October 2011 had been posted addressed to the Land Court’s address in Brisbane.
Section 158(2)(b) of the Act requires that the appellant satisfy the Court that there was a reasonable excuse for not filing the Notice of Appeal with the Land Court within the appeal period. The Court is only able to hear the appeal if this is achieved. The substance of the reason advanced is that the appellant believed she had sent it to the Land Court.
In Adrian G Russell v The Crown[1] the Land Appeal Court considered a similar provision in the Land Act 1962.[2] The Land Appeal Court stated that while each case depends on its own facts, it is clear from the authorities that “the reasonable cause or explanation must be substantial”.[3] The Court said that “The test is an objective one”.[4]
[1] 1992-93 14 QLCR 202.
[2] 1992-93 14 QLCR 202 at 203.
[3] 1992-93 14 QLCR 202 at 204.
[4] Ibid. See also Anthony v Chief Executive, Department of Natural Resources. Land Court, 10 November 2000.
In this case the facts as I have found them can lead only to the conclusion that the appellant, contrary to her belief, posted the Notice of Appeal to the respondent Department’s office at Robina rather than to the Land Court. The test is not the genuineness of her belief but rather whether an objective observer would see her actions as a reasonable excuse for not filing the notice in the Land Court within the time allowed.
In the circumstances of this case, the Court is not able to be satisfied that there was a reasonable excuse for not filing the Notice of Appeal with the Land Court within the appeal period. As s.158(2) of the Act provides that the Court can hear the appeal only if so satisfied, it does not have jurisdiction to hear this appeal.
Order
The Court has no jurisdiction to hear this appeal.
WA ISDALE
MEMBER OF THE LAND COURT
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