Webb v Department of Natural Resources and Water
[2007] QLC 82
•10 October 2007
LAND COURT OF QUEENSLAND
CITATION:Webb v Department of Natural Resources and Water [2007] QLC 0082
PARTIES:Susan J and Rhett L Webb
(appellants)
v
Chief Executive, Department of Natural Resources and Water
(respondent)
FILE NO:AV2006/0456
DIVISION:Land Court of Queensland – general division
PROCEEDING: An appeal against an annual valuation under the Valuation of Land Act1944
DELIVERED ON: 10 October 2007
DELIVERED AT: Blackall
HEARD AT:Blackall
MEMBER:Mr JJ Trickett, President
ORDER:The Land Court has jurisdiction to hear this appeal.
CATCHWORDS: Unimproved value – requirements for valid appeal – late filing of appeal – whether reasonable excuse – section 57 Valuation of Land Act1944
APPEARANCES: Mr A Boyd, agent, appeared for the appellants
Mr W Isdale of Counsel, Crown Law, appeared for the respondent
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal which was filed in the Land Court registry one day after the due date.
The facts in this case are not in dispute. Mr and Mrs Webb are the owners of a grazing property known as “Tiree”, situated in the Shire of Flinders. On 27 February 2006, the Department of Natural Resources and Water issued an unimproved valuation for that property of $1,250,000.00 under the Valuation of Land Act 1944. The owners objected against that valuation. On 20 June 2006, the respondent issued a decision on that objection which was sent by mail to the owners at “Williwin”, Blackall, where they reside.
However, at that time, the owners were absent from “Williwin” on business and then subsequently travelling overseas.
Although they returned to “Williwin” on 25 July 2006, they were fully occupied in attending to their grazing interests which included the subject property and their other properties at Blackall. It was not until the weekend of 29/30 July 2006, that they opened their mail, which included the decision on objection from the respondent.
On 1 August 2006, the owners faxed a copy of the decision on objection to their agent, Mr Boyd, instructing him to prepare and file a notice of appeal against the decision. A notice of appeal dated 1 August 2006 and signed by Mr Boyd, together with an accompanying letter of the same date, was filed in the Land Court registry on 3 August 2006. The envelope in which those documents were enclosed shows that it was processed on 2 August 2006.
On 14 August 2006, the Registrar of the Land Court advised Mr Boyd by letter that the period of 42 days for the filing of an appeal expired on 1 August 2006 and that it would appear that the notice of appeal had been filed out of time.
The relevant legislation
Section 45 of the Valuation of Land Act 1944 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.
…
(2) If the owner satisfies the court under subsection (1), the court may hear and decide the appeal.”
The arguments considered
The closing date for appeal was 1 August 2006. Mr Boyd submits that in the circumstances the owners have a reasonable excuse. They acted as soon as they could. They advised him to prepare the notice of appeal on 1 August 2006 and he prepared and posted it on the same day. However, it arrived in the Land Court registry on 3 August 2006, two days late.
Mr Isdale submits that is not a reasonable excuse. In the circumstances, Mr Boyd could have faxed the notice of appeal to the Land Court. The Court accepts notices by facsimile and there has been no reason advanced why he could not have done so. The authorities are to the effect that for an excuse to be considered reasonable, it must be substantial, the kind of thing which might be expected to delay the taking of action by a reasonable man.
Among the authorities referred to by Mr Isdale was a decision of this Court in Trust Company of Australia Limited v Department of Natural Resources and Water [2007] QLC 45. In that case, the Court referred to an earlier decision of the Land Appeal Court in Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 19 QLCR 168, where the Land Appeal Court considered what is a reasonable excuse. That case concerned the interpretation of section 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 appellant 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.
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.
His Honour reviewed the authorities relating to the meaning of the phrase “a reasonable cause or explanation”, particularly those mentioned in Union Fidelity Trustee Company of Australia Limited v The Co-ordinator General (1988) 12 QLCR 153, where the Land Appeal Court considered the meaning of the phrase at some length.
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 section 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 of Corporate Affairs (1984) 156 CLR 385 at 392; Australian Securities Commission v Amplex (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 requirement of s. 44(1)(a) and (b); … ”
Muir J came to the conclusion that there was a reasonable explanation for non-compliance. His Honour added:
“Meanings for the expression ‘reasonable excuse’ and ‘reasonable cause’ 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 has made a mistake or omitted to do something through an oversight or misapprehension as to the question of fact or law.” ((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.” ((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 [1963] VR 25 at 28, as being a cause which a reasonable man would regard as sufficient.
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.” ((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.
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.” ((1998) 12 QLCR 153 at 163.)
In the Trust Company of Australia case, the Land Court considered that it should adopt the more flexible approach taken by the Land Appeal Court in the Congress Community Development case rather than apply the relatively strict approach adopted by the court in the Union Fidelity Trustee Company case. In the Congress Community Development case, Muir J had found that there was reasonable excuse for the “slip” of the solicitor. In the Trust Company of Australia case, the Court found that the same could be said for the “slip” of the solicitor in that case. The Court went on to say that if that was not sufficient to constitute a reasonable excuse, it would adopt the reasoning of Mr Wenek and Dr Divett. Fault lay with the solicitors, but the applicant had done everything that could be expected of a “reasonable man” in entrusting the institution of the appeal to its solicitors.
In the present case, the issue is, as put by Mr Isdale, whether Mr Boyd’s situation as the authorised agent of the appellants is different to that of the solicitors in the Congress Community Development case. Mr Isdale points out that there is a distinction in that solicitors have a professional duty to their clients which an agent does not have. In his submission, more is expected of a firm of solicitors than could be expected of an agent. While a client could be acting reasonably putting matters in the hands of solicitors with a full expectation that their requirements would be met, that would not be so in the case of an agent. In Mr Isdale’s submission, it was not reasonable for the appellants to entrust the matters to an agent and it was not reasonable for Mr Boyd to have failed to avail himself of the fax facilities that would have allowed the appeal to reach the Land Court registry in time.
Conclusion
The issue here is whether the authority of the Congress Community Development case can be extended to an authorised agent. That is, whether it was reasonable for the appellants in the circumstances to entrust the lodgement of their appeal to their authorised agent, Mr Boyd.
In my view, it can be said that appellants acted reasonably. Mr Boyd acts as agent for many landowners in Western Queensland for their valuation appeals. Although there may not be the same obligations upon an agent as there are upon a solicitor, in my view the appellants did everything that would be expected of reasonable people in entrusting the lodgement of their appeal to Mr Boyd.
It may be argued that Mr Boyd did not act reasonably in not faxing the notice of appeal to the Court, but on the authority of the Congress Community Development case and the Trust Company of Australia case, that really is not the issue here. If Mr Boyd did act unreasonably, then that should not be held against the appellants in the circumstances.
However, I would add that although the appellants have succeeded in this case in establishing that they had a reasonable excuse for failing to lodge the appeal within the prescribed time, this should not be taken as a precedent for the proposition that it would be reasonable for a landowner in all circumstances to entrust the lodgement of an appeal to their professional advisors. There may be other circumstances in which the actions of the appellants or the actions of their professional advisors would not be regarded as a reasonable excuse for the late lodgement of an appeal. Each case must be dealt with on its own merits.
Order
The Land Court has jurisdiction to hear this appeal.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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