Will v Chief Executive, Department of Natural Resources and Mines

[2002] QLC 83

LAND COURT OF QUEENSLAND

CITATION: F Will & Anor v Chief Executive, Department of Natural Resources and Mines  [2002] QLC 83

PARTIES:  Francis and Wilma C Will

(applicants)
  v

Chief Executive, Department of Natural Resources and Mines

(respondent)

FILE NO/S:  AV2002/0196

DIVISION:   Land Court of Queensland

PROCEEDING: Appeal under s.57(1) and (2) of the Valuation of Land Act 1944

DELIVERED ON:  18 October 2002.

DELIVERED AT:   Brisbane

HEARD AT:   Brisbane

MEMBER:  Dr NG Divett

ORDER: The Court finds that there is a reasonable excuse for the delay in lodging the appeal within the meaning of the Act.  The Court therefore finds that this Court does have jurisdiction to hear the merits of the matter, and the appeal should proceed.

CATCHWORDS:   Practice and procedures – satisfying jurisdiction – reasonable excuse – reliance upon agent – Valuation of Land Act.

APPEARANCES:  Mrs W Will for the appellants.

Ms R Trigge, Principal Legal Officer for the respondent.

Background:

1. This matter relates to land at 103 Raeburn Street, Manly and described as Lot 2 on RP61133, Parish of Tingalpa. The subject land is developed as a single dwelling house and has been valued for that purpose under s.17 of the Valuation of Land Act 1944 (the Act).  The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of an appeal against an annual valuation at 1 October 2001.  Mrs Will represented the appellants, and Ms R Trigge, Principal Legal Officer, represented the respondent.  Ms Trigge advised that the respondent made no representations on the matter, relying on the Court’s decision. 

The facts:

1. The Chief Executive issued a valuation of the subject land on 25 February 2002.  Following an objection lodged on 22 March 2002, the Chief Executive confirmed that the unimproved value was $215,000 on 4 April 2002.  That decision was subsequently issued to the appellant on 28 May 2002. 

2. The appellants signed a Notice of Appeal on 2 July 2002, and arranged to dispatch that Notice of Appeal through a friend.  The friend confirmed that the Notice of Appeal was posted to this Court at the Wynnum West Plaza Shopping Centre on 2^nd or 3^rd July 2002.  The reason for the use of a third party to post the notice of appeal is explained later.  The appellants’ Notice of Appeal claims that the unimproved value should more properly be $110,000.  That Notice of Appeal was postmarked by Australia Post at its Underwood Mail Centre at 6 pm on 15 July 2002, and received by the Registrar of this Court on 16 July 2002.

3. On 16 July 2002 the Registrar of the Land Court notified the appellants that the appeal appeared to have been lodged after the statutory period of 42 days allowed for an appeal under s.45(2) of the Act, which was 9 July 2002. The Registrar advised that such an appeal did not lie, unless the appellant was able to satisfy the requirements of s.57(1) and s.57(2), copies of which were supplied to the appellants for information.

4. On 20 July 2002 the appellants responded to the Registrar that the appellants would seek to satisfy the Court that there was a reasonable excuse for filing the notice after the prescribed time.  On 23 July 2002 the Registrar acknowledged receipt of the response from the appellants, advising that the matter would be set down for hearing.  A Court Notice dated 2 August 2002 set down a hearing on jurisdiction for 11 September 2002.

5. At the hearing on jurisdiction on 11 September 2002, Mrs Will further explains the personal circumstances of why the matter had been forwarded to the Court by a third party acting as their agent.  Because of the severe illness of both appellants, and their senior years, Mr Will is 82 years and Mrs Will is 78 years, they were dependent at that period upon voluntary assistance from carers.  Mrs Will is confined to a wheelchair, and Mr Will had been confined to the residence as a result of pneumonia, resulting from a severe virus infection.  Both appellants were totally dependent at that time upon the voluntary assistance for both the purchase of food, and for attending to personal business such as the Land Court Notice of Appeal.

6. Mrs Will explains that she had been fully aware of the need to lodge the Notice of Appeal within the prescribed 42 days, which fell due on Tuesday 9 July 2002.  For that reason she had signed the Notice of Appeal on 2 July 2002, and sought the assistance of her 84 year old friend and helper to post the Notice of Appeal to the Court on 2^nd or 3^rd July 2002.

7. When asked for a statutory declaration confirming that the Notice of Appeal had in fact been posted as noted above, Mrs Will’s friend had been concerned and agitated as she had never before completed such a statutory declaration.  In the interest of her long-term friendship, Mrs Will decided not to pursue the further documentation, relying only upon her memory of events.

8. In the circumstances of the current matter, in respect of the late filing of an appeal, I am reminded that the onus of satisfying the requirements of the legislation rests with the appellant under s.57(1) which states:

   “57.(1)  If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), 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.”

9. From the evidence it is clear that Mrs Will did all that was in her physical capacity to see that the Notice of Appeal was dispatched within the appropriate timeframe.  By seeking the assistance of her aged friend and helper, she relied upon that person to undertake the external delivery of the Notice of Appeal to the Australia Postal system.  As such, her aged friend fulfilled the role of an agent for the transmission of the document.  Mrs Will sought to fully inform her friend of the statutory period within which the notice must be lodged with the Court.  She also confirmed later that the notice had in fact been deposited with Australia Post on 2^nd or 3^rd July 2002.

10. While advanced age is not of itself grounds for failing to ensure the correct passage of the notice within time, in the special circumstances of this matter, the combination of advanced age and serious incapacity meant that the appellants had to totally rely upon outside assistance.  Because of their condition the appellants sought the assistance of a reliable friend and helper who, to the best of her memory, in fact posted the notice well before the due date for lodgment on 9 July 2002.  Why it was not post-stamped by Australia Post until 15 July 2002, it not clear.

11. In seeking guidance as to what might be considered to be a “reasonable excuse” in this matter I am reminded of directions provided by the High Court of Australia in Jackamarra v Krakouer and Anor (1998) 195 CLR 516. In that matter Kirby J relevantly noted at page 539:

    “1.  The first rule is that there are no rigid rules … each case must depend upon its own particular circumstances.

    2.  … The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded.  …  But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application.  …

    3.  …  Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules.”

12. Kirby J also noted at page 540 that “The party seeking indulgence bears the burden of persuading the decision-maker to grant its request”.  He further notes that while the courts currently seek some flexibility and avoidance of overdue technicality, it must also determine whether actual prejudice to a party is not created by the granting of the indulgence in the interests of the attainment of justice.  A factor also for consideration is whether the delay is the result of actions by the litigant, or of its lawyers, with which the litigant should not be saddled.

13. In the current matter I note that the respondent does not resist considerations of the matter as outlined by Mrs Will as constituting a “reasonable excuse”.  While that does not constitute grounds for the court in deciding that the particular circumstances of this matter constitute a reasonable excuse, it adds some weight to the conclusion that the respondent does not feel that its case would be prejudiced by such a decision.

14. I turn then to the matter of whether the actions by the “agent” in this matter could have contributed to the delay, in such a manner that the appellants should not be saddled with the consequences of a delay.  In that regard I seek some analogy in the findings of the Land Appeal Court in Director-General, Department of Transport v. Congress Community Development and Education Unit Limited (A97-09), 25 June 1998, unreported.  In that matter a solicitor had failed to lodge a notice of appeal within the time limit specified in the relevant legislation. 

15. In the Congress Community matter the solicitor, acting as agent for the claimant, had been particularly busy on other pressing legal representations, and had been stressed to the extent that she had overlooked lodging the appeal in time.  The Land Appeal Court considered the findings of Union Fidelity Trustee Company of Australia Limited v The Co-Ordinator General (1988-89) 12 QLCR 153, and in particular noted the findings of the Supreme Court of Western Australia in Stevens v Motor Vehicle Insurance Trust (1978) W.A.R. 232 (FC), where Burt CJ said at page 235:

    “What one is looking for is some ‘cause’ which a reasonably 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 ‘taking of action’ by a reasonable man (see Quinlivan v. Portland Harbour Trust (1963) V.R. 25 at 28 per Sholl J.)”.

16. In summarising the leading precedents in respect of what might constitute a “reasonable excuse” in Congress Community, in respect of the impact of an agent’s actions in contributing to a delay in lodging an appeal, the Land Appeal Court went on to say at page 6:

    “Having regard to the conclusion reached by me I have not found it necessary to consider whether, on an application such as this, the applicant is necessarily fixed with his agent’s conduct to the extent that the agent’s conduct is in all respects to be treated as that of the applicant.  I merely note that there is a persuasive authority which supports a more flexible approach.”  (see Quinlivan supra, Coulson v Dunne (1966) Tas SR (NC) 292 and the cases collected by Sangster J in Mavra v Logan (1980) 24 SASR 567)”

17. However, while allowing the appeal to stand in spite of the delay in lodging the notice of appeal, the Land Appeal Court went on to say:

    “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 lodgment 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.”

18. In the current matter I believe the appellants have done all that reasonably could have been expected of them in ensuring that the notice of appeal commenced its journey to the Court within the specified time.  On the evidence before me I find that there is a reasonable excuse for the delay in lodging the appeal within the meaning of the Act.  I therefore find that this Court does have jurisdiction to hear the merits of the matter, and the appeal should proceed.

NG DIVETT

MEMBER OF THE LAND COURT