Witheyman v Chief Executive, Department of Natural Resources
[1999] QLC 26
•16 April 1999
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BRISBANE
16 April 1999
Re: Appeal against Annual Valuation
Valuation of Land Act 1944
Valuation Roll No 7854
Local Government: BCC-Windsor
(AV98-870)
Maureen P Witheyman
v.
Chief Executive, Department of Natural Resources
DECISION ON JURISDICTION
Background:
This matter relates to a property at 77 Gracemere Street, Newmarket, and described as Lots 4 and 99 on RP 65941, Parish of Enoggera. The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the case in respect of an appeal against an annual valuation of the subject land at 1 October 1997, under the provisions of the Valuation of Land Act 1944. Mrs M Witheyman appeared and gave evidence on her own behalf. Mr J O’Rourke, Principal Legal Officer, represented the respondent.
The Facts:
In order to understand the history of the appeal the following chronology of events needs to be considered:
· 9 March 1998 – The Chief Executive issued a valuation of the subject at $130,000;
· 20 April 1998 – Closing date for lodgment of objection with the Chief Executive.
· 23 April 1998 – Objection lodged with the Chief Executive claiming that the unimproved value should be $100,000.
· 12 May 1998 – The Chief Executive acknowledged the receipt of the objection under section 52(A)(2).
· 6 October 1998 – The Chief Executive issued his decision disallowing the objection, and confirming the unimproved value at $130,000.
· 17 November 1998 – Due date for lodgment of an appeal with the Land Court.
· 17 November 1998 – Notice of appeal received by the registrar of the Land Court.
· 20 November 1998 – Registrar of the Land Court wrote to the appellant notifying that the appeal appeared to be defective in that it failed to provide the appellant’s opinion of the valuation of the subject land as required under section 56(3).
· 11 December 1998 – Due date for response to the requisition from the registrar, issued under section 58(1).
· 14 December 1998 – Completed notice of appeal delivered by hand to the office of the registrar of the Land Court.
· 16 December 1998 – Registrar acknowledges receipt of the completed notice of appeal (copy to respondent) advising that the notice appeared to have been filed out of time with the registrar, and that the matter would be set down to determine whether the Court had jurisdiction to hear the matter.
· 1 February 1999 – Letter from registrar of Land Court notifying that the matter would be heard in Brisbane on 18 May 1999.
· 25 February 1999 – Further letter from registrar advising that following adjustments to the Court diary the hearing of jurisdiction was now brought forward to be heard in Brisbane on 12 March 1999.
· 12 March 1999 – Hearing to determine the matter of jurisdiction.
Decision:
Before considering the events surrounding the lodgment of the appeal, I turn to the Valuation of Land Act. I note that in respect of an annual valuation section 45(1) provides for a dissatisfied person to appeal to the Land Court, and section 45(2) states:
“45.(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).”
Any such appeal is to be lodged with the registry of the Land Court under section 45(3), and the burden of proof is placed upon the appellant under section 45(4). The notice shall state the amount appealed for under section 45(5) which says:
“45(5) Such notice shall also state the amount which in the opinion of the appellant should be the valuation of the subject land.”
I also note that where there is a defect in the notice of an appeal the registrar is required to issue a requisition to the appellant under section 58(1), seeking rectification of any defect. Such response from the appellant is to be returned to the registrar within 21 days of the date of the requisition. Where an appellant satisfies the requirements of the requisition, the response shall become part of the appeal under section 58(2). Where the appellant does not satisfy fully the requirements of the requisition, guidance is found in section 58(3) which states:
“58(3) If the appellant does not fully comply with the requirements of the requisition to the satisfaction of the registrar within the prescribed time, the Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal as first filed complied in all respects with the requirements of section 56 and was not defective in any material particular or that, where in its opinion a requisition was properly issued, the requirements of the requisition have been complied with to the extent that, taking such compliance into consideration in conjunction with the notice of appeal as first filed, the requirements of section 56 have been complied with and there is no defect in any material particular. ”
It is Mr O’Rourke’s argument that guidance found in Conroy v. The Valuer-General (1986-87) 11 QLCR 25, dictates that failure to satisfy the statutory period of 21 days from the date of requisition from the registrar is fatal to the appellant’s case. In Conroy the learned Member (later President) found that, while an appellant’s estimate of the unimproved value need not be expressed in dollar ($) amount terms, however it must be expressed in a form specific enough to be converted or referrable to a definitive amount so as to enable the Valuer-General (now Chief Executive) to activate pre-trial negotiations or offers.
In Conroy the appellant had also failed to comply with the requisition issued by the registrar within the prescribed 21 days. The need to “fully” comply with all of the provisions of the Legislation in that matter proved fatal to the appellant’s case.
In Conroy the President went on to determine that failure to comply “fully” with the requisition of the registrar, should be taken to differentiate between a “part” compliance but always within the prescribed time. The President noted at page 28:“In my opinion the word ‘fully’ implies that there has been some (or part) compliance with the requisition within the prescribed time. It would extend the provisions of paragraph (c) too far to hold that they apply to cases where there has been no compliance at all within the prescribed time. It seems to me on a careful reading of the aforequoted part of paragraph (c) as a whole that the only compliance which the paragraph authorises to be considered in conjunction with the Notice of Appeal for the purposes of deciding compliance with the requirements of subsection (3) is compliance which occurred within the prescribed time. ”
In that matter the Court considered the directions of section 21(3B) which is now section 58.
In the current matter there is no question that the appellant has now supplied a firm estimate of her opinion of the amount which should be the correct unimproved value, and now satisfies all of the requirements of section 56. The only question is whether the requirement to provide that additional information within 21 days is entirely mandatory.
I note that where an appeal has not been filed with the Land Court within the statutory period of 42 days from the issue of the decision on the objection by the Chief Executive, as required by section 55(2), then section 57 is very clear. In that case it is a mandatory requirement of a requisition from the registrar of the Land Court, that the appellant respond with the required information within 21 days, or else the appeal shall not lie. However section 57 relates only to actions arising from section 55. In the matter of a defect in the notice of appeal, under section 58(3), the Legislation is less specific.
Section 58(3), for example, directs that if a requisition is not fully complied with within the prescribed time, the Land Court shall not proceed to hear and determine the appeal unless it is satisfied that the notice of appeal, as amended, now satisfies all of the requirements of section 56, and was not defective in any material particular. The action of the Land Court, where a notice of appeal is defective in any respect or otherwise in a material particular, and where a requisition was not issued, is defined by section 59(1), which provides for a request for rectification within 7 days. If the appellant then satisfies the Court within the 7 days, the Court may proceed to hear the matter. If the appellant fails to satisfy the requirements of the Land Court within the prescribed period of 7 days then the Court is directed to strike out the appeal.
The key to understanding the intentions of section 58(3) then appears to lie in the meaning of the words “not defective in any material particular”. Where statutory periods of time are established in other relevant sections of the Act, except section 58(3), then precedents have found that those periods of time are in fact mandatory, and failure to meet those periods is fatal to an appeal. It is not clear why section 58(3) may appear to provide some leniency in respect of satisfying section 56, and presumably also in respect of satisfying the prescribed time requirements. Nevertheless that section does provide an option to the Court except in so far as what might constitute a “defect in any material particular”.
I note that a “material particular” may be interpreted to mean an “essential particular” (“Stroud’s Judicial Dictionary” 4th Edition, Sweet & Maxwell, page 1638). If I then consider the meaning of “essential” I note it to refer to something that is materially important, or an indispensable requisite of something. I note also that the word “particular” may be taken to mean dealing with the separate part of something, and “material” may be taken to reflect being of consequence or importance. The use of the words in the context of section 58(3) may therefore be taken to mean an important requirement which is essential for satisfying the Legislation. On that understanding I would agree with the learned President in Conroy that failure to meet the 21 days is mandatory.
I consider now whether this Court has any power to extend that statutory period, and I note in JJ Bidner v. The Valuer-General [1992-93] 14 QLCR 88, where the learned Member found at page 93:
“As has been noted in previous cases, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute. It has no inherent jurisdiction. Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature. (See Gold Coast Milk Pty Ltd and South Coast Cooperative Dairy Association Limited v. The Valuer-General (1983) 9 QLCR 13 at 17.)”
That was also found in Fry v. Commissioner of Water Resources (1986-87) 11 QLCR 92 in respect of the statutory period for lodgment; Shirmer v. The Valuer-General (1974) 1 QLCR 144 in respect of other details missing on a notice of appeal; Ubank v. Queensland Housing Commission (1954-55) 25 CLLR 5, in respect of failure to meet the statutory time limits for lodgment of an appeal; and also in Conroy v. The Valuer-General (1986-87) 11 QLCR 25, where the appellant failed to provide adequate information to define the quantum of the amount appealed for.
Clearly this Court is a body of statutory powers, and as such can only exercise such powers in accordance with the directions of the Legislation. There is no discretion to assume powers beyond those limits.
In the current matter the appellant has provided a statement outlining the circumstances surrounding events which coincided with the need to lodge the appeal. While those matters demonstrate that the appellant was under undue pressure throughout that period, those were of a personal nature, and mostly not directly related to lodging the appeal. The matter was also compounded by the negotiation of a contract of sale for the subject land. However in respect of that potential sale of the subject it is noted that the new owner would retain the right to continue with the current appeal under section 46(2), if jurisdiction is found to lie.
It was also noted from the chronology of personal items outlined in her statement to the Court that, at the critical period when the appeal needed to be lodged with the Court (November) the appellant was under a heavy workload in her employment as a teacher. While such pressures may explain in part the failure of the appellant to meet the time constraints of the requisition from the registrar of the Court, they provide no reasonable excuse for the delay. By her own words the appellant only referred to the letter from the registrar in respect of the requisition on 12 December 1998, one day after the deadline required by the Act. When realising that it was already late, the appellant sought to try and rectify the matter personally by delivering the response on Monday, 14 November 1998.
In respect of what might constitute a “reasonable excuse” I am reminded of 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 entrusted with the responsibility of lodging an appeal on behalf of a claimant in a compensation matter, failed to meet the statutory time limits within which to lodge the appeal. The Land Appeal Court found it unnecessary to consider whether the applicant was 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, noting only that in circumstances such as existing in that case, there was persuasive authority which supports a more flexible approach.
However while the Land Appeal Court allowed the application to appeal out of time, in the specific evidence of that matter, the Court was very critical of the actions of the applicant’s legal advisers for allowing such an environment that the solicitor involved was forced to the state of work-related exhaustion. The Land Appeal Court awarded costs associated with the application to be paid by the applicants to the respondent in that matter.
In the current matter the leniency allowed in Congress Community can be distinguished in as much as there is no second party representative acting for the appellant, who at all times had the carriage of the appeal within her direct control. It is acknowledged that the appellant has suffered a long and stressful environment during the appeal process. However while the appellant in her statement also provides some insight into her personality make-up and her propensity to procrastinate a decision until the last moment, that also does not excuse failure to meet the requirements of the Legislation.
Conclusion:
On the evidence before me I find that the appellant has not satisfied the mandatory requirements of the Legislation. This Court is a body of statutory powers, and as such can only exercise such powers in accordance with the directions of the Legislation. There is no discretion to assume powers beyond those limits. I therefore find I have no jurisdiction to proceed with the appeal on its merits. The appeal is struck out for want of jurisdiction.
(NG Divett)
Member of the Land Court
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