Witte v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 50
•31 May 2001
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DALBY 31 May 2001
Re:Appeals against annual valuation Valuation of Land Act 1944 Property ID No: 3112396 Local Government: Tara (AV00-630)
Ronald H Witte v.
Chief Executive, Department of Natural Resources and Mines
D E C I S I O N
This application is the owner of the land Mr RH Witte for a finding that the Court has jurisdiction to deal with the appeal notwithstanding that the requirements of Section 55(2) of the Valuation of Land Act 1944 (“the Act”) have not been complied with, in that the appeal was not instituted within 42 days after the date of issue to the owner by the Chief Executive of notice of the Chief Executive’s decision upon the objection to valuation earlier lodged by the owner.
Mr Witte has not attended the hearing and I am asked on that account to have the matter struck out for lack of prosecution. While non-attendance on an application of this kind would normally justify such action on the part of the Court, it seems to me that Mr Witte may well have intended to attempt to satisfy the Court as required by s. 57 simply by making a written submission (which is dated 2 May 2001 and has been made Exhibit 5 in these proceedings). In the circumstances, I consider it preferable that I do not determine the matter by striking out for want of prosecution but, rather, proceed to receive the documentation from Mr Witte and deal with the application on its merits.
In addition to Exhibit 5, I admitted earlier documentation received from Mr Witte in response to the notification by the Registry that the appeal was out of time, and there was a need to satisfy the Court as to why that had occurred. That documentation, which consists of a completed of a form and an accompanying letter from Mr Witte is Exhibit 3.
However, in admitting these documents, I indicated that they may well suffer in terms of the weight to be given to them by the fact that Mr Witte had not attended and made himself available for cross-examination.
A matter that does arise on the application is the relevant law to apply in circumstances where s 57 of the Act was amended by legislation that commenced on 1 October 2000. Details of the amending legislation are set out in my reasons in an earlier matter, Moran v. The Chief Executive, Department of Natural Resources and Mines, ((V01-74) which reasons were also delivered today.
The timing involved in Mr Witte’s application is as follows. The valuation was issued on 1 July 2000. This triggered the commencement of the 42 days within which the appeal was to be lodged. It is accepted by the respondent that the time for appeal expired no earlier than 14 August 2000.
The appeal was in fact received by the Registry of the Court on 17 October 2000. On that basis, it would appear that slightly over two calendar months had expired between when the appeal was due to be received and when it was received. As Mr Tannock, who appears for the respondent, has pointed out, the appeal was received after the date when the amendments commenced although the time allowed for lodging the appeal had expired well before the commencement of the amending legislation.
The matter is to be determined essentially by considering whether the legislation should be treated as being merely procedural or whether it should be treated as having a substantive effect going to rights. In this regard, I have been provided with a copy of a decision of Dr Divett, Member of the Land Court, in appeal AV00-517, being Anthony v. Chief Executive, Department of Natural Resources. The reasons delivered in that matter are dated 10 November 2000.
It seems to me that, despite his most helpful discussion of the authorities, Dr Divett did not find it necessary to decide definitively whether the legislation should be given retrospective effect. Essentially what Dr Divett appears to have done in his reasons is to consider the application by Mr and Mrs Anthony in that case both by reference to the respective test under both the earlier and later version of s. 57. In the event, he decided that Mr and Mrs Anthony had failed to satisfy the Court on both versions of the test. Accordingly, Dr Divett did not find it necessary to determine the question of retrospectivity.
I should just state the difference between the two tests. Under the legislation prior to amendment, s. 57 provided that, in the relevant circumstances, the appeal does not lie unless the owner proves to the satisfaction of the Court, that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. The owner must also have
notified the Registrar, within 21 days of the date of the notification by the Registrar, of the owner’s intention to endeavour so to satisfy the Court.
In the present case, the notification by the Registrar was dated 19 October 2000 and the response from Mr Witte received on 25 October 2000. Clearly that aspect of the requirement of s 57 in its earlier form was satisfied.
The test in the amended legislation gives much greater opportunity for an appellant to address general matters in that it provides that the appeal may not, in the relevant circumstances, be heard unless the owner satisfies the Court that the owner has a reasonable excuse for filing the notice after the time stated. Obviously, a reasonable excuse can cover a much broader array of circumstances than the earlier requirement.
I have considered the issue of retrospectivity in an earlier matter of Appeal AV99-1261 Pavex Construction Pty Ltd v The Chief Executive, Department of Natural Resources determined in Mt Isa on 18 December 2000. Apart from a clerical error in the reasons, I have no reason to depart from the conclusions I arrived at on that occasion. At pages 2 to 3 of my reasons I said the following:
“In my view, the circumstance that an appeal is deemed by the earlier provisions not to lie unless the provisions of subsections 58(1) and (2) are complied with” [this should be a reference to sections 57(1) and (2)] “- has the effect that the right to bring an effective appeal has already been lost and that that is a matter of substantive rights. In those circumstances, a later amendment should not be treated as allowing that appeal to be revived. In my view, that would create an injustice in that it would be contrary to the expectation of the respondent to an appeal who could reasonably expect that the appeal rights had been lost and the valuation, the subject of the appeal, had irrevocably come into effect.
In my view, these circumstances are not dissimilar to the facts in the leading case on retrospectivity Maxwell v Murphy (1957) 96 CLR 261. I would also refer to such cases as Worrall v Commercial Banking Co of Sydney Limited (1979) 24 CLR 28 and Myer Melbourne Ltd v Hammond [1984] VR 40.” [material in square brackets added]
As stated in that passage, it seems to me that the matter is one of substantive rights despite that the satisfaction of the Court is something that may arise at a later date (at the hearing). The matters which are adduced to satisfy the Court have already occurred. In effect, the potential to satisfy the Court has already been determined by the events which transpired and gave rise to the late filing of the appeal.
It would seem to me that the section can only have retrospective effect to the extent that it would apply if the issue of the objection had occurred prior to 1 October 2000 and the time for lodging the appeal did not expire until after the commencement
of the new section on 1 October 2000. This is because at least some of the relevant events had not occurred as at the commencement of the section.
Applying the test under the earlier version of the legislation, it seems to me that Mr Witte has not addressed any issues at all going to undue delay in the transmission of mail in the ordinary course of post. He has really addressed personal circumstances experienced by him, namely, that he had received an injection from a doctor which appears to have slowed his reflexes and thinking processes as described in exhibits 3 and 5.
Therefore, applying the test under the earlier version of the legislation, I find that I am not satisfied that the failure to institute the appeal within the time so prescribed was caused by undue delay in the transmission of mail in the ordinary course of post and, accordingly, I find that the appeal does not lie. I dismiss the application to the extent that it seeks so to satisfy the Court.
I would add that, if I am wrong with regard to the application of the later version of s. 57, I would also not be satisfied on the basis of its requirements. It seems to me that the way in which one is affected by medical treatment has the capacity to constitute a reasonable excuse for filing a notice after the time stated. However, as Mr Tannock has submitted, the particulars provided in this case as to the precise way in which Mr Witte was affected and the precise way in which that in turn affected his ability to lodge the notice are not spelt out in any material before the Court. Because Mr Witte has not attended the Court, the respondent has not had the opportunity to explore those matters in detail.
Further, one might expect where the excuse is of the kind put forward in this case, that the applicant’s evidence as to the effect on him would be supported by evidence from a medical practitioner relating the applicant’s subjective experience to the likely side effects of the drugs involved.
In all the circumstances, the evidence falls short of satisfying me that Mr Witte has a reasonable excuse for filing the notice after the time stated. Therefore, if I am wrong regarding the applicability of the amendments, I would still make the finding that the Court has not been satisfied of the necessary matters and that the appeal does not lie.
The application is dismissed.
SJ KEIM MEMBER OF THE LAND COURT
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