Wormell v Valuer General
[2011] QLC 30
•6 May 2011
LAND COURT OF QUEENSLAND
CITATION: Wormell v Valuer-General [2011] QLC 0030
PARTIES:Jon Wormell
(Appellant)
v.
Valuer-General
(Respondent)
FILE NO:VLA224-10
DIVISION:General Division
PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 which applies due to ss 269 and 271 the Land Valuation Act 2010
DELIVERED ON: 6 May 2011
DELIVERED AT: Brisbane
HEARD ON: By written submissions, the last of which were filed on 12 April 2011
HEARD AT:Brisbane
MEMBER:His Honour Mr WA Isdale
ORDER/S:1. The appellant is required to furnish the Court within seven days with particulars of the grounds of appeal.
2.The particulars are also to be furnished to the respondent within seven days.
CATCHWORDS: Valuation of Land Act 1944, ss 45, 59
Land Court Act 2000, s.7
Land Valuation Act 2010, ss 269, 271
JJ Binder v Valuer-General (1992-93) 14 QLCR 88
Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v Valuer-General (1983) 9 QLCR 13
Stephen R. Rowland v Chief Executive, Department of Natural Resources Land Court 22 February 2000 Dr Divett, unreported
APPEARANCES: Mr J Wormell represented himself
Ms L Hawkings-Guy, Acting Principal Lawyer, Appeals and Advocacy Team, Legal Services, Department of Environment and Resource Management, represented the Respondent
The appeal
On 27 July 2010 the appellant filed a notice of appeal concerning a valuation made by the respondent. The valuation was made as at 1 October 2009 of land at 105 Red Oak Drive, Tallai and described as Lot 32 on Plan no. 183211, Parish of Albert. The area is stated to be 3.255 ha. The Valuer-General valued it at $530,000, unimproved, and in the notice of appeal the appellant contends for an unimproved value of $350,000.
The matter came before the Court on 16 February 2011 for review and directions, when the respondent raised a preliminary question of jurisdiction. The respondent’s position was that the notice of appeal did not comply with the legislative requirement that the grounds of appeal be stated in it and that accordingly the Court lacked jurisdiction to hear the appeal. The parties agreed to make written submissions and for the Court to make a decision on those submissions.
The orders made were that the respondent make its submissions by 2 March 2011 and the appellant make submissions by 16 March 2011. Submissions in reply by the respondent were to be made by 30 March 2011 and by the appellant by 13 April 2011. Both parties complied with this timetable, at least insofar as revealed by the dates upon which material was filed with the Court.
The contents of the “Grounds of Appeal” section of the notice of appeal form, which allows a page of space and includes, inter alia, a note that “A notice of appeal must state the grounds of appeal, and the appeal shall be limited to the grounds so stated” was the following: “I disagree with the decision of the DERM evaluator and his findings”.
Below the notes at the bottom of the otherwise blank portion of the form there is what appears to be the appellant’s signature and the date, 26 July 2010.
The Respondent’s submissions
The respondent’s submissions filed on 2 March 2011 refers to s.45(5) of the Valuation of Land Act 1944 (the Act), which provides that:
“(5) The notice of appeal must state—
(a) the grounds of appeal; and
(b) the amount the appellant seeks for the valuation.”
The respondent referred to the decision in JJ Bidner v Valuer-General[1] as supporting the proposition that a failure to state meaningful grounds of appeal in the notice would be a defect sufficient to be fatal to the prosecution of the appeal.
[1] (1992-93) 14 QLCR 88.
The respondent points to reference by the learned Member to Gold Coast Milk Pty Ltd[2] where the then President struck out both appeals for want of jurisdiction, not being satisfied that “extraordinary or unusual circumstances” had caused the failure to serve copies of the notice of appeal on the Valuer-General in the time prescribed.
[2] Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v Valuer-General (1983) 9 QLCR 13.
Reference was also made on behalf of the respondent to Rowland v Chief Executive[3] which applied Bidner v Valuer-General.
[3] Stephen R. Rowland v Chief Executive, Department of Natural Resources Land Court 22 February 2000 Dr Divett, unreported.
In Bidner’s case, the learned Member pointed out, at page 93 of the report, that:
“… the Land Court is a Court of statutory creation … Because it is a Court of limited jurisdiction, it must necessarily only assume jurisdiction when and in the manner authorised by the Legislature.”
The Court there held that the failure to state grounds of appeal was, in the presence of the statutory requirement to do so, a matter sufficient to deprive it of jurisdiction.
It is important to note that the decisions referred to by the respondent were based upon the legislative provisions in force at the time and applying to the matters considered by the Court. Rowland’s case was about a time limit.
The respondent also submits that the Court’s duty, in the exercise of its jurisdiction, to act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities[4] does not confer jurisdiction but rather says how jurisdiction which already exists must be exercised.
[4] Land Court Act 2000, s.7.
The appellant’s submissions
The appellant submits that he should not be deprived of the opportunity to present his appeal on a technical ground and argues that the appeal should be seen as a continuation of the previous objection process such that his grounds could be understood within that context.
The respondent’s reply
The respondent’s reply submissions essentially repeat that the notice of appeal does not contain what could be said to be grounds of appeal as required by the Act and states that the Act does not contain a provision by which the appellant could now amend its notice of appeal to remedy this defect.
The appellant’s last word
The appellant’s submissions in reply focus on the inequity that he says would result from not being able to present his case to the Court for it to be dealt with on the merits. He makes the point that the respondent could not realistically be unaware of his position, given the previous objection process, which a reasonable person would view as all of a piece with the present appeal. He has quoted some provisions of the Land Valuation Act 2010 in support of his submissions, ss 127 and 164. Section 127 deals with disclosure by parties before a conference and s.164 describes the action by the Land Court Registrar where the Registrar considers that a valuation appeal notice is defective.
Resolution of the dispute
As has been pointed out, the authorities to which reference has been made relate to specific legislative provisions. As in those cases, the resolution of the dispute now before the Court requires consideration of the statutory provisions in force at the time.
By ss 269 and 271 of the Land Valuation Act 2010, the present appeal falls to be determined under the Valuation of Land Act 1944.
Section 45(8) of the Act provides that, inter alia, s.59 of the Act will apply in the present case. Section 59 was inserted in 1993 and was naturally not considered in Bidner’s case, which was decided in the preceding year.
Section 59 provides as follows:
“59 Defect in notice of appeal—action of Land Court
(1)Where on the hearing of an appeal it appears to the Land Court that a notice of appeal does not comply in all respects with the requirements of section 56 or is otherwise defective in a material particular, the court shall require the appellant to furnish it within 7 days with particulars the absence of which constitute the failure to comply with the requirements of section 56 or the defect in a material particular.
(2)If the appellant there and then satisfies the requirements of the Land Court or so satisfies them within the prescribed period of 7 days, the court shall make such order as to an adjournment or the continuation of the hearing of the appeal as it thinks fit having regard to the circumstances.
(3)If the appellant fails to satisfy the requirements of the Land Court under this section within the prescribed period of 7 days, the court shall strike out the appeal.
(4)Subsection (1) is applicable in any case—
(a) where the registrar has not issued to the appellant a requisition pursuant to section 58 or, though the registrar issued such a requisition, it was incorrect or incomplete;
and
(b) notwithstanding that the registrar, pursuant to section 58, issued or caused to be issued to the appellant a requisition that was complied with to the satisfaction of the registrar within the prescribed time of 21 days.”
Section 56(2) is in the same form as s.45(5). Section 45(8) does not apply s.56 to the present appeal so s.59 will be applicable here if the appeal is “otherwise defective in a material particular”.
I am satisfied that the stated grounds of appeal in the notice of appeal are such that the notice of appeal is defective in a material particular within the meaning of s.59 in that it does not fairly and informatively state the grounds of appeal, as required by s.45(5).
Orders
I therefore require the appellant to furnish the Court within seven days with particulars of the grounds of appeal.
I also order that the particulars be furnished to the respondent within seven days.
WA ISDALE
MEMBER OF THE LAND COURT
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