Wormell v Valuer General (No. 2)
[2011] QLC 51
•16 August 2011
LAND COURT OF QUEENSLAND
CITATION: Wormell v Valuer General (No. 2) [2011] QLC 51 PARTIES: Jon Wormell
(appellant)v. Valuer-General
(respondent)FILE NO: VLA224-10 DIVISION: General PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 which applies due to ss.269 and 271 of the Land Valuation Act 2010 DELIVERED ON: 16 August 2011 DELIVERED AT: Brisbane HEARD ON: 7 July 2011 HEARD AT: Brisbane MEMBER: His Honour Mr WA Isdale ORDER: The appeal is struck out CATCHWORDS: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Valuation of Land Act 1944, s.59
Aikman v White 1985 S.L.T 535
Australian Foreman Stevedores Association and Others v Crone and Another
Davoren and Others v Crone and Another (1990-1991) 98 ALR 276
Kime v Hamilton Radial Electric Rly Co (1921) 50 OLR 113
Wormell v Valuer-General [2011] QLC 0030APPEARANCES: Mr J Wormell represented himself
Ms L Hawkings-Guy, Acting Principal Lawyer, Appeals and Advocacy Team, Legal Services, Department of Environment and Resource Management, for the respondent
Background:
On 27 July 2010 the appellant filed a notice of appeal against a valuation made as at 1 October 2009 of 3.255 ha of land at 105 Red Oak Drive, Tallai. The Valuer-General valued it at $530,000 unimproved and the appellant contended for a value of $350,000.
The Valuer-General submitted that the Notice of Appeal was deficient in that it did not state the grounds of appeal.
This matter was decided in Wormell v Valuer-General [2011] QLC 0030. There it was held that s.59 of the Valuation of Land Act 1944 (the Act) applied to allow that defect to be remedied. The Court made the Order allowed by s.59(1) that the appellant was required "to furnish" the Court within 7 days with particulars of the grounds of appeal[1]. The particulars were also required to be furnished to the respondent within the same period.
[1]Valuation of Land Act 1944 Section 59. The section is set out in full in Wormell v Valuer-General [2011] QLC 0030 at [20].
The time period of seven days is fixed by s.59 as is the requirement that "the Court shall require the appellant to furnish it" with the required material, in this case the particulars of the grounds of appeal.
Section 59(3) provides that if the appellant fails to satisfy the requirements of the Land Court under the section within the prescribed 7 days "the Court shall strike out the appeal".
The Court's Order was made on 6 May 2011. On 13 May 2011 the Court received an e-mail which was also directed to the Valuer-General's representative. It was in the following terms:
"From: Jon [mailto:jon@ (details supplied)
Sent: Friday, 13 May 2011 10:08 AM
To: Hawkings-Guy Lyndi
Cc: Diane Blewett
Subject: FW: File Sent: VLA224-10.rarDear Ms Hawkings-Guy,
As per His Honour Mr WA Isdale orders 6/5/11 please find below a link for you to download documentation that I may rely on in court.
If you have any difficulties or further questions please don't hesitate to contact me,
Regards
Jon Wormell
PH:
Fax: (numbers supplied)"It has not been possible for the Court to access this web address due to restrictions imposed by the Department of Justice & Attorney-General on internet access. This is naturally no fault of the appellant and is not relevant to the matter in issue, which is whether he has complied with the Court's Order to "furnish" it with particulars of the grounds of appeal.
The question may be expressed as whether sending the Court the internet address at which material could presumably be found and collected from is "furnishing" it to the Court. The material has not otherwise been provided by the appellant to the Court although the respondent has provided a copy of what it was able to obtain. The Valuer-General's submission is that what the appellant did does not amount to "furnishing" the Court with the material. That is the first question which falls for decision. It is also submitted that in any event the material located at the internet address does not fit the description of what was required to be provided.
The meaning of "furnish"
In Australian Foreman Stevedores Association and Others v Crone and Another (G324 of 1988) Davoren and Others v Crone and Another (G325 of 1988)[2] at p.284 Pincus J considered the meaning of the expression "furnished to the applicant" where it appeared in the Administrative Decisions (Judicial Review) Act 1977 (Cth) His Honour said:
"One view of 'furnished to', keeping in mind its passive form, is that, if any person makes available to an applicant a document setting out the terms of the decision, that is enough: cf. Accident Insurance Mutual Ltd. v. Trade Practices Commission(1983) 51 ALR 792 per Lockhart J at 796-7
If the respondents' contention is right, then it would be enough if, for example, the terms of the relevant decision were included as a news item in a newspaper purchased by an applicant; it is, I suppose, not uncommon for government decisions to be reported in the media. Another, rather similar example, given in the Accident Insurance Mutual case, supra, is that of publication in a legal reporting service.
In my opinion, in its context, the expression 'furnished to the applicant' appears to contemplate delivery of a document specifically to the applicant rather than a general publication of it; further, it contemplates its delivery by or on behalf of the decision-maker. As to the latter point, in my opinion, the two characteristics of a decision that has been made, mentioned in s11(1)(c), are to be read together: for the provision to apply, the decision must be one the terms of which were recorded in writing and which, secondly, was set out in a document furnished to the applicant. It is possible to read the latter requirement as applying to a furnishing by any person in any circumstances, and the former as applying to a recording by any person in any circumstances; but the more natural reading is that both requirements are to be taken to be fulfilled by official action rather than otherwise and, specifically, by action by or on behalf of the decision-maker.
On that view, the document was furnished only to the fourth applicant. It was suggested that the furnishing was to that applicant on behalf of all the others, but the documents tendered do not support that. "
[2] (1990-91) 98 ALR 276.
In the present case, the meaning of "furnish" must be considered in its context, s.59, which is in the following form:
"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."
The Macquarie Dictionary[3] gives the first meaning of "furnish" as "to provide or supply" and Words and Phrases Legally Defined, Volume 1[4] states that "furnished" means provided for use[5].
[3] 1981. This is unchanged in the Second Edition, 1991.
[4] 2007. Lexis Nexis Butterworths.
[5] Kime v Hamilton Radial Electric Rly Co (1921) 50 OLR 113 at 116, Ont CA per Riddell J.
From the foregoing I am satisfied that, in its context, "furnish" requires that the appellant put the Court in possession of the required material[6].
[6]Aikman v White 1985 S.L.T 535 at 538 per The Lord Justice-Clerk (Lord Wheatley). "In my opinion the word "furnish" in the regulation means putting the return into the possession of the Controller."
The Land Court customarily accepts material by delivery to its Registry, by post and by facsimile. In all of these cases there is an element of material being put into the hands of the Court by delivery as distinct from it being necessary for the Court to obtain or attempt to obtain it from some location where it may have been placed for collection.
I am satisfied that the appellant's material has not been furnished to the Court as required by s.59 in that it has not been provided, delivered or supplied to the Court. In view of this failure by the appellant s.59(3) requires "that the Court shall strike out the appeal." The Act gives the Court no option. The appeal is therefore struck out. It is unnecessary to consider the other argument advanced by the respondent and referred to at [8].
Order
The appeal is struck out.
HIS HONOUR, WA ISDALE
MEMBER OF THE LAND COURT
0
0
2