Worthing v Department of Natural Resources, Mines and

[2006] QLC 29

LAND COURT OF QUEENSLAND

CITATION:	Worthing v Department of Natural Resources, Mines and Water [2006] QLC 0029
PARTIES:	Terence Worthing (appellant)
v.
Chief Executive, Department of Natural Resources, Mines and Water (respondent)
FILE NOS:	AV2005/1908
DIVISION:	Land Court of Queensland
PROCEEDING:	Jurisdiction – Appeal against Unimproved Valuation.
DELIVERED ON:	15 May 2006
DELIVERED AT:	Brisbane
HEARD AT:	Ipswich
MEMBER:	Mr PA Smith
ORDERS:	The Court has no jurisdiction to hear the appeal in the subject matter.
CATCHWORDS:	Jurisdiction – Late filing of appeal – Whether reasonable excuse.
APPEARANCES:	Mr Terence Worthing, in person Ms C Liu, Legal Officer for the respondent

[1] The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged after the due date. Section 57 of the Valuation of Land Act 1944 ("the VLA") allows for "reasonable excuse" as a cause for such delay:

"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in s.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."

The question then is whether the explanation for the late lodgement advanced by the appellant falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.

[2]               The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000. In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a cause, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man".

Background

[3]               At the hearing, Mr Worthing presented a mix of written (Exhibit 1) and oral evidence. The respondent tendered two documents (Exhibits 5 and 6) but did not otherwise call any evidence.

[4]               There is common ground between the parties on most issues. I find the relevant facts as follows:

• The decision on objection was issued on 2 August 2005.

• The appellant completed a Form 58 and filed it with the respondent on 8 September 2005.

• On 9 September 2005 the Department of Natural Resources and Mines wrote to the appellant (exhibit 3) advising that the objection form lodged on 8 September 2005 was invalid and enclosing the correct appeal forms (Form 59). The letter also advised the appellant that the forms had to be lodged with the Land Court and with the department.

• The last day for filing of an Appeal was 13 September 2005.

• On 16 September 2005, the appellant completed the appropriate Appeal Form (Form 59) which he lodged with Department of Natural Resources and Mines that same day.

• On 1 December 2005 the appellant posted the notice of appeal to the Land Court, which was received by the Court on 2 December 2005.

[5]               The appellant initially used an objection form (Form 58) instead of the correct appeal form (Form 59). As a consequence of his reliance on the wrong form, the appellant says that he was not aware that an appeal had to be filed in the Land Court. The appellant claims that his error is not of his own doing, but arose as a consequence of his following “misleading department forms and a lack of guidance from staff”[1].

[1]              Exhibit 1.

[6]               The decision on objection (Exhibit 5) provided to the appellant states in part as follows:

"The Valuation of Land Act 1944 provides that unless you appeal to the Land Court within 42 days after the Date of Issue of this notice, such valuation amount shall be deemed to be determined.

An Appeal Form may be obtained electronically from the Department's Web site at The Appeal Form may also be obtained from your local NR&M office by phone as listed below."

[7]               The appellant’s evidence is that he subsequently went to the Department of Natural Resources and Mines Ipswich and spoke to counter staff who provided him with two forms which he completed and returned by hand. Clearly, the forms provided were Form 58.

[2]              Exhibit 5

[3]              Exhibit 3

Conclusion
[8]	I now turn to the crux of this matter. Do the circumstances surrounding the appellant's instituting his appeal, including his use of the wrong form as supplied by the department, and ultimately appealing out of time, amount to a "reasonable excuse" pursuant to s.57 of the VLA?
[9]	In contending that the appellant's actions in this matter do not amount to a "reasonable excuse", Ms Liu referred me specifically to Anthony's case, referred to earlier in this discussion, and a number of other authorities.
[10]	As I noted to Ms Liu, an authority which she did not refer to was that of Gillis v Department of Natural Resources and Mines [2005] QLC 0061. The facts in Gillis bear an amazing similarity to the facts of this matter. Gillis, like the present case, concerned land in Ipswich which was subject to an objection following valuation, and which had its Decision on Objection issued on 2 August 2005. Like the case at hand, the last day for filing an Appeal was 13 September 2005. Like Mr Worthing, Mr Gillis attended the counter of the respondent’s Ipswich office and requested Appeal forms and was given Form 58 instead of Form 59. Again, like Mr Worthing, Mr Gillis completed the Form 58 in accordance with the directions as set out on that form and lodged same with the respondent and not with the Land Court. Again, the facts of the two cases to this point remain virtually identical in that the respondent advised Mr Gillis in a very timely manner that the wrong form had been used for an appeal process.
[11]	Had the facts following this point also been identical, I would have had no hesitation in finding in this matter, as I did in Gillis, that a reasonable excuse had been established.
[12]	However, unlike Gillis, Mr Worthing, after completing the correct Form 59, only gave a copy of that form to the Respondent, some 3 days after the appeal period expired. He did not lodge a copy with the Land Court until 2 ½ months later.
[13]	In my view, Mr Worthing's failure to lodge the Form 59 with the Land Court at or about the same time as he gave the Form 59 to the respondent is fatal to his prospects in this matter. Even leaving aside the advice to Mr Worthing in the Decision on Objection[2]; the contents of the respondents website; and Form 59; the contents of the respondent’s letter to Mr Worthing dated 9 September 2005[3]are compelling. The letter includes the following statement:

"Your next course of action is to Appeal to the Land Court. Please find enclosed the appropriate forms for lodging with the Land Court and this office within 42 days of issue of Notice of Decision on Objection."

[14]             There have been a number of cases where appellants have lodged Form 59 Notices of Appeal with the respondent in a timely manner, but not with the Land Court until some time later (outside the 42 day period). Such cases include Lebeter & Anor v Department of Natural Resources and Mines [2002] QLC 92, Grace v Department of Natural Resources and Mines [2005] QLC 0045, and Anthony. In those cases, it was found that the Court had no jurisdiction to hear the appeal. Despite the similarities with Gillis, in my view the appellant’s failure to lodge his Notice of Appeal with the Land Court on or about 16 September 2005 result in the Court having no jurisdiction to hear his appeal.

[15]             There is one additional point that should be made. In both his evidence and submissions, the appellant stated that there is no listing for the Land Court in the telephone book, and this added to his belief that the Form 59 should be filed with the respondent. I have checked the current 2005/06 edition of the White Pages Brisbane and note an entry for the Land Court appears at page 379. The entry provides comprehensive details for contacting the Land Court.

Order
[16]	Having considered the tests outlined in the authorities and the facts in those cases, I conclude that no reasonable excuse has been established in the circumstances of the present case. Accordingly, I find that the court has no jurisdiction to hear the appeal.

P A SMITH
MEMBER OF THE LAND COURT