Zolgaze Pty Ltd v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 87
•22 August 2001
LAND COURT BRISBANE
[2001] QLC 87
22 AUGUST 2001
In the matter of an appeal against a valuation Property ID: 906944
Local Government: Whitsunday AV00-453
Zolgaze Pty Ltd v.
Chief Executive, Department of Natural Resources and Mines
DECISION ON JURISDICTION
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged seven days after the due date. Section 57 of the Valuation of Land Act 1944 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 lodgment 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.
The authorities on the term "reasonable excuse" or similar expressions are usefully collected in a recent 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:
Evidence was given on behalf of the appellant company by Mrs Jacinta Lipson, one of its principals. She supplemented her oral testimony with a short
statement outlining the chronology of events relevant to the issue now before the Court. Extracted below are the key dates and facts included in this statement:
· The decision on objection dated 22 June 2000 was not received by the company until 3 July 2000 and did not contain any supporting information in relation to the appeal process.
· The decision was not sent by registered post and accordingly the ability to establish late receipt (despite the crucial time limit) is denied.
· Immediately upon receipt of the decision she telephoned the Department of Natural Resources. She advised the late receipt, that she would be objecting and that they would not be receiving a letter from her until towards the end of July 2000 due to her work pressures. They offered no information at this time.
· She is a contract bookkeeper hence her inability to respond sooner (particularly with the introduction of the GST).
· The decision on objection makes no mention of the requirement for the appeal to be made on a specific form nor when advising the Department of Natural Resources of her intention to appeal did they provide this advice.
· She contacted Department of Natural Resources on 31 July 2000 to determine the fax number for the forwarding of her appeal letter to them for consideration by the Land Court. It was at this time she was advised that the Land Court was not part of the Department of Natural Resources and a specific form was required to be completed. She expressed her disappointment at not having been advised this previously and that no information to this effect was included with the decision. She was advised that there was a brochure which contained the necessary information and that she could collect this and the form by attending their office in Mackay. Due to the distance to their office the Department of Natural Resources promised the appropriate form would be faxed the following day.
· When no fax appeared by the end of the following day she rang the next morning to repeat her request. She expressed her concern that she was going to be out of town from the following day and that time was about to expire. She was advised that this would not be too much of a problem since she had not been provided with the information brochure and that the Department of Natural Resources had not faxed the forms when requested.
· She rang the following morning (when nothing had been received) and the form was promised to be on her machine upon her return on 10 August 2000.
· Upon return on 10 August 2000 there was no fax. She then rang the Department of Natural Resources in Brisbane and they advised that she should contact the Land Court direct to sort out the problem.
· The secretary at the Land Court promptly faxed the required form and suggested she submit a letter setting out the reason for the delay. The secretary advised that difficulties in obtaining the necessary
information and forms does happen from time to time and she is often contacted in this manner.
Mrs Lipson then shortly states her bases for why "reasonable excuse" can be established.
(a) The decision on objection did not contain any information in relation to the appeal process by way of information brochure (which exists for this purpose) nor by provision of the required form or even mention of the form or contact details for the Land Court.
(b) Telephone discussions with the Department of Natural Resources did not allude to the correct process even when her advice to it was clearly not the correct method.
(c) Repeated requests for the appropriate form were ignored.
(d) The distance to the regional office was prohibitive in independently obtaining the necessary forms.
Mr Bein, Senior Valuer based in Mackay, presented the case for the Department. He does not dispute much of the factual evidence of Mrs Lipson, although he suggests it is unusual that Mrs Lipson's request for faxed forms should not have been met by the Department. He tendered a signed statement by three female employees in the Mackay office responsible for valuation administration at the relevant time. The statement indicates they did not receive a request from Mrs Lipson; however, Mr Bein could not deny that the request was made to another person in this area of responsibility (Mrs Lipson states she spoke to a male officer). Mr Bein also referred to the Department's having two offices in Mackay as a reason for possible confusion.
Mr Bein also submits that Mrs Lipson really cut the whole appeal process too finely in leaving final contact with the Department until four days before due date.
Conclusions
·Delay in Post
The oral evidence of both Mrs Lipson and Mr Bein suggests that the length of time between the date of valuation notice (22 June 2000) and the date of receipt (3 July 2000) does not amount to an inordinate delay in the post for delivery to Airlie Beach. Two weekends are included in this period. Accordingly, this delay does not constitute a reasonable excuse.
· Delay in Inquiry by Mrs Lipson
While not desirable to leave matters so late to meet a specified due date, such delay is not fatal to the appellant's case. If the required forms had been faxed when requested or even a slightly later date, Mrs Lipson would still have been able to have her appeal lodged within time.
· Non-response by Department of Natural Resources, Mackay
If Mrs Lipson's evidence is accepted on this matter (which I do, on the balance of probabilities), my view is that such would constitute a reasonable excuse. Mrs Lipson states that she made diary notes at the time (although not produced in evidence) which were subsequently used to compile her statement for Court.
Procedural Suggestion
Details of the overall valuation process and appeal system are explained in a guide sent out with each property valuation. However, perhaps the notice of objection form could provide more details of possible subsequent appeal to the Land Court. This could state contact details for the Land Court and where the prescribed form could be obtained. It would not seem necessary or even desirable to enclose an appeal form at this stage.
Having made this suggestion, I should add that I am advised by the Land Court Registrar that little difficulty has been accounted in the past with the existing system.
Decision
Having considered the tests outlined in these authorities and the facts of those cases, I conclude that a reasonable excuse has been established in the circumstances of the present case. Accordingly, I find the Court has jurisdiction to hear the subject appeal.
BR O'CONNOR JUDICIAL REGISTRAR OF THE LAND COURT
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