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  • Unreported Judgment

Loughnan v Valuer-General

 

[2020] QLC 1

 

LAND COURT OF QUEENSLAND

 

CITATION:

Loughnan v Valuer-General [2020] QLC 1

PARTIES:

Scott Allen Loughnan

 

(appellant)

 

v

 

Valuer-General

(respondent)

FILE NO:

LVA694-19

DIVISION:

General Division

PROCEEDING:

Appeal against objection decision on a valuation under the Land Valuation Act 2010

DELIVERED ON:

Orders delivered 14 October 2019

Reasons published 14 January 2020

DELIVERED AT:

On the papers

HEARD ON:

On the papers

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith  

ORDERS:

  1. The Court has jurisdiction to hear and determine the appeal.
  1. The matter be adjourned to Roma for a Preliminary Conference on Thursday 17th October 2019 at a time to be advised.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING ROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the appellant lodged an appeal by fax, but the Court did not receive the fax – whether there was a reasonable excuse for the failure to lodge the appeal in time

Land Valuation Act 2010, s 155, s 157, s 158

AG Russell v The Crown (1992-93) QLCR 202, applied

ISPT Pty Ltd v Valuer General [2012] QLC 48, considered

APPEARANCES:

Not applicable

  1. [1]
    The Court in this proceeding is required to determine whether it has jurisdiction pursuant to s 157 of the Land Valuation Act 2010 (the LVA) to hear and determine a proposed appeal lodged by Scott Allen Loughnan (the appellant) against an annual valuation as at 1 October 2018 of land located at Mount Bindango within the Roma Regional Council local government area. 
  1. [2]
    An objection decision notice in respect of the subject property was issued by the respondent to the appellant on 16 January 2019.
  1. [3]
    The proposed Notice of Appeal was provided to the Court on 2 October 2019, some 198 days subsequent to the expiry of the appeal period. In the circumstances the Court will have jurisdiction to hear and determine the appeal only if a “reasonable excuse” as required by s 158 of the LVA is established.
  1. [4]
    On 2 October 2019, valuer Mr J. Moore (the appellant’s agent) forwarded an email[1] to the Land Court Registry to advise that the appellant had faxed his Notice of Appeal to the Land Court from the Roma Courthouse during the 60 days appeal period and had also emailed a copy of the Notice of Appeal to the State Valuation Service.  A copy of that notice was attached with the email forwarded by Mr Moore.
  1. [5]
    Subsequently on 8 October 2019, the appellant’s agent emailed a facsimile transmission sheet[2] generated by a facsimile machine at the Roma Courthouse on 12 March 2019 at 14:11.  Printed on this sheet are the words “Courts Roma” and also the then fax number for the Land Court registry.
  1. [6]
    On 9 October 2019 a statement[3] by Mr. Loughnan was provided to the Court detailing the circumstances surrounding his attempt to lodge the Notice of Appeal via facsimile from the Roma Courthouse. Although it is unnecessary to recite the statement in full, it is not in dispute that Mr. Loughnan attended the Roma Courthouse on 12 March 2019 and provided the Notice of Appeal to a member of staff who then helpfully proceeded to commence transmission of the Notice of Appeal by facsimile to the Land Court registry in Brisbane.
  1. [7]
    On 10 October 2019 the following additional documents were provided to the Land Court by the appellant’s agent:
  1. a copy of an email[4] dated 12 March 2019 enclosing the Notice of Appeal from Mr Loughnan to Ms. K O’Connor of the State Valuation Service, Toowoomba; and
  1. a copy of an email[5] dated 12 March 2019 from Ms. K O’Connor of the State Valuation Service confirming receipt of the Notice of Appeal.
  1. [8]
    On 14 October 2019 I received a letter[6] from Mr Darren Campbell, Principal Registrar of the Land Court, advising that a “thorough search of the Registry has been undertaken and the Land Court has no record of the abovementioned appeal ever being received by facsimile.”

Legislation

  1. [9]
    Section 157(2) of the LVA provides:

“(2) Subject to section 158, an appeal can not be started after 60 days after the day of issue stated in the objection decision notice (the appeal period).”

  1. [10]
    Section 158 of the LVA provides:

“158  Late filing

  1. This section applies if a valuation appeal notice is filed after the appeal period has ended.
  2. The Land Court can hear the appeal only if—
  1. the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and
  2. the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period.

Example of reasonable excuse—

The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post.”

Submissions

  1. [11]
    Other than detailing the relevant facts and circumstances, no formal contentions were filed by or on behalf of the appellant. No submissions were filed on behalf of the respondent, however a lawyer for the respondent advised the Court by email on 11 October 2019 that a finding that the Court had jurisdiction was not opposed.

Conclusion

  1. [12]
    Although the present application is not opposed by the respondent, this Court must still be satisfied on the balance of probabilities that there is a reasonable excuse for the appeal not having been lodged within the appeal period in order to establish jurisdiction.[7]
  1. [13]
    The nature of a reasonable excuse has been considered by this Court and the Land Appeal Court on a number of occasions. In AG Russell v The Crown the Land Appeal Court stated:

“Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation.”[8]

  1. [14]
    On the evidence before the Court I am satisfied that the appellant’s attempt to lodge the Notice of Appeal has been frustrated by some failure in transmission by the facsimile on 12 March 2019. On an objective view this failure is of a substantial nature, and the type of circumstance that would be likely to result in the Notice of Appeal not being lodged within the appeal period by a person acting reasonably. I am therefore satisfied that reasonable excuse is established and that the Court has jurisdiction to hear and determine the appeal.
  1. [15]
    For completeness, I should record that the question of jurisdiction was initially determined without formal reasons on 14 October 2019, so as to enable a Preliminary Conference to be scheduled in Roma later that week, should jurisdiction be found to lie. These reasons relate to the initial Orders made on 14 October 2019.

Orders

  1. The Court has jurisdiction to hear and determine the appeal.
  1. The matter be adjourned to Roma for a Preliminary Conference on Thursday 17th October 2019 at a time to be advised.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT

Footnotes

[1]  Ex 1.

[2]  Ex 2.

[3]  Ex 3.

[4]  Ex 4.

[5]  Ex 5.

[6]  Ex 6.

[7] ISPT Pty Ltd v Valuer General [2012] QLC 48 [5].

[8]          AG Russell v The Crown (1992-93) 14 QLCR 202, 204.

Close

Editorial Notes

  • Published Case Name:

    Loughnan v Valuer-General

  • Shortened Case Name:

    Loughnan v Valuer-General

  • MNC:

    [2020] QLC 1

  • Court:

    QLC

  • Judge(s):

    Smith

  • Date:

    14 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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