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Gontil Pty Ltd v Department of Natural Resources, Mines and Energy[2021] QCAT 208

Gontil Pty Ltd v Department of Natural Resources, Mines and Energy[2021] QCAT 208

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gontil Pty Ltd v Department of Natural Resources, Mines and Energy [2021] QCAT 208

PARTIES:

gontil pty ltd

(applicant)

v

department of natural resources, mines and energy

(respondent)

APPLICATION NO/S:

GAR210-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 June 2021

HEARING DATE:

9 April 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

  1. The decision of the delegate of the Valuer General dated 2 June 2020 is  confirmed.
  2. The application for review filed by the applicant on 17 June 2020 is dismissed.
  3. If any party seeks an order for costs, that party file and serve on each other party submissions in writing outlining the order sought and why it should be made within twenty-one days from  the date of this decision.
  4. If any party does file and serve such submissions, any party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.
  5. The party seeking an order for costs may file and serve submissions in reply in fourteen days from service of the submissions in response.
  6. If submissions seeking costs are filed, the Tribunal will decide the question of costs on the papers on a date after all submissions have been filed

CATCHWORDS:

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – OTHER MATTERS – objections to valuation – late objection – meaning of physical incapacity

Land Valuation Act 2010 (Qld) s 72, s 79, s 105, s 109, s 111, s 112, s 113

NAKX v Minister for Immigration [2003] FCA 1559

Body Corporate for Parkland CTS v Chief Executive, Department of Natural Resources and Water [2009] QLC 65.

50 Long Proprietary Limited ta TTE & Anor v Valuer General [2017] QLC 50.

Ho v Powell (2001) 51 NSWLR 572

APPEARANCES &

REPRESENTATION:

 

Applicant:

M Hickey, Counsel

M  Copeley, Solicitor

Respondent:

G Del Villar, Counsel

P Prasad,  Solicitor

REASONS FOR DECISION

Issues

First Question - Threshold Question

  1. [1]
    Whether the Tribunal is satisfied under section 111(3)(a) of the Land Valuation Act 2010 (Qld) (the LVA):
    1. (a)
      a physical incapacity was what caused Mr Coco to be unable to file his objection within the usual period;
    2. (b)
      If the tribunal is not satisfied of the matter of Question 1(i), whether it should confirm the review decision.

Second question

  1. [2]
    If the tribunal is  satisfied that the threshold is met then the second question is the interpretation of section 111 of the  LVA concerning  issues of delay and the discretion of the decision maker.
  2. [3]
    Both counsels submitted and framed their arguments on the premise that if the applicant did not meet the threshold referred to in question 1 then question 2  was not to be considered. Question 2 would only be considered if the applicant satisfied me that they did meet the threshold of Mr Coco’s  physical incapacity having been the cause of the applicant  being unable to file their  objection within the usual period. The applicant’s representative, Mr Hickey, submitted: “no, your honour’s – member, you’re quite right about that, if you – if you’re satisfied then you would need to deal with the alternative argument, but if you’re not satisfied under 111(3) then that’s the end of it.”[1] 
  3. [4]
    The respondent’s representative, Mr Del Villar QC, submitted that if the tribunal was not satisfied of the matters in section 111(3)(a) of the LVA[2] then there would be no need to determine whether there is really a discretion.
  4. [5]
    After consideration of the parties’ submissions and the issues raised, I accept that I must first be satisfied of the threshold question before moving to the second question. If the first threshold question is not satisfied, then consideration of the second question is redundant.
  5. [6]
    I have included in these reasons some of the major points of the arguments relating to the second question for completeness and transparency.

Decision being reviewed

  1. [7]
    This matter involved the review of a decision of the respondent.  This decision concerned the applicant’s attempt to file a late objection to the respondent’s Notice of Valuation for a property (the property) owned by the applicant.

Timeline

  1. (a)
    On 9 April 2020, the respondent issued a notice to the applicant in relation to the Late Objection. The respondent had refused to accept the applicant’s late objection;
  2. (b)
    On 6 May 2020, the Applicant lodged an application for internal review of  the        decision of 9 April 2020;
  3. (c)
    On 2 June 2020, the respondent issued an internal review decision which confirmed the original decision. It is this second decision that is the decision that is the subject of the review application.

Facts

  1. [8]
    The applicant is the owner of land located to the north of Brisbane. The applicant company’s sole director is Salvatore Coco.
  2. [9]
    On 6 March 2019, the respondent issued an annual valuation for the purposes of the LVA in respect of the site value of the property on 6 March 2019. According to the LVA the due date for an objection was 7 May 2019.
  3. [10]
    The Applicant did not lodge an objection to the valuation by the due date. No objection was lodged until February 2020.
  4. [11]
    The applicant claims that Mr Coco, the sole director, was physically incapacitated, by reason of serious ill-health, prior to 6 March 2019 and remained unwell until after 7 May 2019. The applicant submits  that Mr Coco was hospitalised on four occasions between 14 January 2019 and  24 March 2019. The applicant submits Mr Coco's ill-health caused the applicant to be unable to lodge an objection to the valuation by the due date.
  5. [12]
    The respondent submits that around 19 February 2019, Mr Coco contacted (via telephone) a Senior Valuer in the State Valuation Service. The person contacted was  Mr Conallin. In this call Mr Coco inquired about an interim valuation that had been issued for the property on 21 November 2018.3 Mr Conallin emailed Mr Coco with information about the interim valuation on 19       February 2019.4 Mr Coco’s and Mr Conallin’s telephone call occurred in the period between two of Mr Coco’s admissions to hospital (dates - 12 February 2019 and 25 February 2019). Also submitted by the respondent was that by 7 May 2019 (due date for an objection), the Applicant had been discharged from hospital since 4 April 2019.

Submissions on issues to be decided

Written submission and oral submissions – applicant

Legislation

  1. [13]
    The applicant commenced submissions by reference to section 72 of the LVA which requires the Valuer-General to undertake annual valuations of property. The process for that is provided for in chapter 2, part 4 of the Act. Under section 79 of the LVA the Valuer-General must give a notice to the landowner of the annual valuation having been undertaken. Section 105 of the LVA provides that the landowner has a right to object to the annual valuation. Pursuant to section 108 of the LVA an objection can only be made under part 1 of chapter 3. That is the relevant power for the Tribunal’s consideration.[3] Section 109 of the LVA provides that the usual objection period is within 60 days after the day of issue of the annual valuation and it can only be made within that period if the objection itself is properly made.[4]

Mr Coco’s statutory declaration

  1. [14]
    Mr Coco is the sole director and secretary of the applicant, which is the property owner. His affidavit included what was referred to as background relating to an underlying health condition diagnosed in 2008. In paragraph 3 of his affidavit he states that he had been hospitalised more than once in 2019. The dates were that he was admitted on 14 January 2019 and was discharged on  24 January 2019, then again admitted on 12  February 2019, and discharged 13 February 2019, admitted on 25 February 2019, and discharged on 1 March 2019, and admitted 28 March 2019 and discharged 4 April 2019. Paragraph 4 of his affidavit described that, at least in March, he had complications relating to poor kidney function, caused by blocked ureters, and he underwent two separate surgical procedures while an inpatient. The dates for these operations were not specified.
  2. [15]
    It was submitted that the information in the affidavit was critical to whether the applicant satisfied me that they (via their director)  met the criteria referred to in section 111 (3)(a) of the LVA. Mr Coco deposed in his affidavit that he was released from hospital on 4 April 2019 and that he remained unwell until 29 June 2019. It was submitted that this evidence goes to Mr Coco's physical incapacity, also that  Mr Coco is not a doctor and that in his affidavit he sought to explain the reason he was unable to comply with the need to file a timely objection. This reason was his alleged physical incapacity. It was the applicant’s submission that it was sufficient for the purposes of the tribunal’s decision that he had detailed the background to his condition, set out the dates of the repeated hospitalisation from January to April 2019, including one of the conditions that gave rise to his hospitalisation, and the fact that he remained ill or as put in his affidavit “unwell” until 29 June 2019. It was submitted that this was  the evidence  of Mr Coco’s  of his physical incapacity.[5]
  3. [16]
    The applicant submitted that the respondent was suggesting that the information provided by Mr Coco in his affidavit was insufficient. The applicant submitted that Mr Coco had not been called to be cross examined by the respondent and the respondent had not supplied any expert reports to counter Mr Coco’s statement that he had been unwell. It was submitted that the only evidence of a medical nature was the affidavit of Mr Coco and as such the tribunal must be satisfied the applicant ,via  Mr Coco, lacked capacity to file the objection due to his physical incapacity.
  4. [17]
    The applicant submitted the following: 

So what the Member is left with is a body of evidence from Mr Coco himself, which is unchallenged, about his physical incapacity, and no alternative evidence to militate against that evidence. And so the only basis upon which the Member could properly, with respect, decide against Mr – the applicant on the basis of not being satisfied of physical incapacity is because the Member concludes that that explanation is in some way, itself, unsatisfactory. But in the absence of any other evidence from the respondent, there really isn’t any basis to not accept his evidence that he remained unwell until June 2019.[6]

Now, what one sees in section 111 of the Act is a broad discretion – or rather – but – I withdraw that – is a level of – is a precondition to the enlivenment of the decision to extend time and to accept the application. That is to say, the decision maker needs merely to be satisfied. Now, the cases are quite clear about that this – that that’s a relatively low bar. There needs to be some evidence upon which a decision maker could reasonably be satisfied. It’s not – it’s not that they need to be objectively satisfied, and that seems to be what’s urged upon the applicant by the other side. It seems to be the intrusion of a question about what a reasonable person might have done by way of managing the company during the period of Mr Coco’s indisposition. With respect, those are irrelevant considerations.

What – what needs merely to be – the issue for the Member to be satisfied about is whether or not the objection was not made within the usual objection period before of (sic) the owner’s physical incapacity. That’s the case – the applicant’s case put simply, Member. That’s the evidence that’s relevant to that particular question. And unless there’s anything in particular that I can assist with, there really isn’t anything more I can say.[7]

Second Question

  1. [18]
    The applicant’s submissions relating to this question were that the LVA may extend the  time for making objections to one  year after the initial 60-day period available to a landowner to lodge an objection. It was submitted that it was uncontroversial that the objection was made in the prescribed time for a late objection to be made which is before the one-year anniversary after the initial 60-day period. Further it was agreed between the parties that the objection had been properly made. It was submitted that the section did not provide any discretion to refuse the objections if I was satisfied that the reason that  the applicant in this case relies upon existed. I was  urged to accept that the correct interpretation of the legislation is that there is an express discretion granted to the Valuer General. It was submitted that it followed that as I am  standing in the shoes of the Valuer General in this review, I must allow the objection if I am satisfied of some of the circumstances in section 111 of the LVA. There is no discretion for the decision maker to reject late applications for other reasons than those in the legislation. It was submitted that the other reasons suggested by the respondent are not  part of the correct interpretation of the legislation and it was irrelevant to consider the respondent’s points i.e. that the decision maker should consider the conduct of the applicant  after the period for the making of a late objection  had commenced. It was submitted that there was no reason to interpret the legislation to mean that anyone who was making a late objection had to act reasonably and promptly and that in itself is a discretionary basis for the Valuer-General to refuse the application. That is simply not in the  language of the legislation. In summary, it was the position of the applicant that the only real matter the tribunal would need to satisfy itself about would be Mr Coco’s capacity at the relevant time. [8]

Respondent’s submissions

  1. [19]
    The following submissions were filed by the respondent in the Tribunal on 1 April 2021 and oral submissions were also made at the hearing on 9 April 2021.
  2. [20]
    The proceeding raises two broad issues:
    1. (a)
      whether the Tribunal should be satisfied that the failure to make an objection before the Due Date was caused by the physical incapacity of  Mr Coco; and
    2. (b)
      whether section111 of the LVA, on its proper construction, requires the acceptance of the Late Objection despite the Applicant providing no satisfactory explanation for his tardiness in making it.[9]

Dates

  1. [21]
    The date by which an objection to the Valuation was to be made by the Applicant was 7 May 2019 (Due Date).
  2. [22]
    The Applicant (through its solicitors, Colin Biggers & Paisley Lawyers) lodged an objection to the Valuation pursuant to section 111 of the LVA on 14 February 2020 (Late Objection), approximately nine months after the Due Date.
  3. [23]
    The Applicant's late objection was lodged prior to the one year anniversary of the start date of the usual objection period for the Valuation (i.e. prior to 6 March 2020); it was lodged almost seven months after Mr Coco claims to have instructed his agent, Mr Stoyakovich, to take steps to lodge an objection (on 22 July 2019); and was accepted by the Respondent as properly made for the purposes of the LVA.[10]

Applicant’s health

  1. [24]
    The respondent submitted that the applicant claims to have been hospitalised on four occasions between 14 January 2019 and 28 March 2019; and after each occasion, to have been discharged from hospital.
  2. [25]
    Evidence before the tribunal in the form of an affidavit from Mr Conallin stated that on or shortly before 19 February 2019, Mr Coco contacted him to inquire about an interim valuation that had been issued for the property on 21 November 2018.[11]
  3. [26]
    Mr Conallin followed up this conversation by emailing Mr Coco with information about the interim valuation. The communications between the applicant and Mr Conallin occurred in the period between two of the applicant’s admissions to hospital, these being on 12 February 2019 and 25 February 2019. By the Due Date, the applicant had been discharged from hospital since 4 April 2019.[12]

Respondent’s Oral submissions at hearing

  1. [27]
    The respondent’s counsel submitted that the key provision in this case was section 111. For context the definition of “properly made” (see s 112 and s 113 LVA) was discussed. However, it was noted that the respondent accepted that the applicant’s late objection was properly made so this was not in issue in these proceedings. The point made in relation to  a submission relating to section 112 of the LVA was that section112 contemplates in subsection (1)(c) that an objection can be signed by the agent or representative of the objector.[13] This information  went to the tribunal’s  consideration of whether  Mr Coco was incapacitated. The respondent pointed out that the applicant did not have to physically through Mr Coco submit the application but could rely upon an agent or representative of themselves to do so for them. It was the respondent’s argument that being incapacitated within the meaning of the legislation  possibly  meant that Mr Coco would have to have been unable to speak to or instruct any representative or agent due to his physical incapacity and that there was simply no evidence that this had been the case. Mr Conallin's conversation with Mr Coco was given as an example of how he was able to communicate with a person in between hospital visits.

Question 1 -Threshold Question

  1. [28]
    The respondent submitted the following:

The real issue in the respondent’s submission is that Mr Coco fails to demonstrate that he – or fails to satisfy the tribunal and the tribunal should not be satisfied that he was physically incapacitated and that physical incapacity was the reason for his lodging an objection after the 7th of May 2019.[14]

Onus

  1. [29]
    Further it was submitted that the onus of satisfying the Valuer-General, and in this case the tribunal, lies on the person who is making the objection, relevantly the applicant here.[15]
  2. [30]
    Secondly,  in section 111(3) (a) of the LVA:

S111(3) [of] the LVA provided that the Valuer-General must accept the objection [if] it [was] satisfied that it was not made due to a mental or physical incapacity.

  1. [31]
    The respondent submitted the following:

Now, this, in my submission, sets a high threshold. The decision maker must be satisfied that the objection was not made within this – the usual objection period because of mental or physical incapacity. The ordinary and natural meaning of incapacity is that it’s inability or a lack of power. Can I just give the tribunal a couple of references to make that point? For instance, the shorter Oxford English Dictionary defines incapacity as: A want of capacity, inability, powerlessness, or incompetence. Similar definitions are found in the Macquarie Dictionary which talks about a lack of capacity. [16]

Meaning of incapacity

  1. [32]
    It was submitted that use of the word incapacity in section 111 (3) (a)  indicated that it was not sufficient for the owner of the property wishing to lodge an objection to have some mental or physical condition that made it more difficult or posed some issues to lodging. It was respondent’s submission that the condition must have made the applicant unable to lodge the objection within the usual time. This was described as a high bar.[17]
  2. [33]
    In terms of interpreting the section it was submitted that the tribunal should give the words their ordinary and natural meaning. This was said to include that if read as a whole with the rest of section 111 and in particular paragraphs (b) and (c) then the ordinary meaning of these words meant that it should be accepted that the grounds intended to be available for  late objections to be accepted should be narrow, hence extreme circumstance and extraordinary emergency.[18]
  3. [34]
    It was submitted that Mr Coco’s evidence fell well short of demonstrating or satisfying the tribunal that he had a physical incapacity that caused him to be unable to lodge, or cause to be lodged, the objection within the usual objection period.[19]

Specific points concerning Mr Coco’s evidence

  1. [35]
    It was submitted that Mr Coco’s background information about his 2008 diagnosis was irrelevant to the current circumstances. It was pointed out Mr Coco did not claim that what occurred in 2008 deprived him of the ability to lodge the objection before 7 May 2019.[20] Further Mr Coco explains in paragraph 4 one of the causes for the hospitalisations. He does not depose what the causes of the other hospitalisations were:

He doesn’t say what medical advice he had with regard to how long he was meant to stay at home or what he could do at home after he was discharged from hospital. And my learned friend attempts to overcome these problems by saying, well, Mr Coco is not a doctor and he hasn’t been cross-examined and there is no alternative evidence, really fails to come to grips with the fact that the onus is on Mr Coco to demonstrate or to satisfy the tribunal of physical incapacity that prevented the lodging of an objection within the unusual (sic) period. It’s not enough for Mr Coco to say, well, I’m not a doctor. I went into hospital and I was unwell after that.[21]

  1. [36]
    The respondent submitted that Mr Coco’s claim that after being discharged from hospital on  4 April 2019 he remained unwell until June is utterly vague and unparticularised. He simply does not establish that he was unable to provide instructions to an agent to lodge an objection in the usual objection period. He doesn’t even say that expressly.[22] The tribunal simply should not be satisfied that physical incapacity, if there was any after 4 April 2019, prevented the making of an objection within the usual objection period. [23]
  2. [37]
    The respondent referred the tribunal to the case of NAKX v Minister for Immigration.[24] The respondent referred to the submission by the applicant that there was no alternative medical evidence. It was submitted that the applicant’s submission was incorrect and should not be accepted because it failed to grapple with the fact that the onus was on the applicant to demonstrate or to satisfy the tribunal of that physical incapacity that prevented Mr Coco from lodging the objection within time. Stating that Mr Coco was not required for cross-examination  and there is no alternative evidence, really fails to come to grips with the fact that the onus is on Mr Coco to demonstrate or to satisfy the tribunal of physical incapacity that prevented the lodging of an objection within time.
  3. [38]
    The case of NAKX involved a situation where a medical certificate had been issued and that medical certificate  relied upon to try to adjourn participation in a court proceeding; in that case the court wanted to see the medical certificate to actually focus on the condition and to explain why it would prevent the appellant from participating in a court hearing. It was submitted that by  analogy, in the present case the evidence should demonstrate why Mr Coco’s condition made it impossible for the objection to be lodged or at least caused to be lodged within the time required. It was submitted that the affidavit of Mr Coco  did not do this.
  4. [39]
    The respondent’s submission was Mr Coco was in a far better position than the respondent to put on medical evidence. The applicant was best placed to obtain the evidence about Mr Coco’s incapacity or otherwise.  The onus of proving the matters in section 111(3)(a) lies on the applicant. ‘He did not discharge [it] by saying, well, we have put on this material by a layperson who talks about how unwell he was and therefore – and there is no other medical expert opinion obtained by the respondent, therefore that is sufficient.’[25]  Mr Coco’s claims that he remained unwell until June 2019 were described as vague.

Mr Conallin’s affidavit

  1. [40]
    Mr Conallin provided an affidavit on 21 October 2020. Paragraphs six to eight were described as especially relevant. It was submitted that the affidavit provided proof that as at 19 February 2019 Mr Coco was able to communicate with a senior valuer about the interim valuation of the property. The significance of this was that no inference could be drawn from the fact that because Mr Coco had been in hospital and then discharged that such events had left him incapable of communicating or dealing with matters that are the subject of the objection.
  2. [41]
    The second point supported by Mr Conallin’s affidavit was that while Mr Coco’s affidavit included evidence that it was not until he received a rates notice in July 2019 that he realised that his property had been revalued, Mr Coco deposed that said he did not recall getting a valuation on 1 October 2018. It was submitted that it was impossible for Mr Coco to have not realised that the property had been revalued at an earlier point of time than July 2019. He had had a conversation with Mr Conallin on 19  February 2019 about  this very  topic. It was submitted that this was relevant to the issue of whether he had an inability  to start the objection process.[26]
  3. [42]
    The respondent referred the tribunal to the case of Ho v Powell [27] where Justice of Appeal Hodgson stated that a party who has the onus of proof, has better capacity to lead evidence about a particular matter and the extent to which it has put on such evidence is going to be important in determining whether or not it’s discharged the onus. It was submitted that Mr Coco had simply failed to discharge the onus. In addition to the vagueness of the medical evidence and the fact there is, in fact, no medical evidence from a doctor about what his condition was after he had been discharged, there is no evidence about a power of attorney being used or anything of the sort to suggest that he was physically incapacitated. In fact, one of the unaddressed aspects of Mr Coco’s evidence is the fact that it would seem, at least on the view propounded by the applicant, that he was physically incapacitated for a period of some two months. But absolutely nothing seems to have been done about the management of the company, or what was done about the management of the applicant in the meantime is completely unclear.[28]
  4. [43]
    The respondent submitted that the tribunal’s task is to have a fresh hearing on the merits: see section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Second Question

  1. [44]
    The respondent characterised the second question as the construction of section 111 of the Act in greater detail. As with the applicant’s submissions the respondent agreed that the second question was simply an alternative argument; it was again submitted that if the tribunal were to find in accordance with the earlier submissions of the respondent that section 111(3)(a) has not been satisfied, then there is no occasion to consider the construction of section 111 in any further detail.
  2. [45]
    I should only consider the second question if the applicant had  satisfied me that it was unable to lodge an objection on time due to a physical incapacity of  Mr Coco (section 111(3)(a) of the LVA). If the  I was so satisfied it was  the respondent  submitted that I should not adopt the construction that was put forward by the applicant.  The respondent relied upon their written submissions and indicated they were not going to rehearse those issues at the hearing.

Summary of Second Question submission from the Respondent

  1. [46]
    The applicant’s construction overlooks the principle that a court can depart from the literal words of a statute if the consequences of a literal meaning are unlikely to be intended (e.g. see paragraph 30 of the respondent’s written submission). The applicant’s construction would mean that a person would have basically one year after the usual objection period had ended in order to lodge a late objection The respondent also submitted that I should not accept the applicant’s construction that it would be irrelevant to the situation whether or not an objection could have been lodged, say, two weeks after the end of the usual objection period. The respondent submitted that  there was no explanation, for why it is that that kind of consequence was intended by parliament.[29]
  2. [47]
    To construe section 111 (3) as conferring a discretion or at least the ability to take into account the reason for the lateness accords with one of the purposes for which the provision was enacted, which is to permit the Valuer-General to accept a late objection if satisfied that there is a satisfactory reason. The respondent submitted that a satisfactory reason, otherwise, is a matter to be determined by the Valuer-General, having regard to the sorts of circumstances with which subsection (3) is concerned. [30]
  3. [48]
    It was submitted by the respondent that section 111(3)(a) imposes a reasonableness requirement. This section requires the tribunal to be satisfied of the matters in (section 111) (3)(a), (b) and (c) for instance, and it is therefore difficult to avoid having to make some determination as to whether or not there is a mental or physical incapacity and whether or not it prevented making an objection within the usual objection period. Therefore, that cannot be a reason for saying Parliament would not  have intended that. Secondly, and in relation to that point, section 111 (3) (d) already contains an element of discretion in it. [31]
  4. [49]
    It was the view of the respondent that the extrinsic materials do not provide very much information on the construction of section 111 of the LVA. It was submitted that they do not support the applicant’s construction, which would permit landowners to lodge late objections without any good reason if they can establish one of the matters in section 111 (3) of the LVA. It was submitted that the respondent’s construction is to be preferred. The respondent referred to the relevant parts of the explanatory notes to the Land Valuation Bill (clause 111)  and drew an analogy in the provisions relating to appeals in the Land Court
  5. [50]
    Submissions were made in relation to section 158 of the LVA.  Although section 158(2) of the LVA is framed differently from section 111(3) (3), both allow a decision-maker to relax the statutory prohibition on the late lodging or filing of documents in the context of identical timeframes.  Moreover, section 158(2)(b) has similarities to section 111(3)(d) which talks about a  satisfactory explanation. It was submitted that there is an analogy between sections 111 and 158 and because there is an analogy, it’s significant that in deciding whether there is a reasonable excuse for not filing a notice within the appeal period, the Land Court does not confine its attention simply to the period of the 60 days. [32]
  6. [51]
    In other words, the Land Court has regard, in deciding whether there’s a reasonable excuse, to the length of the total delay. The tribunal was referred to the authority of Body Corporate for Parkland CTS v Chief Executive, Department of Natural Resources and Water.[33] In this case there was a notice of appeal that was six months late and the Land Court had regard to the total length of the delay in determining whether or not there was a reasonable excuse. A similar decision on this point was 50 Long Proprietary Limited ta TTE & Anor v Valuer General.[34] It was submitted that  , given that there is an analogy between sections 158(2) and 111(3) of the LVA, it would be somewhat strange if the Valuer-General’s considerations under section 111 (3) were radically more limited than those in subsection 158(2) and that no consideration at all could be given to the fact, as it were, of the reasonableness or the tardiness in lodging an objection.[35]
  7. [52]
    The respondent submitted that the tribunal should accept their construction of section 111 of the LVA as correct. This being the case the tribunal should dismiss the application for review, because even assuming that the objection was not lodged within the usual objection period because of Mr Coco’s physical incapacity, the delay in lodging the objection was considerable and much of it is not adequately explained.[36]

Extensive Delay

  1. [53]
    The objection was lodged on 14 February 2020. That was more than nine months after the end of the usual objection period. That was eight months or so after Mr Coco had ceased to be unwell in June 2019. That was seven months after Mr Coco instructed his agent, Mr Stojakovic, to take the steps to lodge an objection, and this occurred on or about 22 July 2019. It was almost five months after Mr Stojakovic first contacted the firm of Colin Biggers & Paisley Lawyers to obtain advice on 20 September 2019 and it was almost three months after Mr Lonergan of that firm first attached a draft statutory declaration for the consideration of Mr Coco and Mr Stojakovic.[37]

Consideration

First Question - Threshold Question

  1. [54]
    The central issue is whether I am satisfied under section 111(3)(a): (i) that it was a physical incapacity that caused Mr Coco (sole director of the applicant) to be unable to file the applicant’s objection within the usual period; and (ii) if I am not satisfied that this is the case then the applicant has not discharged that onus and on that basis I should confirm the review decision.
  2. [55]
    Section 111(3) sets out the grounds that the decision maker must be satisfied of before they can grant the lodgement of late objection. In this case only one ground is relevant: that of physical incapacity. I must turn my mind to what evidence I have that the applicant, through Mr Coco, was unable to lodge a timely objection to  a land valuation because of Mr Coco’s physical incapacity. The only evidence relating to physical incapacity is Mr Coco's one-page statutory declaration. In this declaration Mr Coco sets out a previous diagnosis from 2008, he sets out the dates of hospitalisation in 2019 and includes a statement that after he was discharged from hospital for the last time in April 2019, he was unwell until June of 2019.
  3. [56]
    Incapacity is given to it the ordinary and everyday meaning of a lack of capacity. It is common sense that a person may be unwell but have not lost their capacity to make decisions or instruct others to carry out tasks such as the  lodging of an objection on their behalf. Indeed, the tribunal was referred to section 113 of the LVA which allows for this very circumstance of instructing others to  lodge an objection on the landowner’s behalf. I accept that Mr Coco is not a doctor, however even for a lay person his statutory declaration provides a paucity of information about exactly what his physical incapacity was and what form it took. There was no evidence that he was so incapacitated that he could not speak or indicate in some other way his desires to have an objection lodged on the company's behalf.
  4. [57]
    The applicant submitted to me that the respondent should have provided medical information if they wish to challenge Mr Coco’s statement that he was unwell and their submission that this equated to a physical incapacity. I do not accept this proposition. I find that  it is the applicant  who needs to satisfy the decision maker that it was Mr Coco’s physical incapacity that prevented the applicant  from lodging the objection in a timely manner. Put simply the applicant  has not satisfied me that this is the case. I do not accept that it is for the respondent to somehow obtain medical evidence when Mr Coco himself, aside from his initial diagnosis in 2008 and the reason for some hospitalisation, only disclosed his medical situation in the most limited terms. I am unable to form an opinion on what  type of specialist should have been called or what information it was that the respondent should have been gathering. The fact that Mr Coco was not requested to be available for cross examination equally bears little weight to me.
  5. [58]
    This is a matter for me to be satisfied on the evidence provided by the applicant that Mr Coco was indeed physically incapacitated, and this is what prevented him from filing the applicant’s objection in a timely manner. The simply has not met the standard required to satisfy me. His evidence is too vague in his affidavit. He  does not specify what ‘unwell’ means.  Being unwell does not in its ordinary and everyday sense  convey a lack of capacity. What is meant by unwell was not clarified, there is no definition of that in the legislation nor was there any meaning attributed to it by the applicant.
  6. [59]
    The basis of the legislation and its interpretation and the underlying purpose of the LVA would indicate that the word incapacity means  a lack of capacity. The applicant  provided insufficient evidence to satisfy me that Mr Coco was incapacitated for the relevant lodgement period. He has not indicated he was unable to speak, unable to engage with others, unable to communicate his wishes in some way and  unable to think about these issues. I note that in between hospital visits in February 2019 Mr Coco was able to speak to Mr Conallin about the valuation of the land. I find that Mr Coco is either incorrect or confused about when he found out about the valuation notice. Based on his conversation with Mr Conallin alone it appears quite clear that he was aware of the valuation notice having been sent in 2018. If he was unaware of it why was he ringing a valuer about it?
  7. [60]
    I accept the respondent’s submissions that the applicant has failed to provide evidence to satisfy the provisions of section 111 (3)(a) of the LVA. I am not satisfied that Mr Coco's affidavit including a 2008 diagnosis, the details of his hospitalisations between January and April 2019 and his self-described feeling unwell until June 2019 amounts to evidence that satisfies me that he was physically incapacitated and therefore unable to lodge the applicant’s  objection within the usual time. He provided no evidence about whether he was able to speak,  give instructions or whether he was in a coma etc. The term unwell does not equate with the term incapacity. The applicant does not explain how Mr Coco was so incapacitated that he was unable to lodge this objection by the due date. I find that I am not satisfied that being physically incapacitated  was the reason the applicant was  unable to lodge his objection during the relevant time.
  8. [61]
    I do not accept the applicant’s submission that it was up to the respondent to provide expert evidence in relation to Mr Coco’s capacity or otherwise. It is the applicant who relies upon Mr Coco’s physical incapacity as the reason he was  prevented from lodging  the objection within time.  I find that Mr Coco’s  evidence about his feeling unwell and his hospitalisation do not clearly provide the standard of evidence that is required for the tribunal to be satisfied of the requirements of s 111(3)(a) of the LVA. I accept the respondent’s submissions that it is the applicant who is best placed to bring forward this type of evidence and in this case the applicant has failed to do so.
  9. [62]
    I therefore find that the application filed by the applicant on 17 June 2020 is dismissed and the internal review decision of a delegate of the Valuer General, dated 2 June 2020 is confirmed.

Second question

  1. [63]
    I am not satisfied that the threshold is met. Therefore, what is the consequence of this finding for the second question (the interpretation of section 111 on the issue of delay and discretion)?
  2. [64]
    As a result of my finding in relation to question one, the threshold question, I will not provide an answer for the second question. It was submitted and agreed by both parties that if I am not satisfied that Mr Coco was unable to lodge the applicant’s  objection within the usual time limit of 60 days due to his having been incapacitated by physical illness then the second question is not to be considered.
  3. [65]
    Both parties’ submissions were made to the tribunal on the basis that question two would not need to be decided and not be considered if I had not been satisfied that  the applicant, via Mr Coco, met the requirements of s 111(3)(a). I have not been satisfied that it was a physical incapacity that caused him to be unable to lodge the applicant’s objection within the time provided by the legislation. Given that this was clearly the basis the parties conducted the case on and the arguments regarding the second question were couched as alternative arguments only, I find that  it is appropriate for me to only answer question 1.
  4. [66]
    My reasons for this decision included that as I am not satisfied of a physical incapacity under question one then the relevant question has been answered. The central question to be answered may be paraphrased as: should the late objection be accepted? My answer to this is no. I say no because the applicant, through Mr Coco, was not prevented from filing their objection due to physical incapacity (see section 111 (3)(a) of the LVA).
  5. [67]
    I consider that it would be a breach of procedural fairness for me to now make a finding on the second question when it had been clearly expressed at the hearing that this would not occur if the tribunal had not been satisfied that the applicant’s failure to file an objection in time was due to physical incapacity. There is simply insufficient evidence  available  to satisfy me of this. The evidence before me, Mr Coco’s affidavit, simply does not provide me with that evidence.
  6. [68]
    Considering my decision regarding question one of this matter I find question two to be redundant in the circumstances and I make no decision in relation to it.

Orders

  1. The decision of the delegate of the Valuer General dated 2 June 2020 is  confirmed.
  2. The application for review filed by the applicant on 17 June 2020 is dismissed.
  3. If any party seeks an order for costs, that party file and serve on each other party submissions in writing outlining the order sought and why it should be made within twenty-one days from  the date of this decision.
  4. If any party does file and serve such submissions, any party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.
  5. The party seeking an order for costs may file and serve submissions in reply in fourteen days from service of the submissions in response.
  6. If submissions seeking costs are filed, the Tribunal will decide the question of costs on the papers on a date after all submissions have been filed

Footnotes

[1]Transcript of hearing dated 9 April 2021 page 44 lines 35 to 40.

[2]Transcript of hearing dated 9 April 2021 page 44 lines 10 to 15.

[3]Transcript of hearing dated 9 April 2021 page 7 lines 1 to 9.

[4]Transcript of hearing dated 9 April 2021 page 7 lines 10 to 16.

[5]Transcript of hearing dated 9 April 2021 page 7 lines 10 to 16.

[6]Transcript page 27 lines 6 to 17.

[7]Transcript page 27 lines 18 to 30.

[8]Transcript page 8 lines 5 to 45 and page 9 lines 1 to 9.

[9]Respondent’s submissions dated 1 April 2021 page 4 para 18.

[10]Respondent’s submissions dated 1 April 2021 page2 para 6.

[11]Affidavit of Luke Conallin dated 21 October 2020 para 7.

[12]Respondent’s submissions dated 1 April 2021 page 2 paras 7 to 9.

[13]Transcript page 11 lines 38 to 47.

[14]Transcript page 12 lines 25 to 29.

[15]Transcript page 12 lines 36 to 38.

[16]Transcript pages 12 and 13 lines 41 to 47.

[17]Transcript page 13 lines 41 to 47.

[18]Transcript page 13 lines 41 to 47.

[19]Transcript page 13 lines 20 to 24.

[20]Transcript page 13 lines 30 to 35.

[21]Transcript page 13 lines 40 to 47.

[22]Transcript page 13 lines 30 to 47, page 14 lines 1 to 10.

[23]Transcript page 14 lines 19 to 21.

[24][2003] FCA 1559.

[25]Transcript page 16 lines 40 to 44, page lines 15 to 37.

[26]Transcript page 17 lines 14 to 37.

[27](2001) 51 NSWLR 572, [14] to [15].

[28]Transcript page 18 lines 4 to 32.

[29]Transcript page 19 lines 19 to 26.

[30]Transcript page 19 lines 28 to 35.

[31]Transcript page 19 lines 36 to 47 and page 20 lines 1 to 4.

[32]Transcript page 21 lines 29 to 37.

[33][2009] QLC 65.

[34][2017] QLC 50.

[35]Transcript page 22 lines 10 to 22.

[36]Transcript page 22 lines 34 to 39.

[37]Transcript page 22 lines 42 to 47, page 23 lines 1 to 4.

Close

Editorial Notes

  • Published Case Name:

    Gontil Pty Ltd v Department of Natural Resources, Mines and Energy

  • Shortened Case Name:

    Gontil Pty Ltd v Department of Natural Resources, Mines and Energy

  • MNC:

    [2021] QCAT 208

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    01 Jun 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
50 Long Pty Ltd v Valuer-General [2017] QLC 50
2 citations
Jump To
Cite 1 - [2017] QLC 50
Cite 2 - [2017] QLC 50
Body Corporate for Parklands CTS and Anor v Department of Natural Resources and Water [2009] QLC 65
2 citations
Jump To
Cite 1 - [2009] QLC 65
Cite 2 - [2009] QLC 65
Ho v Powell (2001) 51 NSWLR 572
2 citations
Jump To
Cite 1 - (2001) 51 NSWLR 572
Cite 2 - (2001) 51 NSWLR 572
NAKX v Minister for Immigration [2003] FCA 1559
2 citations
Jump To
Cite 1 - [2003] FCA 1559
Cite 2 - [2003] FCA 1559

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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