Mullan & Burrows Family Trust v Valuer-General
[2015] QLC 9
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- Unreported Judgment
- Mullan & Burrows Family Trust v Valuer-General[2015] QLC 9
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Mullan & Burrows Family Trust v Valuer-General[2015] QLC 9
Mullan & Burrows Family Trust v Valuer-General[2015] QLC 9
LAND COURT OF QUEENSLAND
CITATION: | Mullan & Burrows Family Trust v Valuer-General [2015] QLC 9 |
PARTIES: | Mullan & Burrows Family Trust (applicant) |
| v |
| Valuer-General (respondent) |
FILE NO: | LVA513-14 |
DIVISION: | General Division |
PROCEEDING: | Jurisdiction- appeal against annual valuation |
DELIVERED ON: | 11 August 2015 |
DELIVERED AT: | Brisbane |
HEARD ON: | 16 June 2015 |
HEARD AT: | Brisbane |
JUDICIAL REGISTRAR: | GJ Smith |
ORDER: | The Court has no jurisdiction to hear the appeal. |
CATCHWORDS: | Practice and Procedure – failed to appeal to Land Court in time – whether reasonable excuse Land Valuation Act 2010, ss 155, 158 A Boccabella & Ors v Department of Natural Resources and Water [2007] QLC 0061 Anthony v Chief Executive, Department of Natural Resources Unreported, 10 November 2000. Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1988) 12 QCLR 153 ISPT Pty Ltd v Valuer-General [2012] QLC 048 Quinlivan v Portland Harbour Trust [1963] VR 25 Parnell v Department of Natural Resources and Mines [2003] QLC 0084 |
APPEARANCES: | David Mullan, director of trustee company Mrs T.M.Johnson Senior Lawyer, In-house Legal, Department of Natural Resources and Mines |
Background
- [1]On 3 December 2014 the appellant’s Notice of Appeal against a valuation made by the respondent pursuant to the Land Valuation Act 2010 (LVA) was filed in the Land Court.
- [2]On 5 December 2014 the Registrar of the Land Court wrote to the appellant’s representative advising:
- (a)The estimate of value on the Notice of Appeal had not been stated.
- (b)The Notice of Appeal had not been signed.
- (c)That the period for filing of the Notice of Appeal expired on 14 September 2014 and that pursuant to s 158 LVA, the Land Court could hear the appeal only if satisfied that there was a reasonable excuse for not filing within the appeal period.
The appellant’s representative addressed (a) and (b) to the Registrar’s satisfaction, however (c) can only be resolved if the Court is satisfied that “reasonable excuse” is established on the evidence presented.
- [3]Relevantly s 158 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 -
- (a)the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and
- (b)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.”
- [4]It is therefore necessary to consider the circumstances surrounding the delayed filing of the Notice of Appeal in order to determine whether a reasonable excuse exists.
The appellant’s evidence
- [5]With the agreement of Mrs T.M. Johnson (respondent’s legal representative), Mr David Mullan provided an oral explanation to the Court without the need to give sworn evidence.
- [6]Mr Mullan summarized the circumstances surrounding the delayed lodgement of the Notice of Appeal as follows:
“ we were very busy … we moved premises … We moved to Heathwood … it got lost … stuck down the back of a pile … .and when we finally tidied up all the papers after moving we found it and lodged it …
- [7]The respondent’s legal representative advised the Court that while no issue was taken with the facts outlined by Mr Mullan it was the respondent’s contention that those facts did not amount to a reasonable excuse as required by the LVA.
- [8]It was common ground between the parties that the Notice of Appeal was lodged on 3 December 2014 and therefore approximately 12 weeks late.
The respondent’s evidence
- [9]The only evidence provided by the respondent was the respondent’s Notice of Decision on Objection dated 17 July 2014 addressed to Woodtop Pty Ltd as TTE. The document was tendered and marked exhibit “1” after having been referred to in the submissions made on behalf of the respondent.
Decided cases
- [10]The case of A Boccabella & Ors v Department of Natural Resources and Water[1] involved not dissimilar circumstances to those presently being considered. The facts in the Boccabella case involved a delay of one day by the executor of a deceased estate. Member Jones [as he then was] observed that:
“ … the filing system associated with the management of the estate properties was not always rigorously maintained. Relevantly, it would appear that the documents associated with all of these appeals were placed amongst other estate documents, such as general bills, tradesmen invoices and the like, which were then dealt with on a more ad hoc or informal way in contrast with those documents having more serious consequences …”
- [11]The following extract from the Boccabella judgment usefully sets out the case law and reasoning for the conclusion reached:
[7] It is of importance that provisions such as s.57 (1) of the Act are meant to be remedial and ameliorative in nature. In Director-General, Department of Transport v Congress Community Development and Education Unit Limited, the Land Appeal Court was concerned with a provision materially the same as that considered by the Court in Russell where, in circumstances described by Muir J as a combination of work pressure, inexperience and possibly bad luck, the appeal was not filed until the first working day after the due date. After reviewing a number of authorities, including Stevens, Muir J at 171 said: "In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself) or its agents, be blameless. The expressions under consideration are broad in meaning and quite apt to cover a 'slip' of the nature of that made by the employee of the Crown Solicitor. One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of s 44(11)(a)(b). cf Bull v Attorney-General (NSW) 1913 17 CLR 370."
[8] In my opinion the evidence leads to the conclusion that, notwithstanding the known importance of the subject documentation, it was treated in a way not at all consistent with that level of importance. In fact it appears that the actual filing date of these appeals was as much to do with accident as design. A slip had occurred in the handling of these appeals however, in my opinion, not the kind of slip envisaged by Muir J in the Congress Community case. To put it another way the cause of the delay was not consistent with a reasonable standard of conduct concerning the appeals.
- [12]Although the Valuation of Land Act 1944 has since been repealed, it is considered that the preceding extract is still an accurate statement of the law applicable when determining “reasonable excuse” in the context of s 158(2)(b) LVA. Relevantly, the reasoning in the case of Director-General, Department of Transport v Congress Community Development and Education Unit Limited[2] has subsequently been applied by this Court[3] when considering s 158(2)(b) LVA.
- [13]On the evidence presented regarding the circumstances in which the Notice of Appeal was lost and then some 3 months later found and lodged, I am unable to find that a reasonable excuse has been established. The length of the delay and the absence of some document management system or remedial action during the intervening period do not permit me to find that a “slip” occurred as contemplated by Muir J in the Congress Community case or that some “substantial” occurrence prevailed “which a reasonable man would regard as sufficient 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”.[4] Accordingly I am unable to find that the Court has jurisdiction to hear the appeal.
Appeal right by Mullan & Burrows Family Trust
- [14]An additional contention was made on behalf of the respondent to the effect that the appellant named in the Notice of Appeal had never lodged an objection as required by s 155 LVA and as a consequence had no right of appeal. Given that I have found the Court is without jurisdiction to hear the appeal I do not consider that this associated issue falls to be determined.
ORDERS:
The Court has no jurisdiction to hear the appeal.
GJ SMITH
JUDICIAL REGISTRAR