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M Buckley FT2 Pty Ltd as Trustee v Valuer-General[2016] QLC 2

M Buckley FT2 Pty Ltd as Trustee v Valuer-General[2016] QLC 2

LAND COURT OF QUEENSLAND

CITATION:

M Buckley FT2 Pty Ltd as Trustee v Valuer-General [2016] QLC 2

PARTIES:

M Buckley FT2 Pty Ltd as Trustee

(appellant)

 

v

 

Valuer-General

(respondent)

FILE NO:

LVA423-15

DIVISION:

General Division

PROCEEDING:

Jurisdiction - appeal against annual valuation

DELIVERED ON:

18 December 2015 (Orders)

21 January 2016 (Judgment)

DELIVERED AT:

Brisbane

HEARD ON:

10 December 2015

HEARD AT:

Brisbane

JUDICIAL REGISTRAR:

GJ Smith

ORDER:

The Court has jurisdiction to hear the appeal.

CATCHWORDS:

Practice and Procedure – failure to appeal to Land Court in time – whether reasonable excuse

Land Valuation Act 2010 ss 155, 158

AG Russell v The Crown (1992-93) 14 QLCR 202

Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 12 QLCR 153

Stevens v Motor Vehicle Insurance Trust (1978) WAR 232

APPEARANCES:

Mr Martin Buckley, director of the trustee company

Mr PS Prasad, Lawyer, In-house Legal DNRM

Background

  1. [1]
    On 1 September 2015 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, and on the same date the Registrar of the Land Court wrote to the appellant advising that the period for filing the Notice of Appeal expired on 31 August 2015 and that pursuant to s 158 of the LVA, the Land Court could hear the appeal only if satisfied that there was a reasonable excuse for not filing within the appeal period.
  2. [2]
    Relevantly, s 158 of the LVA provides –

158 - Late filing

  1. (1)
    This section applies if a valuation appeal notice is filed after the appeal period has ended.
  2. (2)
    The Land Court can hear the appeal only if -
  1. (a)
    the valuation appeal notice was filed 1 year or less after the objection decision notice was issued;  and
  1. (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.”

  1. [3]
    On 2 November 2015 correspondence was received from In-House Legal, Department of Natural Resources and Mines advising that “the respondent intends to offer no objection to the filing of the appeal”.  Further correspondence was received on 25 November 2015 advising “that the Valuer-General will not oppose the finding of jurisdiction in respect of this appeal”.  This correspondence also provided two case references for the Courts consideration.
  2. [4]
    It is necessary to consider the circumstances surrounding the delayed filing of the Notice of Appeal as s 158(2)(b) of the LVA provides that the Land Court can hear the appeal if “the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period”.
  3. [5]
    The hearing of this matter commenced on 10 December 2015 and was adjourned on a part heard basis to enable additional material to be provided to the Court on behalf of the appellant if necessary.  The hearing was listed to continue on 11 January 2016.
  4. [6]
    On 15 December 2015, Mr Martin Buckley, the director of the corporate trustee of the appellant provided the Court a medical certificate [Ex.1] dated 14 December 2015 in support of the appellant’s case.
  5. [7]
    On 18 December 2015 the following orders were made in respect of this appeal -
  1. The Court has jurisdiction to hear the appeal
  1. The adjourned hearing date of 11 January 2016 is hereby vacated.
  1. [8]
    These orders were made due to the pending Christmas closure on the basis that the judgment would not be handed down until early 2016.

The appellant’s evidence

  1. [9]
    Without objection from Mr PS Prasad (respondent’s legal representative), Mr Buckley provided an oral explanation to the Court on behalf of the appellant without the need to give sworn evidence. 
  2. [10]
    Mr Buckley, outlined to the Court the circumstances surrounding the delayed lodgement of the Notice of Appeal.  In short, Mr Buckley advised the Court that he had suffered several weeks of ill health which culminated on 31 August 2015 when he was admitted to hospital as a day patient for a related medical procedure.  The admission date also happened to be the final day upon which this appeal could have been lodged without having to demonstrate a “reasonable excuse”.
  3. [11]
    Mr Buckley confirmed that on this date he arrived at the hospital at approximately 8.00 a.m. and was released into the care of his spouse at approximately 3.00 p.m.  Mr Buckley further stated upon release he was not in any condition to lodge the appeal but was able to do so personally at the first opportunity the next day.  Documents from his general practitioner and the hospital generally confirm these circumstances.
  4. [12]
    It was common ground between the parties that the Notice of Appeal was lodged on 1 September 2015 and therefore one day late.

The respondent’s evidence

  1. [13]
    No evidence was provided to the Court on behalf of the respondent.

Conclusion

  1. [14]
    The appellant bears the onus of demonstrating that there was a “reasonable excuse”[1] for not filing the appeal notice within the appeal period.  Each case will necessarily depend of its own particular facts and circumstances. 
  2. [15]
    The nature of the appellant as a legal entity means that some person or agent will be required to carry out its day to day functions.  It is not in dispute that these responsibilities were carried out by Mr Buckley.  Therefore determining if a reasonable excuse is established will necessarily involve consideration of Mr Buckley’s circumstances during the period preceding the lodgement of the Notice of Appeal. 
  3. [16]
    The explanation provided by Mr Buckley is not disputed by the respondent and is corroborated by documents from both his general practitioner and the treating hospital.  His period of ill health was obviously not foreseeable and the related hospital attendance was not of a routine nature that could have been delayed or easily rescheduled. 
  4. [17]
    In my view the circumstances faced by Mr Buckley involved a “substantial”[2] matter and embodied “the kind of thing which might be expected to delay the ‘taking of action by a reasonable man’”[3].  Accordingly, in the circumstances where the Notice of Appeal has been lodged at the first available opportunity I am prepared to find that a reasonable excuse has been established on behalf of the appellant.

ORDER

  1. The Court has jurisdiction to hear the appeal.

G.J. Smith

JUDICIAL REGISTRAR

Footnotes

[1] Land Valuation Act 2010 s 158(2)(b)

[2] AG Russell v The Crown (1992-93) 14 QLCR 202

[3] Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 12 QLCR 153. See also Stevens v Motor Vehicle Insurance Trust (1978) WAR 232

Close

Editorial Notes

  • Published Case Name:

    M Buckley FT2 Pty Ltd as Trustee v Valuer-General

  • Shortened Case Name:

    M Buckley FT2 Pty Ltd as Trustee v Valuer-General

  • MNC:

    [2016] QLC 2

  • Court:

    QLC

  • Judge(s):

    GJ Smith

  • Date:

    21 Jan 2016

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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