Boccabella v Valuer-General[2017] QLC 21

LAND COURT OF QUEENSLAND

1. [1]
   This application requires the Court to determine whether it has jurisdiction to hear an appeal lodged by Mr Lorenzo Boccabella (the applicant) pursuant to s 157 of the Land Valuation Act 2010 (the LVA) concerning a property situated at New Farm within the Brisbane City Council local government area.

Background

2. [2]
   On 31 August 2016 a Notice of Appeal was lodged by the applicant against a valuation by the respondent pursuant to s 158 of the LVA. On 1 September 2016 the Registrar of the Court wrote to the applicant advising that the period for filing the Notice of Appeal expired on 28 August 2016 and that the proposed appeal could only be heard if “reasonable excuse” was established as required by s 158 of the LVA. 

3. [3]
   On 22 February 2017 a Deputy Registrar of the Court wrote to the parties to advise them that a hearing to determine whether the Court had jurisdiction to hear the appeal was scheduled for 29 March 2017.

4. [4]
   Section 157 (2) of the LVA provides –

3. (2)
   Subject to section 158, an appeal cannot be started after 60 days after the day of issue stated in the objection decision notice (the appeal period).

5. [5]
   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.”

6. [6]
   Upon the hearing of this matter, Mr Boccabella, a barrister, appeared in his capacity as landowner, while the respondent was represented by Mr SP Fynes-Clinton, instructed by Legal Services, Department of Natural Resources and Mines (DNRM).

Evidence

7. [7]
   The evidence on behalf of the applicant is comprised of the contents of an email dated 29 March 2017 (Ex.1) from the applicant to Mr Ian Pepper, Lawyer, DNRM together with an attachment containing seven objection decision notices issued by the respondent to the applicant in respect of properties he owned.  Of the seven notices six were dated 29 June 2016 with the remaining notice being dated 3 July 2016. It is contended by the applicant that all notices arrived on the same date in one bundle with the relevant objection decision notice being the second document in the bundle.

8. [8]
   The relevant portion of Ex 1 is set out below:

“Attached is how the decisions on objection arrived. There is particular poignancy to this as the following year’s valuations all showed a decline (something I have never seen before). The error made in my office was that the date was taken from the top document not realising that all the other documents were dated earlier”.

9. [9]
   The material before the Court does not disclose the date upon which the objection decision notices are said to have been received or the date that the oversight or error is said to have occurred within the applicant’s office. Although Ex 1 was received by the Court without objection the means and basis of the applicant’s knowledge has not been detailed.

10. [10]
    Upon the hearing of this matter the respondent’s legal representative advised the Court that although no issue was taken with the facts outlined in Ex 1, it was the respondents position that relevant authorities would suggest that it was unlikely that the circumstances would be such to establish “reasonable excuse” as required by s 158 of the LVA.  

Applicant’s submissions

11. [11]
    A summary of the submissions by the applicant is set out as follows:

1. a)
   The interpretation of the statute in the context of what has occurred would establish reasonable excuse in respect of the two day delay.

1. b)
   This subsequent year’s valuations pursuant to the LVA are lower and therefore suggestive of a possible error in the valuation of the subject property. This factor could be taken into account and the valuation reviewed.

1. c)
   As far as the applicant can recall all of the valuations arrived in one bundle on the one date and this fact distinguishes the present circumstances from the authorities relied upon by the respondent.

Respondent’s submissions

12. [12]
    A summary of the contentions made on behalf of the respondent are summarised below:

1. a)
   A review of authorities including Gurney v The Valuer-General [2010] QLC 141 (Gurney) and Villa Sul Mare v Valuer-General [2011] QLC 77 (Villa Sul Mare) suggests that the applicants explanation may not meet the threshold.

1. b)
   The excuse must be substantial and be some cause that a reasonable person would regard as consistent with a reasonable standard of conduct.

1. c)
   The case of Villa Sul Mare isfactually similar in that it involved different dates being ascertained from different notices without ambiguity and in that case the Court was not prepared to accept that failing to recognize the difference in dates amounted to a reasonable excuse. Accordingly by analogy a failure to look at the dates on each decision notice would not be sufficient to establish a reasonable excuse in the present circumstances and a mere oversight is not sufficiently explanatory of the circumstances.

Conclusion

13. [13]
    I have considered the limited evidence before the Court in light of the submissions made by the parties.  The applicant correctly submits that the resolution of this application necessarily involves the interpretation of s 158 in the context of the evidence presented by him regarding the alleged oversight, apparently by his office staff concerning the relevant objection decision notice.
14. [14]
    As I understand it, the thrust of the applicants argument is that while the legal principles set out in the cases referred to on behalf of the respondent are not disputed, the application of those principles to the facts would result in a finding of reasonable excuse as to the best of the applicants recollection the objection decision notices “all arrived in the same envelope on the same day.”
15. [15]
    Notwithstanding the similarities between the Villa Sul Mare decision and the present circumstances, the Court must necessarily reach its own conclusions in determining if “reasonable excuse” is established by the applicant i.e. was the failure by the applicant’s administrative staff to turn over one page and examine the relevant objection decision notice a  factor of “substantial^[1]” character involving “some cause which a reasonable man would regard as a 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^[2]”.
16. [16]
    I have considered these two questions and have concluded that the failure to examine the relevant objection decision notice is neither a factor of substantial character nor the kind of thing “which might be expected to delay the taking of action by a reasonable man”^[3].  Such a pivotal document clearly required greater attention from not only the applicant’s staff but also from the applicant himself as owner and potential litigant. The evidence before the Court fails to establish any reasonable excuse in this case as required by s 158 of the LVA and accordingly the Court has no jurisdiction to hear and determine the appeal.

Order

1. The Court has no jurisdiction to hear and determine the appeal.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT