Simakovic v Valuer-General[2017] QLC 60

LAND COURT OF QUEENSLAND

Background

1. [1]
   In this matter the Court is required to determine if it has jurisdiction to hear an appeal lodged pursuant to s 157 of the Land Valuation Act 2010 (the LVA), in respect of land owned by Branislav Simakovic (the applicant) at Highgate Hill within the Brisbane City Council local government area.

2. [2]
   An objection decision notice in respect of the subject property was issued to the applicant by the respondent on 28 June 2017. On 28 August 2017 the applicant forwarded a letter to the Registrar of the Land Court advising that the valuation of the subject property had remained unaltered following an objection lodged with the respondent. The letter was received by the registry on 29 August 2017.

3. [3]
   On 20 September 2017 email correspondence was forwarded to the applicant by the Court registry advising that the period during which an appeal may have been lodged expired on Monday 28 August 2017 and that a Form 3 Notice of Appeal would need to be filed. The email also confirmed that a hearing would be required to determine if there was a “reasonable excuse” for the appeal notice not having been filed within the appeal period.

4. [4]
   On 26 September 2017 a Form 3 Notice of Appeal and four attachments were received by the Court via facsimile from the applicant.

Legislation

5. [5]
   In cases concerning late filing, s 157 and s 158 of the LVA are applicable. Relevantly s 157(2) of the LVA provides-

3. (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).

6. [6]
   The provisions of s 158 of the LVA are as follows:

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 -

10. (a)
    the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and

10. (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.

Evidence

7. [7]
   Upon the hearing of this matter Mr Simakovic’s written statement and attachments were admitted into evidence (Exhibit 1). No evidence was sought to be tendered on behalf of the respondent, although several cases were handed up by Ms Kot in support of her oral submissions.

8. [8]
   The matters raised by the applicant that might provide a “reasonable excuse” included illness; an inability during the appeal period to locate the Form 3 Notice of Appeal on the Land Court website; a misunderstanding concerning express post delivery times; and the absence of the Land Court’s street address from the details on the objection decision notice issued by the respondent.

Applicant’s submissions

9. [9]
   In the course of the hearing of this matter the applicant, by way of clarification, indicated that health difficulties did not impact him to such an extent so as to prevent him from being able to lodge the notice of appeal on or before 28 August 2017. The decisive reason^[1] the appeal notice wasn’t lodged was because the objection decision notice did not provide a specific street or email address for the Court in addition to the GPO Box and phone number that were provided. The applicant contended that this additional “information would have covered everything and exclude misunderstanding”.^[2]

10. [10]
    I should note that the applicant was entirely forthright in making his submissions, readily conceding that he was not very skilful with websites and would have attended at the Land Court in person to finalise the appeal if a street address for the Court had been recorded on the objection decision notice.

Respondent’s submissions

11. [11]
    The respondent contended that the circumstances relied upon by the applicant did not establish “reasonable excuse” as required by s 158 of the LVA. The following points summarize the respondent’s submissions:

1. (i)
   The explanation provided by the appellant does not provide a “reasonable excuse” as it is not substantial, a reasonable person would not regard it as a sufficient cause, it is not consistent with a reasonable standard of conduct. The explanation is not one that might have been expected to delay the taking of action by a reasonable person.^[3]

2. (ii)
   The illness detailed could not be seen as substantial given the applicant himself stated in the circumstances that this aspect “is not proof for prevention”.^[4]

3. (iii)
   In the circumstances it would have been reasonable for the applicant to contact the Court to obtain assistance in finding the Form 3 Notice of Appeal and to identify methods for filing that document.

4. (iv)
   Although the applicant contends that the details provided on the Objection Decision Notice do not include details of a street address, that notice did include a GPO Box, a phone number and a website.  A reasonable person, if unable to use a website, would have contacted the Court directly for further information.

5. (v)
   Case law supports that neither a misunderstanding of the requirements of the Act nor a miscalculation of dates would not be considered a reasonable excuse^[5].

12. [12]
    The following extract from Babuin v Department of Natural Resources and Water [2008] QLC 59 in my view correctly reflects the approach the Court should take in considering "reasonable excuse":

“The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000. In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a 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".”^[6]

Conclusion

13. [13]
    Although the applicant has conceded that health difficulties would not have prevented him attending at the Court to finalise and lodge the notice of appeal, it appears that this course was not undertaken as a result of the applicant’s unfamiliarity with the physical location of the Court and the absence of a street address from the details on the objection decision notice. Locating the Form 3 Notice of Appeal online was a further difficulty encountered by the applicant during the appeal period.

14. [14]
    Before considering whether the dilemmas faced by the applicant might constitute reasonable excuse I should record my appreciation of the candid manner in which he presented his evidence and submissions. Although I generally accept the facts and circumstances are as detailed by him, from an objective view of the evidence I am unable to conclude that a reasonable excuse has been established. 

15. [15]
    I accept the contention on behalf of the respondent that the matters relied upon by the applicant would not amount to a reasonable excuse. Accordingly, in the circumstances I do not consider that a misunderstanding of or miscalculation of dates for mail delivery provides such an excuse and also accept, as contended, that it would have been objectively reasonable for the applicant to phone the Court to ascertain it’s street address and to obtain assistance to locate or obtain the Form 3 Notice of Appeal.

Order

The Court does not have jurisdiction to hear and determine LVA669-17.

GJ SMITH

JUDICIAL REGISTRAR