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Lowe v Valuer-General[2019] QLC 3

LAND COURT OF QUEENSLAND

CITATION:

Lowe v Valuer-General [2019] QLC 3

PARTIES:

Jennifer Lowe

(applicant)

v

Valuer-General

(respondent)

FILE NO:

LVA346-18

DIVISION:

General Division

PROCEEDING:

Jurisdiction – appeal against annual valuation

DELIVERED ON:

5 February 2019

DELIVERED AT:

Brisbane

HEARD ON:

22 October 2018

HEARD AT:

Toowoomba

JUDICIAL REGISTRAR:

GJ Smith

ORDER:

  1. The Court does not have jurisdiction to hear and determine the appeal.

CATCHWORDS:

PRACTICE AND PROCEDURE – failure to appeal to Land Court in time – cause of failure to lodge – whether reasonable excuse.

Land Valuation Act 2010, s 155, s 157, s 158

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

Hughes v Department Natural Resources and Water [2007] QLC 129, followed

Muir v Department of Natural Resources and Water [2007] QLC 69, followed

APPEARANCES:

J Lowe, the applicant in person.

T Savage (Lawyer), In-house Legal Department of Natural Resources, Mines and Energy

  1. [1]
    In this proceeding the Court is required to determine whether it has jurisdiction pursuant to s 157 of the Land Valuation Act 2010 (the LVA) to hear and determine an appeal against an annual valuation as at 1 October 2017 of a property located at Ramsay within the Toowoomba Regional Council local government area. 
  1. [2]
    An objection decision notice in respect of the subject property was issued to the applicant by the respondent on 4 July 2018. The relevant notice of appeal was filed on 6 September 2018, three days after the expiry of the appeal period and as a consequence this Court will only have jurisdiction to hear and determine the appeal if a “reasonable excuse” as required by s 158 of the LVA is proven.
  1. [3]
    On 12 September 2018 a letter was forwarded by the Land Court Registry to the facsimile number detailed in the applicant’s proposed notice of appeal advising the applicant that the period during which an appeal may have been lodged expired on 3 September 2018. The letter also advised that under the terms of s 158 of the LVA the Land Court could only hear the appeal if a reasonable excuse was demonstrated for not filing the notice of appeal within the appeal period.
  1. [4]
    On Monday 22 October 2018, the application to determine whether the Court had jurisdiction to hear the proposed appeal by Ms Lowe was heard in Toowoomba. The appellant appeared in person while the respondent was represented by Ms T Savage of In-House Legal, Department of Natural Resources, Mines and Energy.

Legislation

  1. [5]
    Section 157 (2) of the LVA provides:

“(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).”

  1. [6]
    Section 158 of the 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—
  1. the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and
  2. 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

  1. [7]
    The applicant’s evidence in this matter comprised an initial opening statement given orally from the bar table and received as evidence by agreement with the respondent’s legal representative, some additional sworn testimony given in cross-examination, and, a letter from St Andrew’s Toowoomba Medical Centre dated 28 September 2018 was also tendered.[1] This letter comprised one paragraph which is set out below:

“This is to certify that this patient had a lesion removed from her left foot sole on 2 August 2018 which was very painful post operatively requiring regular dressing and pain relief.  Unfortunately this made it very difficult to stand.”

  1. [8]
    No evidence was called by or on behalf of the respondent.
  1. [9]
    A summary of the main points of the applicant’s evidence is set out as follows:
  • In the course of feeding sheep and pigs and walking over rough ground the applicant’s veins, ligaments and nerves were damaged and as a consequence the applicant could not sit or stand for long and had to sleep on her back and went to weekly physio for counterstrain treatment.[2]
  • For two weeks before the stitches were taken out the applicant’s foot was absolutely painful and took a long time to heal.[3]
  • The applicant had been trying to do everything that had to be done while keeping off her foot as much as possible, but time got away and the appeal was sent on the Monday when it was due on the Monday. [4]
  • The applicant could have possibly got the appeal notice in earlier but was trying to do everything else.[5]
  • The applicant was able to drive but made trips in and out only if she had to.[6]
  • The applicant had thought the appeal had to be filed by post and was about 12 kilometres away from the post office and didn’t think to file the appeal notice by fax and didn’t think it could be filed by fax.[7]

Applicants submissions

  1. [10]
    The applicant made the following oral submissions in support of a finding by the Court that a reasonable excuse for not filing the notice of appeal within the appeal period was established:
  • The appeal was dated 31 August
  • The appeal was not out of time
  • The delay was not deliberate
  • The appeal notice would have been hand delivered if possible.

Respondents submissions

  1. [11]
    On behalf of the respondent it is contended that the evidence presented by the applicant did not establish “reasonable excuse” in the context of s 158 of the LVA.
    A summary of the respondent’s submissions follows:
  • The purported appeal was three days out of time, the appeal period having expired on 3 September 2018.
  • The appellant has to satisfy the Land Court that they have reasonable excuse for not filing the notice of appeal within the appeal period.
  • The appellant bears the onus of proving reasonable excuse.
  • The excuse offered must be “substantial”, that is, there must be some relevant circumstance of fact, other than oversight or ignorance such that it would not be reasonable to hold the applicant to the statutory time period.[8]  
  • The exercise is to be approached objectively, so that “what one is looking for is some cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct [and] the kind of thing which one might expect to delay the taking of action by a reasonable person”[9]
  • The evidence provided by the appellant stated that the removal of the lesion on 2 August 2018 was very painful post-operatively and it was difficult to stand. Although this would have been a difficult situation for the appellant, it would not have prevented the appellant from completing and lodging the notice of appeal. In fact, it did not prevent the appellant from completing the notice of appeal, as the notice was signed on 31 August 2018, three days before the expiry date for lodgement.
  • The appellant has sent and received correspondence relating to this appeal by facsimile to and from the Land Court Registry; has previously lodged appeals pursuant to the LVA; and most recently in 2016 the appellant filed a notice of appeal by facsimile.
  • In Muir v Department of Natural Resources and Water [2007] QLC 69 the appellant sent appeal forms to the Land Court by post on 29 August 2006 and the forms did not arrive until 4 September 2006. The appellant conceded that he could have faxed the forms on 28 or 29 August 2006 and would have complied with the time limit.  The Court held there was no jurisdiction to hear the appeal.
  • Had the appellant sent the notice of appeal to the Land Court Registry by facsimile rather than by post on 31 August 2018 the notice of appeal would have been received within the time period. The notice of appeal was not received on time due to the appellant sending it by post on or after the last day to file the appeal, and did not allow sufficient time for the mail to arrive at the Land Court.

Conclusion

  1. [12]
    For this Court to have jurisdiction to hear and determine the proposed appeal it must be established on the balance of probabilities that there is a reasonable excuse for the appeal not being lodged within the appeal period. The contended reasonable excuse must have caused the failure to lodge the appeal notice.[10]
  1. [13]
    The question of reasonable excuse has been considered by this Court and the Land Appeal Court on a number of occasions. The following reasoning of the Land Appeal Court in AG Russell v The Crown is helpfully informative:

“Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation.”[11]

  1. [14]
    The evidence and submissions before the Court regarding the existence of a reasonable excuse in the context of s 158 of the LVA have been considered in detail. It should be noted that although the Court is not unsympathetic to the applicant’s predicament, the applicant’s submissions that the appeal notice having been dated 31 August 2018 was not out of time and that the delay was not deliberate cannot be accepted as demonstrating a reasonable excuse. Although not deliberate, the notice of appeal was clearly filed after the expiry of the appeal period.
  1. [15]
    On behalf of the respondent it is contended that the relevant circumstances, when considered objectively, could not be viewed as providing a substantial reason that would be likely to have delayed or prevented the notice of appeal being filed on time. The respondent further contends that the reason the notice of appeal was not received within the appeal period was because it was posted on the last day of the appeal period, in circumstances where the notice, which had been completed on the preceding Friday, could have been posted then or alternatively faxed to the Court anytime up until that last day.
  1. [16]
    This position would seem to be supported by the decision of this Court in Muir v Department of Natural Resources and Water [2007] QLC 69.  In Muir the notice of appeal was posted by the appellant and arrived at the registry six days late. It appears that at this time the appellant did not consider faxing the notice of appeal to the Court, an option that would have resulted in the notice of appeal being filed during the appeal period. The Court noted that the filing instructions are clearly stated on the appeal form and ultimately determined that reasonable excuse was not established in the circumstances.[12]
  1. [17]
    In respect of the present application, I am not able to conclude that a reasonable excuse is established on an objective view of the circumstances. I accept the submission on behalf of the respondent that it would have been reasonable for the applicant to have faxed the notice of appeal to the Court during the period from when the notice of appeal was executed on 31 August 2018 until the expiry of the appeal period on 3 September 2018. The applicant has previously corresponded with the Court in this manner, including having filed a notice of appeal in 2016. There is no evidence before the Court that this option was precluded by matters associated with the outpatient procedure referred to in Exhibit 1.

Order

  1. The Court does not have jurisdiction to hear and determine the appeal.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT

Footnotes

[1]  Exhibit 1.

[2]  T 1-4, lines 33-39.

[3]  T 1-4, lines 45-47.

[4]  T 1-5, lines 38-40.

[5]  T 1-6, lines 5-6.

[6]  T 1-6, lines 26-27

[7]  T1-7, lines 26-39.

[8]  Respondent’s submissions filed 22 October 2018 citing AG Russell v Crown (1992-1993) 14 QLCR 202, 204.

[9]  Respondent’s submissions filed 22 October 2018 citing Anthony v Chief Executive, Department of Natural Resources [2000] QLC 72.

[10] Hughes v Department of Natural Resources and Water [2007] QLC 129 at [18].

[11]           AG Russell v The Crown (1992-93) 14 QLCR 202, 204.

[12] Muir v Department of Natural Resources and Water [2007] QLC 69, [6].

Close

Editorial Notes

  • Published Case Name:

    Lowe v Valuer-General

  • Shortened Case Name:

    Lowe v Valuer-General

  • MNC:

    [2019] QLC 3

  • Court:

    QLC

  • Judge(s):

    Smith J

  • Date:

    05 Feb 2019

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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