Smith v Valuer-General
[2023] QLC 21
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- Unreported Judgment
Smith v Valuer-General[2023] QLC 21
Smith v Valuer-General[2023] QLC 21
LAND COURT OF QUEENSLAND
CITATION: | Smith v Valuer-General [2023] QLC 21 |
PARTIES: | Derek Leslie Allan Smith (applicant) v Valuer-General (respondent) |
FILE NO: | LVA318-23 |
DIVISION: | General |
PROCEEDING: | Jurisdiction – s 158 Land Valuation Act 2010 |
DELIVERED ON: | 20 November 2023 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 27 October 2023 |
HEARD AT: | Heard on the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS OR RENEWAL – where appeal is out of time – where the Notice of Appeal was lost or delayed in the post – whether there was a reasonable excuse for the failure to lodge the appeal in time – where the Court is satisfied reasonable excuse is established and jurisdiction is found to lie Land Valuation Act 2010, s 155, s 157, s 158 AG Russell v The Crown (1992-93) 14 QLCR 202, cited Copley & Anor v Valuer-General [2020] QLC 7, followed Director-General, Department of Transport v Congress Community Development and Education Unit Ltd (1998) 19 QLCR 168, cited 50 Long Pty Ltd as TTE & Anor v Valuer-General; Roma Street Properties Pty Ltd as TTE v Valuer-General [2017] QLC 50, cited Jackamarra v Krakouer and Anor [1998] 195 CLR 516, cited Trust Company of Australia Limited v Department of Natural Resources and Water [2007] QLC 45, cited Pascoe v The Nominal Defendant (Qld) No. 2 [1964] Qd R 373, cited |
APPEARANCES: | Not applicable |
Background
- [1]In this case the Court must decide if it has jurisdiction pursuant to s 157 of the Land Valuation Act 2010 (the LVA) to hear an appeal in respect of land situated at Applethorpe within the Southern Downs Regional Council.
- [2]On 19 July 2023, the Valuer-General issued a decision on objection notice to the owner Mr Derek Smith. In response to that decision a Notice of Appeal is recorded as having been filed in the registry on 19 September 2023, one day after the appeal period had expired. In these circumstances the Court will only be able to hear the appeal if “reasonable excuse” is shown to have prevented the appeal notice being filed within the 60-day appeal period.
- [3]On 22 September 2023, a Deputy Registrar wrote to Mr Smith, advising that the Land Court could not hear the proposed appeal unless a reasonable excuse was established for not filing the Notice of Appeal within the appeal period.
- [4]On 28 September 2023, the Land Court made orders setting out dates for the parties to file and serve evidence and submissions in relation to the issue of reasonable excuse and the jurisdiction of the Court to hear and determine the matter.
- [5]On 12 October 2023 email correspondence was received by the registry on behalf of Mr Smith. This email detailed some recent difficulties faced by Mr Smith. The email included an apology regarding the delayed receipt of the appeal notice and also stated the “Post office said it would be there before due date”.
- [6]Affidavits were filed on behalf of the respondent on 27 October 2023 and 16 November 2023.
Legislation
- [7]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).”
- [8]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—
(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.”
Evidence
- [9]The evidence before the Court[1] comprises a colour photocopy of the front of an express post envelope, an email from the applicant and his wife dated 12 October 2023 and two affidavits by the respondent’s legal representative Umm-I-Salma Zafar filed on 27 October 2023 and 16 November 2023.
Submissions
- [10]No additional material was filed by Mr Smith in support of this application. The respondent filed detailed submissions on 27 October 2023 which ultimately contended that on the evidence the Court should find that it has jurisdiction to hear the appeal.
Conclusion
- [11]The Court is satisfied on the evidence that the proposed appeal notice has been delayed in the ordinary course of post and is satisfied that reasonable excuse is established.
Order
- The Court has jurisdiction to hear and determine the appeal.
Footnotes
[1]Ex 1.