Tram v Valuer-General[2023] QLC 5

LAND COURT OF QUEENSLAND

Background

1. [1]
   In each of these 18 matters the Court must determine in accordance with s 158 of the Land Valuation Act 2010 (the LVA) if any or all of the proposed appeals may be heard despite the appeal period having elapsed sixty days after the date of issue of the decision notice on objection.

2. [2]
   On 31 May 2022 notices of objection were lodged with the respondent pursuant to s 105 of the LVA on behalf of each of the proposed appellants recorded in the annexed list.^[1] . The objection decision notices issued on six different dates namely 22 June 2022 (1), 4 July 2022 (1), 20 July 2022 (9), 27 July 2022 (1), 3 August 2022 (5) and 11 August 2022 (1). All the proposed appeals were filed collectively in the Land Court registry on 20 October 2022.

3. [3]
   Section 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).

4. [4]
   Section 158 of the LVA provides –

Late filing

3. (1)
   This section applies if a valuation appeal notice is filed after the appeal period has ended.
4. (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
2. (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.

5. [5]
   Although each case relates to a separate valuation issued by the respondent, the parties have requested that all matters be dealt with together, given that the same legal representatives are retained in each case; and that the material relied upon by each party is identical in each case. Accordingly, these reasons relate to each case listed in attached Annexure 1.

The conduct of the proceeding and evidence

6. [6]
   On 21 November 2022, the Court made the following Orders by consent:

2. 1.The appeals listed in Annexure 1 – Schedule of Appeals:

1. a)
   will remain as separate appeals;
2. b)
   will be heard consecutively; and
3. c)
   the evidence in one appeal will be the evidence in all appeals, to the extent that it is relevant.

2. 2.By 4pm on Friday, 25 November 2022, the Appellant must file in

the Land Court Registry and serve on the Respondent its written submissions and any affidavit materials to be relied on the point of jurisdiction.

2. 3.By 4pm on Friday, 9 December 2022, the Respondent must file in

the Land Court Registry and serve on the Appellant its written submissions in response and any affidavit materials to be relied on the point of jurisdiction.

2. 4.The appeals are listed for jurisdiction hearing at 10am on Thursday,

15 December 2022 in Brisbane.

2. 5.Any party may apply for further review by giving at least two (2)

business days’ written notice to the Land Court Registry and to the other parties of:

1. a)
   the proposed date for review;
2. b)
   the reasons for the request; and
3. c)
   the proposed directions.

7. [7]
   On 29 November 2022 a document headed Appeal Submissions was filed by Jindalee Lawyers on behalf of all the listed applicants. This document also set out factual matters and attached email correspondence between the Department of Resources and Jindalee Lawyers and photographs of flood related damage. No affidavit or statement of evidence was filed on behalf of the applicants pursuant to Order 2.

8. [8]
   On 9 December 2022 an affidavit of Ms B.G. Langlois was filed on behalf of the respondent.

9. [9]
   On 15 December 2022 the matter was heard in Brisbane. Mrs H.T Nguyen appeared on behalf of the applicants from her office via the Pexip audio visual link. Mr P.S. Prasad, Principal Lawyer, Department of Resources appeared on behalf of the respondent.

The applicant’s case

10. [10]
    The following paragraphs^[2] from the applicants’ submissions filed 29 November 2022 are contended to provide a basis for the Court to find that a reasonable excuse has been established for not filing the notice during the appeal period:

2. 1.The Appellant’s representative, Mrs Hien Nguyen, was managing multiple sites and also operating a large restaurant at Jindalee when one of the tenants returned the keys in 2019 due to business downturn. The restaurant was hit by covid from 2020 - December 2021, and Mrs Nguyen went back to practicing law. Mrs Nguyen had just finished setting up her law firm in January 2022 at the Jindalee restaurant site, and then the February 2022 flood came.
3. 2.Consequently, Mrs Nguyen was shoved into the legal management of the firm as well as in a project construction role, assisting the tradesmen to renovate the flood affected properties, including the ones at Yeronga, Fairfield and Jindalee, and including this law firm office which was flooded up to the ceiling/roof, following the 2022 flood. Please find enclosed some photos of the flood affected areas and the large scale of renovation required. Mrs Nguyen and her husband also then had covid and were very sick during this time.
4. 3.After their quarantine, Mrs Nguyen was also helping tenants and the local public to apply with the complex business flood relief QRIDA grants, holding meetings with tenants and government entities at the centre balcony.
5. 4.The law firm office renovation was continuing, and Mrs Nguyen worked with law firm staff “on the run amidst the renovations and QRIDA assistance with tenants and the public” to contact the Land Court to file and then serve. 
6. 5.Mrs Nguyen also contacted Theresa Dunn who then onforward on a contact email. Directing staff at speed and under pressure to staff , the staff mistaken Theresa Dunn’s email, and then “filed” all Appeals with [email protected] believing that this is the email for the Land Court. Enclosed is the email of Mrs Theresa Dunn which was interpreted wrongly by the Appellant’s staff.
7. 6.The staff then chased [email protected] for the sealed copy for service to your office.
8. 7.Puzzled why the sealed copy of the Appeals are not confirmed as filed, Mrs Nguyen then double check the staff’s emails sent – and found the drastic mistake made.  The staff then quickly filed the appeals to the Land Court hoping for the best.

Applicant’s submissions - Legislation and case law

11. [11]
    The applicants’ submissions set out s 158 of the LVA and outline the following contentions:

2. 9.Villa Sul Mare v Valuer-General [2011] QLC 77

2. b.The issue for determination in this application is whether the Court has jurisdiction to hear an appeal in circumstances where the notice of appeal was filed 16 days out of time.
3. c.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.
4. d.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”. These authorities are equally applicable under LVA 2010.
5. e.Perhaps the most relevant of authorities cited is Ralph Lauren 57 Pty Ltd v The Valuer-General [2010] QLC 0148 where the Court held that the misreading of a date in a decision on objection did not to amount to a reasonable excuse. Upon consideration of the current circumstances and a review of the authorities, I am satisfied reasonable excuse cannot be held to exist in the present case based on the oversight.

Conclusion

2. 10.Pursuant to Section 158(a) of the Land Valuation Act 2010, the valuation appeal notice was filed less than 1 year after the objection decision notice was issued. Section 158(b) further requires for a reasonable excuse for not filing the notice within the appeal period. Given the circumstances being that the unprecedented flood event occurred in February 2022 which destroyed the Jindalee Lawyers premises, and an entire adjoining shopping complex owned by Mrs Nguyen. This event became the catalyst for a series of honest misunderstandings, but with the intent to comply with the 60-day timeframe stipulated, and therefore, a reasonable excuse should be evident. 
3. 11.Every effort was made by Mrs Nguyen to ensure that all of the appeals that were received and due to be filed by 19 September 2022 and they were submitted in time to be successfully filed, but an ambiguous direction had been given by a land officer from the Department of Resources to a staff member who was filing the documents to the Land Court  for the first time, and the appeals were emailed to the wrong email address under the assumption that they had been filed with the Land Court.
4. 12.In consideration of the authorities that 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” as per Villa Sul Mare v Valuer-General [2011] QLC 77, the appeals were attempted to be filed without delay. The appeals were emailed on time, they were however, delivered to the incorrect email address until the error was realised.
5. 13.Staff were given the following instructions by the Department of Resources by email for “filing” the appeals:

“Any appeals you wish to lodge with us you can send to [email protected]. The appeals will then be distributed to the relevant office.”

Given the ambiguous language used when direction was requested for the appropriate filing of the appeals and the lack of indication that the documents also had to be filed with another department should be regarded by a reasonable man to be sufficient a cause and the kind of thing which one might have expected to delay the taking of action by a reasonable man, as per Anthony v. Chief Executive, Department of Natural Resources.

2. 14.Most of the assessments by the Respondent of the valuations far exceeded even their own estimate posted on their website due to historical trend.

Please see table below:

2. 15.It would be unjust not to allow the appeal for the jurisdiction question as the Respondent’s reassessments are higher than market on their historical trend posted on their website. It would be unfair and unjust to all the lot owners listed above if the appeal for the jurisdiction question is now allowed.

The respondent’s case

12. [12]
    The respondent relied upon an affidavit of Ms Langlois^[3], a Senior Project Officer with the State Valuation Service. Ms Langlois deposed to having searched the records of the Department of Resources for email correspondence exchanged with Mrs Nguyen, copies of valuation notices, objections and decisions and objection decisions relating to the appeal properties as at 1 October 2021. The documents retrieved by Ms Langlois were annexed to her affidavit together with a spreadsheet summary of the relevant dates associated with each property. Ms Langlois was not required for cross-examination.

Respondent’s submissions

13. [13]
    The submissions on behalf of the respondent are set out in the following paragraphs:

• The appellant submissions filed on 29 November 2022 contain numerous aspects of evidence that have been improperly articulated, unsubstantiated and not in accordance without how evidence is received and dealt with by the Court under the Land Court Rules 2022 (i.e. through an affidavit sworn or affirmed by the relevant person) or in compliance with the Court orders.
• For the reasons above, the respondent objects to paragraphs 1 to 7 and 10 to 15 of the Appellant’s written submissions.
• There is no probative evidence that provides any insight into the procedures, processes and or mechanisms on how or in what way Mrs Nguyen handles the actioning of appeals, in order for the Court to be informed and conclude that a reasonable excuse may have existed for the delay
• There is no evidence at all to inform the Court of the extent to which there was any delineation or division of responsibility between the appellants and Mrs Nguyen. The Court just record just doesn't seem that the Appellants have relied wholly or in some unidentified extent upon the role of Mrs Nguyen. It is for the client to actually depose to that as a fact because it is a fact that cannot just be spirited out of thin air.
• The actions of a representative or an agent are in fact the actions of the company because the company doesn’t exist independently of the actions of its agents and their actions are actions of the company
• In appeals LVA 268-22, LVA269-22, LVA277-22 and LVA278-22, Mrs Nguyen is the director/landowner rather than a representative or agent.
• As the Court stated in the matter of 50 Long Pty Ltd as TTE & Anor:

14. [26]
    In weighing the evidence, it must not be overlooked that applications of this type are of a substantive nature and therefore “should be supported wherever practicable by direct evidence.”
15. [27]
    Each of Mr Murphy’s affidavits have been considered in light of the respective submissions regarding “reasonable excuse”. I agree with the submission by counsel for the respondent that the relevant paragraphs are of a conclusionary nature and fail to reveal any of the underlying facts that might have led to the stated conclusion. The weight that can be attributed to this type of evidence is a significant factor when determining if reasonable excuse is established on the balance of probabilities.
16. [28]
    Aside from the issue of weight, the absence of any underlying factual basis also precludes any objective assessment of the reasonableness being undertaken by the Court…..”

• Whilst the Respondent can understand that Mrs Nguyen, as a human, can be prone to mistakes, it is submitted that this does not amount to or satisfies the reasonable excuse authorities
• Similarly, in the matter of Ralph Lauren 57 Pty Ltd & Ors v Valuer-General [2010] QLC 148, the appellants were represented by a director, who took charge of the day to day running of the various companies. Due to the general pressures of work and his misapprehension that the appeal period ran from the date of receipt and not the date of issue of the decision of objection notice, the Appellant filed their appeal approximately eight days out of time.
• It is submitted that there is no evidence at all to inform the Court or for the Court to undertake any objective assessment of the reasonableness of the facts and circumstances, that would permit the Court to find a reasonable excuse was established
• In those circumstances, it is submitted that the Court cannot on any view of the evidence be satisfied as required by s 158 of the LVA, that the appellants have established reasonable excuse.

Consideration and conclusion

14. [14]
    In each case the application relies entirely on the document headed Appeal Submissions^[4]. This document has asserted certain factual matters in support of a contended finding of “reasonable excuse” as envisaged by s 158 of the LVA. As already noted, the respondent has objected to the receipt of paragraphs 1 to 7 and 10 to 15 of the applicants ‘submissions.

15. [15]
    Applications of this type, pursuant to the LVA are of a “substantive” nature rather than procedural and are therefore necessarily required to be supported by cogent direct evidence^[5].  In the absence of any affidavit or other statement of evidence in support, the Court must none the less be satisfied that there is some evidentiary basis for finding that a contended “reasonable excuse” is established.

16. [16]
    The Court, having considered the respondent’s objection to receipt of the submission document has concluded that it would not be reconcilable to admit the document into evidence, as to do so would require that the Court treat the document as something other than what it is. The submission document will not be received into evidence. For completeness, it should be noted that even if the document was received as evidence, its contents would not have permitted the Court to make on balance, a finding of reasonable excuse.

17. [17]
    The affidavit of Ms Langlois, filed by the respondent has also been considered. This document, which includes all email correspondence between the parties does not disclose any evidence upon which a reasonable excuse could be found to have prevailed.

18. [18]
    Given the absence of any basis upon which a reasonable excuse may have been established, it must follow that the Court does not have jurisdiction to hear and decide the appeals listed in Annexure 1.

Orders

2. 1.The applications are refused.
3. 2.The Court does not have jurisdiction to hear and decide the appeals listed in Annexure 1.
4. 3.Any submissions seeking a costs order in this proceeding must be filed and served within 14 days of the publication of these reasons.

Annexure 1