In brief
The case of Lowe v Valuer-General [2019] QLC 3 concerned an appeal to the Land Court of Queensland by the registered owner of land at Ramsay (Landowner) against the Valuer-General's annual valuation. The notice of appeal was filed three days after the expiration of the appeal period and it was therefore for the Court to determine whether it had jurisdiction to hear the appeal.
The Court held that the Landowner did not establish a "reasonable excuse" for the late filing of the notice of appeal as required under section 158 of the Land Valuation Act 2010 (LVA), and the Court found that it did not have jurisdiction to hear and determine the appeal.
Issues in dispute
The Court considered the submissions in respect of the appeal and identified that the key issues were as follows:
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whether the appeal was brought out of time;
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whether the Landowner had a "reasonable excuse" for not filing the notice of appeal within the appeal period as required under section 158 of the LVA.
Background
An objection decision notice in respect of the subject land was issued to the Landowner by the Valuer-General on 4 July 2018.
Due to the removal of a lesion on the Landowner's foot, the Landowner was unable to post the notice of appeal until 3 September 2018, which was subsequently received by the Court three days after the expiry of the appeal period.
Date the appeal was filed
The Landowner submitted that as the notice of appeal was dated 31 August 2018, it was not out of time. The Valuer-General disagreed and argued that the appeal was three days out of time as the appeal period had expired on 3 September 2018 and the Court did not receive the notice of appeal until 6 September 2018.
The Court held that although it was not unsympathetic to the Landowner's predicament, the Court could not accept the Landowner's submission that the notice of appeal was within time.
Reasonable excuse
Section 158(2)(b) of the LVA relevantly states that the Land Court can only hear an appeal that has been filed late if there was a reasonable excuse for not filing the notice of appeal within the relevant appeal period.
The Landowner submitted that due to an outpatient procedure, the Landowner was unable to send the notice of appeal earlier than the due date as she was "trying to do everything that had to be done while keeping off her foot as much as possible". The Landowner had also thought that it was necessary for the notice of appeal to be filed by post and that it could not be filed by facsimile.
The Valuer-General contended that although the removal of the lesion was a difficult situation for the Landowner, it would not have prevented the Landowner from completing and lodging the notice of appeal before the expiration of the appeal period. The Valuer-General further submitted that the circumstances had not actually prevented the Landowner from completing the notice of appeal as it was signed on 31 August 2018.
The Valuer-General argued that the Landowner had sent and received correspondence by facsimile to and from the Court Registry that related to the appeal and had also previously filed a notice of appeal by facsimile in 2016.
The Court relied on the reasoning of the Land Appeal Court in AG Russell v The Crown (1992-93) 14 QLCR 202 at [204] with respect to what constitutes a "reasonable excuse", in particular the following:
"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) or (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."
As such, the Court held that a reasonable excuse had not been established by the Landowner when viewing the circumstances objectively. The Court found that as the Landowner had previously corresponded with the Court via facsimile, it would have been reasonable for the Landowner to have faxed the notice of appeal to the Court within time.
Conclusion
The Court concluded that despite the unfortunate circumstances, a reasonable excuse had not been established for the late filing of the notice of appeal, and it therefore did not have jurisdiction to hear and determine the appeal.