A recent decision of the Court of Appeal highlights the
importance of complying with timing requirements for making an
appeal under the Land Court Act 2000 (LCA).
In Hope & Anor v Brisbane City Council  QCA
198, the Court of Appeal considered the LCA's right of appeal
against a decision of the Land Court which is set out in Sections
64 and 65. In particular, Section 65 of the LCA requires that a
party intending to appeal a decision of the Land Court must serve
the notice of appeal against the decision within 42 days after the
order containing the decision is made. The notice of appeal must be
served on all other parties to the proceeding on which the decision
was made, as well as the registrar of the Land Appeal Court. The 42
day time period applies whether the decision appealed against is
the original decision of the Land Court, the decision on the
application for rehearing, or the decision on the rehearing.
In Hope, the Council had taken the applicants' land
under the Acquisition of Land Act 1967. The Land Court
made an order assessing the compensation and the applicants filed a
notice of appeal in the Land Court Appeal Court on the 42nd day
after the Land Court's decision was made. However, the notice
of appeal was not served on the Council until the following day,
being one day late.
The Land Appeal Court found that Section 65 imposed a
"condition" on the right of appeal and there was nothing
in the LCA which suggested that the requirement to file and serve
the notice of appeal within 42 days was only procedural. The Land
Appeal Court found that Section 65 was mandatory, that there was no
provision for the Court to extend the time or waive the condition,
and that another meaning would be "...contrary to the
clear words of the section". Therefore, the
applicants' failure to comply with the time period in Section
65 meant there was no valid appeal.
The applicants appealed to the Court of Appeal against the
decision of the Land Appeal Court. The Court of Appeal agreed with
the reasons of the Land Appeal Court. It also made some additional
observations, including that there was no express power to proceed
where a notice of appeal had not been served in accordance with the
requirements of Sections 64 and 65 of the LCA, and that the time
limit was contained in the LCA rather than subordinate legislation
(e.g. rules of the Court). The time limit imposed on the
commencement of a valid appeal was therefore mandatory.
The Court of Appeal's decision in Hope demonstrates
the mandatory nature of the timing requirements in Sections 64 and
65 of the LCA and that the Court has no power to excuse
non-compliance where a notice of appeal has not been validly
commenced within the time period. Therefore, claimants who are
dissatisfied with a decision of the Land Court and practitioners
must be aware of the LCA's strict approach to appeal
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