Director-General, Department of Transport v Congress Community Development and Education Unit Limited

[1998] QLAC 71

[1998] QLAC 71

 

IN THE LAND APPEAL COURT BRISBANE

Re:     A97-09

An appeal from a decision of the Land Court - Determination of Compensation

Application to extend time to lodge and serve a Notice of Appeal

Director-General, Department of Transport

Appellant/Respondent

v.
Congress Community Development and Education Unit Limited

Respondent/Claimant REASONS FOR JUDGMENT - MR RE WENCK AND DR NG DIVETT

Delivered this Twenty-fifth day of June 1998

We have had the benefit of reading the draft judgment of Muir J and agree that the application should be allowed and agree with the order proposed by His Honour.

That does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal. The reasonable cause and explanation of the lateness of the service and lodgment of the notice and payment of the prescribed fee, is, in our opinion, the fact that the solicitor failed in the duty entrusted to her. The applicant had done everything that should have been expected of him.

The facts indicate that the solicitor acted reasonably at least until the last week of the prescribed period, in taking the instructions of her employer's client to the stage of having a notice of appeal prepared in its settled form, ready for checking, signing, service and lodgment. There was a personal work system in place to ensure things were not forgotten but that system was not properly implemented and failed. Apart from any tactical motive which may have existed relative to extending the procedure to the very end of the appeal period, there was no apparent reason why the relatively simple tasks remaining to ensure compliance, could not have been completed well within the prescribed period. It appears that at a crucial time on 22 April 1998, when more than adequate time then remained, and when there must reasonably have been expectation of continued unusual and stressful demands on personal time, the solicitor concentrated on the expiry date and committed the task to the category of "things to do" rather than doing it. In the environment in which the solicitor was working during the latter part of the appeal period, the circumstances could well have been seen to require precipitation of the

necessary but relatively simple action required to institute the appeal in time, rather than committing it to a waiting list.

On any view, the creation of an environment within the office of the Crown Solicitor which exposed an apparently efficient solicitor, and one entrusted with the care and attention of a matter of State importance, to work-related exhaustion, to the degree which would cause an important task to be forgotten, is hardly consistent with a reasonable standard of professional conduct. The task was forgotten not only on one day, but the two subsequent days immediately prior to the appeal period expiring. The solicitor failed to remember, a personal work system failed and it appears that the solicitor's secretary, although made aware of the closing date for the appeal, failed to bring the matter to attention.

In Union Fidelity Trustee Company of Australia Ltd v. The Co-Ordinator-General (1988-

89) 12 QLCR 153, the Land Appeal Court adopted the words of Sholl J in Quinlivan v. Portland Harbour Trust (1963) VR 25 at p.28 in His Honour's interpretation of the meaning of "reasonable cause".

However, in Union Fidelity (supra) the Court found that in that case, the circumstances of which had similarity in many respects to the subject matter, the solicitors were to be regarded as "the alter ego" of, in that case, the applicant company which was "bound by anything the solicitors did or did not do in the same way as if the company had done or not done the thing itself" (see Leech v. Melbourne and Metropolitan Tramways Board (1958) VR 398 at p.401.

In Quinlivan (supra) at p.30 Sholl J had also referred to the Leech authority, but had this

to say:

"Where the question is one of mistake, nothing that I am deciding in this case is to be taken as expressing any view about the principle of identification. But I respectfully think that it cannot be right to apply it as a general guide in the determination of the question of reasonable cause."

Then later in Quinlivan at p.30 His Honour said:

"In the present case, the applicant, having reasonably left the matter to a reputable solicitor, ought, in my opinion, to be held to have had reasonable excuse for not giving notice (by the date).  I will follow the views of Reed and Pape, JJ, in holding that reasonable cause may include, so far as an applicant is concerned, the unreasonable conduct of his agent which he had no reason to anticipate."

His Honour Muir J, in his reasons, did not find it necessary to consider "whether the applicant is necessarily fixed with his agent's conduct to the extent that the agent's conduct is in all respects to be treated as that of the applicant".  He noted however that there is persuasive

authority which supports a more flexible approach and made mention of various authorities including Quinlivan (supra).

Although not following "the alter ego" finding of the Court in Union Fidelity, it is our opinion that the authorities are sufficiently persuasive for us to take that more flexible approach referred to by His Honour. Consequently it is our decision that the application in this matter should be allowed.

The applicant submitted that if the application was allowed, the respondent's costs of the application should be paid by the applicant. We agree with the order as to costs as proposed by His Honour.

RE WENCK MEMBER OF THE LAND COURT

NG DIVETT MEMBER OF THE LAND COURT