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 [2013] 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 timeframes.