F A Pidgeon & Son Pty Ltd v Valuer-General; 310 Ann Street Nominees Pty Ltd v Valuer-General [2018] QLC 27

LAND COURT OF QUEENSLAND CITATION: PARTIES: FILE NOs: PARTIES: FILE NOs: DIVISION: PROCEEDING: DELIVERED ON: DELIVERED AT: HEARD ON: HEARD AT: MEMBER: ORDER: CATCHWORDS: F A Pidgeon & Son Pty Ltd v Valuer-General; 310 Ann Street Nominees Pty Ltd v Valuer-General [2018] QLC 27 F A Pidgeon & Son Pty Ltd ACN 009 710 810 (appellant) v Valuer-General (respondent) LVA072-17 LVA075-17 310 Ann Street Nominees Pty Ltd ACN 152 245 933 (appellant) v Valuer-General (respondent) LVA073-17 LVA074-17 General Application to set aside subpoenas 5 September 2018 [ex tempore] Brisbane 5 September 2018 Brisbane PA Smith Application dismissed. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – Queensland Civil Practice – Uniform Civil Procedure Rules 1999 – Land Court Act 2000 -- 1 of 9 -- 2 APPEARANCES: – Motions, interlocutory applications and other pre-trial matters – Procedural aspects of evidence – Subpoenas and notice to produce at hearing – Setting aside or other relief – Application to set aside subpoenas – Factors to be considered R Traves QC with S McCarthy (instructed by Otto Martiens) for the appellant S Fynes-Clinton (instructed by In-house Legal, Department of Natural Resources, Mines and Energy) for the respondent [1] On 29 August 2018 the respondent Valuer-General lodged a general application in these proceedings seeking to set aside two subpoenas which were issued by this Court on the request of the appellants, F A Pidgeon & Son Pty Ltd and 310 Ann Street Nominees Pty Ltd, directed against Mr Denis Wall and Mr Stephen Cross. [2] It is not in contention that Mr Wall and Mr Cross are both officers of the Valuer- General, and, that Mr Wall is the officer of the Valuer-General who considered and made recommendations about the objections made by the appellants and that Mr Cross was the delegate of the Valuer-General who made the decisions on objection. [3] The application brought by the Valuer-General seeks that both subpoenas be set aside. Mr Fynes-Clinton has assisted the Court by providing written submissions today in support of the Valuer-General’s contentions. He also spoke to those written submissions. His submissions support the grounds which are set out in the application. [4] The application is resisted by the appellants. Mr Traves for the appellants has provided both written and oral submissions today. [5] I should point out at this juncture that I am proceeding by way of decision without delay on the urging of both parties. This is a matter which causes me some concern as this application was subject to two hours of detailed expert submissions by two highly qualified counsel whom this Court holds in high regard, and is, obviously, not a matter which is to be treated in any way lightly. [6] I have done my best to give this application the consideration that it warrants in the short amount of time that I have had available. I do accept, though, the reasoning of both parties that, being in day 7 of the appeal, there is a danger of unscrambling the egg or, scrambling the egg, whichever way you want to approach it should this -- 2 of 9 -- 3 decision be left until the determination of the appeal itself with the evidence being taken subject to that determination. [7] I will not repeat in detail, in the time that I have available, the submissions that have been made by both the Valuer-General and the appellants except to say this. Mr Fynes-Clinton included in his submissions the following: 1. The Valuer-General applies to have the subpoenas issued on 23 August 2018 set aside on the grounds that the witnesses sought to be called can give no evidence which will be probative of, or otherwise of any relevance to the issues in the appeals… 4. It is trite that this Court is not bound by the rules of evidence. However, where the exclusionary rules of evidence do not apply or do not strictly apply, relevance is the touchstone of admissibility. That is for the obvious reason that there can be no basis for admitting something as evidence if it has no logical tendency to prove or disprove a matter in issue in the proceeding. In those circumstances, and for the purpose of the proceeding, it is not evidence at all. 5. As the subpoenas which have been issued are subpoenas to give oral evidence, rather than subpoenas requiring the production of documents, the Respondent obviously does not know the exact nature of the evidence which will be sought to be adduced pursuant to those subpoenas. 6. However, it is not difficult to draw a compelling inference as to their apparent purpose. With respect to the decisions on objection for the subject appeals: (a) Mr Wall provided a report and recommendation as to the way in which the objections should be dealt with; and (b) Mr Cross, as the delegate of the Valuer-General was the person who actually made the decision as to how the objections should be dealt with. 7. The issued site values for the subject properties as the outcome of the objection decision are not in contention. Both valuers know them, and they are a matter of public record. 8. However, on the face of the subpoenas and drawing the inferences just referred to, it is submitted to appear in a compelling way that that the purpose of the subpoenas is to have this Court embark upon some form of judicial review or roving inquiry concerning the reasoning and processes which led to the issue of the statutory valuations for the appeal properties, and possibly other properties, as an outcome of the objection process. 9. There is nothing which Mr Cross or Mr Wall could say which would be of any probative value in these appeals. [8] In his response, Mr Traves had this to say: 1. The Respondent applies to set aside subpoenas issued to the authors of the decisions on objection against which the Appellants appeal in these proceedings. In order to do so, it must demonstrate that the evidence which might be given by Mr Wall and Mr Cross is not apparently relevant to the appeal. 2. Technically, on the Respondent’s application to set aside the subpoenas, the Appellants do not have to establish that the evidence -- 3 of 9 -- 4 sought to be adduced is in fact relevant. As at the time this Court rules on the Respondent’s application, that evidence will not have been received. 3. Thus, it is enough that the evidence sought to be adduced is apparently relevant. As to the requirements of “apparent evidence”, in Xstrata Queensland Ltd v Santos Ltd, PD McMurdo J (as his Honour then was) said: “The question of what is meant by apparently relevant was extensively discussed by Moffitt P (with whom Hutley and Glass JJA agreed) in National Employers’ Mutual General Association Ltd v Waind and Hill at 378-386. Moffitt P said that the requirement of apparent relevance could be stated in terms that the documents must ‘relate to the subject matter of the proceedings’, a relatively undemanding requirement. However, he also said that the relevance of documents must be more clearly demonstrated where there are competing considerations such as privacy.” … 26. Plainly enough, the rehearing contemplated by the Act is of a kind where fresh evidence may be adduced. However, importantly, there is nothing in the Act which makes the reasons for the objection decision irrelevant. To the contrary, the appeal is “against” the decision on objection, requires the articulation of “grounds” following provision of reasons in the decision notice and the burden of proving the grounds lies on the Appellant. 27. The legislature plainly intended that the Reasons inform the appeal process thereafter provided for by the Act. Moreover, as s 151 makes clear, not only must the objection notice state the reasons for the decision but also that the objector has a right, subject to section 155, to appeal to the Land Court against the decision. (footnotes omitted) [9] It is necessary in determining this matter to take up the Land Valuation Act 2010 and consider a number of relevant sections. I will deal with them in the order in which they appear in the legislation. Further, I will have some other things to say to put the relevance of these provisions into context. [10] The first section is s 131 of the Land Valuation Act. It says that: Evidence of anything said or done about an objection in an objection conference is inadmissible in any proceeding. [11] The next important section is s 150 which is that: The decision on the objection must be to— (a) allow the objection on the terms and to the extent the valuer-general considers appropriate; or (b) disallow the objection; or (c) disallow the objection and change the amount of the valuation. -- 4 of 9 -- 5 [12] The next section deals with the objection decision and I will not read all that in full. It is set out clearly that the notice of the objection decision has to be provided to the objector and that it must state the following: (a) the day the notice was issued; (b) the reasons for the decision; (c) that the objector has a right, subject to section 155, to appeal to the Land Court against the decision; (d) how, and the period within which, the objector may appeal.1 [13] The next section to turn to is s 155 which notes that: An objector may appeal to the Land Court against the objection decision for the objection. [14] I note at this point that it is often said at the commencement of decisions in this Court – and, I am as guilty at this as any other member, for the last many years – that we refer to an appeal against a determination of valuation under the legislation. In accordance with s 155, that is not strictly correct. It is an appeal against the objection decision for the objection. This is perhaps leading to the same end, but is nevertheless, a different beast to the way in which it is commonly referred to in a shorthand way. Conceivably that may come about because of the heading of Chapter 4 which is ‘Valuation Appeals’, and ss 157(1) and (4) which state: (1) An appeal is started by filing a notice of appeal (a valuation appeal notice). (4) A valuation appeal notice may relate to the objection decision for only 1 objection. [15] It is clear from these provisions that an appeal is against an objection decision not against an actual valuation. [16] The next section to turn to is s 169 which refers to the nature of the hearing of an appeal against an objection decision. Importantly, it provides that: The hearing must be limited to the grounds stated in the valuation appeal notice and the appeal must be by way of rehearing. [17] Section 170 deals with the order that the Land Court may make on a valuation appeal. The Land Court may confirm the valuation appealed against or reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under the Act. 1 Land Valuation Act 2010 s 151(2). -- 5 of 9 -- 6 [18] I have referred to these sections specifically because the wording of the legislation is, in my view, rather curious in that a decision that is made on an objection decision appeal is not to allow or disallow the appeal; rather, it is to determine the valuation appealed against. There is a mixture of two concepts in the legislation: an appeal against the objection decision; and the orders that are made as to valuation. [19] Such wording in legislation does not make the work of this bench any easier or clearer and it would have certainly been much better if the legislation was worded in such a way to make it clear exactly what was being appealed; how it was being appealed against; and what orders the court could make, much in the same way as it is clear what occurs following the objection. [20] I will now turn to some extra comments in relation to those relevant sections. The first relates to s 131. [21] I find the wording of s 131 to be all-encompassing; that is, that anything said or done about an objection, in an objection conference, is inadmissible in any proceeding. As such, it is no different, in my view, to what occurs at a mediation or at a preliminary conference before this Court. The things that are done and said during an objection conference, including when that objection conference is adjourned from day to day, are not able to be admissible evidence in these proceedings in any way. [22] It does leave open the question though, as to what evidence is able to be admissible in these proceedings. [23] At this point, it is necessary to look at the facts of these appeals. I turn to the decision on objection as it is set out in exhibit 1, and I have only referred, in the time I had available, to one such of the exhibits which is a notice of appeal in relation to 310 Ann Street as at 1 October 2015 relating to property ID 40142341 Lot 2 on RP 124155, just so that it is clear which appeal I am referring to. [24] As part of the notice of appeal, there is a copy of a document dated 25 January 2017 which is titled Decision on Objection, and therefore, seeks to be, it would seem, a notice of an objection decision consistent with s 151 of the Act (although it is differently worded to what s 151 provides). Interestingly, it is a requirement that the decision on the objection set out the decision and the reasons for that decision. -- 6 of 9 -- 7 [25] The decision gleaned from s 150 is to allow the objection, as I mentioned before, disallow the objection or disallow the objection but still change the amount of a valuation. On the face of the document of 25 January 2017, it is impossible to tell whether or not the Valuer-General has applied s 150(a) or s 150(c) as both could equally be applicable. [26] It is of paramount importance that appellants to appeals before this Court should know the nature of decisions that have been made to which they have brought an appeal. I say this because of observations made by then President MacDonald of the Land Court in the case of Steinberger v Valuer-General.2 That was a matter in which an appellant basically sought to have reasons provided by the Valuer-General in more detail than the reasons that had been set out in the objection decision or decision on objection, whichever way you wish to refer to it. In reviewing the matter, President MacDonald specifically found that she did not have the power to direct the Valuer- General to provide an additional written statement of reasons under the Judicial Review Act 1991. That is clearly an important aspect of the decision. I do not have any disagreement with what her Honour found in that regard or with any of her Honour’s reasoning. [27] It is important, though, that her Honour then went, in her reasons, to consider what she referred to as other matters, and in that regard, she had this to say at paragraphs 21 to 23: [21] My reasons above indicate that I do not consider that I have the power to order the Valuer-General to prepare and provide an additional statement of reasons for the objection decision. [22] However, if there are in existence documents directly relevant to the matters in issue in the appeal, the respondent would appear to be under a duty to disclose those documents to the appellant pursuant to rule 211 of the Uniform Civil Procedure Rules 1999 (UCPR). The appellant has not applied for an order for disclosure. [23] In addition, although I have concluded that I have no power to order the respondent to prepare and provide a further statement of reasons, I should also make it clear that the appellant will not be left in ignorance as to the evidence which the respondent intends to call to support the valuation amount… (footnotes omitted) 2 [2014] 35 QLCR 241. -- 7 of 9 -- 8 [28] Her Honour then considered the importance of the exchange of statements of evidence and continued at paragraph 24: [24] I consider that this is the appropriate process to be adopted because of the nature of the appeal proceedings under the Act. Section 169(2) provides that the appeal must be by way of rehearing. Although s 169(1) limits the hearing of the appeal to be grounds stated in the valuation appeal notice, s 169 otherwise does not limit the evidence which may be adduced at the hearing of the appeal… [29] I do not disagree with President MacDonald in the precise wording of what she has stated, but I do note of course that s 131 is a restriction on the evidence that can be dealt with at the hearing of an appeal. That is, no evidence can be brought as to anything which occurred at the objections conference. That leads to a conclusion that other things that have occurred outside of the objection conference may, depending on the case, involve matters of evidence which will be relevant to the hearing of an appeal against an objection decision by this Court. [30] Mr Fynes-Clinton ran this application on the basis of there being no possibility, due to the way the legislation is worded, of there being any evidence that could be relevant. I agree with President MacDonald that there are aspects which would allow evidence to be relevant and, as such, on those narrow grounds, in the limited time I have had available, I think it appropriate to disallow the application brought by Mr Fynes-Clinton. That, however, does not end the matter. There is a very important aspect which also has to be considered and that is, the rules of the Land Court. Rule 24J and under the heading ‘non-expert statements of evidence’ is as follows: (2) Before giving the evidence or calling the other person, the party must deliver to the registry, personally or by facsimile or email, and serve on each other party, a written statement containing— (a) the name, address and occupation of the party or other person; and (b) the evidence of the party or other person for the hearing. (3) The party must comply with subrule (2) at least 21 days before the date set for the hearing or, if the court directs a different time, within the time directed by the court.3 [31] We are well within that time. We are at the seventh day of the hearing. In my view, it will be a matter for the appellants to seek leave to bring further oral evidence by way of the subpoena. Before leave can be granted factors to consider include the 3 Land Court Rules 2000. -- 8 of 9 -- 9 procedures adopted; the orders made in preparing this matter for hearing; and the way the orderly conduct of these proceedings are impacted by the late bringing of any of these applications for subpoenas at this time. [32] That concludes the reasons for decision. I will hear from the parties as to any resultant applications for costs. ORDER: Application dismissed. PA SMITH MEMBER OF THE LAND COURT -- 9 of 9 --