Company 57 Pty Ltd as TTE for the Beacon Pastures Trust v Department of Transport & Main Roads [2017] QLC 6

LAND COURT OF QUEENSLAND CITATION: Company 57 Pty Ltd as TTE for the Beacon Pastures Trust v Department of Transport & Main Roads [2017] QLC 6 PARTIES: Company 57 Pty Ltd as Tte for the Beacon Pastures Trust (ACN 114 055 499) (applicant) v Chief Executive, Department of Transport & Main Roads (respondent) FILE NO/s: AQL544-15 DIVISION: General division PROCEEDING: Hearing of application DELIVERED ON: Ex tempore DELIVERED AT: Brisbane HEARD ON: 31 January 2017 and 1 February 2017 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDER/S: 1. The application is granted. 2. I make the orders and directions in the form agreed between the parties (see outline in appendix A). 3. The applicant must pay the respondent’s costs of and incidental to the application, but this order is not enforceable until the proceedings have been determined. 4. The applicant must pay the costs thrown away as a result of these orders, limited to half of the respondent’s costs of the mediation and half of the costs of the joint conferrals by experts to date. 5. Those costs will be fixed by the court after the proceedings have been determined. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – Where the applicant sought leave to amend its Points of -- 1 of 9 -- Claim and to lead further evidence, including expert evidence, where the circumstances justified exercising discretion in the applicant’s favour – where the role of the expert in advising the court favoured the experts being able to lead further opinion evidence PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where applicants obtained leave to amend and lead further evidence – where need for leave not attributable to the respondent – whether all costs thrown away – whether court should fix costs – when costs should be fixed – when costs order should be enforceable Land Court Act 2000, s 7 APPEARANCES: SJ Keim SC with DC Fahl of Counsel (instructed by Kelly Legal) for the applicants JN Horton QC with DA Quayle of Counsel (instructed by Clayton UTZ) for the respondents On 31 January: [1] Company 57 Pty Ltd has applied for a number of orders: 1. Leave for two of its experts to provide a statement which either departs from or contradicts agreements reached in joint expert conferences or, possibly, introduces a new matter; 2. Leave to amend its Points of Claim; 3. Leave to lead further evidence; and 4. Order for further disclosure by the respondent of materials relevant to opinion evidence given by one of the respondent’s witnesses, Mr Gray. As this issue has been resolved by agreement, it no longer needs to be addressed. [2] Initially the respondent opposed leave being granted. In the alternative, if leave was granted, it wanted a new timetable to be set for the trial, as well as costs orders. [3] I will grant leave for further evidence from Mr Eales and Mr Ovenden and also to amend the Points of Claim. This is done taking into account the following factors. [4] Section 7 of the Land Court Act 2000 provides that: In the exercise of its jurisdiction, the Land Court— (a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. 2 -- 2 of 9 -- [5] The application relates to matters of procedure. It is relevant that this proceeding is not voluntary; in the sense that the land has been compulsorily acquired by the State. That should bear upon the Court’s exercise of its discretion. [6] Other matters to consider, which include the way the parties conducted the case to date, may bear more on the question of costs than the exercise of discretion. [7] The consequences if leave is granted or not favours an exercise of discretion for the applicant. If leave is refused, the consequences for the applicant may be grave in terms of the amount of compensation that may be claimed. For the respondent, the consequence of leave being granted may be able to be ameliorated by an award of costs. [8] The purpose of the rules in relation to the expert witnesses is to encourage and ensure parties prepare their experts appropriately and the experts approach the conference with seriousness. [9] The court also has to consider the role experts play in the court process. The experts’ role is to assist the court to understand issues within their professional expertise. One wonders how the court, consistent with the expert’s duty to the court, can proceed on the basis of opinion evidence an expert no longer holds to. This difficulty is reflected in the rule which allows the court to grant leave to an expert to depart from an opinion expressed in the Joint Expert Report. [10] A number of consequences arise from my decision to grant leave and the parties will be given an opportunity to confer and endeavour to agree on directions. [11] I have already discussed the need for the applicant to ensure the Amended Points of Claim provides sufficient clarity about the basis upon which the claim is made, so the parties can confer about what flows from that for further directions. I will adjourn the application so the parties can confer about agreed directions for the further conduct of the case. On 1 February: [12] I will make orders in the terms agreed between them. (Set out in Appendix A) Costs remain in dispute and I will make orders about that. [13] As to the costs of the application, I order: 3 -- 3 of 9 -- 1. The applicant must pay the respondent’s costs of and incidental to the application, but this order is not enforceable until the proceedings have been determined. [14] My decision rests substantially on the applicant’s need to re-plead its case; to lead further evidence; and to engage further experts. This was not due to any fault on the respondent’s part; particularly the need for the applicant’s Town Planner and Valuer to revisit their opinions after the joint conference. [15] It was evident from the outset, because of the way the applicant’s case was formulated, that it would need to lead evidence about the sand resource: its quality; its extent; its market; and the value of the resource. [16] Disclosure is an aspect of the application that has been resolved by agreement; but on the basis that the respondent does not concede all the documents are disclosable. The respondent argues the disclosure aspect of the application was premature; or that the need for further information might have been identified earlier. In any case, it is only one aspect of an application seeking a number of other orders which have favoured the applicant and which were necessary through no fault of the respondent. [17] The reason the enforcement of the costs order has been deferred is to reflect the involuntary nature of the proceedings before the court. [18] As to the costs thrown away as a result of the application, I order: 2. The applicant must pay the costs thrown away as a result of these orders, limited to half of the respondent’s costs of the mediation and half of the costs of the joint conferrals by experts to date. Those costs will be fixed by the court after the proceedings have been determined. [19] This recognises that not all costs have been thrown away from the joint conferral process or the mediation process. I accept the argument that it is very hard to say now, or in fact ever, that a mediation has no value. However, the agreed timetable for the mediation suggests the parties considered the mediation would be most productive after all expert opinion had been gathered. That is recognised in the award of half but not all of costs awarded. [20] I have decided the costs should be fixed by the court because the Member hearing the matter can deal with it in a timely way. This will avoid the time and expense involved in getting an assessment. Having defined the scope of the costs order, fixing them should be a relatively simple exercise. I have deferred fixing the costs until the 4 -- 4 of 9 -- proceedings have been determined, once again, to reflect the nature of proceedings before the court. FY KINGHAM PRESIDENT OF THE LAND COURT 5 -- 5 of 9 -- Appendix A IN THE LAND COURT OF QUEENSLAND AQL544-15 BETWEEN Company 57 Pty Ltd as TTE for the Beacon Pastures Trust Applicant AND Chief Executive Department of Transport & Main Roads Respondent Before President FY Kingham BRISBANE The First day of February 2017 The Court ORDERED that: Application for Leave 1. The Applicant is granted leave to amend its Points of Claim (Amended Claim), which must be filed on or before 5.00pm on 2 February 2017. 2. Geoffrey William Eales is given leave pursuant to Rule 24E of the Land Court Rules 2000 (Rules) to give evidence which departs from opinions he expressed in the joint expert report of the valuation experts. Such leave is limited to the matters identified in his affidavit filed 12 January 2017 and his affidavit filed by leave on 31 January 2017 that are relevant to the Amended Claim. 3. Gregory John Ovenden is given leave pursuant to Rule 24E of the Land Court Rules 2000 to give evidence which departs from opinions he expressed in the joint expert report of the town planning experts, dated 16 September 2016. Such leave is limited to the matters identified in his affidavit filed 12 January 2017 that are relevant to the Amended Claim. 6 -- 6 of 9 -- 4. The Applicant is granted leave to nominate Peter Richard Dunwoody (Mr Dunwoody), Peter James Jones (Mr Jones) and Neil Storeshaw (Mr Storeshaw) as expert witnesses in respect of the matters of opinion expressed in their statements of evidence respectively dated 9 January 2017 and 11 January 2017. 5. The Applicant is granted leave to file and serve the statements of evidence of: (a) Charles Walter Ogilvie dated 10 January 2017; (b) Mr Storeshaw dated 11 January 2017; (c) Mr Jones dated 11 January 2017; (d) Mr Dunwoody dated 9 January 2017. 6. The Respondent is to file its Amended Points of Defence (Amended Defence) on or before 20 February 2017. 7. The issues in the Application are those issues in dispute identified in the Amended Claim and the Amended Defence (Issues). 8. Without derogating from their ongoing duty of disclosure, by 24 February 2017, the Applicant and Respondent are to make further disclosure in accordance with the Rules with copies of any documents disclosed and requested to be provided by 3 March 2017. Further Joint Experts Meetings and Reports 9. On or before 5.00pm on 27 February 2017, Mr Jones and Mr Dunwoody are to meet with Mr Dugald Gray and prepare a joint expert report pursuant to Part V Division 2 of the Rules with respect to those aspects of the Issues pertaining to sand pricing, costs and market conditions. 10. On or before 5.00pm on 10 March 2017, Mr Gray, Mr Cavill-Jones and Mr Storeshaw are to meet and prepare a joint expert report pursuant to Part V Division 2 of the Rules with respect to those aspects of the Issues pertaining to resource quantities. 11. On or before 5.00pm on 27 March 2017, the town planners (as nominated by the parties) are to meet and prepare a supplementary joint expert report pursuant to Part V Division 2 of the Rules, to address any additional matters identified by the 7 -- 7 of 9 -- Issues and arising from the joint expert reports prepared pursuant to paragraphs 9 & 10. 12. On or before 5.00pm on 10 April 2017, the following experts (as nominated by the parties) are to meet and prepare a supplementary joint expert report pursuant to Part V Division 2 of the Rules, to address any additional matters identified by the Issues and arising from the joint expert reports prepared pursuant to paragraphs 9, 10 and 11: (a) the accounting experts; (b) civil engineers; (c) traffic engineers. 13. On or before 5.00pm on 10 May 2017, the valuation experts are to meet and prepare a supplementary joint expert report pursuant to Part V Division 2 of the Rules to address any additional matters identified by the Issues and arising from the joint expert reports prepared pursuant to paragraphs 9, 10, 11 and 12. 14. The parties shall serve any statements of evidence from experts on or before 19 May 2017. Hearing and Review Dates 15. Order 12 made on 20 September 2016 and Order 5 made on 15 December 2016 are vacated. 16. The hearing of this matter: (a) is set down to commence on 5 June at Brisbane with an estimated hearing time of 2 weeks, to resume, if required, on 17 July 2017 for 5 days. (b) is set down for prehearing review on 15 May 2017 by which time the parties shall have agreed on the contents of a bundle of materials for the Court for the purposes of the hearing. Costs 17. The Applicant must pay the Respondent’s costs of and incidental to this application to be assessed on the standard basis, but such order is not enforceable until the proceeding is determined. 8 -- 8 of 9 -- 18. The Applicant must pay half of the Respondent’s costs of and incidental to the mediation and half of the Respondent’s costs of and incidental to all joint expert conferrals to the date of this order, with such costs to be fixed by the Court after the proceeding is determined. Liberty to apply 19. The parties have liberty to apply for further orders or directions on the giving of one business day’s written notice. By the Court Registrar 9 -- 9 of 9 --