Bunnings Properties Pty Ltd v Valuer-General; The Trust Company Limited v Valuer-General [2016] QLC 63 (2016) 37 QLCR 369

LAND COURT OF QUEENSLAND CITATION: Bunnings Properties Pty Ltd v Valuer-General; The Trust Company Limited v Valuer-General [2016] QLC 63 PARTIES: Bunnings Properties Pty Ltd (applicant) & The Trust Company Limited (applicant) v Valuer-General (respondent) FILE NO/s: LVA069-16 LVA073-16 DIVISION: General Division PROCEEDING: Application DELIVERED ON: 2 November 2016 DELIVERED AT: Brisbane HEARD ON: 13 September 2016 HEARD AT: Brisbane MEMBER: WL Cochrane ORDERS: 1. The application is allowed. 2. The properties identified in the documents entitled Amended Particularisation of Grounds of Appeal are able to be relied upon by the appellant in the hearing of the appeal. CATCHWORDS: PROCEEDINGS – PLEADINGS – PARTICULARS – whether amendment to particulars of grounds of appeal can be made – amendment to grounds of appeal Valuation of Land Act 1944 Land Court Rules 2000 Land Valuation Act 2010 -- 1 of 24 -- 2 Booker & Ors v Valuer-General 1966 33 CLLR Buckler & Anor v Department of Natural Resources and Water [2011] QLC 7 Dawson v Department of Natural Resources and Mines [2002] QLAC 23 G Franklin & Ors v. The Valuer-General (1978) 5 QLCR 181 Monaghan v Department of Natural Resources and Mines [2003] QLC 70 NRNQ (a limited partnership) v MEQ NICKEL PTY LTD [1990] QSC 320 van Amstel v. Chief Executive, Department of Lands (1997- 1998) 17 QLCR 27 APPEARANCES: Mr N Murphy, agent – Savills Valuations Pty Ltd Mr TW Quinn of Counsel, instructed by GR Cooper, Crown Solicitor Background [1] On 16 December 2015 the respondent issued a decision on objection in respect of two separate lots of land in different ownership. The first lot of land which I shall refer to as the “Bunnings” land (file number LVA069-16) is described as Lot 1 on SP 254133, County of Stanley, Parish of Yeerongpilly, having an area of 4.037 ha being located at 1661 Beaudesert Road, Acacia Ridge in Brisbane. [2] The second lot of land which I shall refer to as “The Trust Company” land (file number LVA073-16) is described as Lot 2 on RP 175924, County of Stanley, Parish of Yeerongpilly, having an area of 11.06 ha and a street address of 338 Bradman Street Acacia Ridge in Brisbane. [3] In each case the decision notice rejected an objection against the valuation. In each case the reason given for the rejection of the objection was:  “When compared to sale prices of similar properties the delegate decided the figures supported the applied value and no change in the valuation should be made; and  When compared to similar properties the delegate decided that no change in the valuation should be made.” [4] Curiously, although the reasons for the decision in each case were identical, they were articulated in a different order in each case. [5] From those decision notices both Bunnings and The Trust Company have appealed to this Court by Notices of Appeal each filed on 15 February 2016. -- 2 of 24 -- 3 [6] The lots of land are valuable. [7] In the Bunnings case the official valuation is presently $7,800,000 in respect of which the appellant contends the valuation should be $7,100,000. In the case of The Trust Company land the official valuation is $17,000,000 and the appellant contends that that valuation should be reduced to $16,500,000. [8] In each case the date of valuation was as at 1 October 2014 with the date of effect of that valuation being 30 June 2015. In each case the appeals were lodged by Savills Valuations Pty Ltd as agent for the landowner. [9] At no time has there been a solicitor on the record for either appellant. Mr Neil Murphy, a senior valuer in the employ of Savills Valuations Pty Ltd, has the carriage of each appeal for the appellant. [10] Mr TW Quinn of Counsel appeared for the respondent instructed by the Crown Solicitor. [11] During the whole of the time the appeals have been live before the Court they have been mentioned and reviewed on the same day by the same Member at the same time. [12] At the first review date on 17 March 2016 orders were made. Those orders were in identical terms and provided relevantly as follows: “1. On or before 4.00pm, Thursday 14 April 2016, the parties exchange, by way of disclosure, a list of all documents in their possession or control directly relevant to the issues in the proceedings. 2. The parties are to provide inspection or copies of the listed documents by 4.00pm on Thursday 21 April 2016. 3. On or before 4.00pm, Friday 6 May 2016, the appellant is to file in the Land Court Registry and serve on the respondent, a full and proper particularisation of each of the grounds of appeal set out in their notice of appeal and intended to be relied upon at hearing. 4. On or before 4.00pm, Friday 20 May 2016, the respondent is to file in the Land Court Registry and serve on the appellant, a statement of facts, matters and contentions in response to the appellant’s particulars of the grounds of appeal provided in response to order 5. On or before 4.00pm, Friday 3 June 2016, the appellant is to provide written notification to the respondent of the appointment of each expert witness from whom the appellant proposes to adduce evidence at the hearing including: a) The name of the witness; b) The field or area of expertise of the witness; and c) A short statement of the specific issue or assertion to which the witness’ evidence is directed.” -- 3 of 24 -- 4 [13] It is apt to refer to the Notice of Appeal in each appeal and the manner in which the grounds of appeal are identified. In each case in section 5 of the appropriate form (Form 3 – pursuant to s 155 of the Land Valuation Act 2010) which requires identification of the grounds of appeal there appears the following: “Please refer to Grounds of Appeal in Annexure A and Further Information to Grounds of Appeal detailed in Annexure B.” [14] Annexure A provides the following (again in each case in identical terms): “1. The site value as assessed is not supported by property sales and is excessive having regard to comparable property sales including those identified in Annexure B. 2. The site value does not reflect the physical and legal characteristics of the land and/or constraints on the use of the land including those identified in Annexure B. 3. The assessed site value does not achieve or preserve uniformity of value between the assessed site value and valuations of other comparable parcels, including the comparable parcels identified in Annexure B. 4. The Valuer General's valuation: (a) is excessive; (b) is not supported by sales evidence; (c) is based on fundamentally erroneous methodology; and (d) fails to take account of factors which ought to be taken account of, including those factors identified in Ground 2.” [15] Annexure B to each appeal is entitled Further Information to Grounds of Appeal and in respect of the Bunnings properties land identifies the following lots of land as being relevantly comparable sales to which regard is sought to be had by the appellant: “(a) 2365 Ipswich Road, Oxley; (b) 6 – 16 Logan Downs Drive; and 14 – 16 Nestor Drive, Meadowbrook; and (c) 66 Cullen Avenue, Eagle Farm; (d) 13 – 15 Glasson Drive, Bethania; (e) 115 Compton Road, Underwood; (f) 67 Logistics Place, Larapinta.” [16] In respect of The Trust Company land the following sales were similarly identified: “(a) 86A Micah Street, Carole Park; (b) 506 Lytton Road, Morningside; (c) 2 & 356 – 368 Wembley Road Berrinba (d) 66 Cullen Avenue, Eagle Farm.” [17] Annexure B then contains at ground 2 a reference to the physical characteristics of the land and / or constraints on the use of the land. Those issues are not relevant to this decision and it is unnecessary to recite them. -- 4 of 24 -- 5 [18] Ground 3 of Annexure B which contains articulation of a ground relating to relativity says in each case: “The site value of the land preserves uniformity in site values between the valuation of the subject property and valuations of other comparable parcels of land. The Respondent has failed to maintain relativity with the comparable site sales listed below.” [19] In respect of the Bunnings property the sites referred to are “(a) 20 Paradise Road, Acacia Ridge; (b) 79 McCotter Street, Acacia Ridge” [20] In respect of The Trust Company appeal the following sites are identified: “(a) 70 Distribution Street, Larapinta; (b) 3676 Ipswich Road, Wacol” [21] The appeals were together listed for further review on 25 August 2016. [22] On that occasion issue was taken by the respondent with respect to the particulars provided at that time. [23] On 6 May 2016 in each case the appellant filed a document entitled “Particulars of Grounds of Appeal”. [24] That document in its preamble said: “The full and proper particulars, of each of the Grounds of Appeal as submitted in the Notice of Appeal lodged 15 February 2016 has (sic) been detailed below and is intended to be relied upon by the Appellant.” [25] Those particulars identified the same lots of land as had been referred to in the original notice of appeal and no issue was taken by the respondent with that particularisation. [26] In response and in accordance with the order made by me on 17 March 2016 the respondent filed and served a Statement of Facts, Matters and Contentions on 20 May 2016. Those facts, matters and contentions specifically referred to the sales identified in the notice of appeal and in addition and, as is usual in appeals of this sort, the respondent then identified the site value of other sales of other properties to which they say regard should be had in determining the appropriate value of the subject land. [27] In each case the respondent referred to land located at: “(a) 2414 Ipswich Road, Darra; (b) 79 Mica Street, Carole Park; (c) 98 Postle Street, Acacia Ridge.” -- 5 of 24 -- 6 [28] In respect of The Trust Company appeal the respondent also identified land located at 139 Mica Street Carole Park. [29] In accordance with the order of 17 March 2016 the further review of the appeals occurred on 13 June 2016. [30] At the review on 13 June 2016 an order was made for the valuation experts identified by the parties to commence a meeting of experts pursuant to Part 5 of the Land Court Rules 2000 (the Rules) and to produce a joint report pursuant to rule 24A of the Rules. [31] Subsequently on 21 July 2016 a joint expert report in each of the matters was filed with the Court. [32] In the Bunnings matterin the joint report in respect of the Bunnings matter land located at 2414 Ipswich Road, Darra is identified as a “common sale between the parties”. That was notwithstanding the land located at 2414 Ipswich Road, Darra was not identified either in the Notice of Appeal or in the Appellant’s Particulars of 6 May 2016. It had been identified by the respondent however. [33] The joint report also identified, as an appellant’s sale land, located at 98 Postle Street, Acacia Ridge which had not previously been identified and didn’t appear in the Particulars until the amended Particulars of 24 August 2016 were filed. It was however identified in that joint report as a common sale between the parties and had been identified by the respondent. [34] In a similar vein the Bunnings joint report identified as Sale 3 land located at 50 – 70 Radius Drive, Larapinta, which land was first identified by the appellant in the Particulars of 24 August 2016. It was not otherwise identified by the respondent. [35] The respondent’s sales evidence referred to land at 2414 Ipswich Road, Darra, 79 Mica Street, Carole Park and 356 Murdoch Circuit, Acacia Ridge as well as the land located at 98 Postle Street, Acacia Ridge, another sale referred to by the respondent in its earlier Statement of Facts, Matters and Contentions. [36] There was also reference by the respondent to land located at 20 Paradise Road, Acacia Ridge, which land had not – prior to the joint meeting – been identified by the respondent. -- 6 of 24 -- 7 [37] In the joint report in respect of The Trust Company the subject land is located at 338 Bradman Street, Acacia Ridge. The appellant again adopted reference to 2414 Ipswich Road, Darra and in addition referred to the land at 98 Postle Street, Acacia Ridge, which it had not identified prior to as a particular or comparable sale prior to the document of 24 August 2016. [38] There was also reference by the appellant to land at 2 & 356 – 368 Wembley Road, Berrinba which it had earlier identified. [39] The respondent’s valuer referred to 2414 Ipswich Road, Darra, 79 Mica Street, Carole Park and 98 Postle Street, Acacia Ridge. [40] As with the Bunnings joint report the respondent’s valuer identified the land at 56 Murdoch Circuit, Acacia Ridge, which land had not previously been identified as relevant by the respondent. [41] Within the joint expert reports there did not appear any intimation by either valuer that they were unaware of or unable to comment upon sales relied upon by their counterpart which may not previously had been mentioned in the formal documentation filed in the Court. [42] I note also that in respect of the relativity assessment by Mr Ladewig which is reflected in the joint report there is reference to land at 2 – 56 Australand Drive, Berrinba, 39 Silica Street, Carole Park and 3676 Ipswich Road, Wacol. [43] The matter returned to Court for review on 11 August 2016. [44] On that date orders were made that the parties were to file a request for a trial date in accordance with rule 34 of the Land Court Rules. [45] It appears that that happened and a notice requesting a trial date was delivered to the Court on 24 August 2016. [46] On 30 August 2016 the appellants’ agent Savills Valuations Pty Ltd filed in the Court a document described as “Contentions of Appellant on Amended Particularisation of the Grounds of Appeal”. In the Bunnings properties matter the properties identified were at: (1) 2414 Ipswich Road, Darra. (2) 98 Postle Street, Acacia Ridge. -- 7 of 24 -- 8 (3) 50 – 70 Radius Drive, Larapinta. [47] In the Trust Company matters the lands identified were: (1) 2414 Ipswich Road, Darra. (2) 98 Postle Street, Acacia Ridge. (3) 2 & 356 – 368 Wembley Road, Berrinba. [48] Further in the Trust Company matter the lots identified as relevant to ground 3 were: (1) 2 – 56 Australand Drive, Berrinba (2) 39 Silica Street, Carole Park. [49] Those properties had previously been referred to above.1 [50] At a review of the matters on 25 August 2016 issue was taken by the respondent with those documents purporting to be amended particularisations of the grounds of appeal and an order was made that “By 4.00pm on Tuesday 30 August the appellant is to file and serve a document setting out its contentions as to whether the Amended Particularisation of the Grounds of Appeal delivered on Wednesday 24 August 2016 truly constitute a particularisation of the Grounds of Appeal, or, in fact, add an additional ground of appeal.” [51] At a further review on 1 September 2016 the respondent took issue with the response by the appellant to that order of 25 August 2016 and an order was made that the appellant was to file and serve any application for leave to amend its particulars filed 6 May 2016 supported by affidavits. [52] It is that application that this decision addresses. [53] The resolution of this matter requires that four individual questions should be addressed. [54] Those questions are: (1) Does the Court have the capacity to permit the amendment of the grounds of appeal nominated in the notice of appeal filed in the Court pursuant to s 157 of the Land Valuation Act 2010? (2) Do the amended particulars filed by the appellant in the instant case constitute an amendment to the grounds of appeal? 1 See para [39]. -- 8 of 24 -- 9 (3) If the amended particulars of appeal do not constitute an amendment to the grounds of appeal are they truly amendments to the particulars of the grounds of appeal identified in the notice of appeal? (4) If they do constitute amended particulars should such amended particulars be permitted at this late stage, and the appellant allowed to rely upon them? Amendment of the Grounds of Appeal [55] The Land Court is a Court of statutory jurisdiction which gives its powers from the various statutes which bestow power upon it. [56] The Land Valuation Act 2010 and its predecessor the Valuation of Land Act 1944 is a relatively prescriptive document. [57] In particular in the context of this decision Part 2 Starting appeal provides: Part 2 Starting appeal 157 How to appeal (1) An appeal is started by filing a notice of appeal (a valuation appeal notice). (2) Subject to section 158, an appeal can not be started after 60 days after the day of issue stated in the objection decision notice (the appeal period). (3) A valuation appeal notice must state— (a) the grounds of appeal; and (b) the amount the appellant seeks for the valuation; and (c) if the appellant claims a site improvement deduction or a higher site improvement deduction—the site improvement deduction claimed. (4) A valuation appeal notice may relate to the objection decision for only 1 objection. (5) The requirements under this section are the valuation appeal requirements. [58] Subsections 1, 2 restate similar provisions contained within the Valuation of Land Act 1944 (ss 55 and 56). [59] Section 169 of the LVA provides: -- 9 of 24 -- 10 “The hearing must be limited to the grounds stated in the valuation appeal notice.” [60] That section goes on to provide that the appellant has the onus of proof for each of the grounds of appeal. [61] There is nothing in the LVA which deals with the issue of amending the grounds of appeal contained within the notice of appeal. [62] There have been a number of decisions of this Court and the Land Appeal Court in which the conclusion has been reached that there is no power to amend a notice of appeal. [63] For completeness I have set out below the relevant observations in respect of five such cases: Bruce Small Estates Pty Ltd v Chief Executive, Department of Natural Resources2 [64] The Bruce Small Estates Pty Ltd decision was in respect of costs in a case where an appellant had succeeded in relation to 10 appeals lodged against the decisions of the respondent, Chief Executive, Department of Natural Resources in respect of land located on the Gold Coast.” [65] In the course of the decision the learned Member observed:3 “The Chief Executive has suggested that BSE never abandoned the value set out in its Notices of Appeal by seeking and obtaining leave to amend them … . BSE has replied that the Land Court does not have power to amend a Notice of Appeal under the Valuation of Land Act. There would seem to be no specific power in the Land Act 1994 permitting the amendment of a Notice of Appeal to reflect the value which an appellant might wish to contend at the hearing. It is clear from the judgement of the Land Appeal Court in Cox v The Commissioner of Water Resources (1992-1993) 14 QLCR 304 that the court must find its power in specific statutory provisions and does not have any powers that might be described as inherent. In the absence of a specific power, the Land Court has no power to amend a Notice of Appeal.” Buckler & Anor v Department of Natural Resources and Water4 [66] This was a decision of his Honour Mr Smith on 4 March 2011 in respect of appeals against annual valuations of land under the Valuation of Land Act 1944. In the course of that decision His Honour observed as follows:: 2 [1997] QLC 174 per Ms Sa Forgie Member. 3 Ibid [27]. 4 [2011] QLC 7 (citations omitted) -- 10 of 24 -- 11 “[23] It is common ground between the parties that the appellant is unable to rely on grounds of appeal outside of those listed in each appeal in light of s.56 as then enacted. The operation of s.56 of the VLA, then numbered as s.21(3) of the VLA, was considered by the Land Appeal Court in the case of Franklin v Valuer-General. The Court made the following observations: “The provisions of the Valuation of Land Act as to the appeal procedure are restrictive in their operation, more especially to an appellant who has made his appeal on narrow and particular grounds rather than on a broad general ground such as ‘the valuation is excessive and contrary to law’. The language used by the Legislature is mandatory and binding not only on the parties but also on this Court and the Land Court.” [24] One of the quirky features of appeals under the VLA has been that those appellants who go to the detail of explaining exactly what their nature of objection is often make their grounds of appeal so restrictive that they are unable to lead evidence as to matters of significant concern to them regarding the valuation complained about simply because such evidence does not properly fall under the heads of one of their specific grounds of appeal. On the other hand, those experienced in filing grounds of appeal in the Land Court often file grounds of appeal worded in the most general way possible and thus tend to capture each and every possible aspect of appeal that could be raised in evidence at the hearing of the appeal. I call this situation “quirky” as those appellants who attempt to specify their grounds of appeal in a meaningful way are often caught short at a hearing, whilst those who file grounds of appeal which, in real terms, reveal nothing to either the respondent or to the Court of what the actual grounds of appeal are, have free rein to admit whatever evidence they choose on appeal. [25] In essence, the respondent in the case at hand is attempting to rely upon the use of a restrictive ground of appeal by the appellant in 2007 to make the stated grounds of appeal in 2006 even more restrictive. Whilst at first glance there may appear to be some logic to the respondent’s argument, in my view it cannot stand close scrutiny. So much was all but conceded by Mr Fynes- Clinton during oral argument when he said: “It’s accepted that the court’s general approach is that once a broad issue such as the matter of comparable sales is raised then all of the matters which input into a proper consideration of comparable sales are at least inferentially raised”. [26] In my view, the question is not so much whether the 2006 grounds of appeal are limited by their failure to include the specific ground of objection relating to the golf course policy as contained in the 2007 grounds of appeal, but rather whether, if the specific ground had not been included in the 2007 appeal, all of the evidence adduced by the appellant could have been sustained by the general grounds of appeal set out in both notices of appeal. In my view, the answer must be a resounding yes. [27] In my view, whilst the appellants are limited to the grounds of appeal as set out in their notices of appeal, the broad nature of those notices of appeal is sufficient to encompass all of the evidence presented by the appellants at the appeal hearing of both valuation appeals.” -- 11 of 24 -- 12 Dawson v Department of Natural Resources and Mines5 [67] This was an appeal by Dawson against the decisions of the Land Court on two preliminary matters that: (a) the Land Court had no power to amend the notice of appeal and (b) the notice of appeal does not disclose any reasonable grounds of appeal and the appeal must therefore be struck out. [68] The relevant legislation was the Water Resources Act 1989 which then contained in s 51 a provision that a dissatisfied person could appeal against the decision of the Chief Executive in relation to an application for a water licence. Section 51(5) dealt with the grounds of appeal and provided that: "The notice of appeal must state the grounds upon which the appellant intends to rely and the appellant is not entitled to raise on the appeal a ground not stated in the notice." The appellant had filed in the Land Court registry a document entitled "Amended Notice of Appeal" and contended that while s 51(5) precluded the appellant from raising a new ground on the hearing of the appeal the subsection did not prevent amendments being made before the hearing of the appeal. [69] Relying upon previous decisions of the Land Court the Member refused to allow any amendment of or addition to the grounds of appeal. In the decision below the learned Member referred to the decision of Thomas J in Rogers v Sadler6 [70] In Rogers v Sadler Thomas J said in respect of the then then s 4.26(3A) of the Water Resources Act 1989 (which was in identical terms to s 51(5) of the Act at the time the Dawson matter was being ventilated): “That certainly declares that the appellant has no right to insist upon or be heard upon grounds not stated in the notice, but it does not say that the court is precluded from permitting any amendment to the grounds stated in the notice and it does not say that the court is not entitled to do so. I have not had the opportunity of considering the operation of this section in the context of Land Court procedure, but I am as at present advised by no means satisfied that a notice of appeal could not be amended.” The learned Member then observed:7 5 [2002] QLAC 23 per Jones J, Mr Trickett Member and Mr Wenck Member. 6 Rogers v Sadler (Unreported, Supreme Court of Queensland, Thomas J, 4 February 1993) paras 5-6. 7 Ibid, para 19. -- 12 of 24 -- 13 “The learned judge (i.e. in Rogers v Sadler) appears to be saying that the effect of the section is that an appellant has no right to amend a Notice of Appeal, but, subject to the fact that the judge had not had the opportunity to consider the operation of the section in the context of the Land Court procedure, he is of the view that it might be possible for the Court to permit an amendment. Later in the decision at para 21 the learned Member observed as follows:8 “(21) In either case, reference to the decisions of the Land Court interpreting s51(5) and its predecessors shows that, without exception, the Court has refused to allow any amendment or addition to the grounds set out in the Notice of Appeal. In Litschner v The Commissioner of Water Resources (A85-80) unreported, Land Court, 20 November 1985) and English v The Commissioner of Water Resources (A87-55) unreported, Land Court, 30 October 1987) the Court considered s.12(4B) of the Water Act 1926 which provided that “the notice of appeal shall state the grounds of appeal and the appeal shall be limited to the grounds stated.” Although the wording is not identical with the wording of s.51(5) of the Act, it is considered that the difference is not significant and therefore the decisions in those cases are applicable to the interpretation of s.51(5). In both cases it was held that the Court had no power to allow the appellant to amend the grounds of appeal. The same conclusion was reached in Rogers v The Commissioner of Water Resources (A92-52) unreported, Land Court, 6 April 1993), a decision interpreting s.4.26 of the Water Resources Act 1989. That section is identical with s.51(5). A similar conclusion was reached in Molloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608. The High Court was interpreting S44M(3) of the Land Tax Assessment Act 1910 (Cth) which provided that “a taxpayer shall be limited, on the hearing of the appeal, to the grounds stated in his objection”. The Court held that this provision precluded the taxpayer from relying on an additional ground, not stated in the objections to the assessment. The Court said that S44M(3) “is a positive statutory provision that upon appeal the taxpayer is limited to the grounds set out in the notice of objection. This we regard as an imperative direction to the court, not as a provision merely for the benefit of the Commissioner which he is in a position to waive.” It is considered that no significant distinction can be drawn between S44M(3) of the Land Tax Assessment Act and s.51(5) of the Act and that, therefore, the appellant cannot substitute new grounds of appeal for those set out in the Notice of Appeal.. (22) As noted earlier, Mr Wrenn submitted that the purpose of s.51(5) was to prevent an appellant from raising new grounds of appeal on the hearing of the appeal and thus taking the respondent by surprise. He submitted, therefore, that the section did not prevent an appellant adding new grounds prior to the hearing. I have come to the conclusion that this is not the correct construction of s.51(5). In the case of Rogers v The Chief Executive, Primary Industries Corporation (unreported, Land Court, 6 April 1993), the application for leave to amend the Notice of Appeal was heard and decided before the hearing of the appeal. The Court refused to allow the proposed amendments. It would appear, however, that the interpretation contended for by Counsel for the appellant in the present case was not put forward in Rogers. Nevertheless there was no suggestion that there are any 8 Ibid, paras 21-24. -- 13 of 24 -- 14 circumstances in which the Court may allow an amendment to the grounds of appeal. (23)This conclusion is confirmed by the decision in Molloy. In that case, following an unsuccessful objection to the Federal Commissioner of Land Tax against land tax assessments, the taxpayer appealed to the High Court in its original jurisdiction and then to the High Court sitting as an appellate court. The appeals contained a ground not included in the original notice of objection. In the second appeal it was expressly argued by counsel for the taxpayer that the Federal Commissioner for Land Tax had not been taken by surprise by the new ground. The Court held, as noted above, that the new ground could not be added, because the terms of the legislation were imperative. The same conclusion must be reached in this case. (24) Since I have no power to allow the appellant to amend the Notice of Appeal, these proceedings must continue on the basis of the grounds set out in the original Notice of Appeal.” [71] While it is acknowledged that the sections referred to in the Water Resources Act 1989 are in terms different to the provisions which have appeared variously in the Valuation of Land Act and the Land Valuation Act, the languages, in my opinion, are sufficiently similar to provide some guidance with respect to appeals against valuations. [72] The decision at first instance in Dawson was taken on appeal to the Land Appeal Court and while the appeal was allowed the land appeal drew a distinction between the capacity of the Land Court to permit amendment of a notice of appeal filed pursuant to the provisions of the Water Resources Act and the capacity to allow amendment of a notice of appeal filed pursuant to the then Valuation of Land Act 1944 s 21(3). [73] At the time s 21(3) of the VLA provided: “An appeal under this section shall be instituted by filing in the Land Court registry a notice of appeal. Such notice shall state the grounds of appeal and the appeal shall be limited to grounds so stated and the burden of proving any and every such grounds shall be upon the owner.” In my view a combination of the provisions of s157 and s169 of the Land Valuation Act permit of the same conclusion as was reached by the Land Appeal Court in the Dawson matter. [74] The Land Appeal court observed referring to s 21(3) of the VLA: The words “so stated”, in our view, indicate that the intention of the legislature was that the grounds of appeal be confined to the grounds contained in the notice of appeal as filed in the Land Court registry. No amendment of those grounds contemplated before the hearing.” [75] The Land Appeal Court also referred to the decision in Moolloy v the Federal Commissioner of Land Tax the Land Appeal Court observed: -- 14 of 24 -- 15 “Similar circumstances applied in Moolloy v the Federal Commissioner of Land Tax were ss 44 M(3) of The Land Tax Assessment Act 1910-1934 provided that: [76] Further, “A tax payer shall be limited, on the hearing of the appeal to the grounds stated in his objections.”9 van Amstel v. Chief Executive, Department of Lands10 [77] van Amstel was an appeal pursuant to s 17 of the Valuation of Land Act 1944. [78] An issue arose as to the purpose for which the land subject of the appeal was being used and whether it was used exclusively for the purposes of a single-dwelling house. [79] In the course of the decision (at page 45) the Member (Mr R Scott) referred to the decision of the Land Appeal Court in Franklin v The Valuer-General (1978) 5 QLCR 181. G Franklin & Ors v. The Valuer-General11 [80] The Court was considering the provisions of the Valuation of Land Act 1944 in a case where an appellant sought to add as a ground of appeal before the Land Appeal Court a ground that had not been raised in the original notice of appeal to the Land Court. [81] In that case the Land Appeal Court observed:12 “It seems to us that it is not competent for an appellant before us to add to his grounds of appeal as initially contained in his Notice of Appeal to the Land Court. If he were permitted to do so he would be flouting the mandatory provisions of the Valuation of Land Act previously enumerated. In simple terms in the conduct of his appeal before us an appellant remains limited to the grounds of his original Notice of Appeal to the Land Court.” [82] The Court went on to observe: “On the other hand, the Valuer-General is not limited as to the nature of the reply he makes to an appellant’s appeal. He may decide to restrict his case to the specified grounds of appeal or, as more often happens, he places before the Court the whole basis of the valuation appealed against and in so doing endeavours to answer the specific grounds of appeal.” 9 Moolloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608 at para 34. 10 (1997-1998) 17 QLCR 27 pp43 – 46. 11 (1978) 5 QLCR 181. 12 Ibid, p 184. -- 15 of 24 -- 16 The latter procedure is more conducive to satisfying an appellant’s dissatisfaction, and if in so doing matters other than those raised in the appellant’s grounds of appeal emerge, it would seem unfair if the Court denied cross-examination on them. At the same time, as the Act is presently drawn, the Court is not an investigating tribunal and we do not see how it could uphold or dismiss an appeal on grounds other than those specified in the appellant’s Notice of Appeal. [83] In the Booker decision,13 Mr Smith observing in allowing a party an opportunity to amend the valuation figure contended for as follows: “I think, therefore, in the light of the reasoning of the Full Court in the Australian Pastoral Company case and as I would be in no wise (sic) permitting an amendment of grounds of appeal to which the appellant’s are limited by Statute or allowing the introduction of a fresh ground of appeal but merely allowing correction of an error in certain monetary amounts, that the subject case would be a proper one for permitting an amendment of the notice of appeal in accordance with the power given to the Court by Rule 18.” [84] At the time of those observations Rule 18 of the Land Court’s Rules provided: “The Land Court may allow all such amendments as are necessary for determining the real question in dispute between the parties upon such terms as to costs or otherwise as the Court thinks fit.” [85] I turn now to the second question of whether the amended particulars subject of this decision constitute an amendment to the grounds of appeal. This question necessarily needs be considered in conjunction with the third question which was if the amended particulars of appeal did not constitute an amendment to the grounds of appeal are they truly amendments to the particulars of the grounds of appeal notified in the notice of appeal. [86] It is relevant to refer back to the observations of His Honour Mr Smith in paragraphs 24 and 25 of the Buckler appeal. [87] That is to say is the appellant seeking to take advantage of an articulation of grounds of appeal which permit later nomination of comparable sales? 13 Booker & Ors v Valuer-General 1966 33 CLLR pp 159 para 165. -- 16 of 24 -- 17 [88] The key to that question seems to lie in the language used in Annexure A of the Notice of Appeal which referred the reader on to property sales that were identified in Annexure B. [89] The notice of appeal did not, in terms, express that those sales identified in Annexure B (details of which are set out above) were the only sales to which the appellant intended to refer. [90] The phrase having regard to comparable property sales including those identified in Annexure B can in no way be read to restrict the appellant only to those sales in Annexure B. [91] It must be remembered that the Land Court, in the organisation for the hearing of appeals against valuations, does not have a formal system of pleadings. [92] Over a period of time a practice has evolved of requiring parties to file a document variously entitled but generally referred to as a Statement of Facts, Matters and Contentions which sets out the case that the other side has to meet at the hearing of the appeal. [93] In the decision Monaghan v Department of Natural Resources and Mines14 the following appears: “[58] In respect of whether Mr Dudek’s valuation should be restricted to the five sales provided in the letter from the Chief Executive of 26 March 2003, I refer to the decision of this court in Kalincos and Others v Chief Executive, Department of Natural Resources and Mines (AV2001/0231), 22 August 2002, where the Member said at paragraph [47]:” “I then consider Mr Paterson’s concern that the respondent should not be restricted in his evidence to only those sales contained in the Freedom of Information response obtained under judicial review. In that regard I turn to the decision in Mayne Property Development Pty Ltd v Chief Executive, Department of Lands (AV94-64) 16 February 1996, where the President said at 7: “In my opinion there is no merit in the appellant’s argument. Whatever the respondent’s obligations to provide information under the Freedom of Information Act, this does not prevent him from relying on additional information before this Court. He is not required to advice the appellant of his case in advance. Here there are no pleadings by which a 14 [2003] QLC 70, [58]-[59]. -- 17 of 24 -- 18 party is bound. On most occasions, neither party will know with any certainty what sales the other will be relying upon until they are produced at the hearing.” The unimproved value of a parcel of land is a matter of fact. A valuer forms an opinion of that value based on the evidence he has available at the time of making the valuation. Other evidence may subsequently come to his attention. If, upon closer investigation, he finds that other sales support his opinion then he is entitled to include them in his evidence or substitute them for his initial evidence”. [59]Now since that date there have been amendments to the Land Court Rules 2000, which now require, under Rule 23, that expert evidence be exchanged prior to the actual hearing. However that does not preclude the expert from forming his opinions based upon the evidence as it appears relevant to him at that time. There is also scope with the leave of the Court, for variations under Rule 23(3). I see no reason why Mr Dudek should be restricted in his sales evidence applied in this matter.” [94] Mr Quinn in his extensive submissions pointed out this Court made an order on the 17 March 2016 requiring the appellant to file and serve “A full and proper particularisation of each of the Grounds of Appeal set out in their Notice of Appeal.” [95] Mr Quinn draws the Court’s attention to the well-known decision of his Honour Mr Justice Byrne in NRNQ (a limited partnership) v MEQ NICKEL PTY LTD15 It is worth setting out in some detail Justice Byrnes observations in the latter part in that decision where his honour said as follows:16 “Particulars promote the fair and efficient conduct of litigation. In Bailey v. F.C.T (1977) 136 C.L.R 214 Gibbs J. said at (219) of them: “They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.” See also Astrovlanis Compania Naviera S.A v. Linard [1972] 2 Q.B. 611 where (at 620) Edmund Davides L.J. approved this description of the object of particulars in the Supreme Court Practice (1970) note 18/12/2: “To carry into operation the overriding principle that the litigation between the parties, and particularly the trial should be conducted fairly, openly and without surprises and incidentally to reduce costs.” 15 [1991] 2 Qd R 592. 16 Ibid, pp 594 – 595. -- 18 of 24 -- 19 In recognition of the advantages they confer, particulars are now ordered more freely than in former years. In Palmos v. Georgeson [1961] Qd.R. 186 Stable J. (at192) adopted as appropriate to practice in Queensland the view of the New South Wales Full Court in Philliponi v. Leithead(1959) 59 S.R. (N.S.W.) 352, 358: “During the last century it is apparent that the approach of the courts to any question as to whether particulars should be furnished or not has undergone an appreciable change. With the passage of the years the tendency has been to abandon the narrow view which may be detected in earlier cases and to be more liberal in such speedily attained if each party is fully aware of the precise nature of the allegations made by the other.” These days particulars may require the disclosure of information in such detail as to indicate the mode by which a case may be proved. As an example, where the pleading alleges an oral contract, particulars are commonly ordered of the identity of the persons who concluded the contract and of the date and place at which it was made. And that particulars will disclose the evidence to be adduced at trial is not of itself a sufficient justification for refusing them: Wooton v. Sievier [1913] 3 K.B. 499, 503. The modern practice is concisely stated by the learned author (Sir Jack I.H. Jacob) of Bullen and Leake and Jacob’s Precedents of Pleadings (12 ed., 1975) at p.115: “where the information asked for is clearly necessary to enable the applicant properly to prepare for trial, or where in other respects the application is a proper one, the information must be given even though it discloses some portion of the evidence on which the other party proposes to rely at the trial.” See also Pinson v. Lloyds and National Provincial Foreign Bank Limited [1941] 2 K.B. 72, 75. The openness afforded by adequate particulars facilitates effective resolution of the dispute.” [96] Of those observations Mr Quinn says:17 “One important principle stated in NRNQ at 597, line 46, is that particulars are given of material facts not in substitution for them. Another, NRNQ at 597, line 35 –598 line 5, is that a pleading which omits necessary material facts is defective and cannot be cured by merely providing reported particulars it will be struck out.” [97] Those observations have more weight in the context of the Supreme and District Court in which the civil jurisdiction is guided and controlled by relatively strict system of pleadings. As observed above this Court does not have a formal structure or system of pleadings and indeed with respect to the matter of compliance with rules the Land Court Rules 2000 provided at Rule 6: “The Court may waive compliance with a rule, or excuse non-compliance with a rule, if the Court considers compliance would be likely to cause injustice or unreasonable expense or inconvenience.” 17 Valuer-General’s submissions, paras 102 – 103. -- 19 of 24 -- 20 [98] The Land Court Act itself also contains at s 7 guidance to the Land Court in the conduct of its business. Section 7 provides: Land Court to be guided by equity and good conscience 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. [99] Mr Quinn goes on to submit that:18 “Any suggestion that identification of a sale does not involve a fundamental material fact in a valuation pleading but a mere particular is wrong.” [100] The identification of a particular sale may well be a material fact but that material fact goes to satisfying the onus in respect of a ground of appeal. [101] In the present case the appeal is against the determination of a particular value for the subject land and the correctness or otherwise of that valuation is determined, generally, by reference to comparable sales. [102] There is in the valuer general’s outline of submissions no suggestion that any particular detriment would be suffered by the respondent should some amendment of particulars be allowed even at this late stage. [103] As pointed out earlier in this decision the disputed particulars which all consist of the identification of what is said to be comparable sales were all mentioned one way or another in the joint reports in respect of each of the Bunnings v. The Trust Company Ltd matter produced by the parties’ valuers following meetings between them. [104] It does appear to me that on no basis can it be said that the valuer engaged by the respondent would be taken by surprise in having to consider the sales now identified by the appellant. [105] It is unfortunate that the appellant did not give full consideration to all potential sales either at the time that the notices of appeal were being composed or at the time the 18 Valuer-General’s submissions, para 106. -- 20 of 24 -- 21 appellant was responding to the order made on the 17 March, 2016 but left it until a very late stage to seek formally incorporate those sales into the particulars. [106] It might be thought to the fundamental what a competent valuer preparing to confer with a professional colleague would have diligently searched out all the relevant and comparable sales which are to be discussed. It might also be commented that all such sales are historical in the sense that the relevant valuation period is generally 18 months to two years before such a conference occurs. [107] To start, identifying comparable sales after a conference of experts has occurred entirely confounds the process and should occur only in exceptional circumstances. [108] I am however, moved by the concept that a party ought, subject to any need for appropriate cost orders, be able to fully prosecute its case in appeal against a valuation. [109] I am satisfied that the amended particulars by the appellant in each of these particular cases do not constitute amendment to the grounds of appeal but do constitute amendments to the particulars of the ground of appeal which should have been notified earlier. [110] The fourth question set out19 concerns whether having determined that the amended particulars of appeal do constitute particulars, should they be permitted at this late stage. [111] There was contained in the material filed by the parties, in particular by the respondent Valuer-General, no information of any particular detriment which would be suffered by allowing full ventilation of all the allegedly comparable sales. [112] Accordingly I propose to allow the appellant to rely upon those sales which have been identified in the amended particularisation of the grounds of appeal filed on the 24 August 2016. [113] Had there been affidavit material which deposed to the valuer engaged by the respondent being unable to properly respond to the lately identified alleged comparable sales or, indeed, any assertion by the valuer that he was unable to effectively participate in the joint experts meeting I would be less inclined to allow such late particulerisation. [114] However, in the present case there was no such information by the respondent I note in passing that the respondent being a government instrumentality is bound by the long standing notion that it ought conduct itself as a model litigant and not embark upon 19 Para 55 of Valuer Generals submissions. -- 21 of 24 -- 22 technical arguments which might be thought designed merely to frustrate a proper determination of the issues between the parties. [115] That does not, however, translate into an appellant having an “open ticket” to notify comparable sales at a very late stage of the proceedings [116] I am also taking into account that the appellant has, to date, not been represented by a legal practitioner but by a registered valuer. That is somewhat surprising given the fact that one of the lots of land as a valuation, on either case, in excess of $7 million and in the other case somewhere between $16 and $17 million. [117] That then brings me to another matter which is concern to me. [118] That matter is that the appellant in this case is represented by Mr Murphy a valuer in the employ of Savills Valuations Pty Ltd. [119] Mr Murphy who is not a solicitor is clearly acting as an advocate for the appellants in each of these cases. As indicated above each case involves a very considerable sum of money in one case (Bunnings) a valuation of $7.8 million against which a contention of $7.1 million is raised and in the other case (The Trust Company) the official valuation is $17 million against a contention by the appellant of $16.5 million. [120] Mr Murphy has informed the Court the valuer upon whom he proposes to rely is Mr Coen Ladewig. [121] I understand from documents filed by Mr Murphy that he and Mr Ladewig are members of the Australian Property Institute. [122] That institute has ethical rules which seek to control the conduct of their members. [123] In the present case Mr Murphy is clearly acting as an advocate utilising the services of Mr Ladewig as an appropriate qualified valuer. [124] Relevantly the Australian Property Institute Code of Professional Conduct sets out: “A public statement of the Principles, Values and Behaviour expected of Members of the Institute as determined by the National Council. The purpose of the Code is to ensure the high standards of corporate and individual behaviour are observed by all members. Every member of the Institute must comply with the codes. A breach of this code may constitute professional misconduct which may be investigated by the Institute in accordance with the complaints procedures under the By-Laws.” [125] Rule 3 which deals with Impartiality provides as follows: Rule 3: Impartiality -- 22 of 24 -- 23 3.1 A Member must maintain the strictest independence and impartiality when making a valuation and/or where the exercise of objective judgement is required. In such circumstances, a Member must not: (a) adopt the role of advocate in a case where their duty is to exercise independence and impartiality; (b) act as an advocate and as an expert in the same matter; (c) act as an advocate in a matter where another member of the same firm as the Member has acted as an expert in that matter; (d) act as an expert in a matter where another member of the same firm has acted as an advocate in that matter; (e) allow the performance of their professional duties to be improperly influenced by the needs or preferences of a client or other party; (f) rely upon critical information supplied by a client without appropriate qualification or confirmation from other sources; or (g) act in any way inconsistent with the duties of independence and impartiality. [126] Such conduct by an appellant necessarily leads to a situation where the valuer conducted an appeal in reliance on the evidence of a valuer employed by the same firm becomes an advocate for the firm rather than the client. That equally compromises the independence of the valuer and the weight to be given to his or her evidence. [127] This Court is not the disciplinary body for the Australian Property Institute but it does appear on the face of it that the manner in which these appeals have been conducted is contrary to the code of professional conduct which is sought to be imposed on members of the Australian Property Institute. [128] The concerns I express above are entirely within the domain of that institute and its office bearers. [129] In the event the orders are: (1) The application is allowed. -- 23 of 24 -- 24 (2) The properties identified in the documents entitled Amended Particularisation of Grounds of Appeal are able to be relied upon by the appellant in the hearing of the appeal. In particular in respect to the Bunnings matter those properties are: (1) 2414 Ipswich Road, Darra. (2) 98 Postle Street, Acacia Ridge. (3) 50 – 70 Radius Drive, Larapinta. In respect of the Trust Company the lands identified are: (1) 2414 Ipswich Road, Darra. (2) 98 Postle Street, Acacia Ridge. (3) 2 & 3 / 56 – 368 Wembley Road, Berrinba. [130] Further with respect to the issue of relativity Ground 3 in respect to the Trust Company the appellant is entitled to rely upon the comparable sales located at: (1) 2-56 Australand Drive, Berrinba (2) 39 Silica Street, Carole Park. WL COCHRANE MEMBER OF THE LAND COURT -- 24 of 24 --