Coordinator-General Department of Infrastructure and Planning v Christian Winston Elliott as Trustee & Anor (No. 2) [2012] QLC 70 (2012) 33 QLCR 463

1 LAND COURT OF QUEENSLAND CITATION: Coordinator-General Department of Infrastructure and Planning v Christian Winston Elliott as Trustee & Anor (No. 2) [2012] QLC 70 PARTIES: Coordinator-General, Department of Infrastructure and Planning (Applicant) v. Tammy Renee Pty Ltd as Trustee & Christian Winston Elliott as Trustee (Respondent) FILE NO: AQL064-11 DIVISION: Land Court of Queensland PROCEEDINGS: A Hearing of an Application to tender evidence by way of a written valuation report without necessity, but at liberty, to call the author Expert Evidence – calling two experts in one area – expert report filed in other proceedings DELIVERED ON: 17 December 2012 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour Mr WL Cochrane ORDER: The application is dismissed. CATCHWORDS: ORIGINATING APPLICATION ― EXPERT WITNESSES ― WITNESS REPORT PREPARED IN OTHER PROCEEDINGS Uniform Civil Procedure Rules, Rule 367(3)(d) Land Court Rules 2000, Rule 4 Stewart v Fehlberg & Anor [2008] QSC 203 McCutcheon v Grimmond (No. 1) 1986 40 SASR 404 APPEARANCES: Mr EJ Morzone of Counsel, for the Applicant Mr PJ Favell of Counsel for the Respondent -- 1 of 10 -- 2 SOLICITORS: Clayton Utz for the Applicant Harry Drakos & Co for the Respondent [1] This is a decision in response to a general application filed by the Applicant, Coordinator-General seeking the following orders: 1. Subject to Order 3 and 4 below, any party to the proceeding may tender as evidence at the final hearing of this matter, the valuation report of Mr Christopher Kamitsis dated 13 October 2011 prepared in Land Court matter AQL031-11 pursuant to the Order of the Court dated 18 August 2011 (‘the Kamitsis report’). 2. Further or alternatively, Mr Kamitsis be appointed an independent expert in these proceedings for the purpose of giving evidence of the matters the subject of the Kamitsis report. 3. Mr Kamitsis, in his capacity as independent valuer, shall attend and engage in any conference of the parties’ valuers, including the preparation of a joint expert report. 4. Each party shall be liberty to call Mr Kamitsis to give evidence or to be cross-examined as required at the final hearing of this matter. 5. The Respondents pay the Applicant’s costs of and incidental to this Application on the standard basis. [2] The application is resisted by the respondent. [3] At the hearing of the matter the applicant was represented by Mr Morzone of Counsel and Mr Favell of Counsel appeared for the respondent to the application. [4] The material relied on by the applicant was the general application and an affidavit of Patrick John Dwyer, both filed 12 November 2012. [5] The respondent to the application did not file any material. [6] The affidavit of Mr Dwyer correctly records that the subject report of Mr Kamitsis was produced as a consequence of a consent order made by me in another matter on 18 August 2011 directing that Mr Kamitsis be jointly engaged by the parties to provide expert evidence as to the market commercial rent for ground floor premises. [7] In order to understand the basis for the application it is necessary to canvas, in some detail, the background. [8] The land, the subject of this and another proceeding before this Court, was resumed for the purpose of a development of a Children’s Hospital on land generally identified as the Mater Hospital site at South Brisbane. -- 2 of 10 -- 3 [9] In other proceedings involving the identical premises the parties agreed, and the Court ordered by consent, that a valuer (Mr Kamitsis) prepare a valuation report which addressed the issue of an assessment of the rental of the subject premises. [10] The best way of describing the nature of that rental report is to repeat the observations of the valuer in his joint report.1 [11] The valuer observed as follows: 1.2 The joint brief was prepared subsequent to a Land Court order dated 18 August 2011 as follows: 1.2.1 ‘The parties are given leave to present evidence in respect of the market commercial rental rate for the subject premises by way of a report to be prepared by an expert witness namely Mr Chris Kamitsis, valuer to be jointly appointed by the parties. 1.2.2 Each party including their otherwise appointed valuers shall be bound by the rental figures contended for by Mr Kamitsis. 1.2.3 The applicant is to file and serve the report of Mr Kamitsis by 4.00 pm on Friday 30 September 2011.’ 1.3 Section 3 of the joint brief includes my instructions which are as follows: 1.3.1 ‘You are instructed to prepare and provide to the parties a valuation report for the : a) market commercial rent payable for the ground floor of the building on the Land as at 1 October 2008, that being the date of the commencement of the first option term of 3 years pursuant to clause 14 of the Tenancy Agreement; and b) market commercial rent payable for the ground floor of the building on the Land as at the end of the first option term, to be assessed as at the date of assumption, 31 October, 2008.’ ” [12] The subject premises were resumed by a Taking of Land Notice Number 24 of 2008 published in the Queensland Government Gazette on 31 October 2008. [13] The parties in the proceedings for which the report by Mr Kamitsis was produced are not the same parties as those in the present proceedings but they are related in the sense that, on the one hand the claimant in one proceedings was the owner of the premises whereas in the other proceedings the claimant was the operator of a business in the resumed premises. [14] The present proceedings relate to compensation for the resumption of the property itself. [15] The Respondents are the registered proprietors as tenants in common of land described as Lot 24 on RP 11639, County of Stanley, Parish of South Brisbane, Title Reference 16100215. 1 At page 3 affidavit of Dwyer Annexure PJD-13 page 3/16 para 1.2 and 1.3. -- 3 of 10 -- 4 [16] The resumption was for the purpose of the development of a Children’s Hospital on the Queensland Children’s Hospital State Development Area. [17] The subject land is adjacent to the Mater Children’s Hospital and the Mater Private Hospital at South Brisbane. [18] In its terms the application seeks to make admissible, without an opposing party necessarily having the benefit of cross-examination of the author, a report prepared in another proceedings. [19] It is, in my opinion, of dubious relevance that the order appointing Mr Kamitsis as effectively an expert witness in another proceeding may have the capacity to throw light upon opinions likely to be expressed in the present proceedings. [20] The report of Mr Kamitsis was, in any event, tended at the other proceedings and accordingly it is, in every relevant sense, a “public document” to which either party could have access. [21] Accordingly, in my opinion, it falls within the category of the sort of the document to which an expert may have recourse informing his or her own opinion about a particular issue. [22] If that occurs the expert may be required to identify the source of his or her information and, if pressed, may be required to prove the content of the report upon which he or she relied. [23] That would necessitate the calling, by any party who wishes to rely upon his report, of Mr Kamitsis for cross-examination by the opposing party. That is the normal course of events. That requires no particular special order by this Court. [24] That then leads to a focus on order no. 4 sought by the applicant and set out in paragraph [1]. [25] It seems to me that no party who wished to rely upon Mr Kamitsis’ report would need the leave of the Court to call Mr Kamitsis to give evidence. That may be a natural corollary of reliance upon his report. [26] However, I do not understand any basis upon which it might be contended that a party could “be at liberty to call Mr Kamitsis … to be cross-examined”. Cross- examination only occurs of an opposing party’s witness. A party either elects or declines to call the author of documents upon which it may wish to rely. [27] Further, with respect to order no. 2, in my view, there is nothing in the material provided to the Court which warrants the appointment of Mr Kamitsis as an independent expert. -- 4 of 10 -- 5 [28] There was no suggestion that either of the valuers proposed to be called by the parties in this matter was incapable or unqualified to express a valuer’s opinion with respect to the relevant market rental. [29] UCPR Rule 367(3)(d) provides that “without limiting sub-rule (1), the Court may at any time do any of the following in relation to a trial or hearing of a proceeding— (a) … (b) … (c) … (d) require evidence to be given by affidavit, orally or in some other form (e) limit the number of witnesses (including expert witnesses) a party may call on a particular issue.” [30] Rule 4 of the Land Court Rules 2000 provides that if the Land Court Rules do not provide for a matter in relation to a proceeding in the Court and the UCPR does the Uniform Civil Procedure Rules apply in relation to the matter with any necessary changes. [31] The Land Court Rules do not contain any provision limiting the number of expert witnesses which may be called to give evidence in a proceeding. [32] I note the decision of His Honour Justice McMeekin in Stewart v Fehlberg & Anor.2 [33] In the Stewart v Fehlberg decision Justice McMeekin observed, in the context of an application seeking directions permitting parties to call multiple expert witnesses, as follows: “[19] In any case the Court retains its inherent jurisdiction to control its own processes and the rules contained in Part 5 Chapter 11 of the Uniform Civil Procedure Rules provide guidance as to how that inherent jurisdiction should be exercised. [20] I approach the applications then on the basis that there ought ordinarily to be only one expert in any given field and I should permit multiple experts only if the justice of the case so requires.” [34] In my experience and in my view, His Honour correctly sets out the approach with respect to the calling of experts to give evidence at the hearing of a proceeding. [35] In the present case, none of the material which has so far been placed before the Court contains any justification for moving away from the generally accepted 2 [2008] QSC 203 (2 September 2008). -- 5 of 10 -- 6 proposition that a party is only entitled to adduce expert evidence from one witness in any particular field. [36] It ought be emphasised that Mr Kamitsis was not a Court appointed expert but an expert jointly engaged by the parties as a consequence of an order made with their consent. [37] Mr Dwyer deposes that:3 “6. The Court has express power to limit the number of witnesses (see 367(3)(e) UCPR). However, perhaps contrary to modern adopted informal practice, there is no provision in the Land Court Rules or the Uniform Civil Procedure Rules (unlike r34 of the Planning and Environment Court Rules) that mandates against a party calling more than one expert on a topic. In the absence of such provision, arguably no principle of law precludes any party from calling two experts anyway.” [38] By way of justification for the application brought by his firm Mr Dwyer exhibits as Exhibit PJD-14 correspondence sent by him to the solicitors for the respondents on 19 September 2012 in which he asserts as follows: “We consider that the Land Court would be significantly assisted in the present proceedings by the valuation report of Mr Chris Kamitsis dated 13 October 2011 as order by the Land Court in matter AQL031-11 being admitted into evidence. This arises, in our view, from the substantial commonality of the interests valued in that report with the interest being considered in the present proceedings. We consider that the respective parties’ valuers would be entitled to consider the Kamitsis report in the course of any joint discussions. Would you kindly obtain your clients’ instructions as to whether they consent to the admission into evidence of Mr Kamitsis’ report.” [39] There was no response from the respondent’s solicitor save to respond on 15 October 2012 intimating that their Counsel was on leave and was not available for a conference and undertaking to provide a response subsequent to conferring with Counsel. [40] No such response appeared in the exhibited correspondence. [41] I am bound to observe that nothing in the letter sent by Mr Dwyer on 19 September 2012 clarifies why it was that he said that this Court would be “significantly assisted in the present proceedings by the valuation report of Mr Kamitsis dated 13 October 2011”. [42] True it is that either valuer may wish to refer to the report prepared by Mr Kamitsis, it being a public document having been tendered in other proceedings and being available to the parties upon application. [43] However, in my opinion, it is no different from any other publicly available document setting out an opinion as to commercial rent. 3 Affidavit of Patrick John Dwyer paragraph 6. -- 6 of 10 -- 7 [44] The existence of one opinion generated by a valuer does not oblige other valuers to accept or adopt that opinion. [45] If they choose to adopt the opinion they can well expect to be cross-examined as to the basis upon which they make such adoption. [46] Equally, having considered all the relevant material, either of the appointed experts may come to an entirely different conclusion from that contended for by Mr Kamitsis. [47] To direct that either party be at liberty to tender the report of Mr Kamitsis without more would deprive the opposing party of the forensic advantage of cross-examining Mr Kamitsis as to the basis upon which he has formed his opinion. [48] Mr Morzone in his submissions to the Court observed (paragraph 10) that “it may be, of course, that neither party seeks to call the evidence of Mr Kamitsis. However, given the existence of the report, it is submitted that both parties should be at liberty to do so”. [49] I do not agree with that proposition. True it is that one party or another may be interested in the evidence of Mr Kamitsis. The report prepared by him sets out the basis for his opinion. There is nothing to prevent either of the valuers in the present matter from adopting the logic (so long as they carry out sufficient investigation to verify and validate the underlying evidentiary basis) of Mr Kamitsis. [50] It goes without saying, of course, that even if two experts contend for one opinion or point of view as against a single expert on the other side of the record that does not necessarily result in a two to one majority verdict in favour of the opinion expressed by two experts. Careful and forensic cross-examination may cause a Court to prefer the minority view. [51] In my opinion, Mr Kamitsis’ report in the other proceeding, although arguably relevant because it deals with the same premises it enjoys no higher status than any other report or opinion expressed about commercial rentals in that area or indeed in the same building. [52] Mr Morzone also referred the Court to the decision in McCutcheon v Grimmond (No. 1) 1986 40 SASR 404. [53] The McCutcheon decision examined the power and duty of the Court to limit the number of expert witnesses. -- 7 of 10 -- 8 [54] The McCutcheon decision was in a personal injuries case where the parties had identified 15 proposed expert medical witnesses. [55] In that case, Cox J observed about the tendency for parties to call numerous experts and for trials to be longer and therefore more costly than previously as follows: “ The tendency can be resisted, and generally is. Uncontentious reports are put in evidence by consent, and usually the parties will make a selection from the available experts and keep the problem within bounds. However, what has happened in this case is by no means unprecedented. Judges of this Court have expressed their concern on occasions in recent years about the large number of witnesses sometimes called in personal injury actions. I have done so myself. It is obvious that uncontrolled anxiety or enthusiasm by a party or his legal advisers can lead to an excessive number of expert witnesses being called in any sort of case, and the problem is seen at its most acute where medical experts are involved. It is necessary to bear in mind that cases are not decided by counting the heads of the expert witnesses. Nor should litigation proceed as an exercise in attrition. We already have in the building case, often of seemingly interminable length, an embarrassment if not a reproach to the Court’s trial procedures, and it is most important that the ordinary running down case should not be allowed to go the same way.”4 [56] In circumstances where neither party can point to any burning desire on the part of their experts to utilise the report of Mr Kamitsis and where, as was frankly conceded by the applicant here, the utility of the Kamitsis report is a matter for speculation. I regard the application as being premature and am disinclined to allow it. [57] My view in that regard was strengthened by one passage of dialogue between myself and Mr Morzone at the hearing of this application. That passage is as follows: “HIS HONOUR: If you get the report of Mr Kamitsos and Mr Brett uses it and relies upon it and you don't call Mr Kamitsos, wouldn't it fire that I should not allow in that expert evidence of Mr Brett which is not his own opinion, premised upon the report prepared by Mr Kamitsos from whom I would not hear? MR MORZONE: I think I should frankly say, your Honour, that the intention is that Mr Brett not necessarily rely solely on Mr Kamitsos opinion. He will have his own opinion about the same issue. HIS HONOUR: Yes, but if it's his own opinion, it strikes me that he doesn't need the opinion of Mr Kamitsos. MR MORZONE: No. HIS HONOUR: If he wants to rely upon the opinion of Kamitsos, he's got to prove up that opinion and the only way he's going to do that is if you stick Mr Kamitsos in the witness box. Otherwise, it's merely another piece of dross that I could largely ignore because it's not proved up. And then Mr Favell's side, it seems to me, would be confronted by two experts who may not agree and it's always a bewilderment to me that people might want to call two experts where 4 McCutcheon v Grimmond page 407-408. -- 8 of 10 -- 9 one of them has an attack of frank disarming honesty in the witness box and changes his or her opinion, contrary to a party's case. It just seems to me to be fraught with all kinds of difficulties and at the moment what we're looking at, is something that is purely speculative. Like you frankly tell me, Mr Brett may or may not rely upon. MR MORZONE: He will probably make up his own opinion, I think about ----- HIS HONOUR: Well. Well, that's - so he may not rely on it, he'll make up his own mind. MR MORZONE: Yes. HIS HONOUR: We've established that it's probably been tendered, so it's in the public domain. MR MORZONE: Yes. HIS HONOUR: So a copy can be obtained of it. MR MORZONE: Yes.” [58] None of the material contained in the affidavit of Mr Dwyer goes anywhere towards establishing why it would be that order no. 3 ought be made, that is to say that Mr Kamitsis ought to participate in any conference of the parties valuers, including the preparation of the joint expert report. [59] He is either an independent expert or he is not. In my view, it would simply muddy the waters to have a third previously uninvolved expert (in these instant proceedings) involved in a joint meeting of experts engaged for the specific purpose of assisting the Court in the present proceedings. [60] The application seems also to overlook the import of s.7 of the Land Court Act 2000 which provides that the Land Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate, subject always to the qualification contained in s.7(b) that the Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms and the practice of other Courts. [61] That seems to me to offer an avenue by which either party in the current proceedings might argue for the admissibility of the Kamitsis report but that would, at all times, be subject to the determination of questions of weight and whether a party to proposing to tender it intended to call Mr Kamitsis to prove his observations and subject himself to cross-examination. [62] In all of the circumstances I consider the current application neither warranted nor appropriate nor timely. [63] I dismiss the application. -- 9 of 10 -- 10 [64] I will hear the parties with respect to costs but indicate that in an application such as this with an outcome such as I have just directed, in my view it would be hard to displace the notion that costs ought follow the event. HIS HONOUR, WL COCHRANE MEMBER OF THE LAND COURT -- 10 of 10 --