Abbott v Moreton Bay Regional Council [2012] QLC 42 (2012) 33 QLCR 341

LAND COURT OF QUEENSLAND CITATION: Abbott v Moreton Bay Regional Council [2012] QLC 42 PARTIES: Ursula Erna Abbott (Applicant) v. Moreton Bay Regional Council (Respondent) FILE NO: AQL121-11 DIVISION: General Division PROCEEDING: General Application DELIVERED ON: 5 September 2012 DELIVERED AT: Brisbane HEARD ON: 6 August 2012 HEARD AT: Brisbane MEMBER: Mr WA Isdale ORDERS: 1. Mr Grant may not give evidence as an expert in the proceeding. 2. The applicant’s nomination of Mr Grant as an expert witness is set aside. CATCHWORDS: EXPERT ― QUALIFICATION OF EXPERT WITNESS ― EXPERT EVIDENCE ― EVIDENCE Acquisition of Land Act 1967 Land Court Act 2000, s.7 Folkes v Chadd (1782) 99 ER 589 HG v R [1999] HCA 2; (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705, [2001] NSWCA 305 at [85] Townsville City Council & Anor v Department of Main Roads (2006) 27 QLCR 6; [2005] QCA 226 -- 1 of 7 -- 2 APPEARANCES: Mr G Casey, Law Clerk, Paul Pattison Solicitors, by leave for the applicant Mr D Quayle of counsel, instructed by Mr A Conaghan, Legal Services, Moreton Bay Regional Council, for the respondent Background [1] By Taking of Land Notice (No. 61) 2007 the then Council of the Shire of Pine Rivers acquired from the applicant some land for recreation ground purposes. The applicant is pursuing a claim for compensation under the Acquisition of Land Act 1967. Pursuant to orders of the Court made in order to prepare the claim for hearing the applicant has nominated Mr Denis Patrick Grant to be an expert witness. The respondent has brought a General Application made and filed on 25 July 2012 seeking a direction or order that Mr Grant not be permitted to be an expert witness in the compensation proceeding and for such further or other orders or directions as the Court deems appropriate. The basis of the General Application [2] The respondent contends that Mr Grant does not qualify as an expert on any topic relevant to the proceeding and/or he should, as a matter of discretion, be excluded from purporting to give evidence as an expert in the proceeding. The proposed purpose of the evidence of Mr Grant [3] Mr Andrew Paul Pattison, the applicant’s solicitor, has provided his affidavit sworn on 3 August 2012. Relevantly, Mr Pattison deposes that: “4. Three of the many unresolved issues in preventing that process from being resolved had already become very clear and have again been highlighted in the pleadings in this application and are: (i) the suitability of the subject land as a school site and the demand in the area for such usage and (ii) the proximity in time of future closer development of lands near or adjacent to the Applicant’s land and the degree of and growth in demand for such developed land. (iii) the likelihood of closer development being approved for a substantial as distinct from only a minor proportion of the subject land In that these issues are (sic) variously been raised (i) in paragraph 12(c) of its Response to the Claimant’s Statement of Facts Issues and Contentions where the Respondent asserts that “the highest and best use of the resumed land at the date of resumption was not as a private school because, inter alia, the very small area of land and available for the construction of school buildings (of not more than 1.34 hectares) renders the resumed land unviable as a school site and there would be little if any market interest in such a small site (for the erection of school buildings)” and -- 2 of 7 -- 3 (ii) in sub paragraph 15(b) of its Response to the Claimant’s Statement of Facts Issues and Contentions the Respondent asserts that “any potential for town houses would not have been realized in terms of the value paid by a hypothetical purchaser of the resumed land as at the date of resumption for not less than 5 years” and in subparagraph (c) of its Response to the Claimant’s Statement of Facts Issues and Contentions where the Respondent asserts that “urban development of the resumed land was at the date of resumption dependent upon the development of the lands immediately to the north of the resumed land and the consequential availability of services and road access to the resumed land through those developed lands” and again at subparagraph (f) of its Response to the Claimant’s Statement of Facts Issues and Contentions where the Respondent asserts that “in any event the urban development potential of the resumed land would not have been ripe inside 5 years from the date of resumption and potentially not for 10 years from the date of resumption”. (iii) in subparagraph 15 (g) of its Response to the Claimant’s Statement of Facts Issues and Contentions where the Respondent asserts “that area beneath the flood line and the surge line has not potential other than for rural pursuits”. 5. In preparation for the pursuit of this application the Applicant had engaged the services of a certified practicing valuer one John Leeson and upon my recommendation she further engaged the services of one Ian Robert Buchanan a consultant town planner. However in my professional opinion to assist the court with the most effective, direct and comprehensive evidence it would be highly beneficial if there was available to the court an expert in addition to the two named gentlemen who could in the area of specialized knowledge of all real estate activity (from initial demand to subsequent development and conditions thereon and ultimate sale in all varieties of usage) in the Pine Rivers area of the Moreton Bay Regional Council to (i) provide evidence to the court based upon his demonstrated expertise in any identified aspect of that field (ii) basing his opinions in providing that evidence on his expert knowledge in that field (iii) properly identifying his assumptions of primary fact on which any opinions are offered (iv) presenting evidence sufficiently like his factual assumptions to ensure that his opinions are of some value (v) ensuring that the facts upon which his opinions are based form a proper foundation for it (vi) clearly demonstrate that his opinions indicate that he has undertaken an analytical process in arriving at conclusions advanced by him. 6. A local real estate agent one Dennis Patrick Grant has been advanced by the Applicant in this role and I say from my enquires that he has demonstrated to me that he has the capacity to fulfill (sic) the matters set out in paragraph 5 hereof.” -- 3 of 7 -- 4 Expert Evidence [4] There is no statement from Mr Grant of the actual evidence which it is proposed that he give. I note that a valuer and a town planner have been engaged. [5] Mr Grant himself has provided an affidavit sworn on 3 August 2012. He deposes that he is a Real Estate Agent operating an agency in Kallangur and has collected information on each sale and subsequent construction of a dwelling on the land sold in the locality of Griffin. The information can, he attests, be used to provide demographic material capable of use in making decisions about developing shopping centres or schools, for instance, as well as the development of land for residential use. [6] Mr David John Connolly, the solicitor employed by the respondent and having the conduct of this matter, has sworn an affidavit on 18 July 2012. Exhibit DJC-2 to this affidavit is a letter dated 5 July 2012 to his office from Mr Pattison, which relevantly, states: “I refer to the order of the Land Court of 2nd July 2012 and would advise as follows in accordance with its terms:- (a) the name of the expert is Denis Patrick Grant of 1611 Anzac Avenue Kallangur (b) the fields of his expertise is knowledge of features of the real estate market in Griffin and adjacent areas pertinent to (i) assessing demand for land for redevelopment and subsequent demand for that land when finally developed (ii) assessing qualitative demand and variations for different types of developed land (iii) the cost of development of the same (iv) the history of imposition of conditions required to develop the same (v) the variation in demand for land for redevelopment and consequent upon variation of conditions imposed for its development (vi) reviewing the history of demand by institutions operating private schools for land sites in the subject area (vii) the manifestation of the aims, purposes and policies in the Respondent’s various local plans as expressed in the execution of developments in the areas covered by those plans. (c) his expertise becomes relevant to the matters raised, or reacted to, in paragraphs 6, 7, 8, 9, 11, 12 and 13 of the Amended Statement of Facts Issues and Contentions in Support of Claim for Compensation.” -- 4 of 7 -- 5 Expert Evidence [7] The identifying characteristic of expert evidence is that an expert may express opinion evidence on the basis of proven facts within the area of their expertise.1 By identifying Mr Grant as a proposed expert it is implicit that it is intended that he is to be put forward as capable of expressing an opinion in relation to the matters described in paragraph (b) of Mr Pattison’s letter of 5 July 2012. [8] Mr Connolly’s affidavit notes that the applicant has engaged Mr Leeson, a registered valuer and Mr Ian Buchanan a town planner. The Land Court Act 2000 [9] It was argued on behalf of the applicant that section 7 of the Land Court Act 2000 (the Act) would permit Mr Grant to give evidence as an expert. That section is in the following form:- “7 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.” It was also submitted that: “Paragraph 4 of the affidavit by Andrew Paul Pattison summarizes the several issues which may fall (to) be determined by this court. These issues are not pure valuation or town planning issues but are rather source material issues upon which evidence by valuers or town planners may seek to advance expert opinion evidence. It is important, and in the interest of justice, that any such source material likewise be subject to scrutiny as to its sustainability and cogency. This can best be provided by a party well versed in such matters.” Evidence of Opinion When read with the material from Mr Pattison to which reference has already been made, it appears that Mr Grant is intended to provide evidence of opinion from his collection of data such that his opinion may be compared to the opinions of valuers and town planners who may form their views on the same data. [10] In view of the assertion that Mr Grant is to be providing expert evidence, the conclusion is inevitable that in this case where a town planner and registered valuer are to be called by the applicant, Mr Grant would necessarily be expressing opinions in relation to valuation and town planning, areas in which he is not suitably qualified. 1 Folkes v Chadd (1782) 99 ER 589 at 590 per Lord Mansfield CJ. -- 5 of 7 -- 6 [11] Section 7 of the Act may assist the Court in the exercise of its jurisdiction,2 but does not serve to improve the quality of proposed evidence. It would not be a technicality standing in the way of the substantial merits of a case that a proposed expert give evidence in areas of expertise in which he is not qualified. In the present case the submissions on behalf of the applicant are not assisted by section 7 of the Act. [12] In relation to the costs of development in the Griffin area it is not shown that Mr Grant has any expert knowledge such as, for instance, a quantity surveyor might be expected to possess so he cannot be accepted as an expert in that field either. [13] The applicant has not provided any authority for the proposition that any remaining areas in which it is proposed that Mr Grant give opinion evidence as an expert exist as areas of special knowledge such that his study of those areas qualifies him as an expert. [14] The affidavit of John Stephen Gillespie, registered valuer, sworn on 1 August 2012 was filed on behalf of the respondent. Mr Gillespie deposes that, referring to Mr Pattison’s letter dated 5 July 2012:  Paragraphs (b)(i) to (iii) are predominantly the role of a valuer.  Paragraphs (b)(v) and (vi) are investigated by a valuer.  Paragraphs (b)(iv) to (vii) are within the expertise of a town planner. [15] The respondent also filed an affidavit sworn on 1 August 2012 by David Wayne Perkins, a Fellow of the Planning Institute of Australia. Mr Perkins identifies areas within his expertise and where he needs to defer to a valuer. Neither Mr Gillespie nor Mr Perkins were required for cross-examination and neither affidavit discloses an area in the present compensation proceeding which would appear to require opinion evidence in any area in which Mr Grant might be qualified to provide it. [16] Once Mr Grant’s indicated areas of knowledge are separated from those of a valuer and a town planner, areas in which he is not qualified, what remains to him does not constitute a field of specialised knowledge. In Makita (Australia) Pty Ltd v Sprowles3 Heydon JA said: “85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is 2 Townsville City Council & Anor v Department of Main Roads (2006) 27 QLCR 6 at [43] per Keane J, with whom McMurdo P and White J agreed. 3 (2001) 52 NSWLR 705, [2001] NSWCA 305 at [85]. -- 6 of 7 -- 7 based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).” Conclusion [17] Mr Grant is not qualified to give opinion evidence as an expert in the present proceeding. Orders 1. Mr Grant may not give evidence as an expert in the proceeding. 2. The applicant’s nomination of Mr Grant as an expert witness is set aside. WA ISDALE MEMBER OF THE LAND COURT -- 7 of 7 --