Board of Trustees of the Brisbane Grammar School v Brisbane City Council [2012] QLC 35 (2013) 33 QLCR 315

LAND COURT OF QUEENSLAND CITATION: Board of Trustees of the Brisbane Grammar School v Brisbane City Council [2012] QLC 35 PARTIES: Board of Trustees of the Brisbane Grammar School (applicant) v. Brisbane City Council (respondent) FILE NO: AQL285-11 DIVISION: General Division PROCEEDING: General application DELIVERED ON: 25 July 2012 DELIVERED AT: Brisbane HEARD AT: Brisbane PRESIDENT: CAC MacDonald ORDERS: 1. Proceeding AQL285-11 is to be heard with proceeding AQL056-06. 2. Proceeding AQL056-06 is to be the nominated carriage file for both AQL285-11 and AQL056- 06. All further documents in both proceedings are to be filed in proceeding AQL056-06. 3. The evidence given in one proceeding will, where relevant, be evidence in the other proceeding. CATCHWORDS: Second application for a joint hearing or consecutive hearings - Uniform Civil Procedure Rules 1999 r.79 - two separate claims for resumption of land giving rise to separate claims for compensation under the Acquisition of Land Act 1967 - land taken from the same parent parcel in different years - whether compensation claims should be heard together or consecutively - whether second application an abuse of process. -- 1 of 9 -- 2 Second application for a joint hearing or consecutive hearings - material change in circumstances - consideration of relevant factors - exercise of discretion - application granted. APPEARANCES: Mr W Sofronoff QC for the applicant Mr M Hinson SC and Mr D Quayle for the respondent SOLICITORS: Corrs Chambers Westgarth for the applicant Brisbane City Legal Practice for the respondent [1] This decision deals with an application by the Board of Trustees of the Brisbane Grammar School (the applicant), pursuant to r.79 of the Uniform Civil Procedure Rules 1999 (UCPR), for the following orders: 1. This proceeding be heard with proceeding AQL056-06. 2. That proceeding AQL056-06 be the nominated carriage file for both this proceeding and proceeding AQL056-06. All further documents in both proceedings are to be filed in proceeding AQL056-06. 3. The evidence in this proceeding will be evidence in proceeding AQL056-06. 4. In the alternative to Orders [1], [2] and [3], this proceeding be heard consecutive to proceeding AQL056-06 in the allocated trial dates for proceeding AQL056-06. [2] The two proceedings referred to in the application relate to two claims for compensation filed in this Court in respect of two separate resumptions of land by the respondent Brisbane City Council under the provisions of the Acquisition of Land Act 1967. Proceeding AQL056-06 (the first proceeding) relates to the resumption of part of the applicant's Normanby Oval area on 3 March 2000. Proceeding AQL285-11 (the second proceeding) relates to a later resumption of land, also from the applicant's Normanby Oval area, on 1 April 2011. [3] Further details as to the background and effect of the resumptions are set out in my decision Board of Trustees of the Brisbane Grammar School v Brisbane City Council,1 which was handed down on 16 November 2011. That decision dealt with applications by the applicant, pursuant to r.79 of the Uniform Civil Procedure Rules 1999 (UCPR), for orders that the two proceedings be heard together and that the evidence in each proceeding be evidence in the other. For the reasons given in that decision, I refused that application for a joint hearing. 1 [2011] QLC 0069. -- 2 of 9 -- 3 [4] The facts, circumstances and other relevant matters relied upon by the applicant in the current application are as follows -  The resumed land, in each case, was previously used by the applicant for curricula and co-curricula sporting purposes, ancillary to school purposes.  Both proceedings involve resumptions of different parts of the same area of land and are between the same parties.  Both proceedings will involve substantially the same factual and legal issues.  Both proceedings will involve substantially the same factual and legal expert witnesses.  Since the handing down of the decision of the Court on 16 November 2011, there has been a material change in circumstances, namely that - a. the February 2012 trial date in proceeding AQL056-06 having been vacated, the first proceeding has been set down for hearing commencing 8 October 2012. The respondent has made substantial progress in defence of the second proceeding. The second proceeding will be ready to be heard in October 2012. b. On 27 March 2012, the Brisbane City Council filed a response to the applicant's statement of facts and contentions dated 19 August 2011. A review of that response reveals that there are additional questions of fact and law which are common to both proceedings.  It is in the interests of justice both as to costs and time efficiencies for the parties, witnesses and the Court as well as the avoidance of inconsistent findings that the two proceedings be heard together and that the orders sought in this application be made. The decision of 16 November 2011 [5] Having considered the relevant authorities in my decision of 16 November 2011, I concluded that it was necessary to balance all the relevant factors in deciding whether to order a joint hearing.2 [6] The factors which I identified as pointing to the desirability of a joint hearing included a commonality of some facts and witnesses, that there would be a significant saving in the parties' costs, and it would not be necessary for witnesses to give evidence twice. Further, I noted that a consequence of a decision that there be two hearings was that there may be inconsistent findings in the two matters. This was undesirable but not determinative. The factors identified as weighing against an order for a joint hearing were that - 2 At [18]. -- 3 of 9 -- 4  The first claim was ready for hearing at that time and had been set down for trial in February 2012. The second proceeding was not ready for hearing at that time and could not be ready for hearing by February 2012.  The proceedings are separate and distinct claims arising out of separate resumptions 11 years apart.  No authority was cited or found where a joint hearing had been granted in respect of two such unconnected events.  The Court's findings about the state of things existing after the first resumption must reflect the Court's and the parties' starting inquiry about the state of things before the second resumption.  The impact of each resumption must be determined sequentially, that is the effect of the first resumption must be determined before the impact of the second resumption could be considered.  To assess the loss caused by each resumption, it will be necessary to make findings as to the value and use of the Normanby Ovals to the school before and after each resumption.  If the two claims are heard together, the witnesses' evidence in the second case must be based on different hypotheses to reflect the potential different outcomes of the first case.  The number of factual matters in issue together with the proposed three different valuation methodologies meant that the possible permutations and combinations of the findings in the first case were such that it would be unreasonable to expect witnesses to deal with the alternative options in a manageable way, in the second case, if it were heard at the same time as the first.  A single hearing would be overly complex. On balance the two claims should not be heard together. Applicant's submissions [7] Senior Counsel for the applicant, Mr Sofronoff QC, submitted that circumstances have developed and changed since my decision of 16 November 2011 and that the balance now weighed heavily in favour of the proceedings being heard together. The factors identified by Mr Sofronoff as having changed, since November 2011, were as follows -  The postponement of the February 2012 trial dates because of my illness and the listing of the trial to begin on 8 October 2012 has enabled all the necessary preparatory steps in the second proceeding to be completed so that that matter will be ready for trial by the middle of September 2012. Thus the trial of the first proceeding will now not be delayed if the second proceeding were to be heard jointly with the first proceeding.  On the original joinder application, the applicant predicted, but could not demonstrate, that many issues would be the same in each trial. That prediction -- 4 of 9 -- 5 has now proved to be correct. In particular the respondent's response in the second proceeding reveals that it raises the same factual and legal issues as the response in the first proceeding. Indeed, Mr Sofronoff submitted, the commonality of issues is even greater than had been predicted at the time of the previous joinder application.  The affidavit of the respondent's solicitor indicates that the respondent generally accepts the applicant's statement of the issues in each proceeding and the common issues which arise.  Because of the overwhelming overlap of the issues, it is the applicant's solicitor's opinion that the evidence in both proceedings could be heard within the three weeks allocated for the first proceedings. Further time for written submissions could be allocated by the Court, if required. Although the respondent's solicitor says that further time would be needed beyond three weeks it is impossible to argue that time would not be saved overall.  The difficulties with the "different hypotheses" in the second proceedings have largely fallen away now that the Council's response to the statement of facts and contentions in the second proceedings has been filed. In particular, it should be noted that the only result of the first proceeding can be that the School is paid an amount of money for compensation. That fact will not change any evidence that the experts could give. Secondly, it is not the case that the finding of the Court in relation to the effect of the first resumption is the starting point for the consideration of the second resumption. The resumptions are some 11 years apart and the School has undergone change in that time. The experts in the second proceedings will have to make assumptions, in accordance with their instructions, as to the state of the School before the second resumption (that is, in 2011), irrespective of the findings of the Court in the first proceedings. In other words, having the first and second proceedings heard together results in no different approach for the experts in terms of their approach to giving evidence in the second proceeding.  It is of no consequence that there is an underlying transaction in each proceeding that is a completely separate event. Invariably such applications are brought in circumstances where there are two separate proceedings relating to two separate transactions, but because of commonality of fact or law, it is expedient to hear both together.  It is accepted that the effect of each resumption must be considered separately for the purposes of assessing compensation.  There is no practical difficulty in having the two proceedings heard together. Each of the experts will have separate reports for each of the proceedings. Any difficulties are limited and certainly do not override the other considerations that weigh in favour of the two proceedings being heard together.  The respondent's evidence that the question whether the school will or will not accept the return of some of the land after construction has finished will "add significantly to the time necessary to try the second resumption application" appeared to involve a misconception about the effect of the Act. In any case, the -- 5 of 9 -- 6 existence of a discrete issue in one proceeding which does not arise in the other is not a bar to joinder.  Even if a joint trial will take more than the allocated three weeks, joinder will result in - a. a saving of the Court's time overall; b. a saving of money to both parties by the elimination of the need to have evidence given and tested twice; c. an avoidance of the potential embarrassment of inconsistent factual findings in two related proceedings; d. an avoidance of the difficulties posed by the significance of judicial options and credit findings (other than necessary findings raising a res judicata or issue estoppel) expressed in a judgment in the first proceeding for the second proceeding.  Even if the commencement of the joint trial has to be delayed, the savings of time and money and the avoidance of difficulties arising from duplication and inconsistencies will be avoided. The factors in favour of joinder outweigh any lengthening of the trial or relatively short delay. Respondent's Submissions [8] Mr Hinson SC submitted that to bring a second interlocutory application seeking the same order as sought in an earlier interlocutory application may be an abuse of process. The Court has a broad discretion to entertain such an application if the interests of justice warrant doing so, upon the demonstration of exceptional circumstances, the existence of new evidence not available when the first hearing took place or if there has been a material change of circumstances since the first order was made. [9] Mr Hinson submitted that the application is brought on the last basis, that is a material change, identified by the applicant as - (a) the deferral of the hearing of the first proceedings and the coincident advancement of the second proceedings such that they will be ready to be heard in October 2012; (b) that from a review of the respondent's response to the applicant's statement of facts, issues and contentions, there are additional questions of fact and law which are common to both proceedings. [10] Mr Hinson said that (b) is not a material change of circumstance, but the subjective view of the applicant's solicitor, Mr Abernethy. [11] Further, Mr Hinson submitted, the first of the matters identified is not material in the required sense because the changed circumstance only goes to a part, and not the critical part, of the decision on the first application. The gravamen of that decision was that, despite some superficial appearances, the two proceedings were directed to unconnected, completely separate events which required separate and sequential determination of the impacts of each event. Accordingly, the application should be refused. -- 6 of 9 -- 7 [12] Mr Hinson submitted that there are other reasons why a joint hearing or consecutive hearings should not be ordered -  the scope of the disputed issues in the second claim is now materially broader because the parties are in dispute about the respondent's proposal to return part of the resumed land to the applicants;  it is unlikely that the 3 weeks currently allocated for hearing the first claim is sufficient to hear both claims, which undermines the utility of a joint or consecutive hearings. Conclusions [13] In the current application the applicant is seeking an order that the two proceedings be heard together, or that the second proceeding be heard consecutively to the first proceeding, in the allocated trial dates for the first proceeding. As I concluded in my decision of 16 November 2011, it is necessary to balance all the relevant factors in deciding whether to order a joint hearing. [14] As the applicant has pointed out, circumstances have changed since my decision of 16 November 2011. Because the hearing of the first proceeding was postponed for health reasons, the second proceeding will now be ready for hearing by 8 October 2012, the date fixed for the commencement of the hearing of the first proceeding. It is also the case that, as identified by Mr Sofronoff, documents filed in the second proceeding since my decision of 16 November 2011 show that there are a considerable number of issues that are similar to one another in each of the proceedings. [15] I do not accept that the identified issues are the same in each proceeding because the different resumption dates inevitably raise differing factual considerations, and therefore possible different legal considerations. [16] However, it now appears that the same legal principles are to be applied in each of the cases to the extent that both involve an examination of the law relating to reinstatement and special value as appropriate methods of valuing the applicant's interest in each of the parcels of land taken. Those principles are of course to be applied to the differing factual circumstances that pertain to each resumption. [17] That is an important factor to be taken into account in favour of an order that the two proceedings be heard together or consecutively. Other factors that point to that conclusion are, as identified in my decision of 16 November 2011, that witnesses would not need to give evidence twice and there would be a significant saving in the Court's time and consequently, in the parties' costs. Further, a single hearing or two immediately consecutive hearings avoids the risk that there may be inconsistent findings if the claims are heard separately, possibly by different Members. -- 7 of 9 -- 8 [18] The difficulties that I envisaged in my previous decision remain. That is the effects of each resumption must be considered separately and the effect of the first resumption must be determined before the impact of the second resumption can be considered. It will be necessary therefore for a number of the witnesses to address various factual hypotheses in their evidence. However, I am persuaded that, because of the changed circumstances that now prevail, the balance has tipped in favour of a joint hearing or consecutive hearings. [19] It follows that I do not consider that bringing the second interlocutory application was an abuse of process. [20] I should also say that in reaching my decision I have taken into account the respondent's submission that the scope of the disputed issues in the second claim is materially broader than in the first because the parties are in dispute about the respondent's proposal to return part of the resumed land to the applicants. [21] This is a discrete issue that can be dealt with at an appropriate point of the hearing. While any evidence and the submissions relating to that issue will add to the length of the combined hearing, the additional time is not of itself a factor that points to the need for separate hearings. It may be that the combined hearing will be more lengthy than the three weeks for which the hearing of the first claim is currently listed. However as indicated below I will hear the parties further as to their estimates of the necessary time. [22] I turn now to consider which of the options sought by the applicant - a joint hearing or consecutive hearings - would be preferable. I consider that it is important that the evidence relating to each resumption be clearly separated to avoid confusion and any risk of conflating or accumulating the impacts of the two resumptions. One way in which this could be achieved is to conduct the two hearings immediately consecutively. However, this would not avoid the need for witnesses to attend court twice to give evidence. [23] To avoid that difficulty I have decided that the two claims should be heard together. I would propose that the hearing be conducted in the following way -  The parties' opening and closing addresses and the written and oral evidence of each witness should clearly address each resumption separately - the first resumption first, and then the second resumption.  Where a witness is giving evidence in relation to both resumptions, the evidence be given in two parts - - Evidence-in-chief relating to the first resumption followed immediately by cross-examination and re-examination in relation to the first resumption; - then evidence-in-chief be given in relation to the second resumption to be followed by cross-examination and re-examination relating to that resumption. -- 8 of 9 -- 9  The evidence of expert witnesses in similar disciplines be grouped so that, for example, the valuers called by each party give evidence consecutively. [24] I will hear the parties as to these proposals, their estimates of the length of time necessary to conduct the combined hearing and the timing thereof. ORDERS 1. Proceeding AQL285-11 is to be heard with proceeding AQL056-06. 2. Proceeding AQL056-06 is to be the nominated carriage file for both AQL285-11 and AQL056-06. All further documents in both proceedings are to be filed in proceeding AQL056-06. 3. The evidence given in one proceeding will, where relevant, be evidence in the other proceeding. CAC MacDonald PRESIDENT OF THE LAND COURT -- 9 of 9 --