Board of Trustees of the Brisbane Grammar School v Brisbane City Council [2011] QLC 69 (2011) 32 QLCR 348

LAND COURT OF QUEENSLAND CITATION: Board of Trustees of the Brisbane Grammar School v. Brisbane City Council [2011] QLC 69 PARTIES: Board of Trustees of the Brisbane Grammar School (applicant ) v. Brisbane City Council (respondent) FILE NOS: AQL056-06 & AQL285-11 DIVISION: General Division PROCEEDINGS: General Applications DELIVERED ON: 16 November 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane PRESIDENT CAC MacDonald ORDER: The application for a joint hearing is refused. CATCHWORDS: Application for Joint Hearing - Uniform Civil Procedure Rules 1999, r 79 - two separate resumptions 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 - consideration of relevant factors - exercise of discretion - application refused. APPEARANCES: Mr GJ Gibson QC and Mr D O'Brien 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] The substantive proceedings in these two matters are claims for compensation in respect of two separate resumptions of land under the provisions of the Acquisition of Land Act 1967. The applicant in both proceedings is the Board of Trustees of the Brisbane -- 1 of 12 -- 2 Grammar School established under s.7 of the Grammar Schools Act 1975 and is responsible for the operation of the Brisbane Grammar School, an independent boys school. The respondent is the Brisbane City Council which was the resuming authority in each acquisition. [2] In each case the resumptions took part of land owned by the applicant referred to as the Normanby Ovals. The first resumption occurred on 3 March 2000 when an area of some 4,655 m² was resumed for the purposes of the construction by the respondent of the Inner City Bypass. The claim for compensation in relation to that resumption was filed in this Court in 2006 and the proceedings have been set down for hearing for three weeks in February 2012. [3] The second resumption occurred on 1 April 2011 and involved the taking of a further 6,642 m² of the Normanby Ovals area as well as the imposition of an easement of 1,462 m², in connection with the construction of Legacy Way. The claim for compensation in relation to the second resumption was filed in this Court on 5 August 2011. To date, a statement of facts and contentions has been filed by the applicant on 22 August 2011, a request for further and better particulars was filed by the respondent on 30 August 2011 and the applicant's response to that request was filed on 19 September 2011. [4] This decision deals with applications by the applicant, pursuant to r.79 of the Uniform Civil Procedure Rules 1999 (UCPR),1 for orders that the two proceedings be heard together and that the evidence in each proceeding will be evidence in the other. [5] The basis for the orders was identified in the applications as -  Both proceedings involve resumptions of land between the same parties which have similar effects and consequences.  Both proceedings will involve substantially the same evidence and substantially the same legal issues.  It is in the interests of justice (both as to cost and time efficiencies as well as the avoidance of inconsistent findings) that the two proceedings be heard together and that the orders sought be made. [6] The respondent opposes the orders sought. The first resumption [7] Prior to the first resumption, the applicant says, the Normanby Ovals area comprised part of the school's sporting facilities and was configured as two near full size ovals used for 1 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 Land Court and the Uniform Civil Procedure Rules 1999 would provide for the matter, the UCPR apply with necessary changes. -- 2 of 12 -- 3 cricket, rugby and soccer; eight cricket nets; two multi-purpose tennis/basketball courts; a change room building and parking facilities. [8] The applicant says that the effect of the first resumption was that the School was unable to configure the remaining land as two near full-sized ovals to enable the School to continue the same cricket and rugby/soccer programme. The balance of the Normanby Ovals area could only be configured as one near size oval. Additionally the eight cricket nets, the changing room and parking space were lost. [9] The applicant asserts that comprehensive investigations were undertaken by the School into the availability of alternative sites so that the School could be put back into the position that it was prior to the resumption. Those investigations came to nothing. Accordingly, the applicant says that the only viable alternative is the construction of a replacement oval in the airspace over railway lines adjoining two upper ovals which also form part of the School's sporting facilities. This would involve -  The reconfiguration of the two upper ovals into a north-south alignment and the configuration of an additional oval on a north-south alignment, on a cantilevered structure extending over the railway yard.  The area of the two upper ovals and the additional new oval will be raised by 1,000 mm to comply with QR operational requirements.  Appropriate drainage, irrigation, goal posts and markings will be required for the three ovals; and  A retaining wall will be built at Kalinga Avenue, interfacing with the existing main campus. [10] The applicant's claim for compensation is put on three alternative bases - a. Special Value The most appropriate method to assess the special value of the resumed land is by reference to the only viable alternative available to replace the land lost, namely by the construction of the replacement oval. Taking into account the betterment and detriment for the school from the construction of the replacement oval, the special value of the resumed land is between $17,500,000 and $18,500,000, which is approximately half of the total cost of the replacement oval namely between $37,040,000 and $37,413,000. b. Reinstatement The applicant's case is that the market value of the land does not give proper effect to the principle of compensation on the basis of value of the land taken and does not give rise to a fair result. Further, the applicant asserts that the School has a firm intention to undertake the replacement oval project and that it can be undertaken both from a practical and financial perspective. By virtue of the resumption, the school lost 4,665 m² of land. The construction of the replacement oval will result in a total new land area of 9,400 m². The estimated cost of constructing the replacement oval, assuming -- 3 of 12 -- 4 an 8 to 9 year lead time to raise the appropriate funds and to obtain the necessary approvals, is between $37,040,000 and $37,413,000 resulting in a cost per square metre of land created between $3,940/m² and $3,980/m² respectively. The cost of replacing the 4,665 m² of the Normanby Oval with 4,655 m² of land on the main campus by virtue of the replacement oval, adopting a median of $3,960/m², is $18,473,400 and an award of compensation of that amount is reasonable. c. Market value The market value of the land as at the date of resumption was $1,745,000. The second resumption [11] The applicant says that the effect of the second resumption was that the Normanby Oval area could no longer be configured for use as one oval for cricket and rugby or football training and tennis courts have been lost. The use of the School's upper ovals has been consequentially impacted. There have been additional losses affecting other sporting activities. [12] The applicant also says that there is no available land for it to acquire or use to replace the land taken, and that the only viable alternative is the construction of the replacement oval. [13] Accordingly, the three alternative bases of the claim for compensation arising out of the second resumption reflect the same approach as was taken in the claim in respect of the first resumption - (a) Special Value: the applicant asserts that the special value of the resumed land is $29,675,000, an amount which is proportionate to the area of land lost as compared to the cost of the land obtained by virtue of the construction of the replacement oval. The total cost for the construction of the replacement oval is approximately $40,100,000. (b) Reinstatement: the cost of replacing the lost land and the land impacted by the easement is $29,674,818. (c) Market value: the market value of the land taken is $6,990,000. Legal Principles [14] Rule 79 of the UCPR provides that - "79 Sequence of hearings The court may order that 2 or more proceedings be heard together or in a particular sequence." -- 4 of 12 -- 5 [15] The Court has an unfettered discretion as to whether to make an order under s.79 and the authorities indicate that a number of factors have been considered relevant in exercising that discretion. In Cameron v McBain2 Herring CJ said that - "The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order." [16] While Herring CJ was dealing with an application to consolidate three actions, it is considered that these factors are equally applicable to an application that two proceedings be heard together. [17] In Humphries v Newport Quays Stage 2A Pty Ltd3 Besanko J identified relevant factors to be taken into account as follows - "(1) Are the proceedings broadly of a similar nature? (2) Are there issues of fact and law common to each proceeding? (3) Will witnesses (lay and expert in one proceeding) be witnesses in one or more of the other proceedings? (4) Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? (5) Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? (6) Will there be a substantial saving of time if the proceedings are tried at the same time compared with each proceeding being tried separately? (7) Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties of determining cross-admissibility of evidence? (8) Is one proceeding further advanced in terms of preparation for trial than the others? (9) Are there parties to one or some only of the proceedings who will be inconvenienced if all the proceedings are tried at the same time?" [18] In my opinion, it is necessary to balance all the relevant factors in deciding whether to order a joint hearing. Applicant's submissions [19] Senior Counsel for the applicant, Mr Gibson QC, said that the applications had been brought because - 2 [1948] VLR 245 at 247. 3 (2009) FCA 699 at [11]. -- 5 of 12 -- 6  There is a significant overlap of issues (both as to fact and law) between the two proceedings;  There is an inter-relationship between the two proceedings (so far as the case for reinstatement is concerned);  A joint hearing will avoid considerable expense to the parties (the saving to the applicant alone will be in the order of $500,000), wasted court time, delay in the resolution of the dispute between the parties and the possibility of inconsistent findings, matters which at are the heart of the philosophy incorporated into civil litigation in Queensland by virtue of r.5 of the UCPR.4 [20] Mr Gibson also submitted that the preponderance of factors identified by Besanko J in Humphries favours an order that the proceedings be heard together. The proceedings are between the same parties, the same parent parcel was the subject of the two resumptions and the nature of the projects underlying the resumption was materially identical, that is the land was taken in each case for roadworks. The use of the resumed land immediately prior to resumption was materially identical in each case and the consequences of each of the resumptions were materially identical to the School. The nature of the claims advanced by the School is identical, in principle, in each case and the facts on which the School relies in each case, to support its claim for special value or reinstatement, are materially identical. [21] The applicant says that there is a very substantial commonality of facts in the two cases - the history of the School; its location and landholdings; how the School operates; the market within which the School operates; the expectations of parents and students; the importance of physical education and sporting activities and that physical education is a core curriculum subject offered by the School; the major infrastructure projects recently 4 Rule 5 of the UCPR says that - "5 Philosophy—overriding obligations of parties and court (1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. (2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules. (3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way. (4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court. Example— The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court." -- 6 of 12 -- 7 completed by the School; the School's advantages and disadvantages compared to its competitor schools; the School's history of preserving its open space; that no other suitable land in the vicinity of the School is available to replace the resumed land and the efforts of the School to identify other available land; the technical feasibility and cost of constructing the replacement oval; whether the School could obtain the appropriate approvals to construct the replacement ovals; and planning and traffic issues arising out of the School's proposal to construct the additional oval space. [22] Mr Gibson also said that the first proceedings will necessarily involve considerations in relation to the consequences of the second resumption. This is because, if the reinstatement case is to succeed, the Court must be satisfied, as at the date of trial, that the School has the intention and the ability to undertake the replacement oval project. It will be relevant to such an assessment that the School has lost more oval land by virtue of the second resumption and also has an additional source of funding for the construction of the replacement oval, namely, the ability to use the compensation received from the second resumption. [23] Also relevant to that issue was a further submission by Mr Gibson that the assessment of the School's intention to construct the replacement oval will involve findings as to the credibility of the Chairman of the Board of Trustees of the School who will give evidence in both cases. The unsuccessful party in the first proceeding, Mr Gibson submitted, could seriously take the view that it was not appropriate for the same judicial officer to hear the second proceeding.5 Accordingly, if the cases were not heard together, they may not be heard by the one Member and the benefits of the commonality of evidence, the costs savings and the savings of time and efficiency for the Court would also be lost. Further, there was a real prospect of inconsistent findings, particularly in relation to the question of reinstatement, if the proceedings were not heard together. [24] Mr DJ Abernethy, a member of the firm Corrs Chambers Westgarth the solicitors for the applicant in these matters, has sworn an affidavit in which he said that the School intends to call the following witnesses to give evidence at the trial of the first claim - the Chairman of the Board of Trustees at the School, the Deputy Headmaster - Extra Curricula at the School, the Head of the Department of Physical Education at the School, a Member of the Board of Trustees at the School, a structural engineer, a project management consultant, a chartered quantity surveyor, a consulting traffic engineer, a town planner and a registered valuer. Mr Abernethy said that, as presently advised, the 5 See British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 333. -- 7 of 12 -- 8 School will call the same witnesses to give evidence on the same issues in the second proceedings. [25] Mr Abernethy also said that the respondent has served witness statements in relation to the first claim on behalf of a structural engineer, an architect, a traffic engineer, a town planner and a registered valuer. He expected the respondent to call the same witnesses to give evidence in the second proceeding. [26] Mr Abernethy estimated the applicant's legal costs of preparation and for a trial of three weeks at approximately $630,000 (plus GST). In addition there will be costs of approximately $30,000 for the applicant's experts to cover their pre-trial preparation, conferences with solicitors and counsel and appearances at trial to give evidence. In Mr Abernethy's opinion, all of those costs will largely be incurred again at a later date if the second claim is heard separately except that he thought that the costs of preparation for trial in the second proceeding could possibly be reduced by 50%. [27] Mr Abernethy considered that if the two proceedings were heard together, the trial of both would only minimally increase the hearing time required by the Court and they could both be heard within the three week period currently allocated for the first hearing. He estimated that the savings to the applicant in having the matters heard together would be approximately $490,000. Mr Gibson submitted, however, that a period of four weeks would likely be required if the claims were heard together. Presumably the savings would still be significant, although proportionately less, if the combined hearing were to extend to four weeks. Respondent's submissions [28] Mr Hinson SC for the respondent submitted that the onus was on the applicant to demonstrate that an order that these matters be heard together would "facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense"6. He opposed the orders sought for the following reasons - (a) one proceeding is substantially ready for hearing and three weeks commencing 13 February 2012 have been allocated for the hearing; (b) the other proceeding has only recently been commenced (5 August 2011) and has not progressed beyond the applicant's statement of facts and contentions; (c) the proceedings are separate and distinct claims arising out of resumptions 11 years apart for different projects; (d) each should be dealt with separately and distinctly on its own facts; 6 Rule 5(1) Uniform Civil Procedure Rules 1999. -- 8 of 12 -- 9 (e) there is insufficient commonality between the two proceedings to warrant a hearing together; (f) the orderly and efficient administration of the Court's business and the interests of justice generally require that two separate and distinct claims, at different stages of readiness for hearing, be heard separately. [29] Mr Hinson said that a number of factors identified by the applicant as common to both proceedings were of little weight - the proceedings are between the same parties, the same parent parcel was the subject of both resumptions, the nature of the projects underlying the resumption was materially identical and the use of the resumed land was materially identical in each case. [30] Mr Hinson did not accept that the effects of each resumption were materially identical. The respondent disagreed with the applicant as to the effect of the first resumption, had pleaded in the first case that the applicant's reinstatement proposal was unreasonable and put forward evidence as to alternatives that could reasonably have been adopted. Even if the need for reinstatement were accepted, the respondent disagreed with the applicant as to the degree and extent of the enhancement that would follow from the applicant's proposed structure. The respondent was yet to put on its pleading in respect of the second resumption. [31] Mr Hinson also disagreed with the submission that the nature of the claims was identical in principle, saying that the claims are identical only to the extent that each involves a claim for special value or alternatively a claim for reinstatement, or alternatively a claim for market value. [32] Mr Hinson said that the applicant's submission that the facts upon which the School relies are identical in both cases, completely ignored the respondent's case and assumed that it was sufficient to look at one party's case and to identify similarities between the cases. The respondent accepted that there is some commonality of facts between the two cases but said that where there is commonality, the facts are background facts which are not specific to particular details of each of the claims for compensation. [33] The respondent did not accept that a number of factual issues were matters where the evidence in one could be the evidence in the other - the use of the Normanby Ovals prior to resumption; the changing nature of the physical education curriculum and sporting activities offered by the School; the value of the Normanby Ovals to the School; the effects of the resumption on the School's activities and on the School's use of the Normanby Ovals; the assessment of the value of the resumed land by reference to the cost of construction of additional oval space over part of the QR railway lines adjoining the School's main campus; and the reasonableness and appropriateness of the School's -- 9 of 12 -- 10 calculating its claim for compensation by reference to the cost of construction of that additional oval space. These were matters which would have changed over time, Mr Hinson submitted, and they ought to be dealt with on a before and after basis. [34] The respondent's fundamental reason for submitting that the claims cannot be heard together is that it says that the Court's findings about the "state of things" existing after the first resumption must reflect the Court's and the parties' starting point in the inquiry about the state of things before the second resumption. Until those findings are made, neither the Court nor the parties are safe to embark on an inquiry about compensation in the second resumption. [35] In Mr Hinson's submission the applicant was trying to run the cases together in a single trial, with an overarching factual inquiry spanning a decade, directed at the ultimate goal of determining whether, either after the first, or the second, or both resumptions, the applicant's reinstatement proposal constituted a reasonable basis for assessing compensation. That impermissibly runs together two distinct legal and factual disputes with the result that one solution, rather than two, is reached. The applicant's evidence was that the need and ability of the School to raise appropriate funds was strengthened by the second resumption. In other words, the applicant was seeking to build upon the first resumption but totally ignored the fact that the outcome of that proceeding might be a rejection of the applicant's claim for either reinstatement or special value. Conclusions [36] There are undoubtedly a number of factors which point to the desirability of hearing these two claims together. Those factors include the commonality of some facts and the commonality of witnesses. Assuming a joint hearing were to extend to four weeks, there would be a significant saving in the parties' costs as compared with two separate trials approximating three weeks each and it would not be necessary for witnesses to give evidence twice. [37] There are, however, a number of factors to be weighed against those in favour of a joint hearing. One is that the first claim is ready for hearing and has been set down for trial. The resumption giving rise to that claim occurred more than eleven years ago and it is highly desirable that that matter be heard as soon as possible, as the length of time that has elapsed is already excessive. The proceedings relating to the second claim are not ready for hearing and the respondent says, and it is accepted, that it cannot be ready for that hearing by February 2012. [38] Another factor is that the proceedings are separate and distinct claims arising out of separate resumptions 11 years apart. The respondent submitted that the Court's findings -- 10 of 12 -- 11 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. [39] I have accepted the respondent's submissions in this regard. These are cases which, although there are a number of similarities between them, involve two resumptions eleven years apart. No authority was cited to me, and I have been unable to locate any, where a joint hearing has been granted, or indeed applied for, in respect of two such unconnected events. While the parties, the witnesses and the nature of the cause of action are common to both cases, the underlying 'transaction' in each is a completely separate event. Not only are there two separate events but 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 can be considered. [40] For the purposes of deciding this application, it must be assumed that the facts identified by Mr Hinson in [33] above are in issue between the parties. All of these issues, other than those relating to valuation methodology, concern generally the use and value of the Normanby Ovals area to the School. To assess the loss caused by each resumption it will be necessary to make findings as to the use and value of the Normanby Ovals area to the School before and after each resumption. The findings in relation to those issues will influence the decision in each case, as to whether reinstatement, special value or market value is the appropriate basis for determining compensation. [41] If the two claims are heard together, it will be necessary that the witnesses' evidence in the second case be based on different hypotheses to reflect the potential different outcomes of the first case. If the valuation methodology were the only significant matter in issue between the parties in each case, it is possible that the valuers could deal adequately with the possible alternative options at a single hearing. However, the number of factual matters in issue together with the proposed three different valuation methodologies, mean that the possible permutations and combinations of the findings in the first case are such that I consider that it would be unreasonable to expect witnesses to deal with the alternative options in a manageable way, for the purpose of the second case heard at the same time. Further, I consider that a single hearing would be overly complex so that any advantage flowing from a joint hearing would be likely to be outweighed by the complexities. [42] I am listed to hear the first claim in February 2012. I am mindful of the fact that a consequence of a decision that there be two hearings is that, for a number of possible reasons, another Member of the Court may conduct the second proceedings which may result in inconsistent findings in the two matters. Indeed, that is a possibility even if I -- 11 of 12 -- 12 were to hear both matters, as different evidence may be lead in the second case. While the prospect of inconsistent findings is obviously undesirable, it is not a determinative factor.7 [43] The advantages of a joint hearing are significant, particularly the potential savings in time - by the Court, the parties and their legal advisers and witnesses - and costs. To be balanced against those advantages are the difficulties discussed above. On balance, I consider that the disadvantages outweigh the advantages. My conclusion is therefore that the two claims should not be heard together. [44] Mr Hinson suggested, in respect of the facts and witnesses accepted by both parties as common to both proceedings, that the evidence in one trial could be the evidence in the other. While this initially appeared to have some attractions, the difficulties with such an approach have led me to reject that proposal at this stage. The details of how the two cases would proceed if that process were adopted were not fleshed out. It appears that the proposal was intended to operate on the basis that the first hearing would proceed as scheduled in February 2012 when the relevant common evidence would be given and findings made. The second proceeding has not been set down for hearing and is not ready to be set down for hearing. Allowing for any appeal proceedings to be completed in relation to the first decision, it may be envisaged that it will be some considerable time, likely to be of the order of at least 12 months, before the parties are in a position to proceed to the hearing of the second claim. Further, it is possible that the parties may wish to reframe the way in which the second case is presented, depending on the outcome of the first case. [45] It may be that with the opportunity for further thought and discussion a satisfactory plan could be developed which would avoid the necessity for duplication of witnesses and evidence in the second hearing. My decision to reject Mr Hinson's proposal at this stage does not preclude further consideration of the issue. [46] Alternatively, it may be the case that, following the decision in the first hearing, the parties can agree on certain facts, for the second case, thus eliminating or reducing the need for oral evidence and cross-examination about those facts. ORDER The application for a joint hearing is refused. CAC MacDONALD PRESIDENT OF THE LAND COURT 7 Ghose v CX Reinsurance Co Ltd [2010] NSWSC 110 at [95]. -- 12 of 12 --