Copeland v Chief Executive, Department of Natural Resources [2000] QLAC 82

[2000] QLAC 082 IN THE LAND APPEAL COURT OF QUEENSLAND In the matter of appeals to the Land Appeal Court by Kevin J and Rosemary A Copeland from decisions of the Land Court in the matter of the determination of the unimproved value of the land contained in Valuation Roll No 21746/50000, Maroochy (Dates of Valuation: 1 January 1996, 1 October 1996 and 1 October 1997). (AV98-907/908 and 909). APPLICATION TO ADMIT FURTHER EVIDENCE AND APPLICATION FOR DISCLOSURE BETWEEN Kevin J and Rosemary A Copeland AND Chief Executive, Department of Natural Resources Applicants Respondent BEFORE THE HONOURABLE MR JUSTICE MUIR, MR RP SCOTT AND MRREWENCK REASONSFORJUDGMENT-THECOURT Delivered at Brisbane this Eleventh day of September 2000. The appellants seek leave to adduce further evidence in the appeals to this Court from the decisions of the Land Court at first instance. The application was made originally pursuant to s.44(13)(a) of the Land Act 1962 which provides:- "(13) (a) The Land Appeal Court may admit further evidence only if - (i) it is satisfied that the admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; or (ii) the appellant and respondent agree to its admission. " Since the original application was made the above provision has been repealed and the subject matter of such applications is now provided for in s.56 of the Land Court Act 2000:- -- 1 of 6 -- 2 "56.(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made. (2) However, the court may admit new evidence if - (a) the court is satisfied admission of further evidence is necessary to avoid grave injustice; and (b) the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and (c) application to have further evidence admitted is made before the hearing of the appeal. " It transpires that insofar as this application 1s concerned, there is no substantive difference in the manner in which the two provisions would apply to the facts. There is an absence of agreement between the parties as to the admission of the fresh evidence; therefore we are concerned only with whether the applicants have provided an adequate reason for the evidence not previously being given and with whether the admission of the evidence is necessary to avoid grave injustice. It will be useful if we first make reference to two occasions on which this Court has considered an application made pursuant to s.44(13)( a) of the Land Act. In Paino and Heavey Lex No 64 Pty Ltd v. Director-General, Department of Transport (Land Appeal Court 29 May 1996, p.2), the Court held that the test as to whether the admission of the further evidence was necessary to avoid grave injustice was a "stringent one". The first such consideration of this Land Act provision is found in Director-General, Department of Transport v. Hibiscus Holdings Pty Ltd (1995) 15 QLCR 408 where this quotation is taken from p.419: " ... in general, in order to satisfy the first limb of s.44(13 )( a)(i) it will be necessary for the party seeking to adduce further evidence to identify the grave injustice which must be avoided with some particularity; to specify with precision the further evidence sought to be led; to demonstrate why it is that the injustice can fairly be described as 'grave'; and to demonstrate how there exists a necessity to admit the evidence in order to avoid the injustice. The degree of particularity and precision required may vary depending upon the circumstances of the case. If the injustice relied upon is the reaching of an incorrect result (we do not imply that an arguably incorrect valuation will always constitute an injustice), the Court should be placed in a position where it can assess whether the proposed evidence at the very least might influence the result of the appeal and whether it is apparently credible (compare Clarke v. Japan Machines (Australia) Pty Ltd [1984] 1 Qd.R. 404 at p.408; Brisbane City Council v. Mainsel Investments Pty Ltd [1989] 2 -- 2 of 6 -- ( 3 Qd.R.204 at p.215 . Whether the wording of the paragraph requires the party seeking to lead the evidence to demonstrate that it necessarily will affect the outcome is a matter which we need not presently consider. Quite possibly any problems arising from the word 'necessary' may be overcome by identifying the injustice in question in terms of risk rather than certainty." Reference was also made by the applicants to the decision of this Court in Major v. Chief Executive, Department of Natural Resources (Land Appeal Court 10 December 1999), a decision which is consistent with those cited already and which does not require further elaboration. The application before us does specify with precision the further evidence sought to be led and thus satisfies that particular requirement. As to whether the other requirements of the provision as explained further in the above two authorities have been met, we will deal with each of the pieces of further evidence, the subject of the application. The applicants seek to adduce further evidence concerning Sale No. 4 relied upon by the respondent before the Land Court; that is the sale from Tacross Pty Ltd to Sirl. The applicants wish to provide evidence concerning the attributes of the property the subject of that transaction; how it ought to be analysed to an unimproved value and the comparison between that property and the property the subject of the appeals before us. The applicants say that they were unable to contact the purchasers of the sale land by telephone. Mr Copeland was able to visit the land and to walk the boundary. The applicants had six working days only to contact the landowners before trial, the suggestion being that that period was inadequate. The purchasers of that land have since been contacted and the applicants say that they are now in a position to provide detailed evidence concerning the transaction. We have perused the evidence intended to be adduced and have considered the reasons advanced for that evidence not previously having been given. We are not convinced that the reason given for the evidence not having been adduced before the Land Court is a reason which should result in our allowing the admission of the fresh evidence. Nor are we convinced that there exists a necessity to admit the further evidence as particularised, in order to avoid grave injustice. It is relevant that the applicants proceeded with the hearing without request for an adjournment and, further, that the applicants on the hearing at first instance, were able to make cogent -- 3 of 6 -- 4 submissions without the benefit of contact with the owners. Furthermore, we doubt that the sale is of critical significance in the scheme of things. The second topic of evidence to which the application relates is described as "inspection and report on Cashmere sales (Exhibit 14)". The Cashmere sales were referred to by the respondent and by the learned Member at first instance in support of the level of diminution in value which ought to apply to the land the subject of the appeals resulting from the effect on value of an electricity easement which traverses the subject property. Whilst there was an understanding between the parties that all relevant sales evidence would be exchanged before trial, the Cashmere sales were not made known to the applicants until the actual hearing commenced. In the circumstances the appellants were not in a position to assist the Court in providing evidence or properly informed submissions concerning the relevance and possible application of this sales evidence. In the circumstances we accept that the applicants have provided an adequate reason for the evidence having not previously been given. We are also of the view that such evidence ought to be admitted as being necessary to avoid grave injustice. That injustice arises in two ways. First, the applicants would have understood before the Land Court hearing that the level of diminution thought appropriate by the respondent as applicable to the easement on the subject land was 32.5% of the assumed unencumbered value of that land. Yet the Cashmere sales were adduced by the respondent to indicate to the Court at first instance that the level of diminution which would apply having regard to those sales was in the range of 20%-25%. Second, the question of the level of diminution of the otherwise unencumbered value of the subject land is a question which is central to the question of the unimproved value at the relevant dates of valuation. The Cashmere sales evidence appears to have influenced the determination at first instance and may well assume considerable significance on appeal. We therefore have decided that evidence as detailed in paragraphs 2.1 to 2.12 inclusive of the written submissions provided by the applicants to us in support of this application, be allowed as further evidence in the hearing of these appeals. Such evidence will need to be set out in a discrete statement (with appropriate annexures) which can be tendered on the hearing of the appeal. The third topic of evidence, the subject of this application, relates to the "expansion of relativity evidence in the subject area and Sale No. 1 area". The subject matter of this evidence deals with the various statutory valuations placed on properties -- 4 of 6 -- 5 by the Chief Executive in the areas mentioned. The application with respect to this evidence fails for two reasons. First, we cannot discern from the application any adequate reason as to why the evidence was not previously given. Second, we are not convinced that the admission of this evidence is necessary to avoid grave injustice. It needs to be kept in mind that under the provisions of the Valuation of Land Act 1944 (s.45(3) and (4)), an appellant adopts the statutory burden of proving his grounds of appeal. It is not appropriate for an appellant at this late stage of proceedings to seek to adduce evidence which is either rebuttal in character or which ought to have formed a basis of the appellants' case. We note that a ground of appeal at first instance was that the relevant valuations are not in proper relativity with comparable valuations. In addition to the applications to admit further evidence, the applicants seek an order for disclosure pursuant to Rule 13 of the Land Court Rules 2000. That Rule brings into play Chapter 7 of the Uniform Civil Procedure Rules 1999 in particular, as we understand the application, Rule 223 of those rules. 11 The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to use before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to documentary evidence and to reduce the costs of the litigation. 11 (Halsbury's Laws of England, Volume 13, Fourth Edition, Para. I.) In our view, it is much too late in the proceedings for the landholder/appellants to initiate an application for disclosure. The above quotation explains the role of disclosure (discovery) in litigation. We have before us appeals from the Land Court and though such appeals are not appeals stricto sensu (as it is open to this Court to vary the determination of the Court at first instance), our considerations ought to be based on the record and on any further evidence adduced following an application of the type considered earlier in these reasons. The application for disclosure is refused. These applications were supported in writing by the applicants and in person by Mr Copeland who appeared on behalf of himself and his wife. The Chief Executive respondent was not represented. It had been indicated by the respondent that it was not intended to make submissions with respect to the applications. However, we do not understand that to be a communication of a lack of intention to appear on a formal hearing. If normal courtesies (for the existence of which there is -- 5 of 6 -- 6 good reason) are to be abandoned we would expect that this be done after prior consultation with the Court. As we were unaware that the Crown intended to waive its right to be heard, irrespective of the content of submissions made or evidence adduced on behalf of the applicant, we felt constrained to adjourn the application in order to afford natural justice. It will, or ought, be appreciated that parties to court proceedings and their legal advisors have duties to the Court which has the responsibility for the fair and expeditious carriage of the proceedings. Parties and their legal advisors are not free to decide, unilaterally, not to appear at duly convened hearings. MuirJ. Justice of the Supreme Court RP Scott Member of the Land Court RE Wenck Member of the Land Court -- 6 of 6 --