Barns v Director-General Department of Transport [1995] QLAC 6

_._1' • I IN THE LAND APPEAL COURT HELD AT BRISBANE BETWEEN: (A93-55) IN THE MATTER of an appeal to the Land Appeal Court from the decision of the Land Court of the determination of compensation payable consequent upon the resumption by the Director-General, Department of Transport, for future road requirement purposes under the provisions of the Acquisition of Land Act 1967 and the Transport Infrastrncture (Roads) Act 1991 of an area of about 881m 2 being part of Lot 2 on RP27021, County of Canning, Parish of Maroochy. (A93-56) IN THE MATTER of an appeal to the Land Appeal Court from the decision of the Land Court of the determination of compensation payable consequent upon the resumption by the Director -General, Department of Transport, for future road requirement purposes under the provisions of the Acquisition of Land Act 1967 and the Transport Infrastructure (Roads) Act 1991 of an area of (a) about 5.174 hectares (including about 1415m2 from Easement A on RP27021) being part of Lot 1 on RP27021 and (b) about 2.610 hectares being part of Lot 2 on RP27021, County of Canning, Parish of Maroochy. JAMES THOMAS BARNS and LYNETTE JOY BARNS DIRECTOR-GENERAL. DEPARTMENT OF TRANSPORT Appellants Respondent REASONS FOR RULING - FRYBERG J. and Mr TRICKETT Ruling made 27th September. 1995 At the beginning of the hearing of this appeal the appellants foreshadowed, and they now make, an application that they be permitted to adduce further evidence before this Court from Dr Trevor Johnson. The evidence is contained in a letter from Dr Johnson to the solicitors for the appellants dated 1lth September 1995. The application was opposed. It is necessary to say something of the history of the proceedings. By proclamations gazetted on 14th August and 6th November 1992, the respondent acquired land of the appellants near Coolum for the purposes of a motorway . The land [1995] QLAC 6 -- 1 of 9 -- ,, ., 2 acquired was part of the appellants' holding which by the acquisition was severed into separate parts. The appellants had used their holding for raising certain exotic animals, collectively referred to as llamas. Part of the claim made by the appellants is in respect of damage allegedly caused by the exercise of statutory powers by the constructing authority injuriously affecting their unresumed land 1 • It is unnecessary to describe this claim in great detail for present purposes, although it may be otherwise when the stage is reached when the Court has to consider whether it has power to make an order under this heading in the circumstances of the case. One of the matters relevant to that claim is whether the damaged suffered by the appellants was caused by the respondent. In particular, that depends upon whether any conduct of the respondent caused a fall in the water level of a dam on the appellants' property. The appellants contend that the fall which they say occurred was caused by the respondent cleaning, excavating and dewatering a drain near the boundary of the residual land. The respondent contends that no such fall occurred (at the relevant time) and that even if it did, it was not caused by any activity of the respondent. The respondent succeeded on both points in the Land Court. On the second question the Land Court found that the respondent simply did not carry out the impugned activities on the dates and at the places alleged by the appellants. Evidence by the appellants' witnesses on this question was rejected. Earlier this year the court decided to allow the appellants to lead further evidence on this issue. That evidence has now been led. It consists of the evidence of two eyewitnesses both of whom claimed to have seen the relevant activities being conducted at the relevant time and place. On all of the evidence it would be open to the court to conclude that the respondent did carry out activities of the sort complained of at the time and place alleged . That leaves the issues of whether those activities were capable of causing a fall in the level of the dam, and whether such a fall actually did occur. The appellants' case, both below and in this Court, was that the water level in the dam depended upon a local geological feature; that this feature (possibly a perched water table) caused the level in the dam to be higher than it would be if the aquifer beneath the dam were connected to the regional aquifer; 1 Acquisition of Land Act 1967, s.20. -- 2 of 9 -- 3 that the respondent's activities had connection, thereby allowing the abnormal aquifer to "leak" · into the adjacent aquifer; and that this caused the water level in the dam to drop . Dr Johnson gave evidence on the application before us. He explained that he was the expert advising the appellants and their solicitors and that he had only recently had reason to suspect that there remained variable water levels in the immediate area of the dam. The evidence which the appellants seek to tender is a letter reporting on the results of survey work demonstrating the continued variability of water levels in that vicinity. Dr Johnson said that until his suspicions were recently aroused, there was no reason to have the surveyors make such a study as he reports. Before the Land Court he thought there was only one local feature, which had been ruptured by the respondent's work. The respondent's evidence was of an even regional water table throughout the area. He saw no reason to doubt that evidence (apart from under the dam) and as far as the area under the dam was concerned, he had thought it too late to carry out further investigations. That was why nothing was done at the time of the trial. The Land Act I 962 relevantly provides that the Court may admit further evidence if: "(i) it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; "2 Mr Boyce, the solicitor for the appellants, contended that in the absence of the further evidence, this Court would reach the same conclusion as the Land Court. The further evidence, he submitted, would make a different conclusion on the issue inevitable, or at least could probably influence the result on the issue. He submitted that for the Court to proceed without the further evidence in such circumstances would amount to a grave injustice. He conceded that the proposed new evidence could have previously been obtained and led in the Land Court, but that in the circumstances there had been no reason why it should have been , there having been no reason to suspect that it was available. 2 Section 44(13)(a)(i) . -- 3 of 9 -- ., 4 For the respondent Mr Gibson QC submitted that no grave injustice would be suffered by the appellants if the further evidence were excluded. He submitted that the new report does not prove the existence of a perched water table and that the appellants have not demonstrated that it would make any difference to the outcome. He further submitted that no adequate reason why the evidence had not been led in the Land Court had been advanced. He pointed out that the question of the existence of a regional water table and the possibility of a perched water table were matters in issue not only in preparation prior to the hearing but also during the hearing and in final addresses. He submitted that the absence of the evidence was due to inaccurate preparation, one of the vicissitudes of litigation. said: In Director-General, Department of Transport v Hibiscus Holdings Pty Ltd3 the court "Since this is the first case heard by this Court in which the interpretation of the new provision has been argued, we would add that 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 result4 , 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 5. 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 ." 3 Unreported, A92-5, 9.6.95. 4 We do not imply that an arguably incorrect valuation will always constitute an injustice. 5 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 Qd.R. 204 at p. 215. -- 4 of 9 -- . , 5 The evidence which the appellants wish to lead would, it seems, justify a conclusion of the existence of perched aquifers or some other irregularities in the aquifer at the relevant location. At this stage we are unable to say that it necessarily or irrebutably proves it. We note however that there was no cross-examination of Dr Johnson directed towards showing that the proposed fresh evidence could have no impact on the outcome of the case. In Hibiscus the court did not need to determine the level of impact which the proposed evidence might have on the appeal, though it held that it was necessary to show at the very least that it might influence the result of the appeal. Since not even that much was shown in the circumstances of that case, it was unnecessary to consider the test further. Mr Boyce contended in the present case that it should be sufficient if the proposed evidence might influence the result of the appeal (there was no suggestion that it was not credible). We do not think that is the correct test. Although no authorities have been cited to us and we are deciding the matter in the course of a hearing, on the voir dire, we think that it is necessary for the appellants to demonstrate that there exists a real prospect that the proposed new evidence will affect the decision of this Court on the issue to which it is addressed . In our view, only if the evidence goes that far can it be said that to proceed to a contrary result without it would result in a grave injustice. In the present case, it seems to us that the appellants have satisfied this test. The evidence of the variable readings has led Dr Johnson to conclude: "The only conclusion possible is that there is no single regional water table, and that significant water level differences do occur for sites within close proximity to each other. ... The only important element is that these level differences exist, and that a higher water level was obviously possible in the llama pond prior to the construction of the motorway, particularly if it was linked at that time to the aquifer which is supporting higher water levels in the bores to the east." There is in our view a real prospect that that conclusion could affect our decision on the issue. -- 5 of 9 -- .< . 6 The next question is whether the appellants have demonstrated that there is ad equate reason that the evidence was not previously given. Mr Boyce expressly conceded that it could have been given if only the appellants (which seems to mean Dr Johnson) had had any reason to suspect its availability. Dr Johnson said in evidence that he had assumed that water levels would have equalised throughout the immediate vicinity of the dam once the perched water table was punctured. He had no reason to suspect the widespread existence of other variations, particularly since the experts for the respondent uniformly contended that there were no such variations and produced bore log results which seemed to support that conclusion. Mr Gibson QC contended that proper preparation of the appellants' case ought to have led them to the evidence in question. He submitted that the evidence should have been sought prior to the commencement of the hearing in the Land Court. Viewing the matter as best we are able at this stage of proceedings, it seems to us that this would require an unreasonable exercise of prescience on the part of the appellants. Therefore, in the light of the expert evidence provided by the respondent, we think there is force in the view taken by Dr Johnson. While there was no evidence before us to suggest that the appellants lacked the resources to carry out further investigations, we are conscious that courts everywhere are concerned to limit the costs of litigation, and we would not wish to encourage the idea that experts should be engaged to chase up every conceivable line of inquiry regardless of cost, time or importance. We are also conscious that the trial took place before s.44 assumed its present form in December 1994. That in itself provides no basis for allowing further evidence. As the court observed in Hibiscus, "it is unlikely that the court would ordinarily view such reliance on the state of the law before 9th December 1994 as an adequate reason within the meaning of the new provision". On the other hand, we do not see that factor as completely irrelevant in assessing the adequacies of the other reasons advanced and referred to above. In all the circumstances we are satisfied that the appellants have shown adequate reason why the evidence in question was not previously given. -- 6 of 9 -- 7 Our discretion is therefore enlivened. The respondent advanced no reason why it ought not to be exercised in favour of the appellants. In particular, there was no suggestion that admitting the evidence would unfairly prejudice the respondent or dislocate the conduct of the appeal. We note that we were informed from the Bar table that the respondent had been given timely notice of the evidence and invited onto the appellants' land to check the survey results for himself. We think the evidence of Dr Johnson contained in the letter referred to should be admitted. THE HONOURABLE JUSTICE FRYBERG CHAIRMAN OF THE LAND APPEAL COURT MR J.J. TRICKETT MEMBER OF THE LAND APPEAL COURT -- 7 of 9 -- 8 .MR WALL: I agree with the reasons which have been delivered by the Chairman and Mr Trickett. In my view the provisions of s.44(15), in particular (a), of the Land Act should be considered in deciding what meaning is to be given to s.44(13)(a)(i) and the approach this Court should take to an application that fresh evidence be admitted on appeal. I agree that guidelines must be laid down such as was done in Director-General, Department of Transport v. Hibiscus Holdings Pty Ltd, Land Appeal Court, unreported, 9.6.95 and in LR & MM Bignell v. Chief Executive , Department of Lands, Land Appeal Court, unreported , 24.8.95, and as has been done by the Chairman and Mr Trickett in this appeal, however, I think that in applying those guidelines this Court should not lose sight of the provisions of s.44(15(a). Notwithstanding what I have said, I am concerned to emphasise the following matters: 1. In the last three appeals heard at the present sittings two, including the present, have involved applications to call fresh evidence made at the commencement of or during the hearing of the appeals. These have involved the Court in a fair amount of time and have caused delays in the disposition of the appeals. Such late applications are to be discouraged and it may be that a different and more stringent approach should be taken to applications made at such times. 2. Parties in proceedings in the Land Court should not proceed upon the basis that mistakes or omissions in the evidentiary presentation of cases will be able to be corrected on appeal. There should be, notwithstanding the provisions of s. 44(13)(a) a degree of finality about proceedings and the way in which parties choose to conduct them. 3. Prejudice to the respondent to an application to call fresh evidence may be an important factor in the outcome of such an application. This factor may assume -- 8 of 9 -- " . 9 more importance on an application made at the hearing of the appeal than one made earlier. In the present case, whilst the respondent has said that if the evidence of Dr Johnson is admitted, it "will have to check and do its own investigations", it does not say that this should be a discretionary ground or reason for refusing to admit the evidence. Had it done so, and had it convinced us that it would need more time to meet the fresh evidence, this may have influenced me to arrive at a different conclusion about the admission of that evidence. 4. Parties to appeals in this Court should proceed on the basis that this Court is, notwithstanding the provisions of s. 44(13)(a), first and foremost an appellate Court and not a Court of first instance. This is also a factor capable of influencing this Court in its approach to the application of s. 44(13)(a). C.F. WALL, Q.C. MEMBER OF THE LAND APPEAL COURT -- 9 of 9 --