Bignell v Chief Executive, Department of Lands [1995] QLAC 70 (1994-1995) 15 QLCR 528

IN THE LAND APPEAL COURT HELD AT BRISBANE IN THE MATTER of an appeal to the Land Appeal Court by Leonard R Bignell and Michelle M Bignell, from the decision of the Land Court in the matter of the determination of the unimproved value of the land contained in Valuation Roll No. 13721, Parish of Yeerongpilly. BETWEEN: AND: LEONARD R BIGNELL and MICHELLE M BIGNELL CHIEF EXECUTIVE, DEPARTMENT OF LANDS Appellants Respondent REASONS FOR JUDGMENT - FRYBERG J. Judgment delivered 24/08/1995 This is an application for directions in relation to the hearing of evidence intended to be led as of right in a forthcoming appeal in this Court or alternatively for directions in relation to the admission of further evidence pursuant to s. 44(13)(a)(1) of the Land Act 1962. The circumstances giving rise to the appeal are set out in the joint judgment of the President and Mr. Neate. The nature of the appeal Counsel for the appellants argued that s. 44(13)(a) of the Land Act 19621 does not apply to this appeal. That was said to be the consequence of the combined operation of ss. 64(2) and 67(1) of the Valuation of Land Act 1944. As I understand it, the contention was that the non- application of s. 44(13)(a) of the Land Act 1962 was a necessary adaptation of Part 2 of that Act to the application of that Part for the purposes of this appeal. I will assume that "adaptation" is wide enough to comprehend the total non-application of a provision without any modification, although no authority was cited to us to support that proposition. It was submitted that the adaptation was "necessary" in view of the requirement in s. 64(2) of the Valuation of Land Act 1944 that an appeal be by way of a rehearing. 1 As amended by s. 525 and Schedule 3 of the Land Act 1994. [1995] QLAC 70 -- 1 of 4 -- 2 Counsel argued that "rehearing" means a hearing de novo. In support of that proposition reliance was placed on the decision of the High Court in The Queen v Rigby2. The word rehearing is capable of a multitude of meanings: so much appears from the cases referred to the President and Mr. Neate in the judgment which they are about to deliver. Rigby was a case concerned with the nature of the proceedings provided for in the Land Act 19103. The point in Rigby was whether the function of the Land Appeal Court was of the same kind as that of the Court of Appeal in England, i.e. an appeal in the strict sense. The High Court held that it was not. In the present case no one suggests that the appeal to this court is an appeal in that sense. Plainly it is not. Rather, the question is whether the terms of s. 44(13)(a) of the Land Act 1962 as amended are inconsistent with the character of the proceedings as a rehearing. In my judgment they are not. It is true that until the 1994 amendments an appeal to this court was conducted as a hearing de novo. That occurred because of the terms of the Land Act 1962, not because of s. 64(2) of the Valuation of Land Act 1944. For example appeals under the Acquisition of Land Act 1967 took place as hearings de novo notwithstanding that there was no prescription in that Act for a rehearing. Until the 1994 amendments, the nature of a hearing in this court under the Land Act 1962 was similar to that under the predecessor of that Act, the Land Act 1910, which was the Act considered in Rigby. Although the 1994 amendments repealed the explicit provision in s. 44(13) of the Land Act 1962 for proceedings under that section to be by way of rehearing, they did not prohibit further evidence being adduced at the appeal. If further evidence is to be adduced, the appeal cannot be an appeal in the strict sense. It must still be an appeal by way of rehearing. The intention of the amendment was to convert the nature of the appeal from a rehearing de novo to a rehearing normally conducted on the record. Consequently I reject the submission that s. 44(13)(a) does not apply to the present appeal. 2 (1956) 100 C.L.R. 146. 3 Particularly s. 35(8) - see the judgment of the President and Mr. Neate herein. -- 2 of 4 -- 3 The further evidence The further evidence which the appellants seek to adduce consists of an affidavit of David R Thomas, a valuer, to which is exhibited a valuation report. That report values the subject land at $107,500.00. This contrasts with the respondent's valuation of $130,000.00, although it is considerably above the estimate of $65,000.00 provided by the appellants' predecessors in title. In support of the application to lead the evidence we were furnished with another affidavit of Mr. Thomas sworn on 17th July 1995. That affidavit discloses that Mr. Thomas is a resident of Yeronga, where the subject land is located, and that he has had a close personal involvement in most of what has transpired in the district of Stephens with respect to annual valuations since 1990. He says he has devoted a great deal of his time throughout 1991 and 1992 endeavouring to assist members of his community with the lodgement of objections and the handling of subsequent appeals to the Land Court. The records of the Land Court show that he contested the respondent's valuation of his own property (as at the same relevant date) in the Land Court4, and appeared as a witness for appellants in at least three other cases5. Why then, it may be asked rhetorically, was he not called at the hearing before the Land Court? The appellants submit that the evidence was not provided to the Land Court because of an error on the part of the agent who appeared for their predecessors in title. However there is no foundation for that submission provided in the evidence before us. The agent in question, a Mr. Tighe, has not made an affidavit, nor have the appellants' predecessors in title done so. In the absence of evidence I see no reason to assume that he made any error. The appellants contend that the agent was under the mistaken belief that a valuation would only be of assistance to the court in circumstances where there had been an actual recent sale of the property, thus providing strong evidence of value. There is no affidavit deposing to the existence of any such belief. Had there been, the respondent would have been entitled to cross-examine Mr. Tighe and one could well imagine that questions such as the basis for the mistaken belief would then be explored. In this regard I note that Mr. Tighe has appeared as agent in a number of matters before the Land Court, including Ward v Valuer-General6, where he called Mr. Thomas as a witness. It is not suggested that Mr. Thomas would have been unwilling or unable to provide a similar service in the Land Court in the present case. 4 Thomas v Valuer-General AV91-854. 5 Levander v Valuer-General AV91-852; Ward v Valuer-General AV91-845; Evans v Valuer-General AV91-857. 6 AV91-845. -- 3 of 4 -- 4 I am not satisfied on the evidence before us that there is adequate reason that the evidence now proposed was not previously given. In these circumstances it is unnecessary for me to consider whether admission of the evidence is necessary to avoid grave injustice. The grave injustice asserted is said to be the continuance of the proceedings (by implication, to an inevitably adverse conclusion) when the only valuation evidence before the Court is manifestly wrong and is wrong by a high proportion of the value assessed. I would prefer to leave open for the time being the question whether such matters constitute "grave injustice". The application should be dismissed. -- 4 of 4 --