A Micallef v Chief Executive, Department of

[2002] QLC 81

LAND COURT OF QUEENSLAND

CITATION:	A Micallef & Anor v Chief Executive, Department of Natural Resources and Mines [2002] QLC 81
PARTIES:	Angela and Frank Micallef
(applicants)

v

Chief Executive, Department of Natural Resources

and Mines

(respondent)

FILE NO:	AV2002/0199
DIVISION:	Land Court of Queensland
PROCEEDING:	Application for adjournment on appeal against annual valuation under the Valuation of Land Act 1944
DELIVERED ON:	8 October 2002
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Dr NG Divett
ORDER:	An adjournment would be appropriate in order to ensure that the appellants’ case is not jeopardized by failure to have available the best hydrological evidence in respect of any possible flooding of the subject land. The matter is adjourned to a date to be fixed.
APPEARANCES:	Mr F Micallef appeared for the applicants
Mr J O’Rourke Principal Legal Officer appeared for the respondent

Background:

[1]              This matter relates to an application to adjourn the hearing of an appeal against an annual valuation at 1 October 2001, of a residential property located at 197 to 207 Ebenezer Road, Ipswich, and described as Lot 9 on RP 123058, Parish of Jeebropilly. On 25 February 2002 the Chief Executive issued a valuation of the subject land at $36,000. Following an objection the Chief Executive confirmed that figure on 4 June 2002. The appellant has then appealed claiming that the subject land is unsuitable for residential use due to being in a flood plain. The appellant argues for an unimproved value of $25,000. By Court Notice of 15 August 2002 a hearing was set down for 14 October 2002.

[2]              On 13 September 2002 the appellants made application for the matter to be adjourned for a period of three months, in order for a separate court hearing in another place to be resolved prior to the completion of the current matter. The respondent resisted the adjournment, and the hearing of the preliminary matter to consider the application was held on 18 September 2002.

[3]              At the preliminary hearing Mr Micallef appeared and represented the appellants. Mr J O’Rourke, Principal Legal Officer, represented the respondent.

Application for Adjournment:

[4]              Mr Micallef argues that the appellants currently have sought a hearing in the Planning and Environment Court for an appeal by the appellants against the Ipswich City Council in respect of an enforcement direction by the Council to remove certain bund walls. Apparently those bund walls had been erected by the appellants without Council approval. Mr Micallef argues that the reason for the bund walls was to avoid severe flooding of the subject land, which he states lies at the confluence of several creeks. The bund walls are now seen by the Council as impeding an overland flowpath in the area.

[5]              Mr O’Rourke resists the application, as he argues the application for adjournment has not been issued in accordance with the provisions of Rule 19(3). That Rule specifies that the application must be filed on the respondent at least five business days before the date set to hear the application. In the circumstances of the current matter Mr O’Rourke argues that he only became aware of the application as a result of a telephone call from the Court Registry on Monday 16 September 2002, just two days prior to the date of hearing the application on Wednesday 18 September 2002. Mr O’Rourke further advises that he was unaware of the details of the application until arriving at the Court on 18 September 2002. To Mr O’Rourke’s knowledge there was no record of any copy of the application in either the Brisbane or Ipswich offices of the Chief Executive.

[6]              Mr Micallef advises that he personally delivered a copy of the application (Form 17) to the Ipswich office on the afternoon of Tuesday, 17 September 2002, after discussions with the Court Registry on Monday 16 September 2002. Mr O’Rourke agrees that there is some discretion for the Court to waiver compliance with Rule 19(3) under Rule 6 of the Land Court Rules 2002. However Mr O’Rourke argues that Rule 6 should only be applied where compliance with Rule 19(3) would be likely to cause injustice or unreasonable expense or inconvenience. Mr O’Rourke contends that in the circumstances of the current application it is the respondent who is disadvantaged, and who has in fact been caused unreasonable expense and inconvenience. Mr O’Rourke seeks costs in respect of having to appear unreasonably at the hearing of the application on 18 September 2002.

[7]              Mr O’Rourke further argues that as the appellant would appear to be engaging legal advice on the other matter pending in another place, it would not be unreasonable for the current application to be dismissed, and the appellants then seek to lodge another application for adjournment in accordance with Rule 19(3).

[8]              In seeking to clarify the circumstances around this application, I will clarify the events as they unfolded for the Court. About Wednesday 11 September 2002 the registrar became aware by telephone from Mr Micallef that an application for an adjournment would be forthcoming. Mr Micallef was advised that if he intended to seek such an adjournment then he should document it by a formal application (Form 17). A formal application was then faxed to the Court Registry at 3.24 pm on Friday 13 September 2002. In seeking to determine whether the hearing of the merits of the matter should continue to run on 14 October 2002, the Court decided to hear the application on Wednesday 18 September. Because of that short notice thrust upon the appellant, the copy of the application was not delivered until Tuesday 17 September 2002 as advised by Mr Micallef.

[9]              In the context of that scenario, I believe that the short time interval for delivery of the copy of the application to the respondent should be considered under Rule 6 of the Land Court Rules 2000. The question then is whether it was the actions of the appellant, or the desire of the Court to expedite the matter, which may have led to any unnecessary and unreasonable costs for the respondent. On the evidence I exercise Rule 6 and reject the dismissal of the application on technical grounds.

[10]            In having to appear at the hearing of the application on 18 September, the respondent did incur additional costs. However, if the scenario as proposed by Mr O’Rourke was to be followed in dismissing the current application, such costs were likely to be similar to those presenting at a subsequent application hearing, either prior to, or on 14 October 2002. Under those circumstances I reject the application for costs incurred in the current matter.

Impact of Flooding -

[11]            I turn then to the matter of whether actions pending in another place should be sufficient reason for adjourning the hearing of the merits of the current matter, which is currently listed for hearing in this Court on 14 October 2002. In considering such a scenario, I do not believe that it is a matter directly for consideration by the Court, as to whether an action in another place could have bearing upon the decisions of this Court. Rather I believe it is appropriate to consider whether the appellants’ case in this Court is jeopardized in some way by other actions currently proceeding in respect of that other matter.

[12]            Mr Micallef advises that there is a detailed engineering report currently being prepared by hydrological experts, which will not be available to his legal advisers in the other place, until about the date set for the hearing of this matter on 14 October 2002. Mr Micallef argues that report is likely to have a significant impact upon the findings of this Court in respect of the unimproved value of the subject land. He further advises that his current advice is that the expert technical report being prepared has identified further impacts by flooding, not currently available to the respondent.

[13]            Mr O’Rourke advises that there have been extensive negotiations on three occasions between the parties in respect of the nature of the subject land, and the respondent believes there is sufficient knowledge of the subject land in order to allow the unimproved value to be correctly determined.

[14]            Mr Micallef advises that it is his legal advice that the technical hydrological report should not be prematurely disclosed, once it is available, until appropriate discovery and negotiations have been undertaken with the Ipswich City Council in respect of the other matter. Once the report is then exchanged between the parties to that matter, it becomes open to public enquiry, and could be used in the current matter. Those proceedings are currently in hand, and Mr Micallef advises that subject to a Callover in the other place, it is hoped that that matter could proceed to hearing during October 2002. Mr Micallef further advises that he has now an independent valuation report, which indicates a lower valuation than adopted by the respondent, reflecting the greater impact of flooding.

[15]            In summarising this matter I believe that an adjournment would be appropriate in order to ensure that the appellants’ case is not jeopardized by failure to have available the best hydrological evidence in respect of any possible flooding of the subject land. The matter is adjourned to a date to be fixed.

MEMBER OF THE LAND COURT