Appellants in Blackall Shire v Department of Natural Resources and Water

[2007] QLC 24

LAND COURT OF QUEENSLAND

CITATION:

Appellants in Blackall Shire v Department of Natural Resources and Water [2007] QLC 0024

PARTIES:

Appellants in Blackall Shire
(appellants)

v.

Chief Executive, Department of Natural Resources and Water
(respondent)

FILE NOS:

AV2006/0017 & Ors

DIVISION:

Land Court of Queensland

PROCEEDING:

Application with regard to Costs

DELIVERED ON:

13 April 2007

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr JJ Trickett, President

ORDERS:

1.         The Orders made on 30 March 2007 are vacated.

2.        No order as to costs.

APPEARANCES:

Mr B Ponting (Solicitor) for the appellants
Mr W Isdale of Counsel for the respondent

SOLICITORS:

Bernard Ponting & Co for the appellants
Crown Solicitor, Crown Law for the respondent

1. A large number of landowners in Western Queensland have lodged appeals against the unimproved values applied to their lands by the respondent under the provisions of the Valuation of Land Act 1944.  Following a decision to hear test cases in respect of the appeals in various Shires in Western Queensland, on 14 March 2007 I made orders that there be a meeting of experts in relation to the test cases for the Shires of Aramac, Barcaldine, Blackall and Tambo in an attempt to reach agreement on or before Tuesday, 8 May 2007.  On 23 March 2007, the Blackall appellants' then agent, Mr A Boyd, wrote to the Registrar of the Land Court advising that while arrangements for the meetings of the experts in the other Shires had progressed satisfactorily to date, the valuer for the appellants in respect of the test case in the Blackall Shire would not be in a position to meet the respondent's valuer on 1 May 2007, the date which had been suggested for that meeting.  In that letter Mr Boyd also advised that the valuer "… requires several weeks thereafter to finalise his written report …".

2. The Registrar referred the letter to me and on my instructions he advised Mr Boyd that if the appellants were seeking to alter the orders made on 14 March 2007, then an application in proper form should be made.

3. On 27 March 2007, on behalf of the Blackall appellants, Mr Boyd filed a general application in the Land Court seeking a variation of that order because of the unavailability of the appellants' valuer, Mr Greg Shaw.

4. At the hearing of the application, on 30 March 2007, there was no appearance by Mr Boyd, who relied on the unsworn annexures to the application, together with accompanying correspondence.  Counsel for the respondent, Mr Isdale, submitted that the application should be dismissed as it was not brought in proper form and there were no affidavits swearing to the truth of the factual matters contained in the annexures.

5. After considering the matter, I accepted Mr Isdale's submissions, but instead of dismissing the application, I made orders that the application be adjourned and requiring the appellants' agent to file and serve an application in proper form, accompanied by the necessary affidavits swearing to the truth of the factual matters therein, by Tuesday, 10 April 2007.  I also gave the appellants' agent the opportunity to be heard as to why the appellants should not be ordered to pay the respondent's costs of the adjournment thrown away.

6. No such application was made.  However, on 12 April 2007, the Court was notified that Bernard Ponting & Co now act for a large number of the appellants in the Blackall Shire in place of Mr Alister Boyd.

7. When this matter came on for hearing, Mr B Ponting appeared and confirmed that he was now acting for the appellants identified in the Notice of Change of Solicitor, and that he confidently expected to receive instructions to appear on behalf of the rest of the Blackall appellants formerly represented by Mr Boyd.

8. With respect to my orders made on 30 March 2007, Mr Ponting submitted that it had never been the intention of Mr Boyd to bring an application to vary the orders of 14 March 2007.  His letter of 23 March 2007 was simply a courtesy communication with the Court to advise of progress in complying with those orders.  It was not intended to indicate that there could not be compliance with those orders in respect of the test case in Blackall Shire.  Therefore, it was submitted, Mr Boyd made the application in compliance with what he regarded as the requirements of the Court.

9. In any case, Mr Ponting submitted that Mr Boyd's application was in Form 17 as approved under Rule 51 of the Land Court Rules and substantially complied with the requirements and instructions for requirements of the form.  He also submitted that the Land Court is not bound by the Rules of Evidence and may inform itself in any way that it considers appropriate, and that in practice the Court has taken a more relaxed approach to the reception of evidence in the interlocutory stages.

10. Furthermore, Mr Ponting submitted that the Court is to act on the substantial merits of the case without regard to legal technicalities and forms of the practice of the other Courts.  It was, he argued, therefore open to the Court to receive the statement of facts set out in the application as evidence, without the presence of a prosecutor.  Mr Isdale was aware that Mr Boyd was of the understanding that there was no need for any appearance by him and Mr Isdale did not warn him that he would seek to have the application dismissed on the basis of there being no appearance for the appellants.

11. After hearing Mr Ponting and Mr Isdale, I am of the view that this whole matter could have been avoided if Mr Boyd had made it clear that he was not seeking to vary the orders of 14 March 2007, but was simply keeping the Court informed.  It could also have been avoided if Mr Boyd had appeared on 30 March to explain these circumstances.  However, I accept that there was no lack of good faith on Mr Boyd's part.

12. Mr Isdale pursued the respondent's application for costs of the adjournment thrown away, submitting that the respondent has been inconvenienced and incurred costs because of the application.  However, I am aware that Mr Isdale had to appear in the Land Court on 30 March 2007 with regard to other appeals in the western area of the State. 

13. The orders which I made on 30 March 2007 gave Mr Boyd the opportunity to make an application for variation in proper form and to convince the Court why an order for costs of the adjournment thrown away by the respondent as a result of the adjournment, should not be made against the appellants.  Mr Ponting, on behalf of Mr Boyd, has persuaded me that any mistakes by Mr Boyd as a result of assumptions which he made, should not result in a costs order against the appellants.

14. It is unfortunate that the circumstances were not explained fully in the first place.  However, as there seems to have been some misunderstanding on the Court's part and by Mr Boyd of the Court's requirements, I am of the view that it is not appropriate that an order be made against the appellants.  With the appointment of Mr Ponting as solicitor for the appellants, the Court and the respondent can have some confidence that such an unfortunate incident will not occur again.

Orders

1.   The Orders made on 30 March 2007 are vacated.

2.No order as to costs.

JJ TRICKETT

PRESIDENT OF THE LAND COURT