Bresnahan v Coordinator-General

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LAND COURT OF QUEENSLAND

CITATION: Bresnahan v Coordinator-General [2015] QLC 15
PARTIES: Debbie Ann Bresnahan
(applicant)
v
Coordinator-General
(respondent)
FILE NO: AQL214-13
DIVISION: General Division
PROCEEDING: Claim for compensation payable pursuant to the Acquisition of Land Act 1967 as a consequence of the taking of land pursuant to the State Development and Public Works Organisation Act 1971
DELIVERED ON: 4 June 2015
DELIVERED AT: Brisbane
HEARD ON: 5-8, 12 May, 10 October 2014
Submissions closed 8 December 2014
HEARD AT: Brisbane
MEMBER: PA Smith
ORDERS:

1.     Leave granted to the applicant to make written submissions on the respondent’s objections.

2.     The extra cost the respondent was put to in addressing the applicant’s submission after the close of the hearing be paid by the applicant in any event.

3.     Compensation is determined in the amount of One Hundred and Thirty One Thousand, Eight Hundred and Thirty-three Dollars ($131,833.00), of which the respondent has already paid the sum of Sixty Thousand Five Hundred Dollars ($60,500.00) by way of advance.

4.     In addition, interest is also awarded on the amount determined by the Court taking into account the relevant dates upon which costs were incurred and taking into account the advance made by the respondent, to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 19 June 2015, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be, such statement and submissions to be filed by each party by no later than 4:00pm on 26 June 2015.

5.     Any party seeking any order as to costs is to file and serve their submissions as to costs by 4:00pm on 19 June 2015. Any submissions in response are to be filed and served by 4:00pm on 3 July 2015 and any submissions in reply are to be filed and served by 4:00pm on 10 July 2015.
CATCHWORDS:

Statutes – Interpretation – words and phrases – evidence – where s 7(a) Land Court Act 2000 (Qld) provides that, “In the exercise of its jurisdiction, the Land Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate…” – where Land Court required to consider multiple objections to hearsay evidence in compensation proceedings – objections considered individually in light of particular circumstances – need to avoid unfair advantage or disadvantage of parties – Maroochydore Central Holdings Pty Ltd (No. 2) v Maroochy Shire Council discussed

Evidence – admissibility – statement – s 92 of the Evidence Act 1977 – proceeding – reasonable diligence – circumstances of case – found or identified – undue delay or expense – direct oral evidence – personal knowledge – called as witness – information supplied – record – undertaking – maker or supplier – witness – dead – unfit –…

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Details
Case
[2015] QLC 15
Decision Date

CaseChat Overview and Summary

In the case of Bresnahan v Coordinator-General, the applicant, Bresnahan, sought compensation for damages arising from the construction of a pipeline on her property. The respondent, the Coordinator-General, objected to various forms of evidence presented by Bresnahan, arguing that it was inadmissible or irrelevant. The case was heard by the Land Court, which had to determine the admissibility of documentary evidence and the burden of proof, as well as the determination of compensation under the Acquisition of Land Act 1967.

The court considered several legal issues, including the admissibility of hearsay evidence, the balance of probabilities, and the burden of proof. The court had to determine whether certain documentary evidence was admissible under section 92 of the Evidence Act, whether the balance of probabilities favoured Bresnahan's claims, and whether the respondent had discharged the burden of proof. The court also had to determine the compensation payable to Bresnahan under section 20(5) of the Acquisition of Land Act 1967, which includes consideration of disturbance items and injurious affection.

The court held that the documentary evidence was admissible as it was relevant to the facts in issue and the maker or supplier of the information could not reasonably be held to have any personal recollection of the matters dealt with by the statement. The court found that the balance of probabilities favoured Bresnahan's claims and that the respondent had not discharged the burden of proof. The court also determined that the compensation payable to Bresnahan was $131,833.00, of which $60,500.00 had already been paid by the respondent by way of advance. The court ordered that interest be awarded on the amount determined by the Court, to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court.

The court granted leave to the applicant to make written submissions on the respondent’s objections and ordered that the extra cost the respondent was put to in addressing the applicant’s submission after the close of the hearing be paid by the applicant in any event. The court also set timelines for the parties to file and serve their submissions as to costs.

Orders

Orders of the court

1. Leave granted to the applicant to make written submissions on the respondent’s objections.

2. The extra cost the respondent was put to in addressing the applicant’s submission after the close of the hearing be paid by the applicant in any event.

3. Compensation is determined in the amount of One Hundred and Thirty One Thousand, Eight Hundred and Thirty-three Dollars ($131,833.00), of which the respondent has already paid the sum of Sixty Thousand Five Hundred Dollars ($60,500.00) by way of advance.

4. In addition, interest is also awarded on the amount determined by the Court taking into account the relevant dates upon which costs were incurred and taking into account the advance made by the respondent, to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 19 June 2015, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be, such statement and submissions to be filed by each party by no later than 4:00pm on 26 June 2015.

5. Any party seeking any order as to costs is to file and serve their submissions as to costs by 4:00pm on 19 June 2015. Any submissions in response are to be filed and served by 4:00pm on 3 July 2015 and any submissions in reply are to be filed and served by 4:00pm on 10 July 2015.

Background

Background to the litigation

Section 92 of the Evidence Act provides as follows:“92 Admissibility of documentary evidence as to facts in issue(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—(a)the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or(b)the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.(2)The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where—(a)the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or(b)the maker or supplier is out of the State and it is not reasonably practicable to secure the attendance of the maker or supplier; or(c)the maker or supplier can not with reasonable diligence be found or identified; or(d)it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or(e)no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness; or(f)at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness.(3)The court may act on hearsay evidence for the purpose of deciding any of the matters mentioned in subsection (2)(a), (b), (c), (d) or (f).(4)For the purposes of this part, a statement contained in a document is made by a person if—(a)it was written, made, dictated or otherwise produced by the person; or(b)it was recorded with the person’s knowledge; or(c)it was recorded in the course of and ancillary to a proceeding; or(d)it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing.” While I appreciate the force of the respondent’s submissions, I am not necessarily satisfied that a period of two to four years is enough to support an assertion that the persons who made the documents could not reasonably be held, as at the date of the hearing, to have any personal recollection of those documents. My concerns in this regard are tempered somewhat by the size and complexity of the project which has been well described by Edwards.

Evidence

Evidence Before The Court

Each other objection under this head will be treated on a case by case basis. Scandalous or Inflammatory Evidence The applicant contends that evidence which may be embarrassing to the respondent simply goes to establish the nature in which the applicant was treated during the construction of the project. Her submissions are:[29]“17.It would seem that the Respondent objects to certain statements by the Applicant’s witnesses about the experiences of the Applicant, on the basis that those statements are scandalous and inflammatory. With respect, those submissions of the Respondent ought to be viewed by the Court merely as an acknowledgment of the embarrassment that ought to be felt by the constructing authority as a result of the occurrence of the relevant events (i.e. because the Applicant was put through such experiences).18.For instance, evidence of theft of items by construction workers or contractors during the course of the works is indeed scandalous, but the fact does not render the evidence of the theft inadmissible. [Similarly, unreasonable demands leading to ‘a Mexican standoff’ (described by the Applicant as ‘blackmail’) are equally unacceptable.] There is no evidence that the constructing authority had any permission to remove the relevant item (e.g. a hose or soil) without the Applicant’s permission and, in the absence of that permission, a statement that the ‘item’ was stolen is accurate. They explain the difficult circumstances in which the Applicant found herself.19.The matters considered by the Respondent to be scandalous and inflammatory are, in fact, matters which are part of the factual matrix in which the reasonableness of the Applicant’s conduct (including the way she sought to manage her affairs to avoid or mitigate loss and damage) and the reasonableness of her claims for compensation ought to be considered. That mix of facts confirms that the Applicant was treated extremely poorly (having to deal with matters that she should not have had to deal with) and that her limited claims for compensation are entirely appropriate.20.It must be remembered that the Respondent effectively seeks to argue that, as things turned out (i.e. with hindsight), certain decisions of the Applicant were poor decisions. However, the Applicant’s evidence indicates just how difficult were the changing circumstances in which the Applicant found herself and how unfair it would be to use hindsight in determining the reasonableness of both the Applicant’s conduct and her claims for compensation.” The respondent not only maintains the objection, but says that such evidence is “fundamentally inadmissible”:[30]“20.The response submissions offers up its own example of the very point the respondent makes and thereby emphasises the force of the objections – there could be no complaint, assuming relevance for the moment, if the applicant had said that she had a hose and it vanished in circumstances where she gave no permission to take it. But rather the applicant says the respondent’s contractors stole her hose.21.Such evidence does not ‘…explain the difficult circumstances in which the Applicant found herself…” rather, by the scandalous and inflammatory way it is expressed, it tends to distort and distract from the real issues in the proceeding and so is fundamentally inadmissible.22.To the extent the applicant again repeats the mantras of context, poor treatment at the hands of the respondent, and the reasonableness of her limited claims, those matters are irrelevant to the ground of objection – the objection under consideration is that the evidence contains scandalous, inflammatory assertion – if those are proper descriptors of the particular paragraphs, the objection should be upheld”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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