Despot v Council of the City of Thuringowa

[1998] QLC 131

[1998] QLC 131

 

LAND COURT

BRISBANE

30 OCTOBER 1998

Re:     A97-14

Determination of Compensation -

Resumption by the Council of the City of Thuringowa

Acquisition of  Land Act 1967

George, Jean D and Mate Despot

Claimants

v.

Council of the City of Thuringowa

Respondent

APPLICATION FOR REHEARING

APPLICATION FOR COSTS

D E C I S I O N

On 28 September 1998 I delivered judgment in the matter of the determination of compensation pursuant to a resumption by the respondent of an easement over land owned by the claimants. In that judgment I made reference to the claim for compensation which included a claim in the amount of $10,075 for disturbance in addition to the amount claimed for loss of land. I said that in the hearing of the matter for compensation, evidence was not tendered, nor were submission made with respect to the claim for disturbance and, accordingly, I declined to award any compensation in respect of that head of claim. I drew the claimants' attention to s.43 of the Land Act 1962 which provides that the Court may rehear certain matters and in due course the claimants lodged an application pursuant to that provision requesting a rehearing to the extent that would allow evidence in respect of the disturbance claim for compensation to be adduced.  The respondent resists the application for rehearing, whilst it concedes that at least part of the disturbance compensation as claimed would be properly compensable.

Section 43 of the Land Act provides:

"43.     Upon application lodged in the office of the Registrar within 28 days after the pronouncing of any decision of the Court upon any matter wherefrom the Crown or any person aggrieved may appeal, the Court may, if it thinks fit, and upon such terms as it thinks reasonable, grant a rehearing of the matter.

Subject to being lodged within the aforementioned period of 28 days the application may be dealt with thereafter and wherever practicable shall be dealt with by the member who pronounced the decision.

If it grants a rehearing the Court shall appoint a day for rehearing the matter, and shall rehear it accordingly.

An appeal shall lie from the decision on such rehearing in the same manner as if it had been a decision on a first hearing of such matter."

One aspect of the words in s.43 which was raised in argument is the requirement that the matter, the subject of the application, be one in which there is a right of appeal. The question in the present case is whether there is a right of appeal which might raise the question of disturbance compensation in circumstances where no evidence was adduced before the primary Court. That is a question which, however, I think does not need to be answered. I think the real question is whether the decision by me with respect to the claim for compensation is appealable, not whether the Land Appeal Court will entertain an appeal with respect to disturbance compensation in the circumstances as they presently exist. Section 44(13)(a) provides for the Land Appeal Court to allow further evidence, thus there is the legal possibility that the Land Appeal Court may decide to admit evidence and then deal with the question of disturbance compensation. It is not appropriate for me to second guess the outcome of any application to that Court to allow further evidence, nor to predict the view of the Land Appeal Court on the failure of the appellant to make submissions before me on the matter of disturbance. Accordingly, I conclude that the matter before me, being the claim for compensation, is one "wherefrom the Crown or any person aggrieved may appeal".

Mr Hill, for the claimants, submitted that as the claim for disturbance was enunciated in the claim, the respondent cannot have been caught by surprise.  He conceded that some aspects of the disturbance claim were "unusual" and would be withdrawn in the event that the rehearing proceeded.  He said that evidence in support of the disturbance factors was not tendered was simply because of an oversight as the evidence could have been made available and tendered during the hearing.

Mr Baulch, for the respondent, submitted that s.43 is not intended to permit matters which have not been the subject of evidence being addressed subsequent to the hearing. Provisions of this sort permit a rehearing of the whole matter and, he said, were designed for cases where there has been a failure which amounts to a miscarriage of justice which thereby might be remedied without the necessity of an appeal. Certainly, it is the case that with respect to all of the authorities to which I was referred and to those I have independently researched, Courts have been concerned not with a severable part of a matter as in the instant case, but with the possible impact of fresh evidence on the outcome of the matter as a whole. Mr Baulch's understanding of the matter may stem to some extent from the fact that each of the authorities which I have considered on the topic of rehearing was concerned with an application for a rehearing in the sense that there be a new trial because of the desire to adduce fresh evidence which, if accepted, would have an effect on the overall outcome, for example, whether liability may be found to lie.

Let me dispose of one matter raised in the wording of s.43, and that is where it provides "upon any matter wherefrom the Crown or any person aggrieved may appeal" and then goes on to say "grant a rehearing of the matter". It would appear that if the word "matter" is to retain a consistent meaning throughout the provision, then it would be a rehearing of the whole matter that would be contemplated by the section. I think that any grant of an application for rehearing under s.43 would properly be a grant to rehear the whole matter, however, given the breadth of the discretion in the Court to grant such application on terms, and I note that the discretion is not confined to costs, then it will be open to the Court to grant the application on the basis, however, that the only fresh evidence which the Court is to consider is evidence sufficient to address a particular aspect of the case. I think it would be an unduly restrictive construction for me to hold that a rehearing would necessarily involve the Court being invited to reconsider reasoning and conclusions which are not touched upon by the fresh evidence. That conclusion is one, however, which deals with the mechanics of the matter and is not an issue of substance. In particular, it does not meet Mr Baulch's submission. To consider what he had to say, I need to focus on the word "rehearing".

Now the word "rehearing" is "capable of a multitude of meanings" (see Fryberg J in Bignell v. Chief Executive, Department of Natural Resources (1995) 15 QLCR 528 at 541). In making that utterance, His Honour was making reference to the joint judgment of his brother Members on the Land Appeal Court where they dealt with the words "appeal" and "rehearing" at pp.533-534 in such a comprehensive fashion that I see benefit in quoting at length from what they said:

"          The leading Australian case on the meaning of those terms is the decision of the High Court in Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616. The issue in that case was the nature of a rehearing by the District Court when dealing with an appeal against a determination of the Builders Licensing Board (for example, to cancel or suspend a licence). In his reasons for decision, Mason J (with whom Barwick CJ and Stephen J agreed) quoted with approval an observation by Viscount Sankey LC that 'There are different meanings to be attached to the word "rehearing"' (Powell v Streatham Manor Nursing Home [1935] AC 243 at 249). Mason J noted that an appeal is not a common law proceeding. It is a remedy given by statute. An appeal stricto sensu is to be distinguished from an appeal by way of rehearing.  An appeal by way of rehearing may be by way of trial over again on the evidence used in the Court below with a special power to receive further evidence (at 619-620, citing In re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 505). What a rehearing involves will depend on an examination of the legislative provisions and being able to elucidate the legislative intent. The answer may not be 'greatly illuminated by the Delphic utterance that the appeal is by way of rehearing' (at 621-2).

In his reasons for decision, Jacobs J surveyed the history of rehearing provisions to rebut a submission by the appellant that the word 'rehearing' has a distinct connotation in law that the appellate tribunal will rehear the matter of appeal on the evidence first given and that no further evidence can be received unless the statute specifically so provides or unless the context indicates that the appellate tribunal is to have such a power. His Honour stated that the provision in the 1875 Judicature Rules O. LVIII r 5 (relating to further evidence and the need for special grounds and special leave before it might be adduced) was not the grant of a power which would not otherwise have existed, but was a restriction which went beyond the practice in respect of rehearing which was current at the time when the rule was introduced.  Having dispelled the notion that the word 'rehearing' has a meaning different from its ordinary natural meaning, Jacobs J stated that any court having control over its own procedures can determine how the rehearing shall be conducted.  In the absence of statutory provision or rules, a court may have a hearing de novo or a hearing on the material before the person or body from whom the appeal is brought with the reception of further evidence.  The adoption of either course involves the exercise of judicial discretion applying principles of fairness and reasonableness.  The way in which a rehearing is to be conducted, however, may be restricted by statute (at  625-9).

Murphy J also observed that the expression 'appeal by way of rehearing' does not have a single well-established meaning. He continued, 'Without more, it is not clear whether the material before the body appealed from may or must be taken into account or whether fresh evidence is admissible' (at 630).

The nature of an appeal by way of rehearing has been considered by other superior courts in a number of cases in the past two decades (see, for example, Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, Meyering v Northern Territory of Australia (1987) 47 NTR 21, Re Schubert [1988] 2 Qd R 99, Southwell v Specialised Engineering Services Pty Ltd (1990) 70 NTR 6, Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322, Tsintris v Roads and Traffic Authority of New South Wales (1991) 25 NSWLR 68). The decisions in many of those cases quote from and apply passages from the judgment of the High Court in Builders Licensing Board v Sperway Construction (Syd.) Pty Ltd.  It is not necessary to consider the cases in detail.  Each arose in a particular statutory context and, for that reason alone, could be distinguished from the present case.  It is possible, however, to discern some principles (or, at least, rules of thumb) which can be applied in the present case.

Where a statute provides that an appeal is by way of a rehearing (but does not include qualifying provisions such as section 44(13)(a) of the Land Act 1962), the character and scope of the appeal is to be ascertained from the statutory context in which appeal rights are created.  Relevant factors include:

(a)the nature of the function discharged, or the decision made, by the body from which the appeal comes (e.g., whether it is purely administrative in character such as a licensing board, disciplinary tribunal or ministerial decision or whether it is a judicial decision);

(b)the form of expression used by the legislature in its description of the appeal and the powers of the court on the appeal (e.g. whether there is any restriction or limitation on the expression 'rehearing'); and

(c) the particular field of considerations and powers open to the body from which the appeal comes in the discharge of its functions (e.g. whether the appeal court is performing anew, as an original exercise on its part, the statutory function of the body from whom the matter is brought on appeal)."

Mr Hill referred me to the text "Australian Civil Procedure" (Cairns Third Edition) in which a discussion appears concerning the word "rehearing". As I read the material in the text, it appears to me to be making the distinction between an appeal stricto sensu in which the appellate Court is concerned with deciding whether the primary Judge was wrong and a rehearing in which the appellate Court is authorised to review the findings of fact of the primary Judge, either on the record or with the benefit of fresh evidence. I do not think that distinction is by itself overly helpful. Section 43 of the Land Act might be contrasted with many of the cases to which I have referred in that in such cases involving an application for rehearing, the application has generally been made to an appellate Court and not to the Court whose judgment it is to be said falls short in some way because of the absence of the fresh evidence sought to be tendered or for some other relevant reason, such as a misstatement of a material fact. An application for rehearing under s.43 is to the same Court and in each instance that I have discovered (Wise v. The Valuer-General Ref V83-379 unreported 2 August l984; Kirkwood v. The Valuer-General Ref V82-923 unreported 30 August 1983; and APM Forests Pty Ltd v. The Crown (1979) 6 QLCR 1) has been to the same Member. In such circumstances, and having regard to the general discussion and the "relevant factors" mentioned in Bignell, it seems to me that the term "rehearing" takes on some of the sense of the word "reopening" as it is used in the cases and some of the authorities concerned with an application to reopen might be of assistance in my consideration of this application. Section 26 of the Acquisition of Land Act 1967 provides in sub-section (3) for the Registrar of the Land Court to transmit the decision of the Land Court to the Registrar of the Supreme Court "who shall cause the same to be filed in the Registry of the latter Court". I am advised by the Registrar that to date the transmission of that decision has not yet taken place, thus adding to the indications that the application, at least in this particular case, bears the characteristics of an application to reopen.

The use of the word "reopening" is usually employed to refer to circumstances where judgment has not yet been delivered or has not yet been entered and one of the parties wishes to apply to proffer further evidence, though it may be limited to the making of further submissions.  The point is that the Court is invited to reconsider the matter or part of it. In Smith v. NSW Bar Association (No. 2) (1992) 66 ALJR 605 the High Court was concerned with an appeal with respect to an application made to by the New South Wales Court of Appeal to reopen a matter by reason of a claimed error included in the judgment of that Court, the application also extending to a request that further evidence be taken on the point. Judgment had been delivered, but had not yet been entered. The appeal to the High Court was concerned, not with the substantive matter, but with the question of reopening. At p.608 of the report the majority said that where there was an application to reopen in circumstances where there had been a deliberate decision by a party making the application not to call the additional evidence during the trial, that that would be decisive against the application, however, the majority was also of the opinion that the primary question in such a matter was not with relation to the evidence sought to be adduced, but whether the judgment, if let stand, would be properly described as a judgment made in error. Now the case made by the applicant before me is not one which points to any error in my original decision; either because of an error patent on the face of my reasons, or an error of omission because of the absence of certain evidence; but is one which simply pleads for the right to adduce further evidence. If I apply the reasoning in Smith v. New South Wales Bar Association to the circumstances of the matter before me, it is clearly the case that in the absence of the applicant making out a case for there being an error in my original decision that the primary hurdle indicated by the High Court has not been cleared, hence the secondary question as to the admission of further evidence does not arise.  It will be useful to consider some other authorities, however, which reveal broader principle to that expressed in Smith.

In Barra Pty Ltd v. Ramsey (Appeal 6317/96 unreported 13 May 1997) the Queensland Court of Appeal referred with apparent approval to Urban Transport Authority v. Nweiser (1992) 28 NSWLR 471. In the leading judgment in Nweiser Clarke JA said at 478:

"          The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be.  No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party's case was a deliberate one.  Of course that does not mean that that is not a very relevant consideration.  It is.  Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application.  But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision.  Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel."

His Honour also considered the question of absence of surprise to be a relevant factor (at 475).  His Honour's reference to surprise was made in the context as to whether the evidence sought to be adduced had been raised in cross-examination, though I would have thought that the fact that in the present case where disturbance was not dealt with in cross-examination, but was included in the claim for compensation, the principle His Honour was concerned with would be sufficiently satisfied.
           A more comprehensive formulation than that which appears in Nweiser is to be found in R v. AMIEU ex parte Ferguson (1996) 67 ALR 491 where the following words appear at 493:

"          In situations where a hearing has concluded but judgment has been reserved and not delivered it has been said that fresh evidence should be admitted only when it is so material that the interest of justice require it, the evidence if believed would most probably affect the result, the evidence could not by reasonable diligence have been discovered before, and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late."

I think each of the elements of the above quotation might be easily understood except, perhaps, for the last concerning prejudice to the other side.  It seems to me that His Honour was not concerned with a prejudice such as the prospect of the loss of the point or the case by the other side, but rather with substantial inconvenience, for example, by having to call witnesses who might not easily be made available or who might be substantially inconvenienced in providing evidence.  Matters which can easily be cured by costs would not, therefore, fall for consideration, nor would the prospect that the fresh evidence might mean that the other party had to simply pay more compensation. To construe prejudice so widely would be to defeat the proposition referred to by His Honour that the evidence might be admitted if "the interest of justice require it". 

           The rigour of the test enunciated in the AMIEU case is reflected, though in different  and perhaps stronger language in an authority referred to by Mr Baulch (Codelfa Construction Pty Ltd (1982) 150 CLR 29) where in the majority joint judgment of Mason and Wilson JJ their Honours said at 38 in dealing with a question regarding an application for a rehearing:

"The circumstances that will justify a rehearing must be quite exceptional.  In Rae's Case, (Rajunder Narain Rae v. Bijai Govind Sing (1839) 18 ER 269) Lord Brougham said, in words which the Authority claims are apposite to the present case:

'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard.'

In Vienkata's Case (Vienkata Narasinka Appa Row v. Court of Wards (1886) 11 App. Cas. 660) Lord Watson, delivering the opinion of the Judicial Committee of the Privy Council, referred to Lord Brougham's words in Rae's Case and continued:

'Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals.  In the last case to which we were referred, that of Hebbert v. Purchas (39), where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said:-  "Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty '[sic]' of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused."  There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium.  Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.'"

There is a number of things that flow from the above quotation. I note that in each of the cases referred to by their Honours, there was concern about rehearing of appeals, and I have already noted the distinction between such a rehearing and one of the type sought in the instant case.  I draw attention to the competing principles of "irremediable injustice" on the one part and the need for finality on the other.  The third point to note is that the cases are concerned with Courts of last resort, not with a circumstance such as in the present case where the avenue is open to the applicant to appeal to the Land Appeal Court.  Finally, I note that in Rae's Case His Lordship was concerned with "some accident, without any blame," whilst in Venkata's Case the Privy Council was concerned with an application from a litigant who alleged a "want of means".  It is apparent, therefore, that in both of those instances, as in the AMIEU Case, the Court was concerned as to the reason for the absence of the relevant evidence at first instance.  In Simon-Beecroft v. The Proprietors "Top of the Mark" Building Units Plan 3410 (unreported 19 July 1996 Appeal 258/1995) the Court of Appeal was concerned with an application for a retrial, in effect a hearing de novo.  Reference was made to Orr v. Holmes (1948) 76 CLR 632 and to Carter v. Rosedale Sawmill Pty Ltd and Gin Gin Sawmill Pty Ltd (unreported 3 October 1995 Court of Appeal 172/1995) then the following summary statement of principle appears:

"It is sufficient to say that the party seeking the new trial must establish that the evidence in question could not have been obtained if reasonable diligence had been exercised to procure the evidence prior to the first trial.  Further, the evidence must be credible, leading to their being at least a real possibility that an opposite result would have been produced if the evidence had been led at the first trial."

Whether I adopt the guidance of those cases concerned with a rehearing or those concerned with a reopening, one feature which is consistent between them and which is relevant in the application before me is that I should direct my mind to the reason why the evidence sought to be adduced was not provided at first instance.  In this case the reason given is that there was an oversight.  Now the closest support to that being a sufficient reason is found in the quotation I have taken from Nweiser above and which refers to "an error by counsel", however, it seems to me that the Court on that occasion was concerned not with an error of oversight, but with an error of judgment or one involving a mistaken understanding of the law or the facts in the case.  I have seriously considered the general principle in Nweiser concerning the rights of the injured party, (that is the claimants in this case), however, against that I need to balance both the need for finality and the important point that the decision that I make in this application not subsist as encouragement to parties preparing for hearing to carry out such preparation in a manner other than that involving due care and consideration for the protection of their position.  In the instant case it was the Court, not the applicant, which identified the absence of the relevant evidence, yet the evidence was available at the time of the hearing.  To allow a rehearing in such circumstances would be to invite a deterioration in case management.  It is appropriate, therefore, in this case that the application for rehearing be refused.  I might add that I would have preferred a different outcome given the acknowledgment by counsel for the respondent that at least part of the disturbance claim would normally be justified, however, I must approach the matter not on the basis of any expectations I might have as to how the resuming authority might deal with a dispossessed owner, but on the basis of law.

It was acknowledged by Mr Hill during argument on the application that costs of the application should properly be met by his side.  I indicated agreement with this and now formally order that the costs of the respondent in this application be paid by the applicant.  The amount of such costs shall be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s.41(9) of the Land Act 1962.  I will consider variation of this order should the parties settle on the amount of such costs within fourteen (14) days hereof.

I now turn to the question of the costs of the substantive matter, that is the determination of compensation for the resumption of land. In this respect s.27(2) of the Acquisition of Land Act 1967 relevantly provides:

"(2)  If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs, if any, shall be awarded to the claimant; otherwise costs, if any, shall be awarded to the constructing authority."

In my judgment of 28 September 1998 I ordered compensation in the amount of $125,000 for loss of land. The amount finally claimed by the claimants for loss of land was $180,000, whilst the respondent led evidence to a figure of $74,000. Section 27(2) appears to require me to take into account, in addition to the land component of the claim, the $10,075 claim for disturbance in calculating which party has the right to make an application for costs, however, even if I were to disregard the disturbance head of claim, it is clear that it is for the respondent to make application and not only did that occur, but it was resisted by the claimants.

The authorities on the question of costs flowing from the award of compensation under the Acquisition of Land Act were reviewed by the Land Appeal Court in Yalgan Investments Pty Ltd v. Council of the Shire of Albert (unreported 11 December 1997) and the Court said this in respect of a claim for compensation of the type now before me:

"Where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority.  Usually it would be more relevant to enquire whether the conduct of the claimant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation (Moyses at p. 274) or whether the claimant has pursued a vexatious, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court (Banno at p. 53)."

Now I note on the figures that I have mentioned above that the respondent's right to apply for costs arises because the award for compensation determined by me falls marginally on that party's side of the midway point.  It cannot be said that the case was one of the claimants having made an exorbitant claim nor, I should add, is there any suggestion by the respondent that the claimants have pursued a vexatious or dishonest case or have imposed unnecessary burdens on the constructing authority or the Court.  The assessment of compensation in this matter did involve consideration of certain complexities owing to the history associated with the development by the respondent of the scheme which gave rise to the resumption.  Each party presented its assessment of compensation based on the best outcome on the question of principle involved in the complexity to which I have referred and left it largely to me to find a position between those extremes which properly reflected the compensation due to the claimants.  In such circumstance it would not be appropriate for costs to be awarded to the constructing authority.  The application for costs is refused.

RP SCOTT

MEMBER OF THE LAND COURT