Fitzgerald v Chief Executive, Department of Environment and Resource Management
[2010] QLC 31
•26 February 2010
LAND COURT OF QUEENSLAND
CITATION: Mark Christian Fitzgerald v Chief Executive, Department of Environment and Resource Management [2010] QLC 0031
PARTIES:Mark Christian Fitzgerald
(applicant)
v.
Chief Executive, Department of Environment and Resource Management
(respondent)
FILE NO:VLA550-08
PROCEEDING: Application to set aside Order.
DELIVERED ON: 26 February 2010
DELIVERED AT: Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDERS:1. The Consent Order of 21 July 2009 is set aside. The parties can elect to have the valuation appeal proceed to preliminary conference or full hearing.
2.In the very unusual circumstances of the present case, each party should bear their own costs.
CATCHWORDS: Practice and procedure – application to set aside consent order – power to waive rules – equity and good conscience.
APPEARANCES: Application heard on papers.
This is an application to set aside an Order made by the Land Court in Mareeba on 21 July 2009 by the consent of the parties after a preliminary conference. I presided over the matter as the Land Court Judicial Registrar and recall generally the conduct of the proceedings. No transcript is made in these conferences which are conducted on a ‘without prejudice’ basis.
The applicant, through his solicitor, now seeks the case to be reopened for a range of reasons including:
· The conduct of the chief executive’s valuer in explaining the valuation to the applicant; and
· Medical evidence in relation to the applicant’s condition at the conference.
Background
I am content to adopt the background to the matter as outlined in the submissions for the respondent.
1.On 21 July 2009 the Land Court conducted a preliminary conference with the applicant and the respondent with respect to the applicant’s property located at Mareeba-Dimbulah Road, Dimbulah.
2.The applicant had attended the conference with his mother and partner bringing with him a bundle of photographs.
3.Prior to the conference on 19 July 2009 the applicant had met with the departmental valuer on site at the subject property to discuss the valuation.
4.At the conclusion of the preliminary conference agreement was reached between the parties that the unimproved value of the subject property was $230,000 as at 1 October 2007 and the Land Court finalised agreement by making formal consent Orders.
5.On 8 October 2009 a Form 9 application was filed seeking the consent Orders of 21 July 2009 be set aside. The application was supported by an affidavit of Mr Mark Christian Fitzgerald.
6.A further affidavit was filed by Mr Fitzgerald on 11 December 2009, exhibiting reports of general practitioner Dr Manypeney and occupational therapist Ms Helen Coles. Neither Dr Manypeney nor Mrs Coles provided affidavit evidence.
7.A valuation report of Maxwell Dickenson was filed in the Land Court on or about 10 December 2009.
I should state at this stage that, in my view, the content of Mr Dickinson’s report is not relevant to the application presently before the Court.
Power to set aside Order
The Land Court is given powers to set aside Orders at any time under Rule 45(2) of the Land Court Rules 2000. It states:
“Setting aside an order
45.(1) The court may vary or set aside an order before the earlier of the following—
(a) the filing of the order; or
(b) the end of 7 days after the making of the order.(2) However, the court may set aside an order at any time if—
(a) the order was made in the absence of a party; or
(b) the order was obtained by fraud; or(c)the order does not reflect the court’s intention at the time the order was made; or
(d)the party who has the benefit of the order consents.”
There has been no consent from the respondent that the Order be set aside (under s.45(2)(d)) and there is no suggestion that s.45(2)(a) or (b) have any application in current circumstances. The applicant suggests that the Court Order does not reflect the Court’s intention at the time the Order was made (under s.45(2)(c)). However, after considering submissions from both sides and being present at the conference itself, my view is that there is no evidence to suggest that my making of the Order was in any way contrary to the Court’s intention at that time. That subsequent evidence may suggest a different Order could have been made is not relevant to this application.
The respondent’s legal representative has made reference to Rule 6 of the Land Court Rules which enables the Court to waive compliance with a rule if the Court considers compliance would be likely to cause injustice.
Equity and good conscience
Although not specifically alluded to by either side, s.7 of the Land Court Act2000 (“the equity and good conscience” rule) is also relevant to this latter submission of the applicant, s.7 states:
“Land Court to be guided by equity and good conscience
7. In the exercise of its jurisdiction, the Land Court—
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.”
Section 7 was the subject of detailed analysis by the Queensland Court of Appeal in Townsville City Council v Chief Executive, Department of Main Roads.[1] The key considerations discussed in the judgment of Keane JA are extracted below:
[1] [2005] QCA 226.
· The precise effect of a provision such as s 7 of the Act will depend on the nature of the decision to be made by the relevant tribunal.
The words 'equity, good conscience and the substantial merits of the case' are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found …
· in certain types of case there remains scope for the court to adopt a broad approach of common sense and common fairness, avoiding all legal or other technicality. If it were otherwise then a mandate to 'act according to equity, good conscience and the substantial merits of the case without regard to technicalities would have little or no room to operate at all.
· The inclusion of such a provision widens rather than restricts the discretion available to a decision-maker.
· Such provisions are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.
· However, the court's judgment cannot be merely arbitrary. It must still apply the common law principles.
· The authorities suggest that a statutory obligation to have regard to the ‘substantial merits of the case’ means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.
· In some cases, the conduct of the applicant may have been so outrageous as to lead to a refusal of a rehearing without considering the impact of the resolution of the issue sought to be reagitated. But to say this is merely to acknowledge that the discretion falls to be exercised as a matter of balancing competing considerations having regard to all relevant circumstances.
(emphasis added)
Application to present case
I have considered these criteria for the application of the “equity and good conscience and lack of technicalities” rule outlined above. In my view, this is a case justifying invoking of s.7 to waive compliance with the Rules exercising a discretion permitted under Rule 6 where the interests of justice demand. Reasons for such a course include:
1. The waiver is of a rule rather than a substantial provision in legislation itself, (see Jackamarra v Krakouer and Anor).[2]
[2] [1998] 195 CLR 516.
2. The applicant had no legal or valuation representation at the preliminary conference and was not familiar with proceedings in such an arena.
3. The applicant notified the Court orally shortly after the hearing of his desire to have the matter reheard. (Although written application was not made until 8 October 2009).
4. The medical evidence of Mr Fitzgerald’s condition including medication for pain control at the conference suggests his judgment and conduct at the conference may have been affected. (although not so as to affect his capacity to make decisions).
5. My recollection of the applicant was being a genuine witness coping to manage the effects of a severe accident which affected his previous operation of the property.
6. The applicant has now taken the option to engage professional legal and valuation evidence to support his case.
7. The relative rarity of such a case seeking reopening in these circumstances suggest a Court decision in the applicant’s favour is not likely to be an inconvenient precedent. The discretion in the Court to control its procedure and the general abuse of process rule would ensure this end.
8. The difference in the chief executive’s valuation and that now advanced by Mr Dickenson is substantial.
9. No revaluation will take place for probably three years from the relevant date in issue here; the applicant will thus not otherwise have the chance to address a perceived error before that time.
10. No hardship is likely to be suffered by the respondent.
For completeness, I should mention that my recollection of the preliminary conference is that there was nothing which would suggest any improper conduct on behalf of the Crown valuer, either at that conference or at any stage before that. The Crown valuer, Mr Grant Moroney, is a very experienced valuer who has practiced in the Atherton Regional Council area for several years, including making regular Court appearances.
Conclusion
In all the circumstances, the Consent Decision of the Court on 21 July 2009 is set aside. The parties can have the matter again set down at preliminary conference level or have the matter directed straight to full hearing at the next available sittings at Mareeba or a convenient location.
Orders
1.The Consent Order of 21 July 2009 is set aside. The parties can elect to have the valuation appeal proceed to preliminary conference or full hearing.
2.In the very unusual circumstances of the present case, each party should bear their own costs.
BR O’CONNOR
JUDICIAL REGISTRAR
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