Fitzgerald v Chief Executive, Department of Environment and Resource Management

In this matter, Mark Christian Fitzgerald sought to set aside a Consent Order made in the Land Court of Queensland by the consent of the parties on 21 July 2009. The Consent Order related to the valuation of Fitzgerald's property located at Mareeba-Dimbulah Road, Dimbulah. The respondent, the Chief Executive of the Department of Environment and Resource Management, opposed the application. The application was heard on paper by Mr BR O'Connor, Judicial Registrar.

The primary legal issue before the court was whether the Consent Order made by the court should be set aside. The applicant argued that the order should be set aside due to the conduct of the chief executive's valuer in explaining the valuation to the applicant and due to medical evidence in relation to the applicant's condition at the conference. The respondent argued that the application should be dismissed, as there was no consent from the respondent to set aside the Order, and the order did not reflect the court's intention at the time it was made.

The court considered the relevant provisions of the Land Court Rules 2000 and the Land Court Act 2000. The court found that the application for setting aside the Consent Order should be granted in the interests of justice. The court found that the applicant had no legal or valuation representation at the preliminary conference and was not familiar with proceedings in such an arena. The court also found that the medical evidence of Mr Fitzgerald's condition including medication for pain control at the conference suggested his judgment and conduct at the conference may have been affected. The court found that the difference in the chief executive's valuation and that now advanced by Mr Dickenson was substantial, and that no revaluation would take place for probably three years from the relevant date in issue. The court found that no hardship is likely to be suffered by the respondent.

The court set aside the Consent Order of 21 July 2009 and directed that the parties could elect to have the valuation appeal proceed to a preliminary conference or a full hearing. The court also ordered that in the very unusual circumstances of the present case, each party should bear their own costs.