Glodale Pty Ltd v Investec Bank (Australia) Ltd
[2007] VSC 227
•26 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9718 of 2004
| GLODALE PTY LTD AND ORS | Plaintiff |
| v | |
| INVESTEC BANK (AUSTRALIA) LTD | Defendant |
---
JUDGE: | PAGONE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2007 | |
DATE OF RULING: | 26 June 2007 | |
CASE MAY BE CITED AS: | Glodale Pty Ltd & Ors v Investec Bank (Australia) Ltd | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 227 | |
---
Legislation — Statutory interpretation – Valuers Registration Act 1992 (Qld)
Evidence – Admissibility – Illegality of evidence given in court – Discretion to exclude
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Alan W Sandbach & Mr Daniel B Clough | Goldsmiths |
| For the Defendant | Mr Michael L Sifris S.C. & Mr Anton P Trichardt | Gadens Lawyers |
HIS HONOUR:
The plaintiffs have objected to the admissibility of the proposed expert evidence of Mr Sutherland on the basis that for Mr Sutherland to give the evidence in this Court (specifically in expressing an opinion about the value of land in Queensland) would constitute an offence under s.63 of the Valuers Registration Act 1992(Qld) (the “Queensland Act”). That section is not concerned with or directed to the giving of evidence but rather with the requirements of registration of persons who carry on the business of a registered valuer in Queensland. I ruled against the objection and admitted the evidence and now give my reasons for having done so.
Section 63(1)(b) of the Queensland Act provides, as far as was relied upon for the plaintiffs, that a person who is not a registered valuer under that Act must not “carry on or attempt to carry on the business of a registered valuer.” Mr Sutherland is not a registered valuer under the Queensland Act and has not asserted otherwise. The plaintiffs contend that Mr Sutherland’s proposal to give expert evidence in this proceeding falls within the meaning of those provisions. “Registered valuer” and “Valuer” are each defined in s.3 of the Queensland Act. The former is defined to mean a valuer registered under that Act and the latter to mean a “person who, in any capacity, holds himself or herself out as ready to make a valuation of land”.
I doubt that Mr Sutherland giving expert evidence (including the expression of an opinion of the value of land in Queensland) falls within the prohibition. It is not sufficient for the proper construction of words in a section that they are literally capable of bearing a meaning: see Bourne v (Inspector of Taxes) v Norwich Crematorium Ltd[1]. The task of construction is, rather, to determine which of the many potential meanings of words were intended by the legislature and to give effect to the meanings intended by the legislature: see Project Blue Sky Inc v Australian Broadcasting Authority[2]. The expression of an opinion in evidence to assist a court, even when the person receives a fee for doing so, is not what is ordinarily understood by the words “to make a valuation of land” and is not the mischief to which the Queensland legislation was directed. Mr Sutherland does not purport to provide a valuation in the sense commonly understood. He does purport to give his expert opinion about the preferred method of sale of developed property in the national market and, in that context, proposed to express his view about amounts which the land might achieve on a sale by that method. What he did, and the evidence he proposed to give, does not purport to be a valuation in the commonly understood sense of that expression, although it does include an opinion of the value that the land might have achieved upon the sale. Mr Sutherland had provided to the defendant a marketing report dated 24 January 2003 containing recommendations on the most appropriate method of marketing the two Queensland properties subsequently sold by the defendant. That 2003 report contained an opinion about the then current realisable value of the two properties and the expert report and witness statement filed in this proceeding proposed to repeat the matters in the 2003 report to the extent that they were expert evidence.
[1](1967) 1 All E.R. 576 at 578
[2](1998) 194 CLR 355 at 384
In any event, and more importantly, I would not exclude the evidence even if his giving of the evidence would amount to a breach of s.63(1) of the Queensland Act. Evidence is not inadmissible merely because the giving of the evidence would constitute an offence. The commission of an offence by the giving of evidence may be a reason why a witness should or may not be compelled to give evidence, but it is not of itself an exclusion from admissibility where the witness is willing to give it: see Cross on Evidence[3].
[3]7th Edition, J.D. Heydon at [25001] 748 and [25155] 788
Counsel for the plaintiffs based their arguments for the exclusion of Mr Sutherland’s expert evidence upon the principle of public policy which permits the exclusion of evidence that was illegally obtained. In doing so they relied upon passages in Cross on Evidence[4] and R v Ireland[5]. The principle, however, is not apt to apply to this case where the illegality is said not to be in an earlier acquisition of evidence but in the very giving of the evidence in court. The complaint was not that Mr Sutherland proposed to give evidence which had been illegally obtained, but that I should not, as a matter of discretion, receive evidence the giving of which would constitute an offence under s.63(1)(b). This basis of objection was made clear several times by Counsel who, consistently with the submission, objected also to the expression of an opinion afresh if all facts already in evidence were simply put to Mr Sutherland in the witness box as the facts upon which to base a new conclusion.
[4]ibid at [27230] 903
[5](1970) 126 CLR 321 per Berwick CJ at 334-5
The exclusion of evidence on the grounds of public policy is, as was correctly contented by the plaintiffs’ counsel, a matter of discretion: see Ireland. The facts in this case all point against the exclusion of the proposed expert evidence as a matter of discretion. First, the illegality is said to be the giving of evidence in Court by a willing expert coming to assist the Court and with that as his overriding duty. His belief about the legality of giving his proposed evidence is that it was not illegal. A mistaken belief about an unlawful act has been held to be relevant to the exercise of a Court’s discretion: see R V Edelsten[6]; Cross on Evidence[7]
[6](1990) 21 NSWLR 542 at 557
[7]J.D. Heydon, above n 3 at [27255] 907
Secondly, the exclusion of the expert evidence would cause prejudice to the defendant’s case and in the circumstances would be unfair. Counsel for the plaintiffs said that the defendant had been on notice of this ground of objection since around September 2006 when one of its experts, Mr Eales, drew attention to the need for registration in Queensland for valuers to make valuation of land. Mr Eales had prepared an expert opinion in reply to an earlier document filed for the defendant in this proceeding headed “Expert Report and Witness Statement of Grant Sutherland” dated 31 May 2006. Mr Eales’ report in reply bears a date indicating that it was prepared on 29 August 2006 and was served, I assume, not long after that date.
In paragraph 7 of the response by Mr Eales there is reference to the provisions of the Queensland Act and relevant regulations and an assertion (although he is not a lawyer) in paragraph 7(b) that Mr Sutherland’s qualifications “as a licensed agent in Victoria do not qualify him to practice as an Agent in Queensland”. There is no suggestion anywhere in the report by Mr Eales that any objection was going to be taken to the admissibility of the proposed evidence of Mr Sutherland on any basis (unsurprisingly) and certainly not on the particular basis contended for by counsel (similarly unsurprising). Indeed the document created by Mr Eales and earlier tendered in evidence provides a critique of the proposed evidence of Mr Sutherland upon the assumption that it would be received in evidence. Mr Eales gave evidence and was cross-examined without any suggestion in Court that the evidence of Mr Sutherland would be objected to on the ground that to give evidence in court was “illegal” under the Queensland Act. That is to say, that the evidence of Mr Eales, including his cross-examination, was allowed by the plaintiff’s lawyers to proceed upon what may have become the false assumption that there was not to be an objection to the evidence of Mr Sutherland on the grounds that its illegality rendered it inadmissible to the extent that the giving of evidence in court was conduct prohibited by the Queensland Act.
On 15 June 2007 counsel for the plaintiffs gave to counsel for the defendant an annotated version of Mr Sutherland’s proposed witness statement setting out numerous objections to various parts of the proposed evidence of Mr Sutherland on eight grounds, none of which included the ground with which I am now concerned. Counsel for the defendant was only informed on 18 June 2007 of the ground of inadmissibility by reason of illegality and it was only on 20 June 2007 that counsel for the plaintiffs produced a list of paragraphs in Mr Sutherland’s proposed evidence which were objected to on the “illegality ground”. The list identifies 188 full paragraphs and two part paragraphs of a document containing 445 paragraphs. Many of the 188 paragraphs objected to on the illegality ground were not subject to any objection in the annotated document which had been given on 15 June 2007.
Dodds-Streeton J had made orders on 10 February 2006 for the filing and serving of expert witness statements. On 29 July 2005 her Honour had made more general orders including an order that two days notice be given of any objection to the evidence in witness statements. I do not regard paragraph 7 of the report by Mr Eales in reply as satisfying that direction in form, spirit or intent. Nor do I regard it as appropriate to exclude the expert evidence of Mr Sutherland if, and to the extent that, his conduct of expressing an opinion as a willing witness in the court may breach s.63 of the Queensland Act. The inadequacy of notice of the objection is sufficient in my view to reject the objection as a matter of fairness.
The evidence of an expert is intended to assist the court. A party raising an objection such as that raised for the plaintiffs on this occasion must do so clearly and with the most ample notice possible. That is not merely a matter of professional courtesy or to prevent ambush, it is, more importantly, because it will aid the parties in putting before the court all evidence which will assist the court in reaching the correct decision. The interests of justice are not served by the exclusion of evidence, to the extent that it may be expert evidence, willingly proffered in circumstances where the objection is that to give the evidence may itself amount to an offence. This is especially true where the objection was only made clearly after close of the plaintiffs’ case which had included evidence on behalf of the plaintiffs in answer to the impugned proposed expert evidence without explicit mention that the objection would be made. The objection if it were correct (which I doubt), was made too late and after the plaintiff had led evidence made relevant and admissible by the anticipated receipt of the challenged evidence. There was much evidence which would not have been relevant to the plaintiffs’ case had the proposed evidence in the 188 or so impugned paragraphs of Mr Sutherland not been admissible. Indeed, it had always been part of the plaintiffs’ case that reliance upon Mr Sutherland’s “valuation” had been one of the particulars of the defendant’s alleged failure to take reasonable care. On the first day of the trial of this proceeding the particulars were added to quite substantially, including that one. It was, therefore, material if not fundamental, to the plaintiffs’ case that Mr Sutherland had given, made or held “valuations” which the defendant had relied upon. In those circumstances the objection to Mr Sutherland giving evidence in Court of his “valuation” (that is, of his opinion which the plaintiffs contend amounts to a valuation) is at least curious if not self-defeating. In any event it would be quite wrong not to allow the defendant to have the benefit of that evidence.
0