Inglis v State of Queensland
[2013] QLC 31
•28 May 2013
LAND COURT OF QUEENSLAND
CITATION:Inglis v State of Queensland [2013] QLC 31
PARTIES:Robert Mallalieu Inglis, Marion Inglis and Paul Mallalieu Inglis
(applicants)
v.
State of Queensland
(respondent)
FILE NO:AQL863-12
DIVISION:General Division
PROCEEDING: Rulings on objections made in the course of a hearing for compensation under the Acquisition of Land Act 1967
DELIVERED ON: 28 May 2013
DELIVERED AT: Brisbane
HEARD ON: 6, 7, 8, 9, 13 May 2013
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDERS:1. The respondent’s objection is not allowed.
2. The applicants’ objection is not allowed.
CATCHWORDS: Evidence ― objection ― time for objection ― relevance
Acquisition of Land Act 1967
Roof and Ceiling Construction Company v S.A. Wigan & Co Pty Ltd [1972] QWN 14
Woods v Rogers ex parte Woods [1983] 2 Qd.R. 212 at 216
APPEARANCES: Mr GR Allan, instructed by Anderssen lawyers, for the applicants
Mr SP Fynes-Clinton, instructed by Mr GR Cooper, Crown Solicitor
Background and Context
The applicants have brought to this Court their claim for compensation which arose out of the acquisition, on 14 December 2007, of land formerly owned by them. It was acquired by the State of Queensland for prison purposes.
Pursuant to the usual processes of the Court, the parties filed in the Court and served upon each other copies of material, specifically expert reports, upon which they proposed to place reliance at the trial.
The parties certified their readiness for trial by completing a Request for Trial and seven days of Court time, commencing on 6 May 2013, were set aside for the hearing of the matter.
On the first hearing day, a considerable volume of documentary material was tendered. Due to the approach of the departure for overseas of one of the respondent’s witnesses, Mr David Bray, his evidence was interposed and he became the first witness to give evidence. Counsel for the applicants objected to parts of the evidence in Mr Bray’s statement and, after oral argument, an ex tempore ruling was made excluding certain parts of it. In addition, counsel for the respondent did not rely on some of the information in the statement.
Mr Bray’s evidence was concluded and he was excused from further attendance. Within the five folders of material which were tendered by counsel for the applicants was document 25, contained within the folder which became exhibit 4. Document 25 is the valuation report relied upon by the applicants. It was prepared by registered valuer Mr Douglas Knight of Herron Todd White. The document was filed in this Court on 17 April 2013.
When the volume containing document 25 was tendered, it was admitted into evidence, on 6 May 2013 without any objection being made. Likewise, no objection was made on behalf of the respondent to any of the other material that was then tendered on behalf of the applicants.
The volumes, although tendered by counsel for the applicants, contain material which was to be evidence on behalf of the respondent, particularly the Agricultural Suitability Assessment prepared by Mr Bruce Napier of IMEMS Pty Ltd. This was filed in this Court on 18 April 2013 and was document 32 in exhibit 4. When counsel for the applicants tendered this he stated that the applicants will object to it. This same reservation was made in relation to some other material which it is not now necessary to consider further as there is presently no objection made in respect of it. Counsels’ openings of their cases occupied the remainder of day 1 of the trial.
The view
The second and third days of the hearing were taken up with inspections of the resumed land and properties used for comparison purposes by the valuers engaged by the parties. Day 2 involved properties in the vicinity of Gatton and around the Lockyer Valley and day 3 took in properties around Clifton on the Darling Downs, between Toowoomba and Warwick.
The respondent’s objection
On day 4 of the trial, 9 May, counsel for the respondent made objection to the admission into evidence of part of document 25. The part objected to is the whole of Section 11, that is pages 29 to 41, and so much of the balance of the report which contains the opinion that the corporation referred to as “Darwalla”, the adjoining landowner to the resumed (subject) land, “would have” purchased the subject land for $2.9 million.
The objection, set out in 19 pages of written submissions, is reliant on three thrusts. First, it is beyond the expertise of a registered valuer to express such an opinion, that “Darwalla” would have purchased the resumed land for $2.9 million. Second, that the Court’s assessment of the market value of the subject land does not permit it to be assumed that there was a sale for $2.9 million to “Darwalla” on the date of resumption, 14 December 2007. The third point in the objection is that, contained in the valuer’s opinion, is an assertion of fact, that “Darwalla” and other purchasers of land with a water entitlement paid or should be taken to have paid $500 per megalitre for that water entitlement. This, it was argued, was not proved to be a fact by any evidence and, in one case, was shown by evidence to be factually incorrect.
Counsel for the applicants sought and was allowed time in which to prepare a response to those submissions and 24 pages of written submissions and a seven page annexure were received on Monday 13 May 2013. On that day a further 14 pages of submissions in reply was provided on behalf of the respondent. These had been prepared in advance of receiving the submissions made for the applicants. Both counsel made oral submissions on 13 May in relation to this matter of objection.
I have considered all of the submissions and find that I am able to determine the objection upon one point, which occupied very little of the time and effort devoted to this objection. Raised in the submissions for the applicants, it was not directed to the merits of the objection but to its machinery. It was argued that the objection to part of document 25 should have been made when it was tendered on 6 May; that once admitted into evidence, it was not open to object to this material on 9 May. It is now a matter of the weight to be attributed to this evidence, a matter which could be provisionally decided now or finally decided at the conclusion of the case.
A great many authorities were referred to by counsel in their submissions. The present objection must however be determined in accordance with a decision which was not among them.
In Roof and Ceiling Construction Company v S.A. Wigan & Co Pty Ltd [1972] QWN 14 the Full Court considered an appeal from the District Court in an action for damages for breach of contract. The leading judgment was delivered by Lucas J, with whose reasons Wanstall ACJ and Hoare J agreed. In that case the witness for the successful plaintiff gave evidence that he had intended to sub-contract the building work contracted for but which was subsequently lost when someone else was engaged to perform it. The witness gave evidence of his own price for the work but not the amount of the quotations for the work of his proposed sub-contractors. Lucas J. said:
“Let it be assumed, without deciding the matter, that his evidence was inadmissible, either as being secondary evidence of the contents of unproduced written documents or as hearsay; nevertheless it was before the learned judge and it was not objected to. It is of course incumbent on counsel to protect his position by objecting.
…
he was not bound to object at once, for it seems that it was not until much of the evidence had been given that it appeared that it might have been inadmissible. But when this did appear, it would have been quite open to counsel to object; his position would have been protected whatever ruling the learned judge gave.
It seems to me that it should now be regarded as settled that when in a civil case inadmissible though relevant evidence is tendered without objection, it may be given such probative value as the court thinks it is worth.
…
In this case the learned judge quite clearly thought that the evidence had considerable probative value;”
The respondent’s objection that the material in question is not relevant to the matter before the Court and is necessarily inadmissible, would, no doubt, be a useful argument if making an objection to the admission of the material at the time it was tendered. Where, as here, the evidence was admitted without objection, it cannot be employed so as to amount to an objection to admissibility, a point which has passed, in circumstances where nothing has changed to indicate inadmissibility which could not be seen at the time of tender. Were this possible, the objection could be made at any time, potentially after the evidence had all been heard while the opposing party was under a misapprehension as to what was in issue, which could defeat justice.
Reference was made, by counsel for the applicants, to a decision of the Full Court in a drink-driving case, Woods v Rogers ex parte Woods [1983] 2 Qd.R. 212 at 216 and following. In that case Thomas J, with whose reasons McPherson J agreed, said:
“ It seems desirable to repeat what has been said in this Court on previous occasions in relation to the taking of objections and the prevention of trial by ambush. In 1953 Philp J. observed:
‘Unfortunately a loose habit has grown up in our Courts in respect of making and having recorded tenders of and objections to evidence. A tender of, or objection to, evidence should be formally made and the grounds thereof expressed specifically enough to be understood by the opponent and the Court, and if the Court rules unfavourably it is the duty as counsel to make sure that the Court records the tender or objection and the specific grounds thereof.’
Bennett and Co. v. Connors [1953] St.R.Qd. 14 at 24-25). In King v. Bryant (No. 2) [1956] St.R.Qd. 570 at 575, Stanley J. repeated the warning, saying that a party should:
‘at least . . . state a clear, if general, indication that the exact nature of the evidence which he wishes to tender … it is his opponent’s duty to state equally specifically the exact grounds of his objections.’
In the same case Hanger J. stated that the rule was not absolute in all cases and that the case was not one to which it should be literally applied. It was suggested before us that the current practice may be somewhat different and reliance was placed upon a statement by Kneipp J. in Huth v. Petersen, ex parte Peterson [1975] Qd.R. 340, at p. 344, as follows:
‘The action of counsel in not taking the objection was merely in conformity with a common and often convenient course, particularly where a jury is not involved, of taking any point as to sufficiency of proof when all the evidence has gone in.’
There will obviously be cases when no prejudice is caused to the opposite party by following such a course. There will also frequently be cases where an exhibit may properly be tendered when it is first presented to the Court, but with respect to which ensuing evidence will indicate a ground of objection, or a ground upon which the Court can be asked to exclude it. Even so it is counsel’s duty to appraise the Court and the opposing party of the issue as soon as reasonably practicable. If he fails to do so, great inconvenience can result, particularly when appreciation of the issue may have led the other party to call further evidence on it. It is no answer to say that an application can still be made by the prosecutor even after the close of evidence if the point is raised during final address. Considerable inconvenience would result if trials could be conducted in this way. Wigmore observes (in the third edition, paragraph 18):
‘The general principle governing the time of the objection is that it must be made as soon as the applicability of it is known (or could reasonably have been known) to the opponent, unless some special reason makes a postponement desirable for him and not unfair to the proponent of the evidence.’
I agree with the remarks of Wanstall C.J. in Jones v. O’Neill, ex parte Jones [1979] Qd.R. 142, at p. 146, as follows:
‘If any point had been taken as to whether or not the doctor’s approval went with his act of taking the blood sample, the question could easily have been cleared up by calling the doctor. But no such point was taken during or at the end of the prosecution case; neither did defence counsel object to the admissibility of the certificate, although he did “reserve the right to make submissions on the certificate at a later stage”. If he had the relevant point in mind it was his duty to raise it then and there and not lie by until his address.’
I do not think that the remarks in Huth v. Petersen (supra) should be read as sanctioning ‘lying by’ by counsel, or as cutting down the obligation to bring a point out into the open as soon as possible so that the opponent has fair opportunity of joining issue and if necessary presenting further evidence on the point. In proceedings without a jury, the procedural formality of a voir dire is not required; but the distinction between facts affecting admissibility of evidence and actual evidence in the case must always be recognised. (See Maguire & Epstein: Preliminary Questions of Fact in Determining the Admissibility of Evidence (1926) 40 Harvard Law Review 392; Cross on Evidence 2nd. Australian edition, para. 3.7).
Sometimes the ground for attack will not emerge until well after the objectionable evidence has been received. It will suffice if objection is then taken. Normally it will be convenient to defer full argument on the question until all evidence capable of affecting that particular ruling is in. The above remarks do not apply to submissions on the weight to be given to evidence. They apply to objections to the receivability of evidence, which include objections to evidence said to have been illegally obtained and which the Court is therefore asked to exclude from consideration.”Emphasis added
Ruling on the respondent’s objection
The time for objection to this evidence being admitted, including on the grounds of relevance, has now passed and I therefore rule against this objection. This says nothing at all about the weight that should be placed on it. Until the evidence, particularly that of Mr Knight, has all been heard, it would not be appropriate to determine what weight should be given to this material until deliberating the substantive matter.
The applicants’ objection
The applicants’ objection to the Agricultural Suitability Assessment filed on behalf of the respondent on 18 April 2013 was the subject of more brief, four page, written submissions on behalf of each party and brief oral submissions on behalf of the applicants. The respondent relied upon the written submissions provided to the Court.
The applicants object to the whole of this report on the basis that it does not comply with the legal requirements for a Good Quality Agricultural Land (GQAL) assessment and is therefore irrelevant and inadmissible. This is said to be so because it does not take into account, as required by law, the availability of water to this land which is located in the Lockyer Valley, an area where agriculture depends on irrigation.
Ruling on the applicants’ objection
The report contains details of the soil profile, soil types and of the landform, its vegetation and drainage. This information will be of relevance to the Court’s determination of whether the subject land or any parts of it constitute Good Quality Agricultural Land. A lacuna in the report, where it does not address a single relevant aspect concerning water, does not render the report irrelevant and inadmissible. The information which it contains will be useful in the Court’s exercise of jurisdiction. For these reasons this objection is not allowed.
Orders
1.The respondent’s objection is not allowed.
2.The applicants’ objection is not allowed.
WA ISDALE
MEMBER OF THE LAND COURT
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