Kuhn v The Crown

[1998] QLAC 69

[1998] QLAC 69

 

IN THE LAND APPEAL COURT  

BRISBANE  

Re:A94-92 & 93

An appeal from a decision of the Land Court -
Determination of Compensation
Application for leave to call further evidence.

BETWEEN:

Geoffrey G and Hilary R Kuhn
  Appellants
  and

The Crown
  Respondent

AND

Geoffrey G Kuhn
  Appellant
  and

The Crown
  Respondent

REASONS FOR JUDGMENT - MUIR J AND DR NG DIVETT

Judgment delivered 25 June 1998

The applicants are appellants from a decision of the Land Court on 9 April 1998 on the appellant's claim for compensation under the Acquisition of Land Act 1967 for land of the appellants resumed by the Crown for national park purposes. The appeal is due to be heard in Townsville on or about 13 July. The applicants seek leave of the Court under s.44(13)(a) of the Land Act 1962 to adduce fresh evidence on appeal.

Background to the application

It seems that negotiations between the applicant (appellant) and respondent concerning compensation had gone on over a considerable period prior to the Land Court hearing. The Crown, fairly late in the day, agreed with the applicant that the highest and best use of the property resumed (“the property”) was for an eco-tourism resort. The Mowbray River runs near the southern boundary of the property. The Mowbray Falls are some 350 metres from that boundary and access can be obtained from the property down a short but steep track to the Mowbray River where another track, the Robbins Track, runs along the river to the Mowbray Falls. The best alternative form of access involves a 9 kilometre drive, coupled with a walk of a greater length than that described above. The Mowbray River (along the relevant part of its course) and the Mowbray Falls are in a State Forest. It seems that it had not been suggested by the Crown, in the course of protracted negotiations with the applicant, that access would not be permitted from the property to the Mowbray River so as to permit the shortest possible access to the falls. The valuers called in the case by each side assumed that access would be granted if requested.

On the Wednesday before the commencement of the hearing (on Monday 19 November 1996) a statement of a witness to be relied on by the Crown, Shane Macleod, for the first time made the suggestion that access from the subject land to Mowbray Falls may not have been available at relevant times. On 14 November 1996 the applicant's solicitors sent a letter by facsimile transmission to Mr O'Connor at the Department of Natural Resources requesting that Mr Macleod produce during his evidence -

“The forestry files relating to any application for and/or any form of permit to enable access from undermentioned properties into State Forest/National Park/World Heritage areas:

The Kingfisher Bay Resort, Fraser Island
Binna Burra Resort, Lamington National Park

O'Reilly's Resort, Lamington National Park

Undara Resort

Silky Oaks Lodge, Mossman

Kuranda Skyrail

Any and all commercial operations going onto State Forest/National Park/World Heritage areas from the Mowbray Valley.

We also require production of any written ‘departmental policy recreation sub-programme goals’ as referred to in paragraph 6 in Mr Macleod's statement and a copy of any written policy as referred to in paragraph 8 of the statement.”

No subpoena was served. There was no indication by or on behalf of the respondent that the request contained in the fax would not be met.

Mr Macleod failed to produce the requested documents but was called by the respondent to give evidence. The thrust of his evidence was that the respondent would have been very unlikely  to have permitted access from the subject land to the track down to the Mowbray River in 1992. He explained why he had reached his conclusions. He considered that the decision would not have been his but the matter would have been referred to the Recreational Advisory Service in Brisbane. He said that there was no written policy or guidelines in existence at relevant times and that “the written policy has been developed since from other cases of a similar nature”.

Mr Macleod was cross-examined with a view to having him concede that there were a great many tourist enterprises which had direct access to State Forests. Mr Macleod conceded that there were quite a number of such enterprises with direct access into national parks but he professed not to know the policy considerations which prevailed in respect of national parks. It was put to him that one such example was that of the Kingfisher Bay Resort on Fraser Island which, it was put, is surrounded by State Forest. Mr Macleod's evidence was that Fraser Island was a national park and no longer State Forest.

He gave as an example of the policy making process to which reference has already been made an application in 1994 for access from a deer park at Conondale on freehold property into State Forest. He did not have the file relating to that matter with him. His evidence was thus unable to be tested by reference to departmental files.

The applicant has obtained a statement from a person who had an interest in the Kingfisher Bay Resort between 1986 and 1996. That person expressed the opinion that the resort was surrounded by State Forest and went on to say that a permit had been granted by the Forestry Department for access from the resort into the State Forest.

At first instance, the learned member referred to Mr Macleod's evidence saying, inter alia -

“... Mr Macleod said that even if an application had been made in late 1996 it almost certainly would have been refused.”

It does not appear that the learned member was prepared to accept this evidence completely in the light of numerous examples of approvals having been given for access to tourist operators. At p.25 the learned member said -

“It was accepted that similar access arrangements have been made on national parks elsewhere in the State and that different factors will influence decisions in different places. One cannot conclude that such access would necessarily have been granted in the subject case.

It is clear that the valuers assumed the authorised access would be obtained. ...

Consequently a prudent purchaser of the subject land at the date of resumption would not have considered as a detriment the risk that a permit would be refused.”

The learned member then went on to conclude that -

• a person who wanted to develop the subject land for eco-tourism purposes would have sought to upgrade and re-route their access to the Mowbray River.

• Work could only have been done with the consent of the department administering State Forests.

• The potential developer would have been alerted to the need for a commercial activity permit.

• A prudent purchaser would not have assumed that such a permit would necessarily have been granted but would have pursued all reasonable avenues to obtain permission and an approval and the approved proposal “may eventually have attracted the department's support”.

  The learned member relevantly concluded -

“I am satisfied that, because permitted access to the Falls was a very important (though not essential) feature of the eco-tourism experiences which would have been offered by an eco-tourism venture on the subject land, the risk that access would not be permitted or that permission would have been difficult and possibly expensive to obtain would have influenced the price which an informed prudent purchaser would have paid for the subject land.”

The Act relevantly provides -

“Section 44(13)(a).

The Land Appeal Court may admit further evidence only if -

(i)it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; or

(ii)the appellant and respondent agreed to its admission.”

The respondent does not agree to the admission of further evidence.

In our view, neither limb of sub-paragraph (i) is satisfied. The applicant was aware prior to the Land Court hearing that an important question in the case was the status of access from the subject land to the Mowbray Falls through State Forest. It was also known that Mr Macleod would be called to give evidence that access from the subject land to the Mowbray River and the Falls, if sought in 1992, “would almost certainly have been refused”. Mr Needham, the applicant's counsel, sought to deal with this matter by hoping to find material in departmental files which could be used in cross-examination to cast doubt on Mr Macleod's evidence. The files were not produced. That all that was sought was not produced was hardly surprising having regard to the fact that the request for production was made in Brisbane on the Thursday prior to a hearing to commence in Cairns on the following Monday and having regard to the scope of the material requested. Although it was known that the requested material was not produced, the applicant's counsel elected to proceed with the case and with the cross-examination of Mr Macleod. The cross-examination, as has been observed above, succeeded insofar as the learned member did not accept Mr Macleod's evidence that a commercial activity permit “would almost certainly (have been) refused”. However, the learned member's finding in relation to access was not as favourable to the applicant as the applicant had hoped.

A litigant, in circumstances such as those which confronted the applicant, is, we concede, placed in a difficult position. However a litigant is not free to proceed with a hearing in the expectation that he will be able to reopen the case and adduce further evidence if cross-examination is not entirely successful and if the findings at first instance are not entirely to his liking. There is good reason for the general rule that parties are bound by the way their case is conducted by their counsel. See R v Birks (1990) 19 NSWLR 677 at 683-4 per Gleeson CJ. It was open to the applicant to broach the matter of the files with the learned member and either seek to have the trial adjourned then or to seek to have it proceed subject to production of the necessary files and further cross-examination of Mr Macleod based on material disclosed in those files at a subsequent date. Even if such an application had been refused the applicant would have been in a stronger position to make this application.

Essentially the applicant's case is that he needs access to relevant departmental files in order to test the accuracy of Mr Macleod's critical evidence. He already has some evidence to show that Mr Macleod may have been mistaken in relation to Fraser Island. But even if the applicant is right about that, it may not shed a great deal of light on the general reliability of Mr Macleod's evidence, which in any event was not accepted in whole. In these circumstances the applicant, in our view, has not made out a case of injustice. He is not helped by the fact that he has only recently sought to obtain the material he wants through a freedom of information application. That course could have been embarked upon immediately after the hearing at first instance with a view to having the case reopened to permit the applicant to adduce further evidence had the quest for information proved successful. We note that the applicant is not disqualified from bringing another application. If the applicant is able to produce cogent evidence, in the possession of the respondent at relevant times, which clearly supports his case on access and thus contradicts the relevant evidence of Mr Macleod, his prospects of being permitted to adduce further evidence will be greatly enhanced.

The application is dismissed.

JUSTICE OF THE SUPREME COURT

MEMBER OF THE LAND COURT

IN THE LAND APPEAL COURT

BRISBANE

Re:A94-92 & 93

An appeal from a decision of the Land Court -

Determination of Compensation

Application for leave to call further evidence.

BETWEEN:

Geoffrey G and Hilary R Kuhn
  Appellants
  and

The Crown
  Respondent

AND

Geoffrey G Kuhn
  Appellant
  and

The Crown

Respondent

REASONS FOR JUDGMENT - MR RE WENCK

Delivered this Twenty-fifth day of June 1998

I have had the benefit of reading the reasons of Muir J and Dr Divett in their joint draft judgment in this matter.  The background to the application does not require repetition.

It is clear from the length of discussion in the learned Member's reasons for judgment, from p.21 to p.26 inclusive, that the question he posed "Would commercial access from the subject land to Mowbray Falls have been officially permitted?" - was one of significance in his considerations.  The valuers and tourism consultants engaged by the parties had assumed that such access would have been permitted and no suggestion to the contrary had been raised by the respondent until several business days prior to commencement of the hearing.

The evidence of Mr Shane MacLeod satisfied the Member "that a properly informed prudent purchaser of the subject land at the date of resumption would not have assumed that a Commercial Activity Permit would have been granted along the existing route or some other route, between the Falls and the subject land.  Given the importance of the Falls to an eco-tourism development on the subject land, however, such a purchaser would have probably pursued all reasonable avenues to obtain permission and an appropriate proposal may eventually have attracted the Department's support" (emphasis added).  It may be assumed that such probability was envisaged by the Member as occurring subsequent to the hypothetical purchase.  The Member was also satisfied "that, because permitted access to the Falls was a very important (though not essential) feature of the eco-tourism experience ... the risk that access would not be permitted or that permission would have been difficult and possibly expensive to obtain, would have influenced the price which an informed prudent purchaser would have paid ... ."  Indeed, the Member concluded after posing the question "To what extent would the value of the subject land have been influenced by the availability (or unavailability) of access to Mowbray Falls by patrons of the eco-tourism venture?":

"Given the attraction of the Falls, their proximity to the subject land and the absence of a comparable river and falls on the subject land, the need for legal access to the Falls by a direct route from the subject land would have been a factor that a prudent person would have taken into account when deciding whether to purchase the land for eco-tourism purposes and the price which such a purchaser would pay.  The eco-tourism potential of the land would not have been enhanced if the resort operator could only provide guests with access to the Falls by vehicle to the Bump Track and then a walk for at least part of the distance along the Bump Track and the Robbins Track.  A purchaser would have wanted to be assured that the relevant permit would be granted (and that successive permits would be issued) and, less significantly, would have wanted to know the fee payable for the permit."

In his "conclusions concerning market value" the Member said at p.59:

"Permitted access to Mowbray Falls via a safe and approved route from the subject land would have been an important and attractive (though not essential) feature of any commercial eco-tourism enterprise developed on the subject land.  There was no guarantee that the operator of a commercial eco-tourism venture on the subject land would have secured a commercial activity permit for people to walk across the State Forest land between the subject land and Mowbray Falls.  The risk that commercial access to Mowbray Falls across State Forest land might not have been permitted would have been a consideration for the properly informed prudent purchaser of the subject land at the date of resumption."

and, at p.60:

"The concerns about how difficult it would have been to obtain a Commercial Activity Permit, and the possibility that a Permit may not have been granted, mean that some discount must be made when assessing the value of the subject land by reference to those other properties which have, or have ready access to, significant natural features."

The Member was satisfied that there was no absolute prohibition on commercial permits of the type which would have been required, but recognised from his evidence that Mr MacLeod was concerned that the walking track in question "might have been considered to be for the exclusive use of the land owners and their customers."  Had the application been made through Mr MacLeod (although he was not the relevant officer at the date of resumption), it would have been his task to make a recommendation.  He was not however the decision-making officer.  Mr MacLeod's evidence as referred to by the Member at p.23, was that, in concluding that such an application would have been refused by the relevant officer, he had "relied on a decision by that other officer against approval of an application for the construction of a walking track from a freehold property in south-east Queensland to an adjoining State Forest, and on the recreation policy of 1993."  That refused application was in connection with a Deer Park at Conondale and the decision was made some significant time after the relevant date in this matter.

The only evidence placed before the Land Court to the effect that an application for the relevant walking track access would "almost certainly" be refused, came from Mr MacLeod.  The Member had found his evidence to be "relevant and persuasive".

At the time that the claimants became aware that the respondent would raise the issue of "almost certain" rejection of the access approval, they had been caught by surprise.  So too, it appears, had been the respondent's valuer and tourism consultant.  It seems that no attempt had been made to produce a fresh valuation on that assumption.

It is true that the claimants had been given sufficient time to serve subpoenas, or alternatively seek adjournment to allow sufficient time to gather any rebuttal evidence of the category they now seek to call as fresh evidence.  That evidence was identified by Mr Needham, counsel for the appellants/claimants, as follows:

(a)evidence from Mr Michael Hackett as contained in his signed statement and/or evidence consisting of extracts from the Department of Natural Resources file concerning access for commercial purposes from the Kingfisher Bay Resort and Village into the adjoining State Forest;

(b)evidence consisting of extracts from the Department of Natural Resources file of the application by the Conondale Deer Park in 1994 for access for commercial purposes into the adjoining State Forest;

(c)evidence consisting of extracts from Department of Natural Resources file/s concerning commercial activity permits granted to operators within the Mowbray Valley for access into State Forest through private land; and

(d)evidence consisting of extracts from Department of Natural Resources file/s concerning any other instances of commercial activity permits being granted for operators to access State Forest from private land.

While there is no particularity as to the evidence relating to the Department's files, Mr Needham submitted that all the evidence sought to be led is "apparently" credible.  Freedom of Information applications had been made relative to the Department file contents.  That information had not been available at the date of the hearing of the application.  The hearing  had been brought on with some urgency by the Court bearing in mind that the appeal was proposed to be heard in Townsville in the week commencing 13 July 1998.

The reasons given by Mr Needham for not having served subpoenas in the Land Court proceedings was that the respondent had not indicated its unpreparedness to accede to any part of the request both verbal and formal directed to the junior counsel for the respondent.  Some of the requested material had been produced.  Mr Needham submitted that the Kingfisher Bay Resort, on Fraser Island, was mentioned by several of the witnesses during the Land Court hearing because of its comparability in eco-tourism terms.  It was submitted that any permitted access onto the adjoining State Forest would have been a matter of considerable relevance.  However during the Land Court hearing that aspect was unable to be developed through cross-examination of Mr MacLeod who had suggested that the adjoining land was National Park and not State Forest and therefore outside his area of official knowledge.  His lack of knowledge of any of the suggested commercial operator access activities onto the State Forest from private lands in the Mowbray Valley had thwarted further cross-examination during the Land Court hearing.  It was not disclosed until Mr MacLeod's oral examination that the Conondale Deer Park application refusal had formed the basis of his stated opinion relative to the subject matter.  The file details of that application and reasons for the refusal were not available to be produced at the Land Court hearing.  Mr MacLeod's evidence had not been given until the second-last day of the hearing when it was found that some of the material sought would not be produced.  Mr Needham submitted that the further delay which would have been occasioned as a result of a successful application for adjournment, was an important consideration when the decision was taken not to make such an application in response to Mr MacLeod's oral evidence and its lack of particularity.

Section 44(13)(a) of the Land Act 1962 relevantly provides:

"(a)      The Land Appeal Court may admit further evidence only if -

(i)it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; or

(ii)the appellant and respondent agree to its admission."

The respondent here opposes the application.

In Director-General v. Hibiscus Holdings Pty Ltd (1994-95) 15 QLCR 408, this Court said at p.419:

"Since this is the first case heard by this Court in which the interpretation of the new provision has been argued, we would add that in general, in order to satisfy the first limb of s.44(13)(a)(i) it will be necessary for the party seeking to adduce further evidence to identify the grave injustice which must be avoided with some particularity; to specify with precision the further evidence sought to be led; to demonstrate why it is that the injustice can fairly be described as "grave"; and to demonstrate how there exists a necessity to admit the evidence in order to avoid the injustice. The degree of particularity and precision required may vary depending upon the circumstances of the case. If the injustice relied upon is the reaching of an incorrect result (we do not imply that an arguably incorrect valuation will always constitute an injustice), the Court should be placed in a position where it can assess whether the proposed evidence at the very least might influence the result of the appeal and whether it is apparently credible ... ."

The claimants' allege that grave injustice would result from undue weight being placed on the evidence of Mr MacLeod relative to access, when that evidence was not supported by the facts, or alternatively the facts on which the evidence relied were not proved.  The respondent having resumed the land, conducted compensation negotiations, then the litigation in the Land Court had, in Mr Needham's submission, a responsibility to ensure that evidence placed before the Court was fully and fairly presented and was factually correct, particularly when that evidence related to matters peculiarly within the knowledge of the respondent.

In JT & LJ Barns v. Director-General, Department of Transport (unreported, A93-95, A93-56, 27 September 1995) this Court said at p.5:

"...we think that it is necessary for the appellants to demonstrate that there exists a real prospect that the proposed new evidence will affect the decision of this Court on the issue to which it is addressed.  In our view, only if the evidence goes that far can it be said that to proceed to a contrary result without it would result in a grave injustice."

Mr Needham submitted that as the question of access had been regarded by the Member as an important issue, with his findings based entirely on the evidence of Mr MacLeod, the further evidence sought to be led, if accepted, would cast grave doubt upon the credibility of Mr MacLeod's opinion.  That would, it was submitted, lead to a different finding as to the prospects and risks of obtaining the required access approval, necessitating re-assessment of the before resumption value of the property.

In opposing the application, Mr Griffin QC submitted for the respondent that Mr MacLeod was the officer responsible for "assessing" applications for, and the issuing of commercial activity permits "for all of Queensland north of Townsville".  He saw it as not surprising that Mr MacLeod should have had some difficulty when cross-examined comprehensively in relation to what he knew about things elsewhere in the State.  Mr MacLeod's opinion had been expressed in relation to the prospect of commercial access being granted to the waterfall, when there was "already a suitable access to the site" available to members of the public; there was no gazetted public access to the track as proposed; and there had been reference to the steepness of the proposed track.  His opinion, according to Mr Griffin, was given on the basis of the particular circumstances as they related to the specific location.  Mr Griffin drew attention to comments by the Member that "It was accepted that similar access arrangements have been made on National Parks" (which Mr Griffin interpreted to include State Forests) "elsewhere in the State and that different factors will influence decisions in different places.  One cannot conclude that such access would necessarily have been granted in the subject case."

As Mr Griffin interpreted the Member's reasons, it had not been said that access was never available into a State Forest but that the result of an application depends upon the circumstances of the particular application.  Further, the Member had not held on the basis of Mr MacLeod's evidence that approval would not be granted but had said:

"Given the importance of the Falls to an eco-tourism development on the subject land, however, such a purchaser would have probably pursued all reasonable avenues to obtain permission and an appropriate proposal may eventually have attracted the Department's support." (emphasis added)

Mr Griffin submitted that the test in s.44(13) of the Land Act is not satisfied and there was no necessity for any of the additional evidence as sought to be admitted to avoid any injustice and certainly not to avoid any grave injustice.

Conclusion

In the peculiar circumstances of this case and in particular, the circumstances associated with the pre-hearing negotiations and exchange of evidence, and regardless of the opportunity available to the claimants to ensure the production at the hearing of relevant material, I am of the opinion that adequate reason does exist to explain why at least some of the evidence now sought to be called, was not previously given.

Except in the case of some of the evidence sought to be adduced through Mr Hackett, there is a lack of particularity as to the evidence relative to extracts from departmental files.  Because of the date proposed for the hearing of the appeal, this Court had itself imposed time constraints on the provision of material which might have been found to be relevant.  The thrust of the evidence sought to be adduced is however clear enough.

It is arguable whether the admission of the evidence is necessary to avoid grave injustice, but in the peculiar circumstances of this case, I am of the opinion that certain of the evidence now sought to be led, should have been produced in the Land Court and by the respondent, because of the influence on reasoning which it may have had.

In order to avoid grave injustice and there being, in my opinion, adequate reason that the evidence was not previously given, I would enliven the discretion provided and allow the application to admit the following:

(a)evidence from Mr Michael Hackett as contained in his signed statement and/or evidence consisting of extracts from the Department of Natural Resources file concerning access for commercial purposes from the Kingfisher Bay Resort and Village into the adjoining State Forest;

(b)evidence consisting of extracts from the Department of Natural Resources file of the application by the Conondale Deer Park in 1994 for access for commercial purposes into the adjoining State Forest;

(c)evidence consisting of extracts from Department of Natural Resources file/s concerning commercial activity permits granted to operators within the Mowbray Valley for access into State Forest through private land; and

(d)evidence consisting of extracts from Department of Natural Resources file/s concerning other relevant instances made known to the appellants, of commercial activity permits granted for operators to access State Forest from private land.

RE WENCK
  MEMBER OF THE LAND COURT