Kumali Holdings Pty Ltd & Body Corporate for Canon Park Entertainment v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 35
•27 April 2001
|
BRISBANE
27 APRIL 2001
Re: Appeals against valuations
Local Authority: Thuringowa
Kumali Holdings Pty Ltd
(V98-77 & 78, AV99-241, V00-329-339, AV00-340 & 341, V00-342 & 343)
AND
Body Corporate for Canon Park Entertainment CTS 22612
(AV99-242 and AV00-348)
v.
Chief Executive, Department of Natural Resources and Mines
DECISION ON APPLICATION
This is an application for the partial setting aside of certain orders of the Court for the provision of further and better particulars. The applicants are the appellants in appeals under the Valuation of Land Act1944 ("the Act") challenging a determination of valuation by the Chief Executive. Because of the anticipated complexity of the appeals, the Court had previously made fairly extensive pre-hearing orders to facilitate the narrowing of the issues and to focus the eventual hearing set for August 2001.
The broad scheme of the pre-trial steps can be outlined as follows:
·notice of abandonment of any grounds of appeal;
·provision of particulars;
·disclosure of documents;
·outline of factual and legal contentions;
·response to above;
·exchange of list of witnesses, identification of nature of evidence and areas of expertise of witnesses;
·exchange of witness statements;
·experts to confer;
·report on conference of experts to be provided to Court.
Statutory Background:
The Valuation of Land Act1944 requires the appellants to state their grounds of appeal and they are then confined to such grounds at the hearing (s.45(4) and s.56(2)). The Act does not stipulate the level of precision with which such grounds are to be stated. Historically, they have been often cast broadly, leaving the Chief Executive with little fore-warning of exactly what case has to be met.
The Land Court Act 2000 and accompanying Rules makes provision for more elaborate pre-trial procedures when thought necessary in particular cases. The Court has a wide power to make directions (Rule 19(2)(b)) and disclosure is now an option. The Uniform Civil Procedure Rules 1999 apply (with necessary adaption) if the Land Court Rules are silent (Rule 4).
It is against this background that the Court made the orders of 9 March 2001.
The Grounds of Appeal and the Particulars sought:
The appeal grounds and the particulars sought are as follows:
"Ground A - External and Internal Drainage Works
1. The assessed unimproved value does not take into account the fact that this land was incapable of economic development without very substantial external and internal drainage works.
Requests:
1) Particularise each component of drainage works referred to;
2) In relation to each such component identify whether:
a) the works are 'external' or 'internal';
b) the date upon which the works were commenced;
c) the dates upon which the works were concluded:d)the contractor or other party to whom the payment was made;
e)the cost and value of the works contended for by the Appellant;
f)whether that component is located within the parcel of land the subject of each appeal or, is external to the parcel the subject of the appeal;
g)the location of that component by marking the relevant registered plan to specify its location;
3) It the Appellant contends for an allowance with respect to the value of any component of works other than its actual cost particularise the sum concerned in relation to each component and the details of the manner of its assessment, computation or calculation in each case.
Ground B - Valuation Excessive Unreasonable & Not Supported by Proper Analysis of the Sales Evidence
2.The valuation is excessive and unreasonable and is not supported by a proper analysis of the sales evidence.
Requests:
1)Particularise the facts and circumstances relied upon on in contending the valuation is excessive and unreasonable.
2)Particularise by the provision of an appropriate schedule what is referred to by the expression 'proper analysis of the sales evidence'.
3)Particularise the sales referred to by the expression 'the sales evidence'.
Ground C - Valuation Contrary to Law and the Precedents for Valuation of an En-Globo Parcel
The valuation is contrary to law and the precedents for valuation of an en-globo parcel.
1)Particularise the principle or principles of law implicitly referred to in the assertion that the valuation 'is contrary to law … for valuation of an en-globo parcel.'.
2)Particularise the cases referred to as 'the precedents for valuation of an en-globo parcel'.
Ground D - Failure to Take into Account Costs of Development and Costs of Council Headworks Contributions
The valuation does not take into account the costs of development and the costs of Council Headworks contributions necessary to develop the land.
Requests:
1)Particularise the costs of development referred to by providing the same particulars as those sought in relation to ground A.
2)Particularise the 'council headworks contributions' including particulars of the dates and amounts of each payment the instrument of approval or other process by which the liability to make the payment was imposed and the approval, re-zoning or permission which was thereby obtained.
3)If the Appellant does not rely on actual contributions made for Council Headworks particularise the manner of assessment calculation or computation of the sums relied upon by the Appellant as allegedly comprising Council Headworks contributions and the facts and circumstances relied upon in alleging that such contributions are to be regarded as 'necessary to develop the land'.
Ground E Thuringowa Market Over-Supplied with Demand Declining (Ground 2 AV00-331, AV00-340, AV00-341, AV00-343 & AV00-348)
The market for this class of land in Thuringowa is suffering from over-supply and a declining demand.
Requests:
1)Particularise the description of the 'class of land' referred to by the Appellant.
2)Particularise the facts and circumstances relied upon in alleging that the market was, at the relevant date, over-supplied.
3)Particularise the facts and circumstances relied upon in alleging that demand for the land was declining.
Ground F Land Incapable of Economic Development Without Substantial Works (Ground 5 V00-342)
The assessed unimproved value does not take into account the fact that this land was incapable of economic development without substantial works.
Request:
Provide the same particulars of the 'substantial works' as are sought with respect to Ground A.
Ground G Thuringowa Market Subject to Accentuated Over-Supply and Declining Demand during Period 1/1/97 to 30/7/97 (Ground 2 V98-77 & AV99-241 & AV99-242)
The market for this class of land in Thuringowa is suffering from over-supply and a declining demand which has been accentuated over the period 01/01/97 to 30/07/97.
Requests:
1)Provide similar particulars to those sought with respect to Ground E.
2)Particularise the facts and circumstances relied upon in alleging that there was an accentuated decline in demand over the period 01.01.97 to 30.07.97.
3)Particularise the facts and circumstances relied upon in alleging over-supply was accentuated over the period 01.01.97 to 30.07.97 if such an allegation is intended to be made, or advise to the contrary.
Ground H Excessive Increase of Valuation Over Previous Valuation (Ground 2 V98-78)
Economic circumstances between the date of the previous valuation and the date of the current valuation do not justify any increase in the value of industrial land let alone the massive increase in the unit rate adopted by the Department.
Request:
Particularise the facts and circumstances relied upon compendiously referred to as the 'economic circumstances between the date of the previous valuation and the date of the current valuation'."
Eight grounds of appeal are listed, with further and better particulars being sought against all eight. Only the particulars sought on Grounds A and D were not challenged on this application, however, at the application hearing, Counsel for the appellants withdrew objection to Ground F in the request. Further, he indicated the appellants were agreeable to stipulate the "class of land" mentioned in Grounds E and G.
The essential challenge listed in the application was that the particulars really sought to adduce evidence rather than particulars of the grounds. As regards Ground C, it was claimed to be a question of law.
Both parties in this case agree with the stage of proceedings at which the Court has ordered particulars to be provided. The issue in dispute is whether certain of those particulars requested should be provided at all.
None of the grounds of appeal have been abandoned by the appellants. The respondent thus maintains his request for particulars on all those grounds where there has been no agreement to provide such particulars.
Further, there is no material before the Court to suggest the appellants cannot comprehend any parts of the request for particulars or that difficulties otherwise arise in providing the information sought.
Appellant's Submissions:
A number of grounds for objecting to the provisions of particulars can be discerned from the appellant's application, outline of argument, oral submissions and supplementary outline of argument. These may be summarised as follows:
·The request is an attempt to seek evidence. (This ground appears now to be abandoned).
·Ground C is a question of law.
·The Chief Executive's valuers already know the relevant comparable sales that they will rely on.
·The information sought will become available at a later stage of proceedings.
·There is a lack of mutuality with no corresponding obligation to provide particulars on the Chief Executive.
·The equity and good conscience rule militates against provision of particulars.
·Certain undesirable consequences result from narrow disclosure under the scheme of a Valuation of Land Act appeal (based on the decision of Franklin v. The Valuer-General (1978) 5 QLCR 181).
Respondent's Submissions:
The respondent's case is supported by a detailed affidavit from Mr JB O'Rourke, Principal Legal Officer for the Chief Executive. The applicant challenged a number of matters referred to in this affidavit as to their accuracy or relevance and I have considered the argument advanced for their deletion or retention. In view of the eventual decision in this application and the limited reliance I have placed on affidavit material, it is unnecessary to determine the preliminary question raised as to the affidavit material.
I do observe, however, that the affidavit of Mr O'Rourke for the respondent deposes to considerable difficulty in ascertaining what is meant by certain of the appeal grounds.
The respondent's main grounds for requesting particulars can be outlined as follows:
·To properly inform the respondent as to the nature of the case sought to be raised by the appellants;
·to properly define the grounds of appeal;
·to prevent the respondent from being taken by surprise at the trial;
·to enable the respondent to know what evidence ought be prepared and to allow preparation for trial;
·to limit the generality of the vague and general grounds of appeal
·to limit and define the issues to be determined at the hearing; and
·to identify the scope of discovery.
The Law:
The observations of Byrne J in NRNQ (a limited partnership) v. MEQ Nickel Pty Ltd [1991] 2 QdR 592 provides a useful overview of the current law as to the purpose of particulars and their limits. (Both Counsel agree that this case properly states the present law.) Byrne J comments at 594:
" Particulars promote the fair and efficient conduct of litigation. In Bailey v. F.C.T. (1977) 136 C.L.R. 214 Gibbs J. said (at 219) of them:
'They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.'
…
In recognition of the advantages they confer, particulars are now ordered more freely than in former years."
In the present application objection was initially taken to the request for particulars being more a request for evidence. Byrne J in NRNQ indicates there is no present rule preventing such from occurring. He states at 595:
" These days particulars may require the disclosure of information in such detail as to indicate the mode by which a case may be proved. As an example, where the pleading alleges an oral contract, particulars are commonly ordered of the identity of the persons who concluded the contract and of the date and place at which it was made. And that particulars will disclose the evidence to be adduced at trial is not of itself a sufficient justification for refusing them: Wooton v. Sievier [1913] 3 K.B. 499, 503. The modern practice is concisely stated by the learned author (Sir Jack I.H. Jacob) of Bulletin and Leake and Jacob's Precedents of Pleadings (12th ed., 1975) at p.115:
'where the information asked for is clearly necessary to enable the applicant properly to prepare for trial, or where in other respects the application is a proper one, the information must be given, even though it discloses some portion of the evidence on which the other party proposes to rely at the trial.'"
The interrelationship between particulars and subsequent pre-hearing steps also attracted the attention of Byrne J. At 595 again he states:
" The openness afforded by adequate particulars facilitates effective resolution of the dispute. Discovery becomes more efficient. It need be directed only to the issues as they are refined by the particulars:
…
Informed attention to the oral testimony and other material likely to be required at the hearing will also aid trial preparation. A purpose of particulars is 'to indicate to the party who asks for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues': Esso Petroleum Co. Ltd v. Southport Corporation [1956] A.C. 218, 241 per Lord Radcliffe. It is even possible that an early investigation of the pleader's own case and the better appreciation of an opponent's case achieved by particulars may help the parties to a settlement.
…
Some cost will of course be incurred in the collation of the information needed to frame particulars. But if the litigation proceeds, the expense is only accelerated. There is a chance that applications for particulars could be used oppressively: … Appropriate costs orders will obviate that risk in Queensland."
Conclusions
These can be conveniently listed under the appellants' composite points and then generally.
A. Disclosure of Evidence
The initial objection in this application that particulars would disclose evidence is not a valid one on current authorities as considered in NRNQ. This objection appears not to be now relied on by counsel for the appellant.
B. Issue of Law
The request for legal principles and case precedents in Ground C is a valid one. It is not asking the appellants to describe the legal effect of certain material facts they have pleaded or to otherwise engage in legal debate (contrast the observation in Sims v. Wran (1984) 1 NSWLR 317). The appellants have stated the valuation of the Chief Executive is inconsistent with legal principles and precedents and they should be required to nominate these as requested.
C. Information within Respondent's knowledgeThe fact that much of the information requested may already be within the possession or knowledge of the respondent is again not relevant. (See Cairns Australian Civil Procedure 127). A principal purpose of the particulars is to put the respondent on notice as to which parts of this information he has to focus upon.
D. Information to be later available
The fact that information now sought in particulars may later become available from exchange of expert reports or outlines of legal and factual issues in dispute is not relevant to the matter now under consideration. The information is necessary now to confine the issues and enable disclosure to proceed. The scheme of appeal under the Act does not encompass reciprocal obligations on the parties at this stage.
E. Lack of Mutuality
As there are no pleadings as such in Land Court appeals, it is not really appropriate to make too ready an analogy with the conduct of wider civil litigation. In Valuation of Land Act matters, it is the Act that initially determines the procedure by requiring an appellant to state its grounds of appeal in the Notice of Appeal to the Court. This Notice of Appeal may be seen as the equivalent of a claim (and statement of claim) under the Uniform Civil Procedure Rules 1999.
There is no requirement under the Act for the Chief Executive to provide a written response to the Notice of Appeal, unlike for a defendant with a Notice of Intention to Defend. To this extent there is no mutuality required at this stage. However, it should be noted that there is a later pre-hearing step in the Orders already provided requiring the respondent to respond to the appellants' outline of factual and legal contentions.
F. Equity and Good Conscience Rule
Both sides have relied on the equity and good conscience provisions of the Land Court Act 2000 (s.7(b)) to support their respective cases. However, in my view what is more relevant in the current case is the overall scheme of the Act regarding pre-hearing matters, as was recently observed by the learned Member in the case of Chief Executive, Department of Natural Resources and Mines v. Sabina Three Gorges Corporation case (12 April 2001):
"These Rules read as a whole, communicate a comprehensive statutory structure which together with the uniform Civil Procedure Rules 1999 which complement the Land Court Rules 2000 create a system for the pre-trial conduct of matters before the Court. In the case of the respondent's appeals, those Rules were relied upon and orders issued on 16 November 2000 with a view to exposing and narrowing the issues and in ensuring that neither party would be caught by surprise. This position may be contrasted with the position that obtained prior to the new Rules coming into effect where there were many occasions when success for one party depended to some extent on its capacity to ambush the other, the prevailing Rules being quite inadequate with respect to case management. In the circumstances of the enactment of the new Rules it must be appreciated by parties coming before the Court that, particularly in instances where parties are represented, the Court will be astute to utilise the Rules of the Court and to expect the parties to comply with orders made in reliance on the Rules."
Observations of Kirby J in the recent High Court decision of Queensland v. JL Holdings Pty Ltd 71 ALJR p.294 ("JL Holdings") provide general judicial support to a scheme such as the new Land Court Act scheme of case management. His Honour stated:
"the role of judges in Australia in directing the progress of at least large and complex litigation has increased greatly in recent years. Such functions are now regarded as a necessary and orthodox part of the judicial function. The view has been expressed by experienced Australian judges that, without more effective management of litigation, the system would be likely to collapse."
G. Undesirable Effects of Narrow Disclosure
The appellants submit that if particulars are ordered and subsequently limit the scope of disclosure required of the respondent, two undesirable consequences could arise:
(a)the Chief Executive could properly limit disclosure to only those documents which the Chief Executive (or his/her legal advisers) determine are directly relevant to the particularised grounds of appeal, notwithstanding that wider disclosure based on broad grounds of appeal may reveal material evidencing a defect on the part of the Chief Executive's valuation process. In such a case, the substantial merits of the case, as originally constituted by the grounds of appeal, may be irreversibly overlooked;
(b)the defect in the Chief Executive's processes may be perpetuated.
On the other hand, the appellants agree, broad grounds of appeal on valuation matters would normally lead to a full (or fuller) disclosure of documents by the Chief Executive. They further agree that if a defect is revealed in his/her processes by disclosure of that material, the opportunity still exists for the matter, if within the broad grounds of appeal, to be properly and fairly heard.
I have considered the objections but agree with the respondent's contention in response in the circumstances of this case. This is that the claims seem tantamount to the proposition that it is desirable to allow appellants to include very broadly drawn grounds of appeal and then to be allowed to resist the provision of particulars in order that they be able to raise on the hearing of the appeal issues that might not otherwise be open if their grounds of appeal were properly particularised. Such an approach is entirely unmeritorious and is quite inconsistent with the modern approach to openness and frankness in litigation. My conclusion here relates to the more complex cases where particulars may be appropriate. In other cases the reasoning in Van Amstel v. Chief Executive, Department of Natural Resources (1997-98) 17 QLCR 27 could still be applied.
Further, if and when any such hypothetical problem as speculated upon by the appellants ever occurs, it will be a question for the Court as to whether the appellants be allowed to amend their particulars to expand the scope of their case. In a genuine case involving no substantial prejudice little difficulty might be anticipated.
H. Particulars generallyParticulars in this case, as with other civil litigation, are necessary to provide the ambit for the next step of disclosure. While I recognise the ongoing obligation of disclosure, the precision inherent in particulars make disclosure more transparent at this initial and main stage. The observations of Byrne J in NRMQ referred to above are most relevant. Further, the comment of Kirby J in the JL Holdings case provides additional support. His Honour stated at 298:
"The modern approach to pleading is to require that issues in contest should be identified and, where necessary, particularised so that the parties can prepare to meet them."
The respondent's claims as to the vagueness and uncertainty of the five remaining heads for request of particulars also provides cogent reasons for requiring further particulars to be provided.
I. Limitation on Pre-trial Directions
It must be observed that the detailed directions provided in this matter and the order now to be confirmed for further and better particulars would be reserved for only the more complex valuation or compensation cases coming before the Court. There is no suggestion that sophisticated case management techniques would be implemented in simpler cases. The recent Queensland Court of Appeal decision in ACI Operations Pty Ltd CAN 004 230 326v. Quandamooka Lands Council Aboriginal Corporation (2001) QCA 119 determined on 30 March 2001 provides guidance for Courts and Tribunals that are required by statute to operate without legal technicalities or the strict rules of evidence. (The case was on appeal from the Land and Resources Tribunal). The Court of Appeal confirmed the need for such bodies to endeavour, wherever appropriate, to adopt procedures which are expeditious and informal.
Order:
The application for setting aside the request for particulars is hereby dismissed.
BR O'CONNOR
JUDICIAL REGISTRAR OF THE LAND COURT
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