Lamb v Department of Natural Resources and Mines
[2005] QLC 19
•15 April 2005
LAND COURT OF QUEENSLAND
CITATION: Lamb v Department of Natural Resources and Mines [2005] QLC 0019 PARTIES: Frank and Joy Lamb
(appellants)v. Chief Executive, Department of Natural Resources and Mines
(applicant/respondent)FILE NO.: AV99/0065, AV2000/0573 and AV2003/0552 DIVISION: Land Court of Queensland PROCEEDING: Decision on application under Valuation of Land Act 1944 DELIVERED ON: 15 April 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The directions are no longer necessary and therefore their implementation is withdrawn. CATCHWORDS: Practice and procedure – directions – disclosure – jurisdiction of the court found to exist APPEARANCES: Mrs J Lamb on behalf of the appellants
Mr P Rabaa, Counsel of Crown Law for the applicant/respondent
Background:
This matter deals with an application by the respondent Department seeking relief from a direction of the Court in respect of making available certain information to the appellants. The applicant argues that the directions are unduly oppressive against the applicants, and seeks withdrawal of the directions. The basic thrust of the application is that the Court has no jurisdiction to conduct an investigation into aspects of the appellants' case by requiring the applicant (respondent) to provide material, which is available as a public record.
Mr P Rabaa, Counsel of Crown Law represented the applicant/respondent, and Mrs J Lamb represented the appellants.
On 3 March 2005 the Court issued directions to the respondent/department to make available to the appellant (Lamb) certain valuation particulars for the years 1993 to 1996 for the subject land, and three surrounding properties at 1, 19 and 24 Leopard Street, Kangaroo Point. The Court further directed that the respondent/department also make available to the appellant certain valuation particulars of a list of 22 properties for the same period, being relied upon by the appellants in their case. Those particulars related to information for relativity purposes. The appellant was then responsible for purchasing that public information.
The application further sought relief from the directions of the Court that joint inspections or visits to each of the 22 properties should occur. The applicant/respondent argues that the number of properties to be visited was unnecessarily large, and seeks reduction to no more than 8 sites associated with the three separate appeals.
The application notes that all of the above information would be available on specific detailed request to the Department, and payment of the appropriate searching fees. Mr Rabaa notes that the Department has a vested interest in charging for searches, and while the information may be used against the Department as a respondent in Court, the Department is not in a position to refuse to provide material which is in effect on the public record.
History of the appeals –
The appeals, the subject of the application, relates to three valuation periods for 1 October 1996, 1 October 1999 and 1 October 2002. The subject land is a heritage listed residential property, on RB4 zoned land, near the Kangaroo Point cliffs overlooking the Brisbane River. The appellants have appealed claiming the three unimproved values are too high, noting, in their opinion, inconsistencies in recognition of the impacts of the heritage listing, lack of comparability with truly relevant sales of comparable properties and other issues.
The three matters have been the subject of an extensive interlocutory stage extending over a period of six years since the first appeal was lodged in the Court on 17 February 1999. During that period attempts to list the matters for hearing involved:
· Preliminary conferences on 5 October 1999 and 23 February 2000 (adjourned at the request of the appellant because of ill health)
· Preliminary conference on 5 March 2001
· Listed for hearing on 23 August 2001 (adjourned at the request of the appellants due to ill health)
· Listed for hearing on 5 April 2002 (adjourned at the request of the appellant due to pending outcome of negotiations with the Premier's Department and Department of Environment
· Listed for mention on 2 August 2002 (set down for hearing on 9 December 2002)
· Set for hearing on 9 December 2002 (adjourned with agreement of both parties to await decision on Nimmo (AV2001/0206) and also Roberts (AV2000/0351)
· Application for adjournment by appellants on 11 November 2004 (application refused – matter to proceed on 8 December 2004)
· Hearings occurred on 8 December 2004, 15 December 2004, 20 January 2005 (adjourned at request of appellant because of ill health), 7 February 2005 (part-day only), 8 February 2005 (part-day only), 10 February 2005 (part-day only), 15 February 2005, 18 February 2005, 21 February 2005, 3 March 2005.
In summarising those matters there have been nine preliminary interlocutory matters, six full days and three part-days of hearing to this stage.
Mr Rabaa argues that much of the oral evidence given in these matters has involved, in his opinion, considerable irrelevant material to the key issues in contention. He offers the opinion that any claims of relativity could only be relevant for the 2003 valuation period, and were not tendered as grounds of appeal for 1999 and 2000 appeals. Mr Rabaa further argues that the appellants would appear to have progressively seen the need to provide evidence to support their 1999 and 2000 appeals, and that has led, in his opinion, to an unnecessary prolonging of the oral evidence. While he does not question the appellants' right to provide oral evidence, he questions the relevance of most of it so far. While he has no instructions at this time, in respect of the high cost involved to his client, he notes that is a concern to the respondent.
Mr Rabaa further questions the reliability of the statement under oath by Mrs Lamb that both her husband and herself have tried repeatedly to obtain certain records from the public counters of the respondent/department, to no avail. Mrs Lamb rejects that conclusion, quoting many details of the personal unsatisfactory experiences.
Mr Rabaa argues that while the respondent/department does hold a lot of material which might assist an appellant, it is not bound to hand over that material to an appellant, not even with the Court's direction. He argues that if an appellant obtains the information through the payment of search fees, then the department does nothing to prevent that from occurring. Mrs Lamb responds by noting that the reason that the appellants have needed to repeatedly try to request the information from the department, was because of the repeated errors that they have seen in the department's case, which they felt had to be disproved. Mrs Lamb concedes that she has limited experience in such matters, and the whole exercise has been an ongoing learning experience for the appellants.
Subsequent to being provided with the copy of the respondent's application to the Court, and noting that the respondent/department admitted that the information the appellant had requested previously was now available for purchase from the department, Mrs Lamb advises that she has now been provided with that information as explained later. Whatever the outcome of the decision on this application against the court's directions, it would appear that the directions have achieved its purpose.
The role of public custodians –
Before examining whether the Court acted beyond its jurisdiction in this matter, I turn to the problem which appears to have led to the Court seeing the need to issue the directions in the first place. In matters such as the current one, the respondent/department has two roles to undertake. It is firstly the respondent to an action undertaken under the Valuation of Land Act. However it is also the prime custodian of the information being requested by the appellants. While there are several alternative commercial sources available where the material could also be obtained, those commercial sources disclaim accountability for the accuracy of the basic data itself.
The information being repeatedly requested by the appellants related to the unimproved values of several properties over specific timeframes. Those unimproved values had been determined exclusively by the respondent/department, and were part of the public record of valuation across the whole of Queensland. They had been publicised at the declaration of previous valuation periods, and it is widely known that the public records were held by the department. The unimproved values form part of a large data set which provides the basis for the determination of rating charges by local governments.
In preparing those unimproved values, the respondent/department had in turn relied upon evidence of sales of properties, the records of which, are required by law to be lodged with the respondent/department. Whenever a person agrees to acquire or dispose of land, those details must be supplied to the department within 30 days of the execution of the transfer (s.81(1)), or if that transfer is rescinded to advise of that cancelling of the transfer also within 30 days (s.81(3)). The maximum penalty for failing to notify the Chief Executive is five penalty points (or $75 per penalty point). Clearly there is a legal obligation upon all Queenslanders to ensure that the department, in the public interest, has the only true and authenticated record of land transactions. Similar penalties exist for an owner who fails to provide information about a sale (s.88), fails to furnish a return (s.89), fails to notify a change of address (s.90), and fails to attend and give evidence if required by the Chief Executive (s.91).
Now with the power to acquire such data, and the exclusive power under the Act to determine and issue the subsequent determined unimproved values, in my opinion, it has a responsibility, in the public interest, to make the information available to the public for certain purposes. That is further emphasised by s.4 of the Freedom of Information Act 1992, which directs that as far as possible the rights of the community are extended to have access to information held by the Queensland Government. While there are some well publicised reasons why certain information is not available to the community, there is no evidence that valuation information should not be available to the community upon request. Mr Rabaa does not question that right, but argues that it is the responsibility of appellants in this matter to request the information required in the appropriate manner (see Freedom of Information Act 1992 s.22).
To support that the applicant/respondent does make provision for the availability of valuation information through its public offices, Mr Rabaa supplies copies of an Information Brochure on Land Valuations, and also a copy of the department's Customer Service Charter for the Queensland Resource Register, which is accountable for supplying the information to the public. Those issues are not challenged by Mrs Lamb, but it is the quality of the service with which she has concerns. Mrs Lamb makes some effort to assure the Court that it is not the actual staff at the front counter with whom she has concerns, but more the background processes which would appear to restrict those counter staff in satisfying her request for information.
It is noted that the Queensland Resource Register is a business unit of the respondent department who, among many other functions, provides "related information management", including "valuation and sales data" products. The normal manner of holding that valuation and sales data is in a large computer system (QVAS or IVAS) which is used to store and generate the unimproved values of all lands in Queensland. On that understanding it would seem reasonable for both the appellants and the counter staff to assume that the data would be available from that medium.
However Mrs Lamb argues that in spite of repeated requests for the valuation information that she required, she was repeatedly advised by the staff that it was not available on the computer. It is also noted that many of her requests for information tracing the history of unimproved values back over several years, was only supplied as a separate search for each particular year. Yet it has been the experience of this Court on other matters, that a single computer screen search could provide that history of the unimproved values, rather than requiring the repeated separate searches. The obvious additional cost to the appellants in such circumstances questions the understanding of the QVAS or IVAS processes by the counter staff. Indeed the valuer in this matter (Mr Van Hees) demonstrated the single screen history by supplying such a computer printout as evidence in the substantive matter of these appeals (Exhibit 24).
It is also interesting to note that while the QVAS computer record was maintained for the adjoining property (19 Leopard Street) and to the subject land (9 Leopard Street) as noted on Exhibit 24, that convenience of record did not occur on the other adjoining properties in that area.
Mrs Lamb further advises that even with the declaration in the application to this Court, that the information was "available as a public record on proper application and the paying of fees being made", the counter staff could not respond to the requests of the appellants. She advises that it was not until a senior manager was approached within the last few days before this application was heard, that it became clear that the archived earlier history could be obtained from "microfiche" records, that the issues were resolved, and the information made available to the appellants.
Now while that statement of the applicant in this matter has been justified, the circumstances of how that information could be accessed leaves something to be desired in my opinion. To fail to ensure that information counter staff are fully trained, or informed about where or how the manner of earlier valuation historical records are maintained, in my opinion, falls short of the client service goal of providing "customer focussed products and services". To perhaps then claim that unless the appellant asks specifically for a certain type of archived record, such as a "microfiche", and as those records are now held only at one office centre (the AXA centre), and that such a request should be addressed only to "someone highly qualified to get those things", would tend to extend the concept of public service to a level now common in the current environment of economic rationalisation of Government. I would agree with the appellants that such a level of public service leaves much to be regretted.
The role of the respondent department –
I turn then to the second duty of the applicant in this matter, and that is the responsibilities of the respondent to the appeal in the substantive matter. Now in that role I agree that it is not the role of the respondent department to seek to assist the appellants (Lamb) in the execution of their evidence. However in my opinion, the responsible department, in its role as representing the "Crown" or as it is now referred to as "the Government", must also carefully take note of the "standard of fair play" as noted by Griffiths CJ in The Melbourne Steamship Co Limited v Morehead (1912) 15 CLR 333, where he said when dealing with a statement of claim at 342:
"The point is a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings.
I am sometimes inclined to think that in some parts – not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think I am mistaken."
That principle of a standard of fair play was also recently expressed in Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719, by Merkel J, when he noted at 732:
"[54] Plainly, whether a document should be incorporated in the court book that is being prepared by the Minister to facilitate the hearing of a migration matter in the court will depend upon the issues raised in the applicant's application. However, subject to any direction of the court or agreement between the parties, applicants are entitled to rely upon the Minister to include in the court book all documents that are relevant to the proper adjudication of the matter.
[55] If the Minister is of the view that a relevant document should not be disclosed, the proper course is to raise that issue with an applicant or the court in an appropriate manner to allow the issue of disclosure to be determined in accordance with law, rather than in accordance with the view of the Minister or his advisers. If the latter course is pursued it would seriously undermine the confidence placed by applicants in the court book and could lead to injustice in a particular case."
While that is not directly on point in this matter, in my opinion, it again highlights the special role that falls to the Government in matters dealing with its constituents.
The role of a model litigant was also referred to in Leha and the Minister for Immigration and Multicultural Affairs [2002] AATA 1054, 29 November 2000 unreported, where the Deputy President noted at paragraph [38]:
"[38] … the Commonwealth should aspire to be a model litigant. In administrative enquiries it should, at the very least, attempt to seek out all relevant information, whether favourable to the department, or not, and put it before the tribunal."
The need for respondent government agencies, or their agents, to adhere to the high standard of fair play, were also noted by the Full Federal Court in Scott v Handley (2000) 58 ALD 373, at 383. In that decision the Federal Court noted, among others, the need for the government agency to assist "the court to arrive at the proper and just result" (P and C Cantarella Pty Ltrd v Egg Marketing Board NSW [1973] 2 NSWLR 366, at 383; and also in Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, at 166, where the Court said "to not unfairly impair the other party's capacity to defend itself".
While there is no criticism of the actions of the respondent department in this matter, in view of the above judicial comments in respect of the standard of fair play in matters involving a government litigant, I note the words of the Crown Solicitor of Queensland whereon referring to the model litigant principles, he said on 30 July 2003:
"The community and the courts expect the Crown to meet higher standards of conduct than they might expect of a private litigant. Merely complying with the court rules and solicitors or barristers professional rules, although important in itself, is not necessarily accepted as sufficient. The courts expect the highest standard of probity and fairness from the State in its handling of litigation."
However that standard of litigation must also be achieved, while executing firmness in the commitment of public funds in a fair and reasonable manner.
The Model Litigant Policy was also discussed by the President of the Administrative Appeals Tribunal in his address to the Government Law Group on 3 February 2005. In that matter Justice Downes noted the difference between the role of a respondent in an Administrative Review Procedure. However, he noted also at paragraph (32):
"32. It is to be noted that the model litigant policy is directed to the attitude of the Commonwealth and its agencies to their opponent, not their attitude to the court."
Downes J went on to say that, among others, the key obligations of the policy include:
"(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true, and
(g) not relying on technical defences unless the Commonwealth's or the agency's interest would be prejudiced by the failure to comply with a particular requirement."
The role of the court -
Mr Rabaa correctly notes that it is not the role of the respondent to argue the case for the appellants. The burden of proof under common law generally falls upon the party who raises the issue. The burden of proof also may be affected by statutory provision, and in the current matters the provisions of s.33 and s.45(4) of the Valuation of Land Act 1944 places that burden upon the appellants (Phipson on Evidence, 11th edition, Sweet and Maxwell, pp.39 and 49).
Now in the matter of "burden of adducing evidence", I note again that the onus under the Act rests upon the party (the appellants), who would fail if no further evidence was available. It is only the evidence which is accepted by the court that counts in these matters, and any decision can only be given when all the evidence is completed. If a fact is peculiarly within the knowledge of a party, and where that party affirms that knowledge exists, then the onus could rest upon that party who affirms that information, where otherwise the effective statutory provisions are seen to influence the burden of proof.
In the current matters, it could be argued that the applicant/respondent department was in full knowledge of the actual information sought by the appellants, which led to the court directions to make it available to the appellants. Under the general rules covering the burden of proof in such circumstances, it could be argued that the department had a responsibility to make that information available to the Court, in order to prove that fact. But I believe that extends the exemption to the rules of proof beyond a reasonable conclusion. The statute is clear, and the burden of addressing any evidence of the previous valuations lies with the appellants in these matters.
I turn then to the inherent jurisdiction in this Court, and I note that "inherent jurisdiction" is taken to mean that power which enables the Court "to fulfil, properly and effectively, its role as a court of law" (37 Halsbury's Laws of England, 4th edition, p.12). That jurisdiction is part of a procedural law which may be invoked in relation to anyone, whether a party or not, in relation to matters not raised in the current proceedings, but it must be distinguished from the exercise of judicial discretion. It may be exercised even in circumstances governed by rules of the court. It may be summarised among other reasons to do justice between the parties, and to secure a fair trial between them, and to prevent an abuse of process.
In seeking guidance as to any statutory authority necessary for the issuing of the directions proposed, I am unable to find any direct authority in either the Land Court Act 2000 or Rules, or in the Uniform Civil Procedure Rules 1999. I note that s.5(1) of the Land Court Act 2000 gives the Court jurisdiction to it by any Act, and that jurisdiction is exclusive (s.5(2)). However I note that the court is to be guided by equity and good conscience, and may inform itself in the way it considers appropriate (s.7). I also note that the court may subpoena any person as a witness, and may require that person to produce documents in the person's possession or power (s.8(1)a)). The powers of the court are the same as a Supreme Court Judge for similar matters in the Supreme Court (s.8(3)). Where a procedure is not provided for by the rules of the Court, the matter may be dealt by a direction under s.22(3).
If I turn to the Uniform Civil Procedure Rules 1999, I note that disclosure is a duty of any party to a procedure where, if there are no pleadings, as in the current matters, any directly relevant documents are to be made available (r.211(1)(c); and that duty of disclosure continues until the procedure is decided (r.211(2)). Disclosure of documents only does not apply where privilege is a valid claim, or if the document is relevant only to credit, or an additional copy of a document already is disclosed (r.212). Now while a request for a matter of disclosure has not been raised by the appellants in this matter, I note that Land Court Rule 13 provides that, with necessary changes, chapter 7 of the Uniform Civil Procedure Rules 1999 also applies to this Court. However I note that any request for disclosure of a document must be clear and unambiguous (Fribance v Hail Contracting Pty Ltd (24 June 2000) QLC 626, per Fryberg J.
I note further that r.223 of the Uniform Civil Procedure Rules provides, among others:
"(1) The court may order a party to a proceeding to disclose to another party a document or class of documents by –
(a) delivery to the other party in accordance with this part a copy of the document, or of each document in the class; or
(b) producing for the inspection of the other party in accordance with this part the document, or each document in the class.
(3) The court may order that delivery, production or inspection of a document or class of document for disclosure –
(a) be provided
…
(4) An order mentioned in subrule (1) or (2) may be made only if -
(a) there are special circumstances and the interests of justice require it; …"
The above provisions were explained in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 QdR 276 at 282 - 283, where Pincus JA said
"The law in this State differs from that laid down by Brett L.J. in Compagnie Financiere du Pacifique v Peruvian Guano Co. (1882) 11 Q.B.D. 55, in that if a document is not 'directly relevant' to an allegation in issue it need not be disclosed. It is not enough, to justify an order for disclosure, to hold the opinion that 'it is reasonable to suppose [that the document] contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary'. Nor, if a document sought is not directly relevant to an allegation in issue, does it matter whether or not it is a document which may fairly lead [the party requiring discovery] to a train of inquiry, which may have either of these two consequences': see per Brett L.J. at 63.
No doubt this deliberate narrowing of the obligation to provide disclosure makes it all the more important that practitioners and their clients earnestly fulfil their obligations under the rules relating to the topic; but drawing attention, as Mr Wilson does, to a chance that a particular category of undisclosed documents may help one side's case will not necessarily provide a basis for an order for further disclosure."
The following observations on the meaning of "directly relevant" were also expressed in Robson v REB Engineering Pty Ltd [1997] 2 QdR 102 where Demack J said at 103:
"My opinion is that the word 'directly' should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, 'directly relevant' means something which tends to prove or disprove the allegation in issue."
Now I note that historically this Court has been found not to have the power to order discovery, which is now referred to as disclosure, during an interlocutory process. That was found by the Land Appeal Court in Cox v Commissioner of Water Resources (1992-93) 14 QLCR 304, at 326. Indeed in that decision the Land Appeal Court noted that the rules of the Land Court, as it then was, had not been revised since 1912, and were inadequate and needed a comprehensive review. That has now occurred, and the new rules provide for disclosure to occur (r.13). However care still needs to be made, as disclosure has been found to not be applicable in cases under r.221 of the Uniform Civil Procedure Rules, where a document is only mentioned in an exhibit to an affidavit (Century Drilling Limited v Guerling Australia Insurance Co Pty Ltd, 4 December 2004, QLR 1538).
Now while the powers to order disclosure now exist for this Court, the appellants have not chosen to exercise their right under the law to seek that disclosure, or in fact to seek to subpoena an officer of the custodian department to provide evidence of the valuation evidence being requested. I must therefore restrict considerations to the matter of the relevance of the information, and whether the Court had the power to issue a direction to have that information disclosed to the appellant.
In respect of the Court seeking to provide an investigation of its own volition, I note that precedents are very definitive on that matter. Indeed that was found in JL and I Qualischefski & Ors v Valuer-General (1979) 6 QLCR 167, where in considering the reasonableness of allowances made by the Valuer-General, the Land Appeal Court said at 172:
"The reasonableness of the allowances that have been made is always open to challenge on objection or appeal. However upon appeal a statutory onus of proof is cast upon the appellant and he has to accept, within the confines of the grounds set out in his Notice of Appeal to the Land Court, the burden of proving the Valuer-General incorrect. Neither this court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradiction to jurisdiction conferred under the Land Act."
That was later upheld in BT Dillon v Valuer-General (1986-87) 11 QLCR 231, where the Land Appeal Court found that the appellant (Dillon) had not discharged his responsibility under the Act to prove his case. The Land Appeal Court went on to say at 233:
"The Legislature has not given this Court any investigatory powers under the Valuation of Land Act. If the Appellant's case is not strong enough in its own right to establish the values contended for or to disprove the Valuer-General's values, the Court is not empowered of its own volition to probe the fairness or correctness of the Valuer-General's values and by this means arrive at its own estimate of value."
Clearly, where there is a difference of opinion between the parties, then the Court must not further investigate the evidence on its own volition in order to expose the correctness of the values. In seeking to understand the meaning of "investigation", I note that is taken to mean to examine, to inquire into, study carefully or make a search or systematic inquiry (Concise Oxford Dictionary). All of those terms suggest that the actions of the Court should not seek to conduct an inquiry, or to examine the information, to ensure its availability, where the matter of direct relevance may be involved. However that can be distinguished in the current application, where it was agreed that the public information did exist, but, for various reasons, was not being made available to the appellants.
While there may be a subsequent argument by the respondent that such information relating to the relativity of those parcels may have been less relevant than say the sales information, that is really a matter for the weight to be afforded to the evidence, once it has been provided to the Court. In the circumstances of the appellants' argument, the information request was seen as directly relevant to proving their case. On that basis, I do not see the Court as an investigating body, but merely one of instigating disclosure of documents, which otherwise could have been explained to the self represented appellant, who could then have taken advantage of that process, where it was as directly relevant to the self-represented appellants' evidence.
Self-represented appellants –
Mr Rabaa agrees that over a period of 100 years the Land Court has sought to guide self-represented appellants, within certain limits. Mr Rabaa concedes that the Court is well known for its efforts to assist self-represented appellants, but he argues that there are boundaries that any court cannot cross in providing that assistance. Mr Rabaa notes that self-representation is an increasing situation in many courts, even to the High Court itself. He notes that recent public statements by leading judicial officers in Australia have drawn attention to that new situation, such that new special leave applications are now closely monitored.
The principles involved in self-represented litigants was comprehensively considered by the Full Court of the Family Court in Marriage of Johnson (1997) 139 FLR 384, and in Marriage of F (2001) 161 FLR 189. Those decisions were analysed by the Australian Law Journal [2003] 77 ALJ 820, where obligations upon Family Court trial judges, when hearing cases involving self-represented litigants, were summarised as follows:
A judge should ensure:
· As far as possible procedural fairness
· Inform the person of the way the trial will proceed
· Explain any procedures relevant
· Explain the effects of interposition of witnesses
· Provide general advice that the person has the right to object to inadmissible evidence
· To inform the person of their rights
· To clarify the substance of submissions
· Where in the interest of justice in the case, attention can be referred to the applicable law; the need to question witnesses or identify submissions that should be put to the court; and suggest procedural steps or clarify particulars of orders sought.
While the rules of court in a criminal matter are different to those applying in a civil matter, they do assist in providing guidance in identifying the limits that this court can adopt in assisting a self-represented litigant. In a criminal matter a "Judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial" (McPherson v The Queen (1981) 147 CLR 512, at 524, by Gibbs CJ and Wilson J). However caution needs to be taken when involving limitations to the operation of the fairness principle, as noted in Dietrich v The Queen (1992) 177 CLR 292, where Deane J said at 334 -335:
"While the prosecution has a duty to act fairly, and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented."
If I turn then to the current application, I note that the directions of the Court were not intended to assist the appellants in providing further information upon which they had sought to prepare their case. In fact, quite to the contrary, in that the appellants had sought on several occasions to present the information which was included in the court's directions. That it had not been provided by the appellants, would appear to have been a direct result of the inability of the department's staff to fully advise the appellants of the source of the archived information.
The court direction merely sought to overcome the communication problems confronting the appellants, and on that basis the directions were more a matter of disclosure of requested information. While the appellants had not directly requested that the information be made available under disclosure requirements, the court's direction was seen as a means of clarifying for the unrepresented appellants, the information which was delaying completion of the appellants' evidence.
Site investigations
The request by the applicant/respondent for a rationalisation of the number of sites to be inspected, was further discussed with the parties. In deciding which properties needed to be physically inspected, it is important to remember that an inspection is merely to assist the court in understanding the evidence provided. It is not the purpose of the inspection to disclose further evidence not already provided for the court, but only to clarify that formal evidence. In arranging any inspection, the court must have the parties' agreement (Cacalot Pty Ltd v Sydney City Council (1996) 9 LGERA 424); and the Court must not of its own volition make an unannounced inspection ((Melwood Units Pty Ltd v Commissioner of Main Roads (1976) 3 QLCR 209, per Dunn J at 228). While that matter subsequently went to the Privy Council (1978) 5 QLCR 145, the decision of Dunn J was not overturned.
The purpose of an investigation, or a view, was clarified in ALG Group Pty Ltd v Diceys Toowong Pty Ltd (2003) 2QdR 1, where White J noted the findings of Lord Widgery in Salisbury v Woodlands [1970] 1 QB 324, where Lord Widgery referred to the judgment of Denning LJ in Goold v Evans & Co [1952] 2 TLR 1189, who said at 1191:
"It is a fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of the evidence, just as much as an exhibit. It is real evidence. The Tribunal sees the real thing instead of having a drawing or photograph of it. But, even if a view is not evidence, the same principles apply. The judge must make his view in the presence of both parties, or at any rate, each party must be given an opportunity of being present. The only exception is when a judge goes by himself to see some public place, such as the site of a road accident, with neither party present."
If I then turn to the request for inspections in the current matters, Mrs Lamb originally asked for an inspection of 21 properties, which were located in seven general areas of Brisbane. Mr Rabaa requested that, in view of the considerable times required in travelling and inspecting those sites, that the numbers should be reduced to perhaps 8 or 10 sites. The evidence before the court involves about 40 sites for the appellant, and 4 sites for the respondent in three separate areas. Those sites are involved in the three years of valuations in these appeals. In addition, there is also an inspection of the subject land, and the surrounding three properties, one of which is a sale.
In summarising the requested visits, and after further concessions by Mrs Lamb with a view of rationalising travelling times, I believe that, as evidence would have already been given in respect of each site visited, the time for briefing and preparation would be a minimal extra cost. Mr Rabaa agrees that where properties are very closely collated close to each other, than travelling would not be a problem in those cases.
Having considered the request from both parties, I determine that inspections will be restricted to the following areas:
· Kangaroo Point – subject land, two properties and one sale
· East Brisbane – two sales and three properties
· West End – one sale
· Yeronga – two properties
· Indooroopilly/Toowong – two properties
· Bowen Hills – three properties
· Hamilton – four properties and one sale
Those visits should be able to be completed in one day, which in view of the volume of evidence, involving three separate appeal periods, appears reasonable in the circumstances.
Summary –
In summarising this application, I reject that the Court has sought to assist the appellants in preparing their case. The directions of the Court provided clarification of the information that had been sought by the appellants to no avail. Both parties agreed that they knew that the required information was part of the official State records, and should therefore have been available. The directions were therefore directed by the Court to provide disclosure of those documents. I therefore find that the Court did have the jurisdiction to issue those directions under those circumstances, and the application is refused.
In the end, the wording of the application for the Court to rescind the Court directions has in itself resulted in the information now being available to the appellants to allow them to complete their evidence. On that basis I agree that the directions are no longer necessary, and therefore their implementation is withdrawn.
NG DIVETT
MEMBER OF THE LAND COURT
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