Lowry v Coordinator-General
[2011] QLC 58
•31 August 2011, Ex Tempore
LAND COURT OF QUEENSLAND
CITATION: Lowry -v- Coordinator-General [2011] QLC 0058 PARTIES: David Lowry
(applicant)v. Coordinator-General
(respondent)FILE NO: AQL204-11 DIVISION: General Division PROCEEDING: Application to exclude and limit evidence DELIVERED ON: 31 August 2011, Ex Tempore DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, PA Smith ORDER: 1. Mr Litherland produce a copy of the search of vacant land sales in Burua, Beecher and the Gladstone area to which he has referred to in his evidence;
2. If the search referred to in order 1 cannot be located, that a duly qualified person be retained by the respondent to attempt to retrieve the search and, if that does not succeed, a statement is to be provided by that person explaining the steps the person has undertaken and any relevant circumstances as to absence of the search or the inability to retrieve such search;
3. Costs of and incidental to the application brought by the applicant on Wednesday, 31 August 2011, are reserved;
4. The parties are further directed as follows:
(a) If the applicant intends to bring an application to call rebuttal evidence, the applicant is to file and serve on or before 4.00pm Monday, 17 October 2011, an affidavit of any lay witness it intends to seek to call rebuttal evidence from; and
(b) If the applicant intends to bring an application to call further evidence from Mr Cupitt, the applicant is to file and serve, on or before 4.00pm Monday, 17 October 2011, and by way of report, any further evidence from Mr Cupitt which it intends to seek to call (other than any evidence arising from the search referred to in order 1 above);
5. Liberty to apply upon the giving of two (2) days notice.
CATCHWORDS: Oral application to exclude and limit expert evidence during cross-examination – regard had to sales evidence not mentioned in the expert’s report – database search characterised as an “electronic document” capable of disclosure – whether any probative evidentiary value – s.7 of the Land Court Act 2000 – Court not bound by the rules of evidence – principles of equity, good conscience and fairness – prejudice to the applicant APPEARANCES: Mr G Allan of Counsel
Mr D O’Brien of CounselSOLICITORS: Mr D Ellerman of Anderssen Lawyers for the applicant
Ms C Gill of Corrs Chambers Westgarth Lawyers for the respondent
The applicant has brought an application to the Court during cross-examination of Mr Litherland, the expert valuer called by the respondent in these proceedings. The order sought by Mr Allan, Counsel for the applicant, is in the following terms: that Mr Litherland be directed, that in response to any question asked of him as to the evidence he relied upon, he is not permitted to refer to his valuation and inspection or investigation or any other information that he may have obtained with respect to vacant land sales in Beecher and Burua, or any other locality howsoever described in the Gladstone regional area. Mr Allan also seeks an order that certain evidence already given be excluded. In the alternative Mr O'Brien, Counsel for the respondent, has suggested, whilst opposing the making of any order at all in this matter following Mr Allan's application, that an appropriate order, if I was minded to make one, would be something along the lines that the respondent not be entitled to lead evidence as to vacant land sales.
It is necessary to refer in some detail to the manner in which this application arises.
During cross-examination Mr Litherland gave the following evidence.[1]
“Now, you too, Mr Litherland utilised, as a check method, the summation method‑‑‑‑‑?‑‑ Yes.
‑‑‑‑‑of valuation, except, in order to derive land values, you undertook an analysis. You didn't rely on any vacant land sales, did you, when you completed your summation approach?‑‑ I relied broadly upon the market sales in the Burua and Beecher area. I saw that as a comparable locality to the subject.
I - I'm concerned, Mr Litherland, in respect of the vacant land sales, and your methodology in your secondary method evaluation, the summation method. As I read your report, you didn't refer to, or rely upon, any vacant land sales when using that method. Have I read your report incorrectly?‑‑ I've said, "We've adopted land values based on analysis of sales in rural residential areas, prominently the developing areas of Beecher and Burua."
Yes, Mr Litherland. That's what you've said. You haven't relied on vacant land sales. You've relied on an analysis of improved sales?‑‑ That's incorrect.
You have relied on vacant land sales using the summation method then. Is that correct?‑‑ Yes, I was having - I had regard to vacant sales.
And you haven't referred specifically to any vacant land sales in your report, which is Exhibit 11, in the context of the land components that you've derived, or arrived at, using the summation method. Is that correct?‑‑ That is correct.
But - and - I withdraw that. You didn't see fit to include reference to any vacant land sales in your Court report, Exhibit 11. Well, they're not there?‑‑ They're not there. Perhaps I should have.”
[1]Transcript pages 3 to 57, from lines 3 through to 40
The crucial evidence in this regard is that Mr Litherland said that he had regard to vacant land sales. Importantly Mr Litherland, in his report (Exhibit 11) has not referred to any vacant land sales specifically. However, he does make the following reference at page 33 of Exhibit 11 under the heading 7.4 "Summation Approach":
"We have adopted land values based on analysis of sales in rural residential areas predominantly the developing areas of Beecher and Burua on the southern outskirts of Gladstone. Our land value represents a site value as improved and includes the extensive site works undertaken on the subject site as preparation for the onsite dwelling."
It is also appropriate to have regard to the joint report of the valuers Mr Cupitt and Mr Litherland, which is Exhibit 4, and particularly to Items 5 and 6 as located on page 6 of the joint report. They are in the following terms:
“ No
…Main areas of discussion Denis Cupitt Comments Wayne Litherland Comments 5 As to the use of Vacant Sales in the Summation Method by Mr Cupitt I disagree with using improved sales when there are relevant vacant land sales available for use Two of the vacant sales have limited comparability. Better evidence would come from defined rural residential areas such as Beecher and Burua 6 The degree of comparability of Mr Cupitt’s Vacant Sales to determine Land Value of Subject. I consider that it is the preferred method to determine the land component if vacant land sales are available when using the Summation Method The sales have limited comparability. They have different zoning, location and services · 1 Matson Crescent, West Gladstone Direct Not comparable. Superior location and zoning. Purchased by an adjoining owner who had previously paid $1.45 million for adjacent 7 Upper Piper Street · Lot 73 Haddock Drive, O’Connell Inferior Not known but appears some assistance from valuer description · 4 Chaplin Court, West Gladstone Direct Not comparable. While bought as homesite the site had development approval for 13 residential lots. Only 2km from town centre. ”
The reason that this evidence is of such importance, from the applicant's perspective, is that by orders of 22 June 2011, at order 2, the Court made the following order: "The parties shall exchange a list of any sales evidence which their respective valuers consider to be relevant to the determination of the claim on or before 4pm 30 June 2011”. Mr Allan, for the applicant, has suggested that the evidence given by Mr Litherland to date severely prejudices the applicant in that Mr Cupitt has not been able to consider the vacant land sales to which Mr Litherland has had regard, as set out in his evidence at page 57 of the transcript as referred to above.
Mr Allan has also suggested that failure by Mr Litherland to provide details of the vacant sales that he has relied upon essentially amounts to a contempt of Court, in particular a contempt of order 2. He says that the disadvantage is significant to the applicant and at this point has a marked impact on the case for the applicant, in particular evidence which may have been led by Mr Cupitt, which was not led in light of both Mr Cupitt's and the legal representatives for the applicant's understanding of the evidence of Mr Litherland.
For his part, Mr O'Brien says that there is nothing unusual in the evidence of Mr Litherland. He gives a logical explanation to both the joint report and to the statement at page 33 of Exhibit 11 and says that all Mr Litherland has done is, in effect, what valuers do throughout their careers, and that is to rely upon a general knowledge of sales in an area in helping them both pick out individual sales that they are to rely upon and to be content in their own mind that the valuation that they have reached is an appropriate valuation. Mr O'Brien also contends that if there is any jeopardy to be suffered by the applicant, then that can be answered by the applicant during the continued cross-examination of Mr Litherland.
It is unfortunate that this matter has arisen at this point in the proceedings for a number of reasons; not the least being that the Court is already in what is essentially the fifth day of the hearing of the matter that was originally expected to last three days. The hearing has also been spread over three different sitting periods, and the time is now almost a month removed from when the case commenced in Gladstone. I say this because Mr Litherland is due to fly out of the country tomorrow and if there is to be any delay to the hearing then, clearly, there will be costs and other ramifications to the parties. It is also, of course, the fact that the matter has come up late in the cross-examination of Mr Litherland.
Being concerned as to the actual nature of the evidence that was given by Mr Litherland and with the concurrence of both counsel, Mr Litherland returned to the witness stand and answered a number of direct questions from myself. The summary of his evidence is that what he was referring to, when he said that he did have regard to vacant sales, was that he undertook a search on one of the relevant search engines to look up vacant land sales in the Gladstone region and that he looked at those sales and considered that they were broadly in line with the conclusions that he had reached in his valuation. This, in itself, raises many interesting questions as to whether or not there is actually in existence any document upon which both reliance can be had and which ought to have been disclosed to the applicants.
In my view, the conducting of a search of a database and reliance upon the results of that search by an expert is an electronic document that has probative evidentiary value in a proceeding. I am aware that there are procedures available to have recourse to electronic documents obtained via websites, even at a later date to that time at which the search was undertaken. The important point, though, remains that there at least was, at the date that the search was undertaken by Mr Litherland, a form of an electronic document in existence, being a schedule of sales that he relied upon to confirm his view as to his valuation report which is now Exhibit 11. That, certainly, though is not the end of the matter.
The Land Court, of course, is an interesting being all of its own. As the Land Court Act 2000 sets out in s.4(1), the Land Court is “a specialised judicial tribunal called the Land Court”. Just precisely what a specialised judicial tribunal is, is itself a matter of some debate, particularly when the Land Court Act is merely an Act continuing the existence of the Land Court which has been a court of this State since the 1890s, at least. Nevertheless, the fact remains that the Land Court is a different species of court to courts of inherent jurisdiction, such as the Supreme Court. This is particularly relevant when full regard is had to provisions of the Land Court Act. Section 7 of the Land Court Act provides as follows:
“7 The Land Court is to be guided by equity and good conscience.
In the exercise of its jurisdiction, the Land Court –
a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of the other courts."
Even that provision is subject to a proviso, and that is found in s.32J of the Land Court Act which states that the Land Court has the power of the Supreme Court for particular purposes. Importantly, in this case the Land Court has the power of the Supreme Court for matters arising under the State Development and Public Works Organisation Act 1971 but does not have the powers of the Supreme Court with respect to applications under the Acquisition of Land Act 1967. Of course, this is a resumption that is undertaken by the Coordinator-General, as I understand it, under the State Development and Public Works Organisation Act but applying the provisions of the Acquisition of Land Act for the actual determination of compensation. So, even s.32J raises interesting jurisprudential questions as to what powers the Court is to exercise in a matter such as this.
The question of what it means for a judicial body to not apply, or not be bound by, the rules of evidence, has itself been subject to much discussion, both by commentators and by the judiciary. As Mr Justice Giles said in his article "Dispensing with the Rules of Evidence" in the Australian Bar Review[2]:
[2] (1991) 7 Australian Bar Review 233
“Writing in 1947, Maguire said that:
… a student of evidence must accustom himself to dealing as wisely and understandingly as possible with principles which impede freedom of proof. He is making a study of calculated and supposedly helpful obstructionism.
The thrust of the chapter in which this appeared was that the rules of evidence were generally concerned with excluding relevant evidence, rather than evaluating the evidence which was let in – regarding as relevant evidence anything which had a logical tendency to establish one way or another the contested issues of fact. The description of the rules of evidence as exclusionary of probative material is generally accepted, see Cross on Evidence stating that by those rules ‘the law of evidence declares that certain matters which might well be accepted as evidence of a fact by other responsible inquirers will not be accepted by the courts’.
Why should relevant evidence, probative evidence, evidence upon which we may act in everyday life, be excluded? Thayer espoused a theory of evidence by which –
... the rules of evidence should be simplified; and should take on the general character of principles, to guide the sound judgment of the judge, rather than minute rules to guide it. The two leading principles should be brought into conspicuous relief, (1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.”
An interesting case, considering just when the principles should be applied, was the High Court decision of R v War Pensions Entitlement Appeal Tribunal; ex parte Bott[3]. In that case Justice Everett was in the minority, but he made the following comment which has been oft repeated[4]:
"Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of enquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’."
[3] (1933) 50 CLR 228
[4] Ibid at 256
How, then, does one administer substantial justice in a case such as this? Justice Giles, in the article I referred to earlier, makes the following pertinent observation[5]:
“ Commonly, natural justice will require that the opposing party be allowed to test the evidence by some form of cross-examination. But natural justice does not necessarily require testing by cross-examination (see Bott’s case), and fairness may be met by an opportunity to contradict and comment. Even to the contrary: in Bushell v Secretary of State for the Environment Lord Diplock suggested that cross-examination might be unfair as ‘over-judicialising’ an administrative enquiry.
Natural justice may go so far as to require that evidence which is relevant none the less be excluded because it would be unfair to admit it. For example, in Re Pacific Film Laboratories Pty Ltd and Collector of Customs, the Administrative Appeals Tribunal rejected the tender of the transcript of a tariff enquiry because it would be unfair to have regard to it when the applicant had had no opportunity to cross-examine those who appeared before the enquiry. With this may be compared Re Barbaro and Minister of Immigration and Ethnic Affairs where Davies J admitted the Woodward Report (the Royal Commission into Drug Trafficking) for its findings in relation to the applicant although the applicant had not appeared before the Commission. Another example comes from R v Hull Visitors; Ex parte St Germain (No 2) where it was said by the Divisional Court that although the tribunal could receive hearsay evidence, the overriding obligation to provide a fair hearing could mean that if the original source of the evidence was not available for cross-examination the tribunal might have to exclude it.”[5] (1991) 7 Australian Bar Review 248
In seeking to have evidence already given in open Court excluded in this matter, Mr Allan has relied upon the case of R v Shaw[6]. Certainly that case does give some support to the application made by Mr Allan. However, I note that that case involved a hearing before a jury and for those reasons alone, I believe care should be taken by this Court before applying that decision per se directly to the case at hand.
[6] (1917) 17 State Reports New South Wales 383 and 34 Weekly Notes 150 at 152
Mr O'Brien has provided the Court with a copy of the case Ex parte The Queensland Law Society Incorporated[7], a decision of Justice McPherson of 11 October 1983. That case also sought the exclusion of evidence and Justice McPherson made the following comments[8]:
“…But if the order sought were made and it then became known or suspected that it had been made, the probable result would be that a sinister and more damaging interpretation would be placed upon the matter. The order might then have to be revoked in order to permit publication. What was said by Denman as counsel in his submissions to the King’s Bench in R v. Clement in 1821 therefore remains as true as it was over 150 years ago: “it is for the public benefit that a faithful account should be published of a transaction of which they might otherwise receive only a garbled account from the mouths of individuals”. It is the duty of those who choose to publish to ensure that what is published is a faithful account; but in this case no constraint can be imposed by the Court to prevent them from doing so. The application is accordingly refused.”
[7] (1984) 1 Qd R 166
[8] Ibid at 171
Insofar as the application is made by Mr Allan to have the evidence given by Mr Litherland relating to his reliance upon vacant land sales excluded, for like reasons as those set out by Justice McPherson in Queensland Law Society I do not believe that those orders should be made. It would create confusion when the record of this matter was being considered, particularly in circumstances where as much time and effort has been put into this matter as is apparent from these reasons.
However, that certainly does not end the matter. There remains the issue raised by Mr Allan of the relevant unfairness that has been suffered by his client because of the reliance by Mr Litherland on evidence which has not been produced to the Court. Somewhat reluctantly I agree with Mr Allan in this regard. I say somewhat reluctantly because there is real scope that at the end of the day not much will turn on this issue, given that the evidence by Mr Litherland relates to his check method and not to his primary method of valuation. Nevertheless, he has indicated under sworn evidence that he did undertake a specific search of specific sales and that those searches were not only for the purpose of general knowledge but, as he indicated in his evidence from the transcript at pages 3 to 57, were sales that he had regard to in determining the appropriateness of his check method and to, thus, his valuation report as set out in Exhibit 11.
That leaves the Court with a dilemma as to how to resolve the issue. In that regard, I wish to make a number of observations upfront. The Court is aware that it is dealing with a matter of compulsory acquisition. By its very nature, compulsory acquisition involves actions by the State or relevant authority when an individual or corporation loses their land in circumstances where it has not been their choice to have their land taken. That is clearly the situation in this case where the evidence shows that the applicant thought he had located his ideal house site in the early 1990s where he planned on living for the bulk of his life.
As matters transpired, as they so often do in life and which we must all accept in a developed society such as we live in, due to the industrial growth of the State in the Gladstone area in particular, the land owned by the applicant was required by the State for State development purposes which ultimately led to its compulsory acquisition. The fact that the value of the property cannot be agreed and that it is now a matter before this Court, all stems from the fact that we have a compulsory acquisition to begin with. That, of course, does not mean that the Court is blind to the position of the State in this matter and that the State should not be put to unreasonable and over burdensome costs in having its case properly put before the Court.
The Court must endeavour to resolve these matters with equity; with fairness; and doing justice as best it can pursuant to s.7 of the Land Court Act. However, in saying that, and taking account of the respective positions of both parties, at the end of the day, should matters such as this require additional Court time or the time of evidence which has been brought about because of the actions of one party or another, then there always remains the remedy of costs that can be ordered by the Court, and I also take that into account.
My overriding view is that even if it causes delay the principles of fairness require me to allow Mr Cupitt to be able to consider sales evidence considered by Mr Litherland and for Mr Litherland to therefore produce to the Court the sales evidence that he relied upon as referred to in his evidence.
(After seeking guidance from the parties as to what the appropriate orders should be, consistent with these reasons, the orders that follow were made.)
Orders
Mr Litherland produce a copy of the search of vacant land sales in Burua, Beecher and the Gladstone area to which he has referred to in his evidence;
If the search referred to in order 1 cannot be located, that a duly qualified person be retained by the respondent to attempt to retrieve the search and, if that does not succeed, a statement is to be provided by that person explaining the steps the person has undertaken and any relevant circumstances as to absence of the search or the inability to retrieve such search;
Costs of and incidental to the application brought by the applicant on Wednesday, 31 August 2011, are reserved;
The parties are further directed as follows:
(a) If the applicant intends to bring an application to call rebuttal evidence, the applicant is to file and serve on or before 4.00pm Monday, 17 October 2011, an affidavit of any lay witness it intends to seek to call rebuttal evidence from; and
(b) If the applicant intends to bring an application to call further evidence from Mr Cupitt, the applicant is to file and serve, on or before 4.00pm Monday, 17 October 2011, and by way of report, any further evidence from Mr Cupitt which it intends to seek to call (other than any evidence arising from the search referred to in order 1 above);
5. Liberty to apply upon the giving of two (2) days notice.
PA SMITH
MEMBER OF THE LAND COURT
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