Marshall v Director-General, Department of Transport

[1998] QLAC 81

[1998] QLAC 81

 

 

IN THE LAND APPEAL COURT BRISBANE

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

BETWEEN:

Melville Robert Marshall and

Director-General, Department of Transport

(Claimant/Appellant)

(Respondent)

REASONS FOR JUDGMENT

Judgment delivered this Twenty-fourth day of July 1998.

The applicant has appealed from a decision of the Land Court, delivered on 20 February 1998, determining compensation at $348,446 for land resumed by the respondent for road purposes in connection with the duplication of part of the Bruce Highway. Prior to the duplication project, the appellant's land fronted the Bruce Highway, which comprised two lanes only. As a result of the duplication project, the former road became the south-bound lanes. The new north-bound lanes were constructed to the west of that road and the resumption was undertaken for the construction of those lanes.

The appellant has applied to the Land Appeal Court under section 44(13) of the Land Act 1962 for leave to adduce further evidence on appeal. The evidence in respect of which the application is made is set out in an annexure to the outline of submissions on behalf of the appellant. It includes two affidavits by Maxwell Francis Winders sworn on 24 April 1998 and 7 May 1998. Annexed to Mr Winders' first affidavit is a document entitled "Maroochy Road Upgrade - Bruce Highway to Sunshine Motorway - Eudlo Creek Flood Study", which he describes as part of a three volume report, prepared by Connell Wagner Pty Ltd, Consulting Engineers, for the Department of Transport and Main Roads dated 26 August 1996 ("the Connell Wagner Report").

In summary the further evidence sought to be adduced by the appellant is in relation to:

(a)the complete Connell Wagner Report;

(b)a complete survey of the Eudlo Creek flood plain prepared for the Department of Transport since the conclusion of the hearing of the claim by the Land Court in November/December 1996;

(c)Department of Transport tender specifications for further flood modelling of the Eudlo Creek flood plain and catchment;

(d)a physical survey of the appellant's pre-resumption boundary fronting the Bruce Highway by way of excavation or test bore holes to ascertain the exact position of the resumed land in relation to the structure of the highway duplication; and

(e)a supplementary report of Maxwell Francis Winders (yet to be prepared).

Background to the Application

Part of the appellant's amended claim before the Land Court of $1,253,904.24 (or alternatively $1,143,926.24) included an item for injurious affection of $651,325. This injurious affection claim was based on the fact that before resumption the Bruce Highway was a two-lane carriage-way which since resumption has become the south-bound highway. As part of the duplication scheme the drainage system for Eudlo Creek and its anabranch under the former Bruce Highway was altered. The claimant considered the new drainage was inadequate and resulted in the appellant's land being flooded in February 1992.  During a previous rainfall event of notable proportions in 1983, the land had not been inundated.

The claimant contended that the highway duplication brought about the 1992 flooding and had reduced the value of his remaining land because of the prospect of further flooding. Mr Winders gave evidence for the claimant in the Land Court that the highway duplication caused the 1992 flooding of the claimant's land. Having employed a hydraulic model of the Eudlo Creek flood plain, he concluded that the north-bound carriageway upgrading was at a profile generally higher than the original highway and that the drainage of water through the new drainage system was inadequate.

In the Land Court the respondent called Mr CA Russell, a Consulting Engineer employed by Connell Wagner Pty Ltd, who tendered a report which became Exhibit 16 ("the Russell Report"). Mr Russell carried out investigations and studies similar to those undertaken by Mr Winders, but used a different methodology and some different data.  He concluded that the main cause of the increased flooding was the claimant's own embankments and not the highway duplication project. As the Land Court put it, "The disagreement between Mr Winders and Mr Russell ... occupied centre stage in the evidence."

The Land Court found that the road surface of the new north-bound carriageway, the new culverts and the extended bridge, are all located on the original road reserve. Therefore, the principle in Edwards v. The Minister of Transport [1964] 2 QB 134 applied and the claim for compensation for injurious affection could not be entertained at law. Having come to that conclusion, the Land Court did not have to make a finding in relation to the evidence of Mr Winders and Mr Russell.

The Land Court also found that although the embankment supporting the north-bound carriageway was not located on the resumed land, the "rock spill" of the embankment of the new road was located partly on the original road reserve and partly on the resumed land. The Court went on to hold the "rock spill" was not part of the works which caused the flooding. It found that there was both a primary and a secondary batter and the primary batter was located within the road reserve, not on the resumed land.

However, when he made that finding, the Member went on to say at pages 19-20: "       What is not clear to me on my understanding of the surveying

evidence and Mr Breene's evidence both oral and documentary, is whether a line of projection along the primary batter would reach a point on the natural surface level inside the eastern boundary of the resumed land. In other words, is any part of the pre-existing natural surface level in the resumed land supplying a support to

the primary batter? It may be that the question I raise is quite irrelevant, however, given that the matter has troubled me for some time, I thought it only fair that I express my concern."

(Mr PJ Breene was a civil engineer who gave evidence in the Land Court for the respondent.)

The Statutory Provisions

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

"          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."

Those provisions, which took effect from 1 January 1994, have been considered by the Land Appeal Court in Director-General, Department of Transport v. Hibiscus Holdings Pty Ltd (1995) 15 QLCR 408, JT and LJ Barns v. Director-General, Department of Transport (1995) 15 QLCR 544, LR and MM Bignell v. Chief Executive, Department of Lands (1995) 15 QLCR 528 and S Paino and Heavey Lex No 64 Pty Ltd v. Director-General, Department of Transport (unreported decision of the Land Appeal Court dated 29 May 1996), and GG and HR Kuhn v. The Crown (unreported decision of the Land Appeal Court dated 25 June 1998).

The Appellant's Submissions

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

The appellant has submitted before us that the admission of the evidence referred to is necessary to avoid grave injustice to him in the prosecution of his claim for compensation and in the determination by the Court of the proper award of compensation.

The reasons that the evidence was not previously given to the Court were that, at the time of the hearing, the appellant did not know of its existence (in the case of the Connell Wagner Report) or the evidence did not exist (in the case of the survey of the Eudlo Creek flood plain, the Department of Transport's tender specifications and Mr Winders' affidavits) or the evidence does not yet exist (in the case of the yet-to-be undertaken physical survey and Mr Winders' supplementary affidavit).

Mr Winders' First Affidavit

Before the Land Court, both Mr Winders and Mr Russell gave evidence of using computer models of the Eudlo Creek flood plain to demonstrate the effect of the road construction on the flood levels on the claimant's land. In his first affidavit of 24 April 1998, Mr Winders explained that he used a computer modelling software known as "MIKE-11". He concluded that the respondent's actions in duplicating the highway increased flood levels in certain theoretical flood events. His conclusions were used by other experts to estimate the damage that such increased flood levels would cause to the claimant's land. Mr Russell used different modelling software, known as "RUBICON", which showed that increases in flood levels to the claimant's land were substantially less than those shown by Mr Winders' model. For reasons explained previously, the Land Court made no findings as to which evidence it preferred.

The Connell Wagner Report

In about February 1998, more than a year after the conclusion of the Land Court hearing,

the claimant became aware of and obtained an incomplete copy of the Connell Wagner Report dated 26 August 1996. It had been prepared by a Mr T Graham, and verified and approved by two officers  of  Connell  Wagner  who  had  also verified and  approved the  Russell  Report. According to Mr Winders, the three volume Connell Wagner Report directly concerns the Eudlo Creek catchment immediately downstream of the claimant's land, the resumed land and the highway upgrade. He states that the report considered flooding behaviour in the Eudlo Creek catchment upstream, including the Bruce Highway and the claimant's land. He states that the Connell Wagner Report used the same "MIKE-11" modelling software which he used for his report for the Land Court hearing. However, Mr Winders points out that the copy of the Connell Wagner Report which he obtained is incomplete, as it does not contain certain cross-sections which were relied on to reach the conclusions made in the report. Mr Winders alleges that Mr Russell made assumptions in his computer model which are at variance with the Connell Wagner Report and which would greatly affect the results and the conclusions that could be made therefrom.

Mr Winders states at paragraph 40 of his affidavit:

"I am yet to see the full contents of volume 3 of the report ... and I am not aware of all the modelling parameters and cross-sections used in the modelling referred to in the report ... "

Mr Winders goes on to state that he was able to reach a "preliminary opinion" that the model results in the Connell Wagner Report "sit comfortably" with the model results that he reached in his report to the Land Court and do not appear consistent with the model results reached by Mr Russell. Details of some of the differences between the two models are provided by Mr Winders in his second affidavit of 7 May 1998.

It seems to us that the further evidence sought to be adduced will therefore need to include a further report by Mr Winders which reaches conclusions based upon the Connell Wagner Report, presumably after the other parts of the report have been obtained.

A Complete Survey of the Eudlo Creek Flood Plain

In his first affidavit of 24 April 1998, Mr Winders refers to the fact that the respondent had engaged surveyors to conduct a complete survey of the area included in the Connell Wagner Report and the area immediately upstream of the highway upgrade, including the claimant's land. He had been provided with a copy of part of the survey, but he would need a copy of the full survey in order to properly examine and reach any conclusion in connection with the Connell Wagner Report.

Department of Transport Tender Specifications

In the same affidavit Mr Winders states that he is aware that the Department of Transport has called for tenders to conduct a further investigation of flood modelling of Eudlo Creek. He states that he needs copies of the tender specification and information prepared for the use of the tenderers in order to reach any proper conclusion about the effect of the highway duplication on the claimant's property.

Mr Winders goes on to state that only after he has been provided with the required information concerning the matters above, " ... and subject to any further information required or needed ...", would he be in a position to provide a report to the Court.

Obviously at this stage Mr Winders does not know whether the required information will assist the appellant's case, but if it does, he will provide a further report.

But that is not all that the appellant seeks.

Physical Survey of the Appellant's Pre-Resumption Boundary

Mr Winders states in his first affidavit that the appellant wishes to adduce further evidence on whether any part of the resumed land is beneath the highway duplication. The appellant proposed that a physical survey be conducted by way of excavation or test holes. This arose in response to the question expressed by the Member of the Land Court at page 20 of his judgment as to whether any part of the pre-existing natural surface level of the resumed land is supplying a support to the primary batter.

The Arguments

Mr Mack, counsel for the appellant, conceded that the appellant was not in a position to state precisely the evidence he wished to adduce. He realised that this was contrary to the principle in Hibiscus, that it is necessary for the party seeking to adduce further evidence to specify with precision the further evidence sought to be led. He was fortified, however, by the expression of the Court in that case that:

"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 ... 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 ..." (at p.419).

Mr Gibson Q.C., senior counsel for the respondent, submitted that neither the affidavits of Mr Winders (including the incomplete Connell Wagner Report), nor the appellant's submissions, reveal any evidence tending to show that the decision of the Land Court was wrong, or that the findings might have been influenced if such evidence was admitted, or it would be likely to affect the outcome of the appeal or, if not admitted, would lead to grave injustice. In support of those contentions, the respondent's argument proceeds as follows:

Mr Winders had not seen the full contents of the Connell Wagner Report, but he does not contend that it contains more detailed information, or is based on more detailed analyses of relevant issues. The report was prepared for a specific project having nothing to do with the evidence relied by either party before the Land Court. It involves a different study area downstream of the subject land. The transcript of the Land Court proceedings shows that Mr Russell had access to both the "RUBICON" and "MIKE-11" software, but had elected to use "RUBICON" because it addressed bridge structures. He was of the view that a more accurate outcome was likely by using the "RUBICON" model.

Mr Winders' "preliminary opinion" that the result of the Connell Wagner Report would "sit comfortably" with his evidence does not appear consistent with that of Mr Russell. Even if Mr Winders gained access to the full report, he would have to carry out further investigations and prepare another report. He is unable to say whether the final conclusions to be drawn from his further investigations would support the appellant, or the respondent, or be inconclusive. The application is primarily an attempt to secure from the Land Appeal Court an order for discovery of the Connell Wagner Report. It can be put no higher than that the appellant is hopeful that it will assist his case. The Land Court does not have the power to order discovery: Cox v. Commissioner of Water Resources (1992) 14 QLCR 304.

In relation to the survey data, Mr Winders' offers no opinion as to whether or not if such evidence was to be permitted, it might lead to a different conclusion.  No attempt had

been made to obtain the survey data under the Freedom of Information Act 1992 and Mr Winders does not depose to the survey being much more detailed. Therefore, the appellant has not shown that the refusal to admit the proposed evidence would be likely to lead to a grave injustice.

In relation to the Department of Transport tender specifications for further investigation of flood modelling of Eudlo Creek, the appellant seems to foreshadow a future application to adduce further evidence.

In relation to the proposed geotechnical evidence, the appellant having lost on that issue before the Land Court now says that he should have done some sort of geotechnical investigation to determine whether the embankment is constructed on the resumed land. Since the amendment of section 44(13), the appeal is not by way of re-hearing de novo. The appellant really seeks an order to permit him to do what would otherwise be a trespass. Surveying and engineering evidence was led in the Land Court.

The appellant and the respondent each called two surveyors and one engineer. The evidence of Mr Breene, the civil engineer called by the respondent, went directly to the issue of what structures constructed by the respondent were on the resumed land.

In respect of the second limb of section 44(13)(a)(i), the respondent submits that the appellant has not shown why the proposed survey or geotechnical evidence could not have been put before the Land Court below. The relevance of the principles in Edwards' case was recognised by counsel for the appellant at the commencement of the hearing. But, having lost on that matter, he now seeks to remedy the defect in his evidence by producing further evidence.

Conclusions

In our view, neither limb of section 44(13)(a)(i) is satisfied. The appellant has not been able to identify the grave injustice which must be avoided by the admission of this further evidence. For that matter he has not been able to specify with any precision the description of the proposed evidence which would enable this Court to determine whether its non-admission would occasion grave injustice (Hibiscus at 419).

The appellant does not know what the new evidence will show. He is certainly not able to demonstrate there exists a real prospect of the proposed new evidence affecting the decision of this Court on the issues to which it is addressed. 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 (Barns at 549).

Quite apart from the question of whether this Court has the power to order that the appellant be granted access to the resumed land to make excavations or drill test holes, the appellant should have considered whether his evidence was sufficient in the Court below. Where he has chosen to conduct a case before the Land Court on one basis rather than another that was open to him, it is difficult for him to now attempt to say that the exclusion of evidence that was then open to him would result in grave injustice (Paino at 3).

In relation to the Connell Wagner Report, the appellant argued that he was not aware of its existence at the time of the hearing. We are satisfied that the Connell Wagner Report is for a specific and different purpose. The title of the report is "Maroochy Road Upgrade - Bruce Highway to Sunshine Motorway - Eudlo Creek Flood Study". It seems to us to relate to an area which is unconnected, or at best, only marginally connected, with the subject land. We feel, therefore, that it cannot be said that the evidence was deliberately withheld for reasons of tactics or costs. It may well be that it was simply not considered relevant.

The transcript of the proceedings below and, indeed, the decision of the learned Member of the Land Court, clearly show that the principle in the Edwards' case was recognised by the appellant as an issue. With knowledge of the issues to be determined, his advisers decided what surveying and engineering evidence should be necessary and proceeded accordingly.

For these reasons, the appellant has not satisfied us that the admission of the evidence is

necessary to avoid grave injustice. He is not able to demonstrate that the evidence will advance his case, because at this stage he does not know what it contains. Even if this Court had the power to make the various orders sought, he has not shown any reason why we should.

The application is dismissed.

JUSTICE OF THE SUPREME COURT

PRESIDENT OF THE LAND COURT

MEMBER OF THE LAND COURT