Martinovic v Valuer General

[2008] NSWLEC 287

Land and Environment Court

of New South Wales

CITATION:

Martinovic v Valuer General [2008] NSWLEC 287

PARTIES:

APPLICANT:
Radoje Martinovic

RESPONDENT:
Valuer General

FILE NUMBER(S):

30736 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Appeal :- from Commissioner on a question of law - whether actual or apprehended bias of Commissioner - whether Commissioner failed to give reasons.

Bias: - whether actual or apprehended bias of Commissioner.

LEGISLATION CITED:

Land and Environment Court Act 1979 (NSW), ss 12, 34. 56A
Valuation of Land Act 1916 (NSW), s 37

CASES CITED:

Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Coles v Woollahra Municipal Council (1986) 59 LGERA 133
Martinovic v Valuer General [2008] NSWLEC 119
Martinovic v Valuer General [2008] NSWLEC 144
Martinovic v Valuer General [2008] NSWLEC 1187
Roggiero v Valuer General (NSW) (2008) 159 LGERA 411
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16

DATES OF HEARING:

18 September 2008

EX TEMPORE JUDGMENT DATE:

18 September 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Mr R Martinovic (in person)
SOLICITORS
N/A

RESPONDENT:
Ms M Carpenter
SOLICITORS
Crown Solicitor's Office (NSW)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

18 September 2008

30736 of 2007

RADOJE MARTINOVIC v VALUER GENERAL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an appeal by the applicant, Mr Radoje Martinovic, against a decision of Acting Commissioner Parker of 27 May 2008. The appeal is under s 56A of the Land and Environment Court Act 1979. Such appeals are confined to questions of law.

2 Mr Martinovic, who is a litigant in person, commenced the proceedings in Class 3 of the Court’s jurisdiction pursuant to s 37 of the Valuation of Land Act 1916. These proceedings are in the nature of an appeal against the land value assessed by the Valuer General, the respondent, in respect of the property known as 66 Torkington Road, Londonderry, as at the base date 1 July 2006. The land value was assessed by the Valuer General at $506,000 and by Mr Martinovic at $250,000.

3 A conciliation conference under s 34 of the Land and Environment Court Act 1979 was conducted by Acting Commissioner Miller on 31 October 2007. The matter was not resolved at the conciliation conference. The matter was set down for hearing to commence on 18 March 2008 on site and thereafter to continue at the Penrith Court House. On that date, after the onsite inspection had occurred and the hearing had commenced at the Penrith Court House, the hearing was adjourned as Mr Martinovic wished to make an application to the Court for a hearing before a judge and jury. His application for a judge and jury was dismissed by Lloyd J on 25 March 2008: Martinovic v Valuer General [2008] NSWLEC 119.

4 The matter was listed on 1 April 2008 before the Registrar to obtain a further hearing date. The applicant made an application to the duty judge to have Acting Commissioner Parker disqualified from continuing to hear the matter. The application was heard by me as the duty judge and dismissed that day: Martinovic v Valuer General [2008] NSWLEC 144.

5 The hearing resumed before Acting Commissioner Parker on 2 May 2008. At the conclusion of the hearing, the Acting Commissioner reserved his decision. On 27 May 2008 he delivered his decision dismissing Mr Martinovic’s appeal: Martinovic v Valuer General [2008] NSWLEC 1187.

Grounds of appeal

6 Mr Martinovic now appeals on the following grounds:

(a) The Acting Commissioner was biased against him.
(b) The Acting Commissioner erred in law by failing to give reasons.

7 It is unclear from the grounds of appeal whether apprehended bias or actual bias is alleged. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be distinctly made and clearly proved: South Western Sydney Area Health Servicev Edmonds [2007] NSWCA 16 [97]. The test of apprehended bias is the view of the fair minded observer. In Johnson v Johnson (2000) 201 CLR 488 at 492 [11], Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ held:

[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

8 I have read the transcripts of the proceedings before the Acting Commissioner on 18 March and 2 May 2008. I cannot see anything in them which would indicate either apprehended or actual bias. What they do seem to indicate is that Mr Martinovic, from the outset, did not agree that his case should be heard by a Commissioner rather than a Judge. The transcript of 18 March is replete with his statements to that effect and was substantially preoccupied with that subject. The transcript of 18 March records the Acting Commissioner saying that he made a point on inspections of not agreeing or disagreeing with either party; rather he heard what the parties had to say, looked at the site, and might ask questions. On that date, in the end, the Acting Commissioner expressed the view that in the interests of natural justice, so that Mr Martinovic was properly prepared and properly advised, he would adjourn the hearing and refer the matter to the duty judge to consider Mr Martinovic’s request that a judge or a judge and a jury should hear the matter. It was in those circumstances that, as I have previously indicated, an application for the matter to be heard by a judge and jury came before Lloyd J who dismissed the application.

9 In my opinion, neither apprehended nor actual bias has been established.

10 There is a judicial duty to state the ground or grounds upon which a decision rests and failure to do so amounts to an error of law: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277-278. The Commissioner’s duty to give reasons is no less onerous than that of a judge: Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 at [11]; Roggiero v Valuer General (NSW) (2008) 159 LGERA 411. However, it is wrong to examine the decision of a lay Commissioner as if it were written by a lawyer: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368 per Kirby P (McHugh JA agreeing). That is because under the legislative scheme Commissioners can be, and mostly are (and in present case was), appointed on the basis of their knowledge and experience in disciplines outside the law: s 12 Land and Environment Act 1979. Hence, in Brimbella, at a time when the Act described Commissioners as “conciliation and technical assessors”, Kirby P (McHugh JA agreeing) said at 368:

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the Parliament.

11 In Coles v Woollahra Municipal Council (1986) 59 LGERA 133 at 138 Stein J quoted that passage in support of his opinion that “what I call a “fine-tooth comb” should not be employed when examining the decisions of technical assessors for errors of law”. This “fine-tooth comb” proposition has been repeated many times in decisions of judges of this Court on appeals from decisions of Commissioners.

12 In submitting that the Acting Commissioner failed in his duty to give reasons, Mr Martinovic placed emphasis on paragraphs 38 and 39 of the Acting Commissioner’s decision, as follows:

38 My consideration of the various aspects of the selected comparable sales leads me to conclude that the Land Value of the subject property assessed by the Valuer General is justifiable.

39 Having regard to the evidence tendered, the cross examination of Mr Watt and the summation presented, I consider Mr Martinovic did not prove his case as required by Section 40(2) of the Act.

13 Paragraphs 38 and 39 should not be read in isolation. They were conclusions, which were supported by a substantial body of findings and conclusions that preceded them. The Acting Commissioner, after setting out the background and the details of the subject property, in which he noted how prone it was to flooding, dealt with the valuation evidence. He noted that Mr Martinovic had tendered a valuation report by Mr Harrison, a registered valuer, who concluded that the land value was $375,000 as at the base date and two letters from real estate agents advising that the property may realise $400,000 to $460,000 at the dates of the letters (8 and 12 November 2007). The Acting Commissioner noted that Mr Watt, a registered valuer who gave expert evidence on behalf of the Valuer General, concluded that a land value at the base date of $506,000 could be supported.

14 The Acting Commissioner noted that Mr Harrison submitted four comparable sales and Mr Watt ten comparable sales. Both parties submitted a comparable sale of 69 Torkington Road and comparable sales at two other properties. The Acting Commissioner analysed the various comparable sales. He found that the sale of 69 Torkington Road was highly informative and that the sale of another property at 46 Nutt Road was also informative. Before me, the only comparable sale which Mr Martinovic conceded had any relevance was 69 Torkington Road. Mr Martinovic referred me to letters from two residents of 20 February 2008. A perusal of the transcript on 2 May 2008 indicates that those letters were before the Acting Commissioner and were considered, although they do not appear to have been marked as exhibits.

15 In my opinion, when the Acting Commissioner’s judgment is read as a whole, the allegation that he failed in his duty to give proper reasons cannot be sustained.

16 In reaching these conclusions, I have taken into account that Mr Martinovic made a number of other assertions before me which, for completeness, I will note, insofar as I understood them:

(a) on an inspection of one of the comparable sale properties, Mr Watt did not carry out an adequate inspection;
(b) at the hearing on 18 March Mr Martinovic asked for the hearing to stop;
(c) none of the properties were comparable sales with the exception of 69 Torkington Road;
(d) he put to the Acting Commissioner that the comparable sales were irrelevant;
(e) the Valuer General’s representative undervalued all the comparable sales;
(f) the appeal heard by the Acting Commissioner was “ manufactured ”;
(g) he requested the Acting Commissioner to disqualify Mr Watt from giving evidence because he was not an independent valuer;
(h) photographs (which he handed to me) showed how prone his home was to flooding;
(i) he should have been told what was going to happen in the proceedings;
(j) he has been evacuated from his home four times over the years because of flooding. In the case of the alleged comparable properties there was only one evacuation;
(k) all the answers of Mr Watt in his cross-examination by Mr Martinovic were irrelevant, and Mr Watt exaggerated;
(l) at times he could not hear what Mr Watt and the Acting Commissioner were saying because they were speaking in a low voice, which Mr Martinovic says indicates that they had something to hide;
(m) it is a breach of the law to force someone to have something that they don’t want to have. He did not want to have the hearing on 18 March.

17 For these reasons I make the following orders.

1. The appeal is dismissed.
2. The applicant is to pay the respondent’s costs of the appeal.

3. The photographs handed to me by Mr Martinovic will be returned.