Micasea v Department of Natural Resources, Mines and Energy
[2004] QLC 43
•25 May 2004
LAND COURT OF QUEENSLAND
CITATION: Micasea & Anor v Department of Natural Resources, Mines and Energy [2004] QLC 0043 PARTIES: Micasea Pty Ltd and
Timothy Vincent Fairfax
(applicants)v. Chief Executive, Department of Natural Resources, Mines and Energy
(respondent)FILE NOS: AV2001/0335; AV2003/0225 and AV2003/0226 DIVISION: Land Court of Queensland PROCEEDING: Appeal against Annual Valuation - Valuation of Land Act 1944 - Local Government Duaringa Shire - Application for an Adjournment DELIVERED ON: 25 May 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The application for adjournment is refused. CATCHWORDS: Practice and Procedure - Application for adjournment - Application refused APPEARANCES: No appearance for the Applicants
Mr K Fisher, Crown Law for the respondent
Background
These matters relate to an application for an adjournment of the above matters, which are currently listed for hearing of the merits in Rockhampton on Tuesday, 1 June 2004. By application dated 20 May 2004 the agent for the appellants requested an urgent hearing of a general application for an adjournment of the matters. Advice was provided from counsel for the respondent that the application for an adjournment would be resisted by the respondent, and the application was listed for hearing in the Court in Brisbane on Tuesday, 25 May 2004. There was no appearance for the appellants, and Mr K Fisher, counsel of Crown Law appeared for the respondent.
The general grounds of the application by the appellants' agent were detailed in a comprehensive statement. The agent advised that due to unforeseen circumstances he would be unable to attend personally on 25 May 2004, and he had requested a telephone conference of the application. Due to the prolonged background of these matters, some of which extended back to 2001, and also the resistance to the application by the respondent, the application was heard in Court. However the non-appearance of the appellants' agent was not seen in any way as a failure to pursue the application for adjournment.
The grounds of the appellants' agent may be summarised as follows:
(i)The agent had been heavily committed on other matters throughout rural western Queensland in various centres. Those matters had been partially resolved by extended discussions with the respondent's officers, or had proceeded to Court. The last hearings were concluded in Charleville on 27 April 2004, and in Longreach on 10 May 2004.
(ii)The appellants' agent confirms that he was aware that the subject matters had been listed for hearing in Rockhampton on 1 June 2004, from receipt of the Court Notice issued on 12 February 2004. However the agent has retained optimism that the matters might be resolved by further discussions between the parties.
(iii)The agent now advises that he was unable to obtain a response to his request of 11 May 2004 to the respondent's principal valuer in relation to those matters until 19 May 2004. Presumably as the respondent now resists an adjournment, the respondent's valuers do not wish to proceed with further discussions.
(iv)Because of that late advice from the principal valuer, the agent now advises that he has so far been unable to arrange for a valuer to provide evidence on behalf of the appellants. The agent has contacted five valuers in Rockhampton and Emerald all of whom are either already committed, or have a personal conflict of interest in these matters. The agent argues that it is not the fault of the agent that he now cannot seek an expert's advice on these matters.
(v)The agent further advises that should the adjournment be approved, a fresh hearing date some time in September 2004 should be adequate time in which to obtain valuation advice. However if the adjournment is not warranted, then the agent foreshadows the appellants' reconsideration of the appeal matters.
In resisting the adjournment Mr Fisher advises that the respondent has already made certain professional commitments to private valuers in Rockhampton, to provide the valuation reports, which have already been supplied to the Court in accordance with the Court directions of 12 February 2004. In addition to those costs, Mr Fisher advises that he understands that the professional services are also committed for appearances in Court on 1 June 2004, a financial liability which he understands must be met by the respondent. On that basis Mr Fisher signals that should the matter not proceed on 1 June 2004, then an application for costs thrown away would be forthcoming from the respondent.
Before deciding on this matter, it is reasonable to examine the extended history of these current appeals. The matter of AV2001/0335 was lodged with the Court in July 2001, while AV2003/0225 and AV2003/0226 were lodged with the Court in July 2003. As the matters deal with two adjoining properties, held under related ownerships, they are to be heard concurrently.
An application for adjournment by the appellant was approved by the President of this Court on 22 January 2002, at which time the appellant's agent elected not to appear. The matter was adjourned to the next sitting of the Court in Rockhampton, which is now 1 June 2004. During this adjournment the agent has continued to seek resolution of the matters by further negotiation. The agent further advised on 11 April 2002, that when the matter of AV2001/0335 does proceed to hearing, he will seek leave to amend the appellant's estimate of the unimproved value to align with similar increases at that time of grazing lands in the northern part of Duaringa Shire. A Court-supervised preliminary conference before the Judicial Registrar proceeded on 28 September 2001, at which the appellant's agent signalled his willingness to try and resolve matters of dispute where possible.
At the heart of this matter is a very experienced agent in these types of appeal, who has accepted a very heavy and protracted workload from a wide cross-section of rural property owners. His history indicates that the agent is highly respected by rural owners, and he is very familiar with the proceedings of this Court. The agent advises that now, having exhausted all avenues of seeking resolution of the matters by negotiation, he has turned to his normal professional valuation advisers to represent his clients. However, due to the current workloads on those consultants, he now belatedly has difficulties in obtaining his preferred consultant advisers. The agent argues that those circumstances are beyond his control to influence, and his appellants should not be disadvantaged accordingly.
While I understand the agent's current dilemma, I am also conscious of the rights of the respondent, and the appellants in these matters. The appellants have had long and protracted delay in obtaining resolution on at least one matter since 2001. Because of current commitments of this Court, if the matters were to be further delayed by a second adjournment until September 2004 at least, then the appellants may not obtain resolution of the matters until 2005. I believe the appellants would be better served even if the agent himself was to seek support on 1 June 2004 by reference to the recent decisions of this Court in related areas. The respondent has already committed costs, which I am advised could constitute a possible future claim for costs thrown away. On either strategy the appellants would appear to be shouldered with costs which should not have been occurred through a person experienced in these matters.
In summarising this matter I believe that the Court has provided ample notice of the listed hearing (nearly four months). The agent, in failing to secure the commitment of a valuer, has placed his clients in the position with some analogy to failing to meet jurisdictional requirements in respect of a notice of appeal. (Seaworld Pty Ltd v Valuer-General (1978) 5 QLCR 309). The transaction in that matter rested with the appellants' solicitors, who failed to lodge the notice on time. In the current matter, the agent has failed to take appropriate measures to ensure the engagement of suitable valuation advice. However in the current matter the outcome is not fatal to the appellants' case.
The application for adjournment is refused, and the matter should proceed to hearing on 1 June 2004. Mr Fisher requested leave for him to reserve the respondent's right to consider any costs incurred in respect of the application for adjournment. However as advised to Mr Fisher, I believe those are more appropriately borne by each parties in these matters, and it is not appropriate to award costs for the application proceedings.
NG DIVETT
MEMBER OF THE LAND COURT
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