Morris v Valuer-General
[2011] QLC 15
•25 March 2011
LAND COURT OF QUEENSLAND
CITATION: Morris v Valuer-General [2011] QLC 0015 PARTIES: Roma Morris
(Appellant)v. Valuer-General
(Respondent)FILE NO: VLA369-10 DIVISION: Land Court of Queensland PROCEEDINGS: Interlocutory Application DELIVERED ON: 25 March 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane HEARD ON: 10 December 2010 MEMBER: His Honour, Mr WL Cochrane, Member ORDERS: Application Dismissed CATCHWORDS: Evidence – Tender of Report – Author Deceased – Purpose of Tender – Application Dismissed. APPEARANCES: Mr AC Barlow appeared for the Appellant.
Mr SB Fynes-Clinton appeared for the Respondent.
Background
These are the written reasons provided for a decision which I delivered ex-tempore on the 10th December last year in dismissing an application.
The appellant by her counsel Mr Barlow had made application to tender a report which had been previously tendered in other proceedings before this Court.
I indicated that I propose to reject the tender on the basis articulated by Mr Barlow and would provide reasons at a later date.
These are those reasons.
In this appeal against a valuation, an issue has arisen with respect that a tendering of an expert report by an arborist named Mulholland.
The land, the subject of this present case filed in 2010 has been the subject of an appeal against a valuation on three previous occasions.[1]
[1]See Estate of LV Bressow (Deceased) v Chief Executive, Department of Natural Resources AV98-593, Morris v Department of Natural Resources and Mines 2003 QLC 0037 and Morris v Department of Natural Resources and Water 2010 QLC 0021.
The issue was raised by counsel for the appellant on a review of the matter on 4 November 2010. On that occasion counsel for the appellant told the Court that he wished to seek to tender the report of Mr John Mulholland (dec’d) who had given evidence before His Honour Member Smith in hearings in this Court in February 2010. In November, I made Orders requiring the parties to file an outline of legal argument addressing the issue of whether the appellant should have leave to tender and rely upon an arborist report of Mr Mulholland.
Those submissions were provided to the Court and the matter was argued on 10 December 2010.
In the hearing before His Honour Member Smith in February 2010 argument had occurred about the tendering of the report of Mr Mulholland through a lay witness. The tender was opposed by counsel for the Valuer-General but after argument His Honour was minded to allow the report to be tendered but cautioned that “issues of weight that the Court should give to Mr Mulholland’s report would be the subject of submissions by counsel at the conclusion of the hearing.”
His Honour gave reasons for his decision.[2]
[2] Morris v Department of Natural Resources and Water [2010] QLC 0021, at paragraph [24].
Further in his decision His Honour Member Smith indicated that he preferred the evidence of Mr Mulholland to that of a Mr Jason-Jay Fletcher called by the then respondent.
In his decision the learned Member noted some of the contents of paragraph 6 and 8 of Mr Mulholland’s report which had been tendered before the court. I note however, that the Members’ reasons do not indicate clear and unequivocal acceptance of Mr Mulholland’s report.
At paragraph [59] of his decision His Honour Smith wrote:
“[59]As set out above, I accept the evidence of Mr Mulholland and Mr Morris that the tree, the subject of the VPO, on the subject land is indeed a very large tree and that the root system from that tree extends extensively in a southerly, uphill direction from the tree towards both Dennison Street and Windermere Road. I also accept that the tree roots in question are both invasive and destructive. I also accept that a very significant, although not readily scientifically assessable, area of the subject land is subject to tree root inundation. I also accept that the extent of the tree root inundation on the subject land is greater than that as found to be the case as at 1 October 2001.”
In the written submissions delivered by Mr Barlow of counsel for the appellant submitted:
“4.To contain the present appeal to what amounts to legal argument only, the appellant chose not to adduce evidence from a valuer, and to contain the appeal to the facts as found by Mr Smith in February this year. To make that plain it was suggested that the report of Mr John Mulholland (dec’d) be tendered so that it the basis of Mr Smith’s present decision was made clear. Mr Smith preferred Mr Mulholland’s evidence.[3]
5.The purpose of tendering Mr Mulholland’s report, in this appeal, is simply so that this Court can see, with some clarity, what was accepted by Mr Smith in his February determination. It is not tendered, as contended, for the purposes of introducing new evidence, or for that matter, taking the evidence any further than was accepted by Mr Smith.
9.… The mere fact that the appellant accepts for this appeal, the evidence as accepted by Mr Smith when making his findings about unimproved valuation does not bind her as to the law determining the valuation.
10.In these circumstances Mr Mulholland’s report is admissible for the purposes of setting out to this Court the basis for Mr Smith’s determination of unimproved value.”
[3] Ibid at paragraph [51].
In his appearance before me on 10 December 2010, it appeared clear that Mr Barlow wished to contend that the learned Member below had unequivocally accepted all of the evidence contained in the Mulholland report which, it must be remembered had never been subjected to cross-examination.
In arguing this view, Mr Barlow asserted as follows[4]:-
“Mr Barlow: I say that Mr Mulholland’s report was accepted, yes.
His Honour: Do you say that Mr Mulholland’s report was accepted without equivocation in its entirety and that somewhere in this judgment the Member says everything in Mr Mulholland’s report was correct?
His Honour: You can take a sentence out of paragraph 59 and say, “As set out above, I accept the evidence of Mr Mulholland.”? If that was full stop, you might have an argument, but what he goes on to say is, “I accept the evidence of Mr Mulholland and Mr Morris that the tree the subject of the VPO on the subject land is indeed a very large tree, and that the root system from that tree extends extensively”, and so on.
Mr Barlow:I rely on the words that he says that he accepts the evidence of Mr Mulholland, and he then makes some observations about that evidence.
His Honour: Well – and that’s the highest you can put it?
Mr Barlow:And that’s what I am putting.”
[4] T 1-11 L10, T 1-11 L33.
Up to the end of the argument reflected from the extracts above it seemed to me fairly clear that Mr Barlow was seeking to rely upon the report of the deceased Mulholland to provide evidence about the “tree” which is central to that valuation argument in respect of the subject land.
However, later in legal argument Mr Barlow asserted as follows:
“Mr Barlow: It’s as a courtesy to the Court. We don’t tender Mr Mulholland’s evidence as evidence. We don’t rely on it for its probative value. We ----
His Honour: Sorry, just say that again so I can make a note of it. You don’t rely ------
Mr Barlow:I said this in my submissions.
His Honour: Just take me to it – to that. What you just said -----
Mr Barlow:Paragraph 5-------
His Honour: ------- you don’t rely upon Mr Mulholland’s evidence as evidence.
Mr Barlow:The purpose of tendering Mr Mulholland’s report in this appeal is simply so the Court can see with some clarity what was accepted by Mr Smith in his February determination. It is not tendered, as contended, for the purposes of introducing new evidence or, for that matter, taking the evidence any further than was accepted by Mr Smith.”
If Mr Barlow, as he asserts does not intend to rely upon the report of Mr Mulholland as evidence, I can see no good reason why it should be tendered before the Court.
In Documentary Evidence in Australia[5] the learned Author Professor R.A. Brown observes[6]
“The physical process whereby a document is placed before a court for consideration is through the document being tendered. That is, it is simply handed up to the judge after counsel has indicated her or his intention to tender it, and after it has been shown to opposing is accepted, either without objection or where objections are rejected, exhibit in the trial. If the tender is rejected, the document is not in evidence, but this does not prevent its being tendered again at a later stage of the proceedings.”
[5] Law Book of Australia 1988.
[6] p.96.
If it is not intended, as Mr Barlow says it is not, to rely on the report as evidence then that seems to be the end of the matter there has been simply, to my mind, no other basis argued upon which it could be properly be put before the Court.
I note that neither counsel referred to the effect of s.92 of the Queensland Evidence Act 1977.
That section provides an exception to the requirement that if a document is sought to be tendered to establish a fact it is necessary to call the maker of that documentary statement. The Act provides at s.92(2) as follows:-
“(2)The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where—
(a)the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness …”
It might be thought upon a careful reading of that section that it applies only to evidence of a direct or objective fact.
In his widely utilised work Evidence Law in Queensland the learned Author J R S Forbes, however, at paragraph 92.15 of his work makes the following observations:
“[92.15] “Fact” includes certain opinions
Section 92 is a remedial provision, and remedial legislation should be liberally interpreted.[7] Accordingly, it has been held that ‘evidence of a fact’ includes the expression of an opinion, provided that is it one that the witness would be qualified to express in person, such as a medical opinion of a duly qualified physician[8] or a financial assessment by a company liquidator.[9] Also admissible is an opinion to which a non-expert may testify, such as evidence of identity or personal ownership.[10] But the word ‘fact’ does not include a legal opinion[11] or a conclusion from facts not disclosed.[12]”
[7]Jarman v Lambert and Cooke Contractors [1951] 2 KB 937; Lenehan v Queensland Trustees Ltd [1965] Qd R 559; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542.
[8]Warner v The Women’s Hospital [1954] VLR 410; Dass v Masih [1968] 1 WLR 756; 2 All ER 226 (expert opinion on handwriting); Mansour v Standard Telephones and Cables Pty Ltd [1983] 3 NSWLR 205; Thiess Properties Pty Ltd v Ipswich Hospitals Board [1985] 2 Qd R 318.
[9]Australian Securities and Investments Commission v Rich (2005) 191 FLR 385; 53 ACSR 752; [2005] NSWSC 417.
[10]Lenehan v Queensland Trustees Ltd [1965] Qd R559 (identification of deceased person’s property). Lenehan was followed on this point in Morley v National Insurance Co [1967] VR 566.
[11] Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 650; [1984] ATPR 40-483.
[12] Gilchrist v Pine Grove Memorial Park Ltd [1968] SR (NSW) 270 at 284.
It is surprising that that section was not relied upon by Mr Barlow. It may be, as he submitted to the Court, that it is not applicable because he does not intend to tender the report of the deceased Mr Mulholland as “evidence”, although it is difficult to see any other basis upon which it might have any utility in the appeal yet to be heard.
Having regard to the terms of s.92(1) and the use of the word “shall” it might be thought that any future attempt to tender the report of Mr Mulholland as evidence (subject of course to any question of weight) may be hard to resist.
I should say however, that, in circumstances where it may be sought to be tendered in reliance upon the provisions of s.92 of the Queensland Evidence Act 1977 then I would be inclined, subject to the argument, to the view, that very little weight could be given to it in the present circumstances because of the passage of time it being at least 18 months old and because the respondent would be denied any opportunity to test the propositions contained in Mr Mulholland’s report by cross-examination.
In my view, any currently produced arborist’s report would carry more weight.
My decision is that in the present circumstances I will not accept the tender of the report by Mr Mulholland.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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