Nucifora (as Personal Representative under the Will of Angelo John Nucifora) v Brisbane City Council
[2011] QLC 56
•7 September 2011
LAND COURT OF QUEENSLAND
CITATION:Nucifora (as Personal Representative under the Will of Angelo John Nucifora) v Brisbane City Council [2011] QLC 56
PARTIES:Alfred John Nucifora (as Personal Representative under the Will of Angelo John Nucifora)
(Applicant)
v
Brisbane City Council
(Respondent)
FILE NO:AQL1030-10
DIVISION:General Division
PROCEEDING: 1. General Application filed 8 August, 2011 by the Applicant for further and better particulars to be provided by the Respondent.
2.General Application filed 19 August, 2011 by the Respondent to vacate hearing dates.
DELIVERED ON: 7 September, 2011
DELIVERED AT: Brisbane
HEARD ON: 25 August, 2011
HEARD AT:Brisbane
MEMBER:His Honour WA Isdale
ORDER/S:1. Costs of the Applicant’s General Application dated and filed on 8 August 2011 are reserved.
2.The trial dates commencing on 12 December 2011 are vacated.
CATCHWORDS: Acquisition of Land Act 1967, s26(1)
Land Court Act 2000, s.7
Costs, reserved costs, unavailability of witness, vacating hearing dates.
APPEARANCES: Mr KN Wilson SC instructed by Thynne and Macartney for the Applicant
Mr DA Quayle instructed by Brisbane City Council for the Respondent
Background
By Taking of Land Notice (No. 29) of 2009 published in the Gazette on 21 August 2009 it is recorded that the land described in it became vested in the Respondent on that date for an estate in fee simple.
In accordance with the Acquisition of Land Act1967 the Applicant commenced proceedings in this Court on 24 December 2010 for compensation to be determined.
On 2 March 2011 this Court made orders for the progress of the matter, including setting dates by which any request by either party of the other for further and better particulars might be made and by when the particulars had to be provided.
At a review and directions hearing on 1 August 2011 the Court made further orders to progress the matter, including that if it might become necessary, any application to the Court concerning the provision of particulars could be lodged by 8 August 2011 and that the matter for compensation was set down for trial commencing on 12 December 2011.
The Applicant has informed the Court that consequent upon receipt at 5.32 pm on 24 August 2011 of a letter from the respondent’s solicitors it no longer has any issue in relation to the matters upon which it sought a response.
Costs
The Applicant now seeks its costs incurred in bringing its General Application dated and filed on 8 August 2011. The Respondent resists this claim on the basis that the matters sought are not properly within the concept of particulars and that its letter of 24 August 2011 to the Applicant’s solicitors is simply information provided in the interests of moving the compensation case ahead.
The Court’s jurisdiction in the case is “to hear and determine all matters relating to compensation”[1] under the Acquisition of Land Act1967. It must exercise that jurisdiction in the manner provided in section 7 of the Land Court Act2000 viz:
“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 other courts.”[1] Acquisition of Land Act1967 s.26(1).
In the Land Court it is not likely, in view of section 7 and the duty to determine “all mattes relating to compensation” that a party could be held within and limited by particulars. As a case proceeds evidence may emerge which might require a change of particulars and it would not be unlikely that the Court would be required by the legislation to which I have referred to permit such a change.
In view of the jurisdiction being exercised in this case and the manner in which it is required to be exercised, I am satisfied that it is not possible at present to find with the requisite degree of certainty that all or parts of the material provided by the Respondent on 24 August 2011 amounted to particulars of the Respondent’s case as distinct from matters of evidence or information.
When the case has been heard on its merits, however, it will be clear what was within the scope of particulars.
I am satisfied, for the foregoing reasons, that justice can best be done by reserving the matter of costs of the present application. At the conclusion of the hearing this matter can be determined with the necessary degree of certainty.
Should the hearing dates be vacated?
By General Application dated 15 August 2011 and filed on 19 August 2011 the Respondent seeks to have the hearing dates vacated. The Applicant opposes this.
The Respondent’s counsel will be unavailable on the trial dates, commencing 12 December 2011. At this early stage securing the services of another barrister would not seem to be an imposition beyond the ordinary occurrences in litigation and this particular matter was not pressed.
The primary submission was that the Respondent’s valuer, who has been involved in the matter since at least October, 2008 has advised that he will be departing overseas on 11 December 2011 and returning on 14 January 2012.
Senior Counsel for the Applicant properly points out that contemporary communications technology would allow him to give evidence from a remote location. Alternatively, it was submitted that he could be replaced, and that in any event the case will not turn on contentious valuation evidence.
I am satisfied that at present it is not safely able to be said whether or not there will be significant differences between the evidence of valuers.
In addition, the hearing dates have been set at the request of the Applicant and at a time when the availability or otherwise of this witness was not certain. I would be most reluctant to refuse this first request by the Respondent to vacate the hearing dates when to do so will effectively be to deprive it of its valuer and force it to engage another. I do not accept that the Respondent’s valuer ought to be limited to giving telephone evidence as it is very often most helpful to the Court to have the benefit of valuers in Court to hear the evidence before being called to provide their opinions. It is not uncommon that matters revealed for the first time in the evidence require the valuer, in accordance with their duty, to revise their previously held opinions.
To limit the Respondent’s valuer to giving evidence remotely would be potentially prejudicial to the Respondent and to the assistance which the Court relies on such experts to provide. I am accordingly not prepared to require the valuer to give evidence remotely. I note that he has not given any information about his opinion of such a process or his willingness to engage in it. In light of the views I have formed I have not found it necessary to seek his input. The effect of the hearing occurring later than planned can be ameliorated by the power of the Court to award interest in favour of the Applicant.
Accordingly, the trial dates are vacated.
Order
1.Costs of the Applicant’s General Application dated and filed on 8 August 2011 are reserved.
2.The trial dates commencing on 12 December 2011 are vacated.
HIS HONOUR WA ISDALE
MEMBER OF THE LAND COURT
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