Scott v Valuer-General
[2012] QLC 5
•7 February 2012 [Ex Tempore]
LAND COURT OF QUEENSLAND
CITATION: Scott v Valuer-General [2012] QLC 0005 PARTIES: Walter and Agnes Georgina Scott
(appellants)v. Valuer-General
(respondent)FILE NO: VLA220-10 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 7 February 2012 [Ex Tempore] DELIVERED AT: Nanango HEARD AT: Nanango MEMBER: Mr PA Smith ORDER: The report not be received into evidence at this stage.
CATCHWORDS: EVIDENCE ― whether expert valuation report produced on day of hearing should be allowed into evidence ― author not available for cross-examination ― fairness considerations ― no adjournment sought ― report not allowed into evidence
Valuation of Land Act 1944
Land Court Act 2000Cupo & Anor v Department of Natural Resources and Water [2009] QLC 0016
Ray Fitzpatrick Proprietary Limited v Minister for Planning [2007] NSWLEC 791
APPEARANCES: Mr Peter Douglas Scott represented the appellants
Mrs Lyndi Hawkings-Guy, Solicitor for the respondent
The appellant has provided to the Court by an attachment to an email of 3 February 2012, at 11:26 am, and was copied at the same to the respondent, a document titled “Valuation Report Real Property Walena, located at 110 Hayne Kite Millar Road, Blackbutt South, Queensland 4306, as at 31 January 2012 prepared for Mr Peter Scott”. The valuation is made by Opteon and the author of the report is Mr Brad Volp. Mr Volp is a certified practicing valuer.
The respondent objects to the admission of the report into evidence. There are a number of grounds for that submission. To begin with, the respondent asserts that the document has been provided late, and accordingly the respondent has not had any time to properly consider the contents of a report and to seek advice from the respondent’s valuer with respect to the contents thereof. The hearing has commenced today. The respondent’s objection on this basis could be cured by an adjournment of the proceeding but that then raises issues of costs.
The respondent also complains that the valuation is not one that would be acceptable to the Court for the purposes of the Valuation of Land Act 1944. This is readily conceded by the appellants. It is of note that the valuation is at 31st of January 2012, over two years after the valuation date in this matter. However, Mr Scott agrees that the report is relevant as it demonstrates the relative values of various properties to each other.
The issue should be fairly simple to dispose of, particularly when one has regards to the authorities, and I refer in particular to the case of Cupo & Anor v Department of Natural Resources and Water,[1] a decision of the then Member Jones of the Land Court.
[1] [2009] QLC 0016.
In that case, a stormwater consulting report was sought to be relied upon by the appellant. The report was only provided at the hearing and the objection was taken that it should have been provided 14 days prior to the hearing. At least in this case, the report has been made available some days prior to the hearing.
Perhaps most crucially, in Cupo, it was not possible to test the veracity of the stormwater consulting report unless the report’s author was made available for cross-examination. In the case at hand, Mr Scott has advised that Mr Volp is not available for cross-examination today, and he is not sure exactly when he will be available for cross-examination. Mr Scott has advised the Court that he does not seek to have the unavailability of Mr Volp today as a cause to have the case delayed, should it, in fact, be able to be finished today.
This then does raise the interesting issue of whether or not Mr Volp could be allowed at a later time to give evidence and rely upon his report. As I have indicated, the report is not relied upon by the appellant under the normal guise of an expert report as to the unimproved value, but is instead relied upon as an example of the relativity of certain properties one to another, and it is this essential component of Mr Scott’s case that he wishes to use the valuation report for.
This is where I run into some difficulty in this matter. The report is chiefly being sought reliance upon due to the descriptive nature of the properties contained in the report and the valuer’s expert opinion of the relative values of one property to another. The descriptive nature of the report is something which, in my humble view, is relatively easy for the respondent to deal with in the time that the report has been available to the respondent to see.
However, the manner in which that descriptive report is used by the author of the report to create issues as to relativity between various properties is crucial as to the views of the respective merits of each property one to the other, and it is only just that the respondent should have the opportunity to test the veracity of that report by way of cross-examination, and, of course, as indicated, the author of the report is not available for cross-examination today.
As was said by Justice Jagot in the case of Ray Fitzpatrick Proprietary Limited v Minister for Planning[2] at paragraph 19:
“Inscrutable expert opinions that cannot be meaningfully tested are inherently productive of unfairness.”
That quote has significant meaning when one takes into account the provisions of s.7 of the Land Court Act 2000, which sets out that the Land Court, in the exercise of its jurisdiction:
“(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 a case without regard to legal technicalities and forms or practice of other courts.”
[2] [2007] NSWLEC 791.
This section has been misconstrued in some quarters to mean that the Land Court can overlook fundamental laws in order to reach what it considers to be a just result. That is not the purpose of s.7. Section 7, in my view, puts a very low hurdle in the way of any party seeking to tender evidence, but the way in which that evidence can then be used is subject to, in effect, the normal rules of evidence when one comes to consider the question of relevance and weight that can be given to that evidence. More so, in my view, when matters involve an expert opinion report, as is the case here.
I believe Justice Jagot has succinctly summarised the law. The one thing that the Land Court, in dealing with all matters, must always ensure is that it acts in accordance with equity and good consciousness and therefore is not, in actual fact or seen to be, unfair as between one party or another. This may seem a trite bizarre to the appellants in this matter that, as an issue of fairness, the Court sees difficulty in receiving the report into evidence. However, the receipt of a report must be balanced. Had the report been provided to the respondent a number of weeks earlier, the respondent’s position in not being able to respond to the contents of the report would have been seriously weakened as an argument.
Had the author of the report been available for cross-examination, the ability to rely upon the report would certainly be viewed differently by this Court, but in the circumstances, because the author of the report is not available for cross-examination, and because aspects of the report go to crucial elements of the appellant’s argument as to relativity, I am not prepared at this time to admit the report into evidence.
There is one rider that I must add to that point. I have specifically referred to the fact that I am not prepared to admit the report into evidence at this time. I do not know the way this case is going to proceed in the coming hours. It may be that it will be all over and done with very quickly; it may be that it is not. Mr Scott has already indicated that he may seek to call Mr Volp at an adjourned hearing, even though he does not specifically seek the adjournment. If Mr Scott had specifically sought the adjournment, then that may have had a different outcome in the case; I find myself in a position akin to shooting at shadows, as I referred to during submissions, because I don't exactly know what is going to happen in the future.
I’ll try to summarise this way, Mr Scott, and it is this: the report cannot be received, in the absence of any other supporting material, in its current format. However, I am not precluding you from seeking leave to have the report tendered at a later time. Now, the question will come to you, perhaps today, perhaps not, as to whether or not you wish to close your case, and that will be the crucial time for you as to when you decide what you wish to have done with this report. If you seek to have your case closed without anything further of that report, then I will be unable to refer to that report in evidence in accordance with this ruling. If you seek at some later time to rely upon this report before your case is closed, then there may be costs implications or other implications that follow; I’ll simply have to deal with that as and when they arise. It’s impossible to try to predict the future in that regard.
The ruling is that the report not be received into evidence at this stage. I order accordingly.
Order
The report not be received into evidence at this stage.
P A SMITH
MEMBER OF THE LAND COURT
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