Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water

[2009] QLC 27

LAND COURT OF QUEENSLAND

CITATION:	Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water [2009] QLC 0027
PARTIES:	S Theo Family Trust (appellant)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NOS:	AV2008/0070, AV2008/0071, AV2008/0350, AV2008/0351, AV2008/0352, AV2008/1012
DIVISION:	Land Court of Queensland
PROCEEDING:	Applications for change of venue;  removal of members;  and relaxation of rules
DELIVERED ON:	9 February 2009 (Ex tempore)
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr PA Smith
ORDER:	The appellant’s application that certain Members of the Land Court and Land Appeal Court not hear its appeals in each of these matters is dismissed. Appeal AV2008/1012 listed for hearing in Gympie on Thursday 12 March 2009 is transferred to Hervey Bay for hearing on Thursday 26 February 2009 to be heard immediately following the hearing of appeals AV2008/0070, AV2008/0071, AV2008/0350, AV2008/0351 and AV2008/0352. In relation to all six appeals:- All expert reports from either party be filed and served by noon on Monday 16 February 2009. The appellant file and serve any non-expert evidence by noon on Friday 20 February 2009. The respondent file and serve any non-expert evidence by noon on Monday 23 February 2009. The appellant file and serve its reply evidence (if any) to the respondent’s non-expert evidence by 4.00pm on Tuesday 24 February 2009.
CATCHWORDS:	Practice and Procedure – Regional Hearing of matters – change of venue – factors to be considered Bias – principles – general, unspecified allegations Land Court Rules – time for delivery of expert and other evidence
APPEARANCES:	Mr S Theo for the appellant Mr G Smith (Senior Lawyer), Department of Natural Resources and Water, for the respondent

1. Ex-tempore:  I have before me two applications.  The first is by the appellant with respect to various appeals as to the valuation of certain blocks of land located in the Local Government areas of Tiaro and Hervey Bay.  They are AV2008/0070, AV2008/0071, AV2008/0350, AV2008/0351 and AV2008/0352.  I note with respect to those applications that there is a dispute as between the appellant and the respondent as to the proper categorisation of those lands. 

2. In an affidavit by Mr Graham Smith filed on the 5th day of February 2009, in paragraph 5 Mr Smith refers to various appeals as being rural home sites.  Mr Theo has in oral submissions today denied that a proper reference to the properties is that of rural home sites and Mr Theo has indicated that he has had insufficient time from receipt of the material on 6 February to provide his own sworn material with respect to that description today.  I accept what Mr Theo says in regard to the time he has had to provide his own sworn material in response and in the making of my decisions today with respect to all of those appeals to which Mr Smith's affidavit refers I am making no findings and relying in no way upon the statements made by Mr Smith in paragraph 5 of his affidavit that the properties are described as rural home sites.

3. Mr Theo has today orally indicated that what he has put forward in his application with respect to the AV numbers that I have already referred to should also be taken into account with respect to those matters which relate to AV2008/1012 which is a matter listed for hearing at Gympie.  Mr Smith for the respondent was happy for Mr Theo's applications in the five AV matters listed for Pialba to also include Mr Theo’s appeal with respect to AV2008/1021 listed for hearing in Gympie on 12 March 2009.

4. Mr Theo by his application is seeking essentially two things.  I leave aside Mr Theo’s contentions regarding complying with the rules of the Land Court as I will substantially deal with those in dealing with Mr Smith’s application.

5. The two things that Mr Theo principally contends with in his application relate to the personnel of the Land Court who should hear the matters and the place where those matters should be heard.  I will deal first with Mr Theo's application regarding the Members and Judicial Registrar of this court. 

6. In paragraph (c) of Mr Theo's application as amended by him on behalf of the trust today Mr Theo states as follows, "I request the judges or Judicial Registrars (i.e. Mr O'Connor, White J, RS Jones, PA Smith and ors if any) who 'adjudicated' in the past cases I was involved in defending, should not become involved with the present proceedings, on the grounds of possible bias." 

7. Mr Theo has not established any actual bias by any Members of this court or by Justice White.  Mr Theo has simply pointed to a general presumption that Members who have dealt with matters in what he perceives as contrary to the trust's interests have a possible bias against himself and/or the Solon Theo Family Trust.  In this regard I note that I have been a Member of the Land Appeal Court that dealt with appeals by Mr Theo on behalf of the trust against decisions of Mr O'Connor the Judicial Registrar of the Land Court and I note that Judicial Registrar O'Connor's original decisions in that matter included two matters from memory in which Mr O'Connor found for a lower value than that originally contended for by the Chief Executive, so in respect to those two appeals it could be said that Mr Theo's appearance on behalf of the trust had carried some success.

8. As regards bias it is a serious matter to contend that Members of the judiciary are biased in proceedings and I note in particular that the Solon Theo Family Trust did not institute any appeal from the decision of the Land Appeal Court in which I was a Member making any allegations as to bias by Members of the court in its decision.  The Land Appeal Court also dealt extensively with allegations of bias made by Mr Theo against Judicial Registrar O'Connor in his original decisions in the matters and I repeat and rely upon the general law of bias as set out by the Land Appeal Court in its reasonings in those appeals.[1]  

   [1]     See Solon Theo Family Trust v Chief Executive, Department of Natural Resources & Water [2008] QLAC 227 @ 27-32.

9. As a matter of formal record I should also note that I have presided at a court appointed preliminary conference in a matter involving the Solon Theo Family Trust in which Mr Theo represented the trust relating to a property or properties at Redcliffe.  From my recollection of that preliminary conference there was nothing that occurred in the course of that preliminary conference which showed any bias against Mr Theo or the family trust on my behalf nor, indeed, did Mr Theo or the family trust make any complaints at that time of bias on my behalf. 

10. I also note that Mr Theo's request in this application relates to any person who has adjudicated in any of the Trust’s matters in the past which shows that he is attempting to cast the blanket extremely wide and, given the limited number of Members and only one Judicial Registrar of the Land Court, the position is fast approaching where there would be no Members of the Land Court available to hear any appeals by the Solon Theo Family Trust were Mr Theo's submissions in this regard to be accepted.

11. I further note for the benefit of the parties that I have been allocated the matters in question not out of any desire to hear or not hear the Solon Theo Family Trust matters but purely as a matter of geography as the lands concerned in each of these appeals fall within the boundaries which have been allocated to myself to hear matters of appeals by landholders against valuations under the Valuation of Land Act in particular and other matters generally in the State of Queensland.  In round terms the district to which I primarily have regard relates to the area to the northern area of Brisbane, west to Ipswich following the Dividing Range north to Rockhampton and travelling west from Rockhampton, west of Emerald to the range.  The lands referred to in these appeals fall squarely within those areas and that is the reason why I have the carriage of the appeals.  Accordingly, I do not believe that it is appropriate for another Member to deal with these matters as neither the trust nor Mr Theo has shown any grounds of either actual or perceived bias which would make it appropriate for another Member to deal with these matters.

12. I now turn to the second nature of the application which is the proper place for the hearing of the matters and it is to be borne in mind that this relates to both the hearing of the Gympie case as well as those matters set down for hearing in Pialba.  Mr Theo is concerned about the expenditure of public money in attending at a hearing of these matters some 350 kilometres from Brisbane.

13. It is important for the Land Court to recognise as it has done for over a century that it is to be a court for all Queenslanders for the administration of justice and for the proper conduct of the court and the parties who appear before it.  The basic presumption is made in the vast majority of matters, particularly those under the Valuation of Land Act, that the court will travel to those areas of the State where the land is located.  In order to maximise as much as possible the proper expenditure of funds in organising such sittings of the court it is the standard process of the court to travel to regional areas and hear a relatively large number of matters at those regional areas before the one Member with the assistance of one deputy registrar.  This has the obvious advantages of the appellants who reside in that area having easy and ready access to the court and also valuers for both the respondent and appellants, who quite often are located in the same regions as the land, to also have easy access to the court.  Acting in accordance with that normal process these matters have been set down for hearing in Pialba and Gympie respectively and I have a full week's sittings in Pialba and I have most of that week set down for hearings in Gympie.  Mr Theo seeks that these matters both be transferred to Brisbane which is in much closer proximity to where he resides. 

14. I note that Mr Theo is not the appellant in these matters but is the agent who has been engaged by the Solon Theo Family Trust to represent it at the hearings.  The trust could of course if it chose to have an agent located in the areas where the land is to be found represent it, but leaving that to one side and taking particular note that Mr Theo does have a close relationship with the Solon Theo Family Trust, I understand why he seeks to have the matters heard in Brisbane.  I also understand why he seeks to have both matters heard together. 

15. Mr Smith for the respondent says that there has been nothing shown in the application by the trust as to any good reason why the normal procedures of the Land Court should not apply and why the matters should not proceed as listed. 

16. In my view Mr Theo's application to have both the Gympie and Hervey Bay matters at Pialba heard together does have some merit, although they are of course to be dealt with by a different valuer.  There is little difference though for a valuer resident in Gympie or thereabouts to travel to Brisbane or to Hervey Bay, so for convenience for the valuer from the respondent's point of view I see no great advantage or disadvantage in that regard.  I would anticipate that the same legal representation would appear for the respondent and Mr Theo would appear for the appellant in all matters, so in that regard I am content for the Gympie matter to be included in the hearings that take place with the Pialba matters.  However, I do not see it as appropriate that the sittings listed for Pialba otherwise be altered. 

17. My orders will be that each of the matters currently listed for hearing in Pialba take place in Pialba and that the matter No. AV2008/1012 currently listed for hearing in Gympie on 12^th March 2009 also be heard in Pialba immediately following the conclusion of the other trust matters set down for Pialba.

18. I now turn to consideration of the application brought by the respondent for relaxation of Rules of the Land Court and in particular Rule 23 of the Land Court Rules.  This matter causes me some difficulty.  Effectively the Gympie matter now must be dealt with separately to the other matters because the time lines for the parties to comply with the orders and the rules now cannot be met.  In order for the Gympie matter to proceed in Pialba there will be a requirement for the rules to be relaxed.  However, as regards the Pialba matters the time for expert reports to be presented to the court by both sides has already passed.  Mr Theo very strongly for the family trust states that the respondent should not receive the benefit of any relaxation of the rules regarding the provision of expert reports.  In my view Mr Theo in making those submissions fails to comprehend that the providing of expert reports by the respondent is in many respects an element of each case which can be of great assistance to an appellant in bringing an appeal under the Valuation of Land Act. 

19. In many cases before this court often the only expert valuation evidence is that expert valuation evidence provided by the respondent and, indeed, there is no direct obligation on the respondent to provide expert valuation evidence and for all of the Pialba matters were the court to exercise the strict rules as they currently apply the court could proceed to have the matters heard with the receipt of no expert evidence by either party.  Were that to be the case it would completely go against the submissions that Mr Theo has made for the trust that he should always have the opportunity to respond to the material that the respondent puts forward by way of valuation evidence and be able to challenge the veracity of that evidence.  To a great extent, accordingly, the benefit in this matter of relaxing the rules of the Land Court as to the receipt of expert evidence will favour Mr Theo and the Solon Theo Family Trust. 

20. The court must in hearing matters exercise discretion as to equity and good conscience to ensure that the justice of the matter is met in all cases.  In the circumstances of these cases the court is determined to treat both the appellant and the respondent even-handedly and fairly and, taking into account the requirements to meet those high standards, I consider it to be in the appellant's benefit to receive the valuation reports from the respondent.  Therefore, as regards the Pialba appeals, I am prepared to relax the rules to some extent.  It is also necessary, as I have previously indicated, to amend the rules (as has already been done) as regards the Gympie appeal which has now been transferred to Pialba. 

21. I propose that there be a date by which all expert reports are to be exchanged so that any evidence which clearly falls within the bounds of expert report will be clearly understood by both the court and all the parties.  Some days following the receipt of the expert report I will then require the appellant to place any other evidence that they wish to have before the court in writing served on both the respondent and filed in the court.  The respondent will then be allowed a period of days following that to respond to any evidence that has been placed by the appellant before the court and place its own evidence before the court.  Finally the appellant will be given an opportunity to place any material in reply. 

22. [After hearing from the parties, the Court ordered, by consent, the following timetable for the filing and service of evidence:  all expert reports by noon on 16 February, the appellant's non expert evidence by noon on 20 February, the respondent's non expert evidence by noon on 23 February and the appellant's non expert evidence in reply by 4.00pm on 24 February 2009.]

ORDERS

1.The appellant’s application that certain Members of the Land Court and Land Appeal Court not hear its appeals in each of these matters is dismissed.

2.Appeal AV2008/1012 listed for hearing in Gympie on Thursday 12 March 2009 is transferred to Hervey Bay for hearing on Thursday 26 February 2009 to be heard immediately following the hearing of appeals AV2008/0070, AV2008/0071, AV2008/0350, AV2008/0351 and AV2008/0352.

In relation to all six appeals:-

3.All expert reports from either party be filed and served by noon on Monday 16 February 2009.

4.The appellant file and serve any non-expert evidence by noon on Friday 20 February 2009.

5.The respondent file and serve any non-expert evidence by noon on Monday 23 February 2009.

6.The appellant file and serve its reply evidence (if any) to the respondent’s non-expert evidence by 4.00pm on Tuesday 24 February 2009.

PA SMITH

MEMBER OF THE LAND COURT