Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water
[2008] QLAC 227
•19 December 2008
LAND APPEAL COURT OF QUEENSLAND
CITATION:Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water [2008] QLAC 0227
PARTIES:SOLON THEO FAMILY TRUST
(appellant)
v
CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER
(respondent)
FILE NO:LAC2007/0821
DIVISION:Land Appeal Court of Queensland
PROCEEDING: Appeal against a decision of the Land Court of Queensland
ORIGINATING COURT: Land Court of Queensland
DELIVERED ON: 19 December 2008
DELIVERED AT: Brisbane
COURT:White J
Mr RS Jones, Member of the Land Court
Mr PA Smith, Member of the Land Court
ORDER:The appeals are dismissed.
CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – GENERALLY – the appellant land owner appeals against assessments by the respondent of the unimproved value of certain land – whether the correct valuation method was used – whether all relevant factors were considered – whether the Maurici principle was correctly applied
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – GENERALLY – under the Valuation of Land Act 1944 the burden of proof on an appeal is on the appellant land owner – the appellant produced no sales evidence – whether the appellant demonstrated an error in the selection or analysis of comparable sales used by the valuer
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – GENERALLY – the appellant alleged bias and improper conduct against the Judicial Registrar – whether there is any evidence of bias or improper conduct
Integrated Planning Act 1997 (Qld)
Valuation of Land Act 1944 (Qld), s 33, s 45
Vegetation Management Act 1999 (Qld)
Barnwell v The Valuer General (1989) 13 QLCR 13, cited
BrisbaneCity Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41; [1978] HCA 40, applied
Fischer v The Valuer General (1983) 9 QLCR 44, cited
Grahn v The Valuer General (1992) 14 QLCR 327
Hillberg v Department of Natural Resources and Mines (2006) QLC 0024, applied
Maurici v. Chief Commissioner (2003) 212 CLR 111, [2003] HCA 8, discussed
Qualischefski v Valuer General (1979) 6 QLCR 167, applied
Theo v Department of Families, Community Services & Indigenous Affairs [2007] FCA 171, related
Theo v Official Trustee in Bankruptcy (1998) FCA 862, related
Tow v Valuer-General – Redland Shire (1978) 5 QLCR 378, cited
The Valuer-General v Marano (1978) 5 QLCR 194, cited
Waterhouse v Valuer-General (1927) 8 LGR (NSW) 137, cited
APPEARANCES: Mr S Theo, for the appellant
Mr MC Heather, Principal Lawyer, Department of Natural Resources and Water, for the respondent
SOLICITORS: Mr S Theo, for the appellant
Department of Natural Resources and Water, for the respondent
[1]The appellant, the Solon Theo Family Trust, is the registered proprietor of seven lots of land situated in the Cooloola and Tiaro Shires. Various valuations were made by the respondent pursuant to the Valuation of Land Act 1944 (the VLA) for a number of valuation periods. Dissatisfied with the respondent’s assessments of unimproved value, the appellant lodged 11 appeals in the Land Court. On 5 September 2007 the Land Court published its reasons,[1] dismissing nine of the appeals and allowing two, in part. The appellant subsequently appealed each determination to this Court as one appeal.
[1] Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water [2007] QLC 0069.
[2]For convenience, the learned Judicial Registrar in his decision dealt with the appeals in five groupings, and both parties to the appeal have made their submissions following that arrangement. The respondent provided the Court and the appellant with a useful schedule which details each valuation in each group as follows:[2]
Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water
Schedule of Appeals
[2] Extracted from respondent’s submissions of 12 June 2008.
| Group | Appeal number | Property Address | Real Property Description | Local Government Area (at date of valuation) | Date of Valuation | Issued Valuation | Appellant’s Valuation | Decision of the Court |
| 1 | AV2005/0361 | Sandy Creek Rd, Downsfield | Lot 5 on RP 857417 | Cooloola Shire | 1/10/2004 | $100,000 | $50,000 | Appeal Dismissed |
| 2 | AV2005/0500 | Redbank Road, Tiaro | Lot 193 on Plan M37199 | Tiaro Shire | 1/10/2004 | $95,000 | $55,000 | Appeal Dismissed |
| AV2006/0366 | 1/10/2005 | $114,000 | $50,000 | Appeal Dismissed | ||||
| 3 | AV2005/0501 | Bruce Highway, Bauple | Lot 1 on RP 195331 | Tiaro Shire | 1/10/2004 | $54,000 | $35,000 | Appeal Allowed ($51,000) |
| AV2006/0367 | 1/10/2005 | $70,000 | $30,000 | Appeal Allowed ($66,000) | ||||
| 4 | AV2005/0502 | Main St Gundiah | Lot 4 on RP 23005 | Tiaro Shire | 1/10/2004 | $12,600 | $6,000 | Appeal Dismissed |
| AV2006/0364 | 1/10/2005 | $17,000 | $5,000 | Appeal Dismissed | ||||
| 5 | AV2007/0009 | Paterson Road | Lot 10 on RP 187477 | Tiaro Shire | 1/10/2005 | $67,000 | $30,000 | Appeal Dismissed |
| AV2007/0010 | Lot 9 on RP 187477 | Tiaro Shire | 1/10/2005 | $67,000 | $30,000 | Appeal Dismissed | ||
| AV2005/1280 | Lots 9 & 10 on RP 187477 | Tiaro Shire | 1/10/2004 | $55,000 | $48,000 | Appeal Dismissed | ||
| AV2006/0365 | 1/10/2005 | $77,000 | $30,000 | Appeal Dismissed |
[3]The appellant is represented on this appeal, as it was below, by Mr Sol Theo. The beneficiaries of the appellant Trust, Mr Theo informed the Court on an earlier application for waiver of fees associated with this appeal, are his wife and adult children. Mr Theo has in his dealings with the Court tended to treat the Trust as his alter ego. It was quite difficult to get the appeal on for hearing as Mr Theo resisted complying with the Practice Direction to progress the appeal through the preparation of the Appeal Record. He successfully obtained several adjournments of the hearing date because of a number of medical conditions. Presumably at his direction, the appellant was not prepared to engage professional assistance to argue the appeal notwithstanding Mr Theo’s indisposition.
[4]The various interlocutory orders and reasons for them in respect to this appeal need not be further mentioned here.[3]
[3] Orders were made on 3 December 2007, 27 February 2008, 24 April 2008 and 8 May 2008.
[5]Both before the learned Judicial Registrar and before this Court, the appellant’s grounds of appeal have been obfuscated by Mr Theo’s style of advocacy. The appellant’s grounds of appeal to this Court consist of 16 numbered paragraphs running over 9 pages, with some of the numbered paragraphs including numerous sub-parts. Additionally, the first ground reads:
“The appellant relies on all the submissions made to the Land Court as well as the following.”
When account is taken of the submissions and appeal points below made in writing by the appellant then, the number of pages the appellant relies upon in its grounds of appeal stretches to 74. The appellant has supported the grounds for appeal in this Court by providing 15 pages of written submissions and making oral submissions. However, instead of detailing circumstances where the appellant alleges that the learned Judicial Registrar fell into error in his decision, the appellant’s written submissions, in the main, refer to transcript references to little apparent purpose. It is thus difficult to ascertain with precision the exact manner in which the appellant alleges that there has been error.
[6]The respondent’s written submissions assist in unravelling the appellant’s complaints by reducing them to three broad grounds:
(a)the respondent used the wrong methodology to value the subject lands because he did not properly apply sales evidence;
(b)the respondent in making the valuations proceeded on a wrong factual basis, in failing to take proper account of the announcement of the Traveston Dam, the effect of the Vegetation Management Act 1999 and the Integrated Planning Act 1997, and the effect of powerlines that pass over one of the properties; and
(c)the appeals were conducted in a way that disadvantaged the appellant, in particular by the Court adjourning proceedings on the application of the respondent and by the Court elucidating evidence from witnesses called by the respondent.
[7]The learned Judicial Registrar summarised[4] the appellant’s grounds of appeal to the Land Court common to each valuation appeal more expansively:
[4] Reasons at [15].
“a. Was the valuation methodology adopted by the respondent valid?
b.Was the increase in valuation of the subject properties excessive, given the average increase in south east Queensland.
c.Did the proposed Traveston Dam affect valuation of the properties?
d.Did the Vegetation Management Act 1999 impact on the valuation of properties.
e.Was the sales evidence used by the respondent properly comparable to the subjects?
f.Was the Maurici principle relevant in current circumstances?
g.Was proper allowance made for lack of improvements and availability of services?
h.Can land gazetted as "Rural" but not used for rural residential purposes be valued as rural residential.”
In addition, he considered various arguments raised by the appellant with respect to each individual property or property sub-groupings. Given the manner in which the appellant has made its grounds of appeal and submissions to this Court, and the approach to the appeal below, it is convenient to follow the Judicial Registrar’s headings on this appeal.
[8]At the outset, mention should be made of the burden of proof on an appeal brought under the VLA. An owner who has objected against a valuation may, if dissatisfied with the decision of the Chief Executive upon the objection, appeal to the Land Court against the valuation.[5] The appeal is limited to the grounds stated in the notice of appeal “and the burden of proving each and every such ground shall be upon the owner.”[6]
[5] s 45(1).
[6] s 45(4).
[9]Furthermore, s 33 of the VLA deems every valuation made by the Chief Executive under the Act correct “until proved otherwise upon objection or appeal...”.
[10]The learned Judicial Registrar correctly noted, relying on well known propositions in Brisbane City Council v The Valuer-General[7] and Hillberg v Department of Natural Resources and Mines[8] that since the appellant had produced no sales evidence itself, it had to show that the sales relied on by the Chief Executive were not sufficiently comparable or were incorrectly analysed. Mr Theo contends that he did so through his cross-examination of the respondent’s valuers. He was partially successful with respect to the Group 3 Appeals – Bruce Highway at Bauple – in as much as the respondent conceded below in cross-examination of one of its valuers that the negative impact of overhead powerlines had not been sufficiently reflected in the unimproved value of the property. This concession resulted in a five per cent reduction in the total value of the land.
[7] (1978) 140 CLR 41 per Gibbs J at 56-57.
[8] (2006) QLC 0024 at para 12.
Was the Valuation Methodology Adopted by the Respondent Valid?
[11]The learned Judicial Registrar[9] referred to the observation of Pike J in Waterhouse v Valuer-General:[10]
"Land in my opinion differs in no way from any other commodity. It certainly is more difficult to ascertain the market value of it but as with other commodities the best way to ascertain market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date – that is evidenced by sales."
[9] Reasons at [16].
[10] (1927) 8 LGR (NSW) 137 at 139.
[12]The appellant contends that the learned Judicial Registrar failed to apply Waterhouse correctly because he accepted sales evidence at ‘closest dates’ and not on the relevant date as required in Waterhouse. The appellant’s contention is misconceived. While each appeal relates to the value of relevant land as at a date of valuation of either 1 October 2004 or 1 October 2005, the authorities clearly establish that sales evidence in support of such valuations is not restricted to sales which occur only on the valuation date. This Court said in The Valuer-General v Marano:[11]
“It is well established that the best way to ascertain the unimproved value of land is by applying to it sales of unimproved, comparable, lands which took place reasonably close to the date at which the valuation is to be made.”
[11] (1978) 5 QLCR 194 at 200.
The learned Judicial Registrar noted that each valuation report referred to sales of unimproved or lightly improved comparable parcels of land in the locality of the subject properties – the orthodox approach to land valuation.[12]
[12] Fischer v The Valuer General (1983) 9 QLCR 44 at para 46; Barnwell v The Valuer General (1989)
[13]Other contentions as to the lack of proper methodology by the respondent in carrying out the relevant valuations are also without foundation. The learned Judicial Registrar observed:[13]
“The mere fact that the appellant was able to point to some factual errors (generally minor) in the valuation reports does not, of course, mean that a wrong methodology was adopted. Even where the respondent valuer conceded a factual error warranted a reduction (e.g. the omission of an allowance for power lines), the methodology remained intact.”
This is a correct approach and the appellant has been unable to identify any other basis in respect of which it might be concluded that the valuation methodology was flawed.
[13] Reasons at [19].
The Relative Increase and Previous Valuations
[14]The appellant complains of the percentage increase in value of the subject properties compared to earlier valuations and compared to the general increase in valuations for other areas in south east Queensland during the same period. This Court said in Tow v Valuer-General – Redland Shire:[14]
“Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not over-anxious parties.
Subject to certain statutory requirements as to the onus of proof and the restriction of the appellants to the grounds of appeal specified in their notice of appeal, the duty of the Land Court and of this Court is to make determinations of unimproved values based on the evidence presented to it by the parties and conforming to the aforementioned statutory formula.
It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation."
The appellant has demonstrated no error on the part of the learned Judicial Registrar in applying the valuation evidence with respect to each parcel of land, even in circumstances where there was a sizable increase in valuation over a previous valuation. He simply applied the evidence of local sales relevant to each particular valuation and they demonstrated a rise in sale prices.
[14] (1978) 5 QLCR 378.
Traveston Dam
[15]The appellant contends that the impact of the Traveston Dam project was not properly considered or taken into account by the respondent’s valuers. The Traveston Dam was announced on 27 April 2006.[15] The relevant valuation date for each subject property is either 1 October 2004 or 1 October 2005. Nonetheless the appellant contends that the learned Judicial Registrar erred “by not considering the logical fact that deliberations ‘brew’ long before any announcements do take place.”[16] Even though the Dam announcement post dated by a considerable time the valuation dates, the learned Judicial Registrar did take it into account in this way:[17]
“… even if there was some local concern about selection of Traveston Dam as a possible site in the lead up to formal announcement, such concern would have been reflected in the market (and the sales referred to by the respondent).…”
And that was the appropriate response to whatever “rumours” were circulating: the market decided. Thus the appellant has failed to establish any error in the reasoning of the learned Judicial Registrar with respect to the impact, if any, of the “announcement” of the Traveston Dam on the valuations of the subject properties at the relevant dates.
[15] Reasons at [22].
[16] Appeal book page 562.
[17] Reasons at [23].
Vegetation Management Act 1999
[16]The appellant contends that the Judicial Registrar has been restrictive in his understanding of the term ‘primary production’, and that he contradicted himself about the relevance of the Vegetation Management Act to land valuations.[18] The learned Judicial Registrar noted[19] that the subject properties had been valued as having a highest and best use as “rural residential”. This was plainly correct. There is no inconsistency between those aspects of his decision and his comments[20] with respect to the Group 4 Appeals – Main Street, Gundiah:
“The appellant’s submission in relation to the Vegetation Management Act could not apply to this property as it had been cleared and thus not subject to the legislation.”
The appellant has failed to establish that the respondent’s valuers did not correctly take into account any impact that the Vegetation Management Act may have on the subject properties.
[18] Appeal book page 563.
[19] At [25] and [26].
[20] At Reasons [40].
Sales Should be Comparable in All Respects
[17]The appellant has contended that, for sales to be comparable for valuation purposes the sale properties should be identical to the subject properties. It is rare to find two identical properties. It is relevant difference, in valuation terms, which must be identified and, as the learned Judicial Registrar pointed out, the appellant “was unable to show how the comparable sales of the Chief Executive were not comparable to the subject properties”.[21] The decision of this Court in Qualischefski v Valuer General,[22] to which he referred, correctly identifies and deals with this matter.
"It is not always possible for valuers to obtain properties for basic purposes which are comparable in all respects. In the valuation process, valuers must, as best they may, make reasonable allowances for differentiating factors. Depending on the circumstances of each case the appropriate rate of allowance may have to be by way of depreciation or of appreciation."
Apart from assertion, the appellant has failed to show error by the learned Judicial Registrar in respect of either his adoption and/or application of the sales evidence.
[21] Reasons at [27].
[22] (1979) 6 QLCR 167 at 171.
The Maurici Principle
[18]The appellant contends that the learned Judicial Registrar erred in not taking into account correctly the impact of Maurici[23] on the subject valuations. During the hearing below Mr Theo expressed his view of the Maurici principle in the following way:
“The principle of Maurici v. Chief Commissioner which is a well known case in New South Wales is something very important in which the valuer did not give an indication of having taken into account if there are blocks of land similar to the subject land available or not available, perhaps they are not available. It's just like we were stupid in buying it, so we rushed it and contrary to what is known as the prudent buyer etc. and without any other influences will pay and just to elaborate verbatim type of thing provided they are not anxious buyers or fooled buyers. That's what I am referring to, the buyers of the subject property, that's us.
…
That's where the Maurici principle comes into play.
…
In that photocopy from the "Courier-Mail" a certain gentleman by the name of Robert Walker who is the Executive Director of the Property Council of Australia mentioned something which is relevant to the Maurici case. The areas are experiencing enormous demands and lack of available product is one of the reasons of increases. The price we had paid should not be considered as a true market value of the land in the area nor to be used as a basis for the land valuation.”
[23] Maurici v. Chief Commissioner (2003) 212 CLR 111
[19]In his grounds of appeal to this Court,[24] Mr Theo states that “the Judicial Registrar ignored the fragrant [sic] admission by the Respondent’s chief witness, who accepted that the said precedent did effect the lands in question, and this contrary to the Judicial Registrar’s finding.” In oral submissions before this Court, Mr Theo repeated the same allegation.[25] However, when Mr Theo was asked to take the Court to the relevant evidence, he was unable to do so, save for saying that there was a reference provided in his submissions. Mr Theo’s written submissions do contain a transcript reference to Maurici,[26] where he refers to page 223 of the transcript and alleges that the principles in Maurici, and the effects of the Vegetation Management Act, were ignored by the respondent. At page 223 of the transcript, Mr Theo said:
“Just for the record sir I reiterate everything that has been said which applies in this case, Maurici case, Queensland Vegetation Management Act etc and that’s the end of my cross-examination.”
[24] Appeal book page 563.
[25] Appeal Transcript page 6 line 12.
[26] See appellants written submissions, page 14.
[20]The Court was not referred to any evidence showing that the respondent’s valuers agreed that the principle for which Maurici stands was applicable to the subject valuations. On the contrary, there is specific evidence that the respondent’s valuers had considered Maurici and found that the principles from that case were not relevant to the subject valuations. Mr Haydon was asked by Mr Theo whether he took into consideration the Maurici principle, and he answered “No”.[27] Mr Haydon clarified his answer[28]:
“I should probably quantify that question, the previous question about the Maurici case. Maurici in this locality is not pertinent to the sales here. There were 41 within that 18-month period. Maurici would be more likely - I did take notice of Maurici when I valued the town of Teewah blocks where, for an example, there's 20 frontage blocks in the town of Teewah. Market value at that stage was about $600,000 to $800,000 and we did review the improved sales in the town of Teewah because of the limited number of sales but in this locality where there were 42 sales Maurici really doesn't have any bearing.
[27] See Transcript, Appeal book, page 36.
[28] Transcript, Appeal Book, page 37.
[21]Mr Clift gave evidence that in the Tiaro Shire in 2004, there were 515 vacant sales, of which 127 were vacant urban residential sales and 388 were vacant rural residential sales.[29] Although Mr Theo does refer to page 126 of the transcript as confirming his view of Maurici, what Mr Clift actually said was that although there was a reasonable supply of properties demand was causing prices to increase.
[29] See Transcript, Appeal Book page 63.
[22]The appellant has failed to establish any error on the part of the learned Judicial Registrar with respect to his analysis and application of Maurici.
Allowances for Improvements and Services
[23]In his grounds of appeal to this Court, Mr Theo contends that the evidence at the hearing was contrary to the learned Judicial Registrar’s findings as to allowances for improvements and services.
[24]Both in the valuation reports and in expert oral evidence, the respondent established that it took proper account of the lack of improvements and availability of services by having regard to sales in the general location that were similarly affected. This was accepted by the learned Judicial Registrar.[30] This ground of complaint cannot be sustained.
[30] Reasons at [32].
Rural Zoning; Rural Residential Assessment
[25]The appellant contends[31] that the learned Judicial Registrar “erred, in his obvious effort to alleviate the Respondent’s errors and introduce interpretations of the Act, foreign to it. Example: In his line No. 33 page No. 8 of his Orders. In addition to the above mentioned errors of his interpretations as far as ‘best use’ of the land, he introduced the unheard of terms of “Town planning designations” to justify the Respondents selective references.”
[31] Appeal book page 563.
[26]Mr Theo’s contentions are misconceived. The learned Judicial Registrar set out[32] the distinction between land being zoned “Rural” and the land being assessed for valuation purposes as “Rural Residential” by the respondent. He rightly pointed out that the subject lands had not been assessed as farming lands under s.17 of the VLA and that the appropriate designation was “Rural Residential”. He considered the submissions made by the appellant and has arrived, correctly, at the conclusion that there is no inconsistency between the local authority zoning of “Rural” and the valuation assessment of “Rural Residential.”
[32] Reasons at [33].
Allegations of Bias and Improper Conduct of the Judicial Registrar
[27]Mr Theo on behalf of the appellant alleged that the Judicial Registrar was biased against the appellant in determining the appeals, and inappropriately assisted witnesses during the hearing.
[28]The allegations of bias and improper conduct by the learned Judicial Registrar are numerous. For example:
·“Not even-handed and biased against the appellant.”[33]
[33] Appeal record page 559.
·“Did not keep his promise.”[34]
[34] Appeal record page 559.
·“Defamatory and not relevant statements.”[35]
·“Erred by interpreting the Valuation Act the appeals concerned in a one-sided way.”[36]
·“Influencing many times (and unsolicited) the witnesses depositions.”[37]
·“Putting words into the witness’s mouth.”[38]
·“Interfered with the witnesses summarising evidence and assisting to same.”[39]
·“Unwarranted bias intervention by Judicial Registrar in respondents favour.”[40]
·“Bias approach in favour of respondent.”[41]
·“Bias statement ‘hearsay evidence acceptable in Land Court’.”[42]
·“Offered his bias and unsolicited opinion which was also in contradiction of the actual zoning of the subject lands.”[43]
·“Bias and unsolicitored opinion before the respondents witness expressed his testimony.”[44]
[35] Appeal record page 559.
[36] Appeal record page 566.
[37] Appellant’s submissions 5 June 2008 page 1.
[38] Appellant’s submissions 5 June 2008 page 4.
[39] Appellant’s submissions 5 June 2008 page 4.
[40] Appellant’s submissions 5 June 2008 page 4.
[41] Appellant’s submissions 5 June 2008 page 5.
[42] Appellant’s submissions 5 June 2008 page 5.
[43] Appellant’s submissions 5 June 2008 page 5.
[44] Appellant’s submissions 5 June 2008 page 13.
[29]Mr Theo’s first allegations of biased and improper conduct are found at (ii) of the appellants grounds of appeal.[45] He refers to paragraphs [2] and [45] of the Judicial Registrar’s reasons in support.[46]
[45] Appeal record page 559.
[46]Note that throughout the grounds of appeal, reference is made to a line number and page number of the learned Judicial Registrar’s orders. On reading the totality of the grounds of appeal, it is clear that in referring to a line number, Mr Theo is referring to a paragraph of the learned Judicial Registrar’s reasons, and that the pages referred to are the relevant pages of the said reasons.
“Progression of Case
[2]While the issues in the cases are relatively straightforward, the hearing progressed in a less than conventional manner. Brief mention needs to be made of the case chronology. The case commenced in Gympie on 22 March 2007 and resumed in Brisbane on 29 March 2007. At the start of proceedings on 30 March 2007, the respondent's counsel asked that the matter be adjourned pending an application. Reasons for such request were outlined. They included:
‘it has become a serious concern of the respondent as to the way Mr Theo has been running the appeal. He has shown disrespect towards this Court, he has badgered the witness on numerous times and the respondent is seriously concerned with the progress of these appeals. So far Mr Theo has not presented any evidence to the Court. As the Court has reminded him as to the onus under the Act, Mr Theo so far has not been able to provide any evidence to support his appeal. He has been in reality conducting a fishing expedition in respect of all of these appeals.’ (T.166)
…
[45]The Chief Executive submits the following circumstances warrant an award of costs in the present case:
a.The Group Four appeals failed to disclose any prima facie case that had any prospects of success. Even if successful, the potential reduction in assessed value for the Group Four appeals were such as not to warrant an appeal.
b.Due to the conduct of the appellant during the course of the hearing, the latter was substantially and unnecessarily protracted. In this regard, the appellant was repetitive, presented submissions in the course of evidence and was discourteous to both the Court and witnesses and representatives of the Chief Executive.
c.The appellant has bought unsuccessful appeals on similar grounds previously: Solon Theo Family Trust v Department of Natural Resources and Mines (2005) QLC 0065 and Solon Theo Family Trust v Department of Natural Resources and Mines (2005) QLC 0020.
d.The appellant's submissions were without merit; for example, the submission regarding the Traveston Dam.
e.Given the appellants previous appeals, baseless submissions and discourteous conduct, the claim is bordering on vexatious.”
[30]The words that the learned Judicial Registrar uses in those paragraphs to which Mr Theo takes objection are quoted from the respondent’s submissions outlining the circumstances which would warrant an order for costs against the appellant. The reading by Mr Theo of bias and defamatory comments in those paragraphs appears to be deliberately obtuse. The appellant was fortunate that the Judicial Registrar did not consider that those circumstances were sufficient to found an order for costs.
[31]The other complaints might be summarised as that the learned Judicial Registrar took too active a role in questioning witnesses. There is no doubt that he did, on many occasions, seek clarification from witnesses and also offered occasional assistance to both the applicant and the respondent. The respondent, in his written submissions has cited examples of assistance to Mr Theo:[47]
“28.The appellant has also complained that the Court elicited evidence from witnesses called by the chief executive. Importantly, the Court gave the representative for the appellant considerable assistance in his evidence (for example, please refer to pp. 5, 7, 10, 76 and 117 of the transcript).”
[47] Submissions 12th June 2008 paragraph 28.
[32]A perusal of the transcript shows that the learned Judicial Registrar conducted what was, at times, a rather difficult hearing in an even-handed, fair manner. Mr Theo’s conduct before this Court was, occasionally, argumentative, if not pugnacious and unfocused and difficult to follow. This observation makes due allowance for the fact that the appellant has chosen to be represented by Mr Theo who has, it might be noted, now amassed significant litigation experience in the Land Court and elsewhere.[48]
[48] See, for example, Theo v Official Trustee in Bankruptcy (1998) FCA 862 (23 July 1998); Theo v
Conclusion
[33]The appellant had some modest success below in identifying matters overlooked by the respondent’s valuers but it did not produce any relevant valuation evidence to undermine the valuations nor, by demonstrated error, were those valuations called into question.
[34]The appellant has failed to show that any of the valuations were wrong and ought to be varied or that in some manner the learned Judicial Registrar fell into error. The appeals should be dismissed.
Order
The appeals are dismissed.
WHITE J
RS JONES
MEMBER OF THE LAND COURT
PA SMITH
MEMBER OF THE LAND COURT
13 QLCR 13 at para 17; Grahn v The Valuer General (1992) 14 QLCR 327 at 328.
Department of Families, Community Services & Indigenous Affairs [2007] FCA 171 (8 February
2007) (there are four earlier decisions under this title).
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