Stevenson v The Commissioner of Water Resources

[1990] QLC 2

[1990] QLC 2

 

  LAND COURT,

BRISBANE.

16th February, 1990.

Re:Appeal under Section 12 of the Water Act

1926 - 1987  (A89-42)

Hugh Isaac Desmond Stevenson
  - v -
  The Commissioner of Water Resources

-  DECISION  -

ON APPLICATION FOR AN ORDER FOR DISCOVERY

Mr. H.I.D. Stevenson and Others made application to the Commissioner for Water Resources for certain Waterworks Licences. A decision on 10 such applications has been made by the Commissioner and the appellant in each case has exercised the right of appeal to the Land Court as provided by Section 12 (4A) of the Water Act. The Court references for such appeals are the abovementioned, A89-42 and A89-57, A89-46 and A89-47, A89-51, A89-53 and A89-54, A89-55 and A89-56 and A89-59.
              The appellants have made application to the Land Court sitting in Chambers for an Order that the Commissioner of Water Resources give discovery of documents in his possession or power relating to the appeals and mentions in particular documents in some 15 separate headings.
              The matter came before the Court in Chambers on 6th February, 1990 when Counsel for the appellants in each case read the Notice of Application dated 22nd January 1990, the affidavit of Margaret Egan Kelly, a Member of the firm of John P. Kelly and Co., Solicitors for the appellant, dated 17th January, 1990 and 6th February, 1990 with the annexures attached to such affidavits and an affidavit of Brian John Button dated the 17th January, 1990.
The matter for consideration in the first instance is whether this Court has any power to make an order for discovery of documents. Counsel for the appellants argued strenuously and at length that the Court did have such a power. In summary it was his submission that the Land Court was a Court of record and has a right to regulate its own procedure. He submits that it has a special right conferred upon it by Section 41 of the Land Act 1962 (as amended) to see that the issues before it are properly and fully litigated and it is permitted to regulate its procedure to such an extent that it may take evidence on its own motion. He refers to Section 41 (5) of the Land Act as to the "equity and good conscience" provisions.  Counsel for the respondent submits that the Court has no power to order discovery.  It has no inherent jurisdiction being created by statute and its powers are determined by the statute.
              The Land Court of Queensland is constituted under the provisions of Division V of Part II of the Land Act 1962 (as amended) which Act sets out the powers and duties of the Court in the administration of its jurisdiction.  The Land Court is purely a creature of statutory creation and all of its powers are conferred by the statute.  While Section 41 (5) directs that the Court shall be governed in its procedure and its decisions by equity, good conscience and the substantial merits of the case, it should be emphasised that it is only in the exercise of jurisdiction that such principles may enter.  This section cannot be regarded as any authority for the Court to assume a jurisdiction not specifically conferred by statute nor in the exercise of its proper jurisdiction can the Court act arbitrarily, or capriciously, or recklessly, unrestrained by any rules at all;  and become, as it were, a law unto itself dealing with matters under the Act.

The question of production of documents attracted the attention of the Land Appeal Court in re Mount Abundance (Freehold) Claim for Compensation (1926 - 1927) 11 C.L.L.R. 11 where an application was made for an Order to compel discovery.  The Court said "we do not think that the Act, or the rules of the Court or the Land Appeal Court, provide any machinery for ordering discovery of documents. We think, however, that under Section 32 of the Land Act we can order the attendance of any witness having the custody of documents which we think should be produced."
The lack of power to order discovery was not altered by the Land Act of 1962. In more recent times there has been some criticism of this hiatus in proceedings in this Court with the parties claiming they have been taken by surprise and that "trial by ambush" was the norm. In the result Sections 41A and 41B were inserted in the principal Act by the Land Act and Another Act Amendment Act 1981 to provide for mutual discovery of information in respect of rental determinations and conversions of tenure (Section 41A) and for mutual exchange of valuations (Section 41B). No provision was made for discovery in any of the other matters which come before this Court.
              I can appreciate the difficulties which Counsel for the applicants envisages in proceeding by way of subpoena when the matter is listed for hearing, but I find that I have no power to order discovery and the application is refused.

President of the Land Court