Van Zelderen v Department of Natural Resources and Water
[2010] QLC 1
•20 January 2010
LAND COURT OF QUEENSLAND
CITATION: Van Zelderen v Department of Natural Resources and Water [2010] QLC 001 PARTIES: Eduard Jacob and Maria Anna Van Zelderen
(applicants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO: VLA603-08 DIVISION: Land Court of Queensland PROCEEDING: Application for a rehearing DELIVERED ON: 20 January 2010 DELIVERED AT: Brisbane HEARD AT: Written submissions PRESIDENT: Mrs CAC MacDonald ORDER: The application for a rehearing is refused. CATCHWORDS: Practice and Procedure – rehearing – s.12 Land Court Act 2000 – procedural fairness
Unimproved value – methods of valuation – comparative sales evidence – Valuation of Land Act 1944SOLICITORS: Legal Services, Department of Environment and Resource Management, for the respondent.
Eduard Jacob and Maria Anna Van Zelderen (the appellants) have brought an application pursuant to s.12 of the Land Court Act 2000 for leave to have a matter reheard. The matter which they wish to have reheard is their appeal to the Land Court, under the provisions of the Valuation of Land Act 1944, against a determination by the Chief Executive, Department of Natural Resources and Water (the respondent) of the unimproved value of the appellants' land at $255,000 as at 1 October 2007.
On 17 February 2009, Land Court Member Mr RP Scott handed down his decision in respect of that appeal. The appellants had contended that the value of their land as at the relevant date was $160,000. The appeal was dismissed by Mr Scott who gave written reasons for his decision.
Reasons for Decision of Land Court
In the course of his decision, the Member said that much of the appellants' case had been based on the proposition that the increase of approximately 33% per annum since the date of an earlier valuation of their property was unsustainable and employed a method not considered to be appropriate. The appellants had submitted that to establish the real value of the land, the long-term trend of increases in the value of property over a period of 50 years ought to be employed. The learned Member rejected that valuation methodology and held that the evidence of sales of comparable properties provided the best basis for determining land value.
The learned Member did not accept the sales evidence adduced by the appellants. He held that four of the six sales had taken place at a time that was too remote from the date of valuation because the market was rapidly rising during 2007. A fifth sale was not a sale but involved an exchange of land. The sixth was a "hardship" sale by the owner of remnant land where the rest of the land had previously been resumed. That sale did not therefore provide a suitable basis for valuation.
The Member accepted the four sales relied on by the respondent Chief Executive as relevant arm's length transactions to the determination of the value of the appellants' land as at 1 October 2007. Mr Scott said that the values prevailing at that time did appear to have resulted from a rapid escalation of sale prices during the preceding year, but said that, even if, as the appellants had submitted, there was a bubble market as at 1 October 2007, any decrease in the market following that date would be reflected in subsequent valuations.
The appellants submitted that if property values continued to increase at the rate that they had in recent times they would not be able to afford the local government rates. The learned Member pointed out that the Land Court was charged with the responsibility of hearing and determining appeals against valuations determined under the Valuation of Land Act. The Land Court did not have responsibility for the level of rates struck by local government authorities.
The learned Member also rejected, on the evidence, a submission by the appellants that the respondent's valuer may have valued their property as unimproved.
The appellants also complained that the respondent's valuer had not visited the subject land prior to making the valuation. Although the valuer had initially adopted the mass appraisal technique in making the valuation, he did visit the property prior to the hearing before Mr Scott. Mr Scott held that the valuer's conduct in this regard was reasonable and valid and pointed out that the valuer's description of the subject land had not been disturbed by the appellant's evidence.
The learned Member concluded that the appellants had not discharged the onus imposed on them by s.45(4) of the Valuation of Land Act of proving any and every ground of appeal. He said that the appellants had not demonstrated that the valuation by the Chief Executive was in error and, accordingly, the appeal was dismissed.
Parties' submissions
Following the dismissal of their appeal, the appellants filed an application in the Land Court seeking the following relief –
"We are seeking a rehearing of our case, if possible, a different judge and if possible in Atherton, as we have no real transport to go to Cairns."
The facts and circumstances relied on by the appellants as the basis of their application were –
Objection to over-valuation of a 25 acres piece of unimproved land from $109,000 - $255,000 without inspecting said property since the last time, which was in 1991 and basing this new valuation merely on "driving past" above said property, thus causing undue hardship and basing this, abovementioned, on a few selected sales in same area in bubble market and unrealistic time.
Following a directions hearing, I ordered, with the consent of the parties, that the application was to proceed without an oral hearing and the parties were directed to file submissions in accordance with a stated schedule.
In their written submissions the appellants said -
"We are seeking a rehearing of our case as we feel the former hearing was not conducted fairly.
1. Having no legal experience and no legal help, Mr RP Scott should have been our umpire of which he did little.
2. Mr RP Scott decided that only one of us should have been in charge which was very confusing as English is not our mother language and can be confusing at times, we could have assisted each other a little at least at times.
3. The Department of Natural Resources and Water was represented by, may I say, one of the best lawyers/barristers in Queensland, a big plus, paid by the taxpayer of course. Mr Smith had the knack of bombarding one with legal jargon unheard of etc.
4. At one stage Mr Van Zelderen asked Mr Moroney a question. This was hardly taken seriously and both Mr Scott and Mr Moroney had a good old laugh on our expense.
In conclusion we Mr Van Zelderen and myself feel we have been discriminated against, belittled and ridiculed. In Australia it is law that anyone may they be rich or poor should have a fair trial or hearing whichever may be the case."
It is to be observed that these submissions introduce new issues in addition to those set out by the appellants in their application for a rehearing. However the respondent has not objected to the introduction of the new issues and, therefore, I am prepared to take them into consideration in addition to the matters raised by the appellants in their application.
In his response submissions, the respondent contested the appellants' criticisms of the conduct of the hearing. The respondent submitted that the appellants were given a fair hearing, that they were given the opportunity to give evidence in both written and oral form at the hearing of the matter by Mr Scott, that there was no request by the appellants for an interpreter, that, if there had been any unfair questioning on the part of the respondent's legal representative this would have been curtailed by the presiding Member and there was no suggestion of such a problem in the Court's decision, and that the subjective assertions concerning discrimination, belittlement and ridicule were wholly unsupported by the decision handed down. The respondent also submitted that the issues raised by the appellants in their application for rehearing were addressed by Mr Scott and dealt with adequately by him. In the circumstances, the respondent says that the Court would not be satisfied that there are good grounds to grant the appellants leave to have the matter reheard.
In their reply, the appellants maintained that the hearing had not been fair. They said that they were unaware that they were able to have an interpreter in the case and should have been told so. While they conceded that their written submissions demonstrated a grasp of the everyday language of English, they said that they did not demonstrate a grasp of legal language which has to be studied for at least 6 years. The appellants denied that they had said there was unfair questioning by counsel for the respondent at the hearing. It was submitted that the basis of the allegation of discrimination was that pensioners could hardly afford legal representatives and the basis of the allegation of belittlement and ridicule was that when Mr Van Zelderen asked Mr Moroney a question, this was hardly taken seriously. It mattered a lot to the appellants and the rather vague answer was indeed laughed at and Mr Van Zelderen felt he was being ridiculed.
The appellants also said in their reply that if they had the necessary funds, they would have engaged an independent valuer. The lack of data available to the appellants benefited the respondent who was able to select plots which suited his purpose because the respondent had total access to the data. If the valuer needed to refresh his memory to revalue a plot of block, this was not normally done by driving past a few times or saying "I visited the property in 91 or was it 92? I don't quite know now". This is normally done before an appeal was made.
Legal Principles
Section 12 of the Land Court Act 2000 provides that
"Power to rehear matters
12.(1) A party to a proceeding who is dissatisfied with the Land Court's decision may apply to the court for leave to have the matter reheard.
(2)The application must be made within 42 days after the order containing the decision is made by the court.
(3)If the application is granted, the matter must be reheard, if practicable, by the member who gave the decision on which the rehearing is sought."
Section 12 was considered by the Court of Appeal in Townsville City Council v Chief Executive, Department of Main Roads.[1] Keane JA said that the considerations relevant to the exercise of the discretion conferred by s.12(1) must be understood by reference to the subject matter of the discretion and its statutory context.[2] He went on to say:[3]
"The discretion conferred by s 12 of the Act is conferred to avoid an unjust outcome of proceedings before the Land Court and to ensure that the decision of the Land Court reflects the true merits of the case as between the parties. It must be exercised in accordance with that purpose. This is especially so in light of s 7 of the Act which instructs the Land Court to exercise its jurisdiction according to "equity, good conscience and the substantial merits of the case".
[1] [2006] 1 QdR 77.
[2] At [24].
[3] At [37].
His honour also said that the discretion conferred by s.12 falls to be exercised as a matter of balancing competing considerations having regard to all relevant circumstances. Generally speaking, the likely impact of the alleged error on the outcome of the case will be a consideration relevant to that balancing exercise.[4]
[4] At [45].
Consideration of the Parties Submissions
The issues raised by the appellants in this application and their submissions fall into two broad categories – the alleged unfair conduct of the hearing, and their dissatisfaction with the valuation and the outcome of their appeal to the Land Court.
Conduct of hearing
As to the conduct of the hearing, it is clear from the extracts of the decision in Townsville City Council v Department of Main Roads set out above, that a failure for some reason to have a fair hearing is a factor that will militate in favour of an order for a rehearing.[5] Since the submissions made by the appellants in support of their complaint that the hearing was not fair turn on what actually occurred at the hearing of the appeal, I have considered the transcript of that hearing carefully.[6]
[5] See Starr v Appleton [2009] QLC 0060 at [7].
[6] The transcript is a formal record of the court proceedings (at which the appellants were present) typed from the official recording of the hearing.
The appellants referred in their written submissions to the fact that English was not their first language and could be confusing to them at times. In this context Mr Scott's direction, that only one of them should have been in charge, was very confusing as they could have assisted each other a little at least at times. They subsequently said, in their reply submissions, that they were unaware they were able to have an interpreter in this case and should have been told so. Their written submissions, they said, demonstrated only a competent grasp of English on an everyday basis, and they did not have the legal language which flows from a study for at least 6 years.
While it is clear from an examination of the transcript, and indeed from the teleconference which I held with the parties in connection with the application for the rehearing, that English is not the first language of the appellants, there is no suggestion in the transcript that they misunderstood the nature of the proceedings or what was required of them. From time to time it is evident from the transcript that Mr Van Zelderen may have misunderstood a particular word, but its meaning was explained to him.[7] There was also some misunderstanding by Mr Van Zelderen as to his particular role at one point.[8] The appellants did not say that they did not say understand what was going on, nor the language that was being used. There is nothing in the record which indicates that the appellants were in need of an interpreter. In those circumstances, I consider that the appellants have not established that the conduct of the hearing was unfair because no interpreter was present.
[7] For example, Mr Scott explains what he meant by the word "highlight" (Transcript, p 4); Mr Smith (counsel for the respondent) explained the meaning of the word "vendor" (Transcript, p 7).
[8] Mr Van Zelderen appeared not to be clear about whether he was asking or answering questions (Transcript, p 11).
A number of the appellants' submissions are related in that they are based on the disadvantage felt by the appellants because they were not legally represented at the hearing. Specifically the appellants said in their first point that because they had no legal experience and no legal help, Mr Scott should have been the umpire of which he did little. And in their third point the appellants said that the Department of Natural Resources and Water was represented by one of the best lawyer/barristers in Queensland, and that Mr Smith had the knack of bombarding them with unfamiliar legal jargon. Further, in their submissions in reply, the appellants elaborated on their claim that they had been discriminated against by saying that as pensioners they could hardly afford legal representatives. They also said they did not have the funds to employ an independent registered valuer and allied with this, they did not have access to the data which was available to the respondents.
There is no doubt that the Court should ensure as far as possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair hearing.[9] While it is recognized that self-represented litigants may be at a disadvantage when faced with an opponent who has legal training and, therefore, that they may require some assistance, the Court must maintain impartiality. In Rajski v Scitec Corporation Pty Ltd, Mahoney JA said[10] that:
"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure affords to the unwary and untutored. But the Court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and maybe lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."
[9] Johnson v Johnson (1997) 139 FLR 384, 22 Fam LR 141 at 143.
[10] Unreported, Court of Appeal, New South Wales, 16 June 1986 at 27.
The transcript reveals that the appellants received assistance from Mr Scott from time to time in the course of the hearing. Thus, for example, Mr Scott took basic information from the witnesses such as their names etc, and questioned Mr Van Zelderen as to the statements which he was tendering on behalf of the appellants.[11] Mr Scott clarified with Mr Van Zelderen the valuation methodology used by the respondent.[12] Mr Scott suggested to Mr Van Zelderen that he could take his time answering questions, that he should ensure he understood the question, and that he should think about the answer before giving his answer.[13] Mr Scott also allowed Mr Van Zelderen to return to the witness box and give further evidence which he had forgotten in his initial evidence in chief.[14] When the valuer called by the respondent (Mr Moroney) was being cross-examined by Mr Van Zelderen, Mr Scott intervened to assist Mr Van Zelderen (which assistance was acknowledged by Mr Van Zelderen) and to clarify particular aspects of Mr Moroney's evidence and valuation report.[15]
[11] Transcript , pp 3 and 4.
[12] Transcript, p 9.
[13] Transcript, p 12.
[14] Transcript, p 18.
[15] Transcript, pp 24 – 27.
There were occasions when Mr Scott intervened, at the request of counsel for the respondent, during Mr Smith's cross-examination of Mr Van Zelderen to require the appellants to follow normal Court procedure. Thus Mr Scott refused to allow Mrs Van Zelderen to communicate with Mr Van Zelderen during the course of that cross examination,[16] and expressly required Mr Van Zelderen to answer Mr Smith's questions and not to argue with him.[17] Mr Scott also, subsequently, refused to allow Mrs Van Zelderen to cross-examine Mr Moroney and required her to communicate her questions to Mr Van Zelderen so that he could continue the cross-examination.[18]
[16] Transcript, p 11.
[17] Transcript, pp 11, 12.
[18] Transcript, p 27. Mr Van Zelderen acknowledged at the commencement of the hearing that he was appearing for his wife and himself (Transcript, p. 1).
Having considered these specific matters and also the rest of the transcript, I can find no evidence that the appellants were not given an appropriate opportunity to conduct their case fairly. Recognizing their disadvantage as litigants in person, Mr Scott stepped in from time to time to assist them. He refused some of their requests as set out above, but those refusals were reasonable in the circumstances. In my opinion, the transcript shows that Mr Scott ensured as far as possible that fairness was afforded to all the parties, that is both the appellants who were not represented and the respondent who was legally represented. The appellants therefore have not established that a rehearing should be granted on the ground that they were treated unfairly because they were not legally represented.
The appellants also considered that they had been belittled and ridiculed because, when Mr Van Zelderen asked Mr Moroney a question, it was not taken seriously. This mattered a lot to the appellants and the rather vague answer was laughed at and Mr Van Zelderen felt he was being ridiculed.
Without any further information as to the precise content of the question referred to in the submission, it is difficult to be certain as to exactly what this submission is referring to. During Mr Van Zelderen's cross-examination of Mr Moroney Mr Smith intervened with an objection. Following that objection, Mr Scott took over the questioning of Mr Moroney on behalf of Mr Van Zelderen and with Mr Van Zelderen's agreement.[19] The bulk of the cross-examination of Mr Moroney on behalf of the appellants was carried out by Mr Scott. There is nothing in the transcript of Mr Van Zelderen's cross-examination of Mr Moroney to verify the statement that Mr Van Zelderen was laughed at by Mr Moroney and Mr Scott. In the circumstances therefore, I do not consider that the alleged basis for Mr Van Zelderen's feelings of belittlement and ridicule has been demonstrated.
[19] Transcript, p 24.
My overall conclusion is that the appellants have not proved that the hearing of their appeal was conducted unfairly and, therefore, they have not established this as a ground for the grant of leave for the matter to be reheard.
The valuation
The second broad basis on which the appellants have sought a rehearing relates to their objection to the amount of the valuation and the valuation methodology adopted by the respondent. In particular, the appellants objected to the over-valuation of their property, the size of the increase in valuation, the failure of the respondent's valuer to inspect the property before the revaluation, his reliance on a 1991 inspection and a drive past the property after the appeal was lodged, and the selection of a few sales in a bubble market at an unrealistic time. The valuation, the appellants said, caused them undue hardship.
It is evident from the decision of the learned Member, that these matters were raised by the appellants before him. Thus Mr Scott considered the appellants' case that the increase of approximately 33% per annum since the date of an earlier valuation was unsustainable. Mr Scott concluded that the appellants' valuation methodology based on long term increases over 50 years was not valid and held that evidence of sales of comparable properties provided the best basis for determining land value. Mr Scott rejected reliance on the appellants' sales for the reasons set out in his decision, which are summarised above.[20]
[20] At [4].
The issue of the market bubble was also raised by the appellants at the hearing before Mr Scott. Mr Scott decided that because the valuer was required to strike a value as at 1 October 2007, it was necessary for him to take into account the market that existed at that time. Mr Scott acknowledged that there did appear to have been a rapid escalation of sale prices during the year preceding 1 October 2007 but the four sales relied on by Mr Moroney were arm's length transactions which took place in an open market.
Mr Scott also discussed the appellants' complaint that the valuer had not visited the subject land prior to the issue of the valuation appealed against. He pointed out that the valuer had inspected the property following the lodgement of the notice of appeal by the appellants in order to refresh his memory of the features of the land. He found that the valuer's conduct was reasonable.
Finally, the appellants have again said that the valuation has caused them undue hardship. As pointed out by Mr Scott, the Land Court is obliged to hear and determine appeals under the provisions of the Valuation of Land Act. The Court does not have responsibility for the level of rates struck by local government authorities.
It appears that all of the valuation issues raised by the appellants in their application for a rehearing had been raised before the Land Court at the original hearing of this matter and were dealt with by the learned Member. The Member has given reasons for his decision on each of the issues raised. The appellants have not pointed to any proposed new evidence in support of their assertion that the valuation appealed against is wrong. They have not established the likelihood of any error on the part of the Member who decided the appeal. In essence, the appellants' submissions about the valuation are a repetition of their submissions before the Member and amount to the proposition that they are not satisfied with the decision of the Land Court.
The appellants are not entitled to have the matter reheard as of right. Rather, s.12(1) of the Act requires that the Court give leave to have the matter reheard. It has been held that the fact that leave is required for a rehearing necessarily means that the interests of justice must be served by the granting of leave and also reflects the public interest in the finality of litigation.[21] The likely impact of the alleged error on the outcome of the case is a consideration relevant to the exercise of the discretion conferred by s.12.[22]
[21] Nevis Pty Ltd v Chief Executive, Department of Main Roads (2002) 23 QLCR 192 at [25].
[22] Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 QdR 77 at [45].
On consideration of the valuation issues raised by the appellants in their application for a rehearing and in their submissions in support of that application, I cannot find any basis on which I could be satisfied that, should the matter be reheard, it is likely that a different result would be reached. The appellants have not pointed to any potential new evidence which would cause the outcome to be any different. Further I am not satisfied that they have shown that there has been any error or likely error by the learned Member. They have not established any basis on which a rehearing should be granted.
Conclusion
My conclusion is that the application for a rehearing should be refused.
ORDER
The application for a rehearing is refused.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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