Wills v Minerva Coal Pty Ltd; Armstrong v Savage Togara Coal Pty Ltd; Parkinson v BHP Coal Pty Ltd; BHP Coal Pty Ltd v Berry
[1998] QLC 24
•9 March 1998
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BRISBANE
9 MARCH 1998
In the matter of an appeal against the determination of the Wardens Court, Emerald, of compensation payable in terms of Section 282 of the Mineral Resources Act 1989 in respect of Mining Lease No. 70145 in the Emerald Mining District. (A97-63)
Michael John Wills
v.
Minerva Coal Pty Ltd
In the matter of an appeal against the determination of the Wardens Court, Emerald, of compensation payable in terms of Section 282 of the Mineral Resources Act 1989 in respect of Mining Lease No. 70149 in the Emerald Mining District. (A97-75)
NF, J, RE and DL Armstrong
v.
Savage Togara Coal Pty Ltd
In the matter of an appeal against the determination of the Wardens Court, Emerald, of compensation payable in terms of Section 282 of the Mineral Resources Act 1989 in respect of Mining Lease No. 1782. (A98-01)
R & LT Berry and KJ and RB Parkinson
v.
BHP Coal Pty Ltd and Other Members of the
Central Queensland Coal Associates
In the matter of an appeal against the determination of the Wardens Court, Emerald, of compensation payable in terms of Section 282 of the Mineral Resources Act 1989 in respect of Mining Lease No. 1782. (A98-02)
BHP Coal Pty Ltd and Other Members of the
Central Queensland Coal Associates
v.
R & LT Berry and KJ and RB Parkinson
APPLICATION TO ADMIT FURTHER EVIDENCE
REASONS FOR RULING
The appellants in the three first mentioned matters (the "appellant landholders") seek leave to adduce further evidence in appeals to this Court from decisions of the Wardens Court determining compensation pursuant to s.281 of the Mineral Resources Act 1989. The fourth matter comprises a cross-appeal. The appeals lie under s.282 of the Act and it is ss.(7) which gives rise to the need for the present application. Subsection (7) provides:
" (7) A Land Court shall not admit further evidence upon an appeal from a determination of a Wardens Court under subsection (1) unless -
(a)it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is sufficient reason that the evidence was not previously adduced; or
(b)the appellant and respondent agree to its admission."
This provision is expressed in somewhat similar terms to s.44(13)(a) of the Land Act 1962 and the parties treated the provisions as being not materially different. Section 44(13)(a) provides:
"(13)(a) The Land Appeal Court may admit further evidence only if -
(i) it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; or
(ii) the appellant and respondent agree to its admission."
Determination of compensation by the Wardens Court is provided for in s.281 of the Mineral Resources Act which provides:
" 281.(1) At any time before an agreement is made pursuant to section 279 or 280, a person who could be a party to such agreement may apply in writing to the mining registrar to have the Wardens Court determine the amount of compensation and the terms, conditions and times of payment thereof.
(2) The Wardens Court is hereby authorised to hear and determine matters referred to in subsection (1).
(3) Upon an application made under subsection (1), a Wardens Court shall settle the amount of compensation an owner of land is entitled to as compensation for -
(a) in the case of compensation referred to in section 279 -
(i) deprivation of possession of the surface of land of the owner;
(ii) diminution of the value of the land of the owner or any improvements thereon;
(iii) diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iv) severance of any part of the land from other parts thereof or from other land of the owner;
(v) any surface rights of access;
(vi) all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease; and
(b)in the case of compensation referred to in section 280 -
(i) diminution of the value of the land of the owner or any improvements thereon;
(ii) diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iii) all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease.
(4) In assessing the amount of compensation payable under subsection (3) -
(a)where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner's resettlement and the relocation of the owner's livestock or other chattels as at the date of the assessment shall be considered;
(b)no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned;
(c)if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied - an appropriate amount of compensation may be determined;
(d)loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgment of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant;
(e)an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).
(5) In any case the Wardens Court may determine the amounts and terms, conditions and times when payments aggregating the total compensation payable shall be payable.
(6) An amount of compensation decided by agreement between the parties, or by the Wardens Court or the Land Court on appeal, is binding on the parties and the parties' personal representatives, successors and assigns.
(7) The Wardens Court shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit."
The determination of the Warden in Wills v. Minerva Coal Pty Ltd (Wills v. Minerva) recites that the mining company made application under part 7 of the Mineral Resources Act on 3 September 1996 for a mining lease for the purpose of an open-cut coal mine. The lease application was in due course recommended to the Minister for approval, subject to compensation being settled by the parties or determined by the Wardens Court. It transpired that the parties failed to reach an agreement with respect to compensation and the mining company applied to the Wardens Court for a determination of compensation under the provisions of s.281 of the Act. In Armstrongs v. Savage Togara Coal Pty Ltd (Armstrongs v. Savage Togara), the application for a mining lease was made on 20 September 1996 and it was subsequently recommended to the Minister that the lease application be granted subject, of course, to compensation being settled or determined. The lease application involves four properties, each of which was considered by the Warden insofar as compensation is concerned and each of which is the subject of an appeal to this Court.
In Berry and Parkinson v. BHP Australia Coal Pty Ltd and Others (Berry and Parkinson v. BHP) and in the cross-appeal the miner is the manager of the joint venture known as Central Queensland Coal Associates. The miner is the holder of Mining Lease 1872 granted under the Central Queensland Coal Associates Agreement Act 1968 and, pursuant to that Act, the miner has applied to the Minister for a further surface area held by the land owners. The additional surface area is intended to become an extension of the "Saraji" Mine.
In each of the matters there were issues of compensation left to the Warden and these included in each case the question of whether the Warden's determination ought to make provision for the prospect of the landholder being required to pay a Capital Gains Tax pursuant to the provisions of the Income Tax Assessment Act 1936. The determination of the Warden in each matter records that each land owner seeks an indemnity from the miner for any Capital Gains Tax that may be assessed. The Warden in each case declined to order the grant of such indemnities.
The grounds of appeal in each matter are expressed in comprehensive form and I will not recite them in detail here, however, each appeal, apart from the cross-appeal, includes grounds complaining that the Warden erred in not making a determination or determinations for the benefit of the landholder with respect to the claim regarding Capital Gains Tax. The language in the various appeals lodged differs from one to the other, however, for present purposes what I have said about this matter is sufficient to identify the issue.
The appeals are set down to be heard together commencing on a date about three weeks from the date of my hearing the application to adduce further evidence. Whilst there was some difference in the manner in which the Capital Gains Tax issue was addressed in evidence before the Wardens Court, differences to which I will come in due course, the submission on behalf of the appellants is that leave be granted to adduce further evidence on this issue which would be the same in respect of each appeal. That evidence comprises a one-page statement entitled "Further Statement of John Newby" together with a "Statement of John Newby on further evidence to the Land Court" comprising five pages, together with attachments comprising a two-page letter dated 11 July 1997 from Rod Kemp, Assistant Federal Treasurer to Mr Paul Marek MP, Member for Capricornia and a curriculum vitae concerning Mr John Newby. During submissions, the written application concerning Mr Newby's evidence and attachments was supplemented with an oral application that leave to adduce fresh evidence be extended to include a mining lease application in each case and the Environmental Management Overview Strategy (EMOS) filed with the mining lease application in the case of Wills v. Minerva. It became apparent that there is no mining lease application in the case of Berry and Parkinson v. BHP and the application by the landholder appellant was further amended to make reference to the application for the additional surface area.
Mr Newby has expertise in taxation matters. He had given evidence in the matters of Armstrongs v. Savage Togara before the Wardens Court and has given evidence of a similar nature in a previous matter (Wall v. South Blackwater Coal Limited), a transcript of which was tendered in Wills v. Minerva. Neither Mr Newby nor any other expert, nor opinion evidence concerning the question of Capital Gains Tax was given in Berry & Parkinson v. BHP, though in that case counsel for the landholder provided a copy of a Tax Ruling (95/35) a ruling relevant to the opinions expressed by Mr Newby in Armstrongs v. Savage Togara and in Wall v. South Blackwater Coal Limited.
I understand it to be Mr Newby's opinion, as expressed in the matters referred to above, that Capital Gains Tax would be imposed on compensation awarded under s.281(4)(e) of the Mineral Resources Act, but that other compensation would be largely subject to concessional treatment under Tax Ruling 95/35. That opinion is repeated in his statement supporting the application to adduce fresh evidence. Since the conclusion of those matters, Mr Newby was on or about 10 February 1998 provided with a copy of the Assistant Treasurer's letter referred to above and subsequently had discussions with two Brisbane members of the Australian Tax Offices Capital Gains Tax Cell. He also had a discussion with a Mr Mark West, an accountant and tax adviser with the firm Pannell Kerr Foster and, as a result of these various communications, formed a view different from that which he expressed in the earlier matters. The difference is an interesting one in that it is not so much a matter that Mr Newby has changed his opinion as to whether Tax Ruling 95/35 would, on his understanding of that ruling, apply in a concessional way to compensation other than that awarded under s.281(4)(e) of the Act; but he now understands it to be the case that the Taxation Commissioner would, on the basis of the advices given to him and on his reading of the Assistant Treasurer's letter, assess Capital Gains Tax on the full amount of compensation determined. Mr Newby maintains his opinion concerning the applicability of Tax Ruling 95/35 if viewed independently of the information and advices he has received, however, appears to have formed a concluded view that his opinion would not hold sway with the Taxation Commissioner. Mr Newby and the Taxation Commissioner hold a common view that Capital Gains Tax is assessable on the s.281(4)(e) component of compensation.
The position of the respondent miner in each case is that the fresh evidence should not be admitted. It therefore falls to me to consider the application to adduce the evidence under s.282(7)(a) of the Mineral Resources Act.
So far as I am aware, there is no decision of this Court dealing with s.282(7) of the Mineral Resources Act in circumstances where the appellant and respondent fail to agree on the admission of new evidence. Guidance is available, however, in decisions of the Land Appeal Court dealing with s.44(13)(a) of the Land Act. The first part of the test provided by that section has been described as a "stringent one" (Paino and Heavey Lex No. 64 Pty Ltd v. Director-General, Department of Transport (Land Appeal Court 29 May 1996, p.2)). The first such consideration of this Land Act provision is found in Director-General, Department of Transport v. Hibiscus Holdings Pty Ltd (1995) 15 QLCR 408 where this quotation is taken from p.419:
"... in general, in order to satisfy the first limb of s.44(13)(a)(i) it will be necessary for the party seeking to adduce further evidence to identify the grave injustice which must be avoided with some particularity; to specify with precision the further evidence sought to be led; to demonstrate why it is that the injustice can fairly be described as 'grave'; and to demonstrate how there exists a necessity to admit the evidence in order to avoid the injustice. The degree of particularity and precision required may vary depending upon the circumstances of the case. If the injustice relied upon is the reaching of an incorrect result (we do not imply that an arguably incorrect valuation will always constitute an injustice), the Court should be placed in a position where it can assess whether the proposed evidence at the very least might influence the result of the appeal and whether it is apparently credible (compare Clarke v. Japan Machines (Australia) Pty Ltd [1984] 1 Qd.R. 404 at p.408; Brisbane City Council v. Mainsel Investments Pty Ltd [1989] 2 Qd.R. 204 at p.215. Whether the wording of the paragraph requires the party seeking to lead the evidence to demonstrate that it necessarily will affect the outcome is a matter which we need not presently consider. Quite possibly any problems arising from the word 'necessary' may be overcome by identifying the injustice in question in terms of risk rather than certainty."
In Bignell v. Chief Executive, Department of Lands (1995) 15 QLCR 528 the Land Appeal Court considered an application for the admission of further valuation evidence and the majority of that Court said at 539:
" It is not, however, the function of the Court to decide on an application of this kind whether the valuation is defective in substance. It has, in our opinion, only to be satisfied that the written report possesses credibility and contains inter alia the reasoning and the evidence in support of the conclusion reached."
A right of appeal from a determination of the Wardens Court is provided by s.282 of the Mineral Resources Act and, together with ss.(7) to which I have referred already, ss.(3) to (8) inclusive indicate the nature of the jurisdiction to be exercised by the Land Court on appeal:-
" (3) As soon as practicable after being served with a notice of appeal the mining registrar shall transmit to the registrar of the Land Court the evidence, notes, reasons and proceedings taken in the Wardens Court.
(4) The Land Court shall have jurisdiction to hear and determine an appeal under this section.
(5) In deciding an appeal, the Land Court must consider the things relevant to the appeal that the Wardens Court was required to consider when making the decision appealed against.
(6) Upon hearing an appeal under subsection (1) the Land Court may -
(a)vary the determination of the Wardens Court in such way as it thinks just; or
(b)disallow the appeal and confirm the determination of the Wardens Court;
and may make such order as to costs of the appeal as it thinks fit.
...(8) The determination of the Land Court on appeal shall be final and conclusive."
An appeal before the Land Court from a determination of the Wardens Court is not an appeal stricto sensu as it is open to the Land Court to vary the determination of the Wardens Court (ss.(6)). The Land Court has before it the "evidence, notes, reasons and proceedings taken in the Wardens Court" (ss.(3)) and may, if the provisions of ss.(7) are satisfied, admit further evidence. Therefore such an appeal might be described as a rehearing the incidents of which can be understood by reference to the statutory provisions.
I will now consider the admissibility of the mining lease applications, the EMOS filed in the case of Wills v. Minerva and the application for surface rights in Berry and Parkinson v. BHP. In Armstrongs v. Savage Togara there was presumably an EMOS lodged in conjunction with the mining lease application, though the application to adduce further evidence made reference to the EMOS in the case of Wills v. Minerva only. None of the lease applications nor an EMOS relevant to Armstrongs v. Savage Togara was put in evidence before the Wardens Court. Two pages of the EMOS lodged in Wills v. Minerva are in the evidence admitted by the Warden, so can form part of the record in this appeal without the need for leave. I proceed on the assumption, then, that the application to adduce further evidence extends to the balance of that EMOS only.
Mr Batch, SC, for the appellant landholders referred me to R v. The Land Court ex parte Kennecott Explorations (Australia) Limited (1988) 12 QLCR 17 where, in the judgment of Thomas J with whom the other Members of the Full Court agreed, he said:
" It should be appreciated that the lease recommended by the warden has not yet been granted, and cannot be granted until proper compensation for it has been assessed and paid (s. 130). It was observed by the Land Court member, and it is common ground here, that an assessment of compensation can only be made on the assumption that the mining lease will be granted on the terms and conditions recommended by the warden." (at 19).
The provision being considered by the Full Court (s. 130 of the Mining Act 1968-1986) is now expressed in a different form in s.279(1) of the Mineral Resources Act.
The submission on the part of the appellant landholders is that the documents sought to be tendered are not properly described as "evidence", but are more akin to a notice of appeal or a writ of summons or some other document that commenced the litigation in question. It is suggested that leave to adduce is therefore not required. I cannot accept this submission. The matters heard by the Wardens Court and which are the subject of appeal to this Court, were initiated by an application in each case and it would be that application which constituted the relevant commencing document. Just as in the case of a resumption under the provisions of the Acquisition of Land Act 1967 where the proclamation taking the land and the claim for compensation become evidence, so would a mining lease application or an application for surface rights or an EMOS need to become evidence for the contents of such documents to receive attention in any of the appeals.
It was submitted, in reference to the quotation from Kennecott that I have included above, that the terms and conditions recommended by the Warden; whose recommendation would normally have attached to it the relevant mining lease application and an EMOS where such a document exists; are essential to the determination of compensation pursuant to the provisions of s.281 of the Mineral Resources Act and in an appeal under s.282. It will usually be the case that the contents of the recommendation of the Warden with respect to a mining lease application would be a relevant matter in considering the question of compensation. The Warden's recommendation in Wills v. Minerva and Armstrongs v. Savage Togara are included in the record from the Wardens Court and, in the case of Wills v. Minerva part of the EMOS is included as an attachment to the recommendation. Of course, in the case of Berry and Parkinson v. BHP, there is no requirement for a recommendation from the Warden, as the application is for surface rights only, the mining lease having been granted pursuant to the provisions of the particular statute.
The submission from the appellant landholders is put in general terms and that is that in the absence of the mining lease applications and the complete EMOS in one case, I will in my consideration of these appeals be "working blind". That is, essential documents will be missing. It was not made clear to me what deficiencies in particular there are in the record of the Wardens Court which would compromise a proper assessment of compensation, nor did any ground of appeal in these matters refer to any claimed error on the part of the Warden with respect to the lease applications and the single EMOS. Why there is a need for the balance of the EMOS in the case of Wills v. Minerva and for no EMOS in the Armstrongs v. Savage Togara was not made clear to me. All of this points to the absence of sufficient particularity required for me to "assess whether the proposed evidence at the very least might influence the result of the appeal" (vide Hibiscus quoted above). A "safety net" submission was made by the appellant landholders to the effect that the Land Court is a Court of equity and good conscience and, therefore, ought to admit this evidence. The relevant provision is found in s.41(5) of the Land Act 1962 which was continued by s.521 of the Land Act 1994 and states:
"41.(5) Court to be guided by equity and good conscience. Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law -
(a) the Court in the exercise of any jurisdiction, duty, power or function conferred or imposed upon it shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of the other courts;
(b) the Court in the exercise of any such jurisdiction, duty, power or function shall not be bound by any rule or practice as to evidence, but may inform its mind on any matter in such manner as the Court deems just;
(c) the Court may accept, admit and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not."
I cannot hold that this general provision is sufficient to grant me jurisdiction to supplant s.282(7) of the Mineral Resources Act. The equity and good conscience provision relates to the exercise of jurisdiction, not to the grant of jurisdiction, and cannot be relied upon in the manner suggested. It needs to be recognised that in the present matters this Court is exercising an appellant jurisdiction, the nature of which I have described earlier.
It may well be the case that as the hearing progresses the particular need for such evidence will become apparent, for example, to explain the Warden's recommendation in part and an application can be made under s.282(7) at that time if either party requires. In the meantime, however, the application to adduce that further evidence is refused.
I now come to the evidence proposed to be adduced through Mr Newby. Insofar as Mr Newby makes reference to the Assistant Treasurer's letter and conversations with officers of the Capital Gains Tax Cell, it is the case, in my view, that he is not expressing an opinion based on his expertise, but is simply reporting his understanding of the position that the Taxation Commissioner would adopt on the question of the application of Tax Ruling 95/35 to compensation determined under either s.281 or s.282 of the Mineral Resources Act. It may well be the case that some expertise is needed in gaining an understanding of the advice provided by these sources, however, it cannot be said that in providing evidence of that understanding Mr Newby is being asked to give an expert opinion. I say this notwithstanding words in Mr Newby's statement to the effect that his professional opinion has changed since he gave evidence in 1997. Mr Ambrose, for the mining companies, submits that there is a conflict in Mr Newby's statement in that he refers to his understanding of the position that the Taxation Commissioner would adopt with respect to Capital Gains Tax, then expresses a view which is contrary to that position. I see no conflict, though I do, as I say later, have reservations about the value of Mr Newby's opinion but, in any event, would say that a perceived deficiency in evidence would be either a matter for cross-examination or argument in the substantive matters.
I will put aside for the moment Mr Newby's expressed opinion on the Capital Gains Tax question and refer to his understanding of the position that the Taxation Commissioner would adopt.
It is clear in the matters of Wills v. Minerva and Armstrongs v. Savage Togara that there is "sufficient reason that the evidence was not previously adduced" (s.282(7)(a)), as Mr Newby did not obtain the Assistant Treasurer's letter until 10 February 1988 and was not motivated to make the inquiries that he did until he became aware of the contents of that letter. In Berry and Parkinson v. BHP all I have is that the only evidence on the question of Capital Gains Tax tendered was in the form of Tax Ruling 95/35, Mr Newby and no other Income Tax expert having been called. There was no evidence that the failure to call such a witness related to tactics or cost (vide Hibiscus at 421). I do not see, however, that the failure to call Mr Newby in that matter to give evidence of his then understanding of the application of Tax Ruling 95/35 is relevant to the present application which is to do with the production of fresh evidence. The fresh evidence has nothing to do with the fact that Mr Newby has changed his mind, but is to do with the state of his understanding at the present time. His present knowledge is available now and was not available in 1997 when Berry and Parkinson v. BHP was heard in the Wardens Court. I have nothing from Mr Ambrose's side of the Bar table to say that evidence concerning the position of the Tax Commissioner on Capital Gains Tax as is now said to be available could have been readily obtained prior to 1998, so I hold that there is sufficient reason that the evidence was not adduced in each of the matters before me.
Before considering Mr Newby's own opinion concerning the proper application of Tax Ruling 95/35, I will deal with the question of whether, with respect to Mr Newby's new-found understanding of the Taxation Commissioner's position, the "admission of the evidence is necessary to avoid grave injustice". The Land Appeal Court considered this issue in Barns v. Director-General, Department of Transport (1995) 15 QLCR 544 and expressed this view at 549:
"... we think that it is necessary for the appellants to demonstrate that there exists a real prospect that the proposed new evidence will affect the decision of this Court on the issue to which it is addressed. In our view, only if the evidence goes that far can it be said that to proceed to a contrary result without it would result in a grave injustice."
The appellant landholders seeks an order from this Court that the miner in each matter grant an indemnity to the landholder with respect to the prospect of the assessment of Capital Gains Tax on any part or all of the compensation awarded. Given that it was Mr Newby's view prior to 1998 that Capital Gains Tax would apply with respect to compensation awarded under s.281(4)(e) there would, on the face of it, appear to be no need for the Court taking evidence that the Taxation Commissioner is likely to assess Capital Gains Tax on the balance of the compensation determined. It is said from the miners' side that the issue is not whether Capital Gains Tax would be lawfully assessed by the Income Tax Commissioner on part or all of the compensation, nor whether there has been a change of mind in the Taxation Office, but whether the prospect of an assessment of Capital Gains Tax is a matter that ought properly be taken into account in the determination of compensation. As such, it is said there is no requirement for Mr Newby to give fresh evidence nor, it seems, ought he to have given that evidence before the Wardens Court.
In an interchange with counsel for the miners, I raised the question as to whether the prospect of the assessment of Capital Gains Tax was analogous with a requirement frequently placed on this Court to assess the prospect of, for example, a rezoning of land taking place in the process of arriving at an award of compensation for compulsory acquisition. On reflection it seems to me, however, that the analogy cannot be properly made as a conclusion on the prospect of rezoning is a hypothetical one which will never be tested in the real world given the fact of the resumption, whereas the prospect of assessment for Capital Gains Tax is very real and is a prospect to which the appellant landholders may be subjected, in fact.
It may be correct to say as a matter of logic that evidence concerning the attitude of the Commissioner of Taxation to the matter of compensation; and for that matter evidence relating to the application of Capital Gains Tax to s.281(4)(e) compensation, is not needed. This argument says that because the indemnity would, if granted, cover the prospect of Capital Gains Tax being assessed on all or part of compensation, it matters not whether it is likely or not that tax would be assessed on whole or part of the compensation or, indeed, whether it would be assessed at all. Taken further, this argument would even suggest that legal submissions on the matter of Capital Gains Tax are not needed. Such logic, however, neglects to take into account that a Court will not be inclined to order the grant of an indemnity with all of the contingent liability that involves unless a real need is apparent. Now that need cannot be addressed by Mr Newby's view of the law for, as I say later, a proposition of law is, as a general rule, a matter for submissions, not evidence. There may be value, however, in my hearing evidence on the question of the apparent attitude or position of the Taxation Commissioner on the matter. This is not to say that I have a view that such evidence will decide the issue but simply that I hold that, if accepted, such evidence may lead to the grant of the remedy sought. It follows that the requirement of the fresh evidence being necessary to avoid a grave injustice is established. In this regard then the application to adduce this fresh evidence is granted. Having said that, I need to emphasise that it is an essential requirement for the appellant landholders to convince me that I have jurisdiction to order the grant of an indemnity of the type sought and that such indemnity should be granted.
Before leaving this topic, I need to make reference to a submission from the mining companies' side that the evidence in the form of the Assistant Treasurer's letter and the reports of conversations is hearsay and, therefore, ought not to be admitted on that basis. A generally accepted formulation of the rule against the admission of hearsay evidence is found in Subramaniam v. Public Prosecutor [1956] 1 WLR 965 at 969 (PC):
"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."
On the basis of this statement of the rule and on its application in the cases, it seems clear to me that the letter and the reported statements are admissible at least to show that Mr Newby has a basis for his belief concerning the position that the Taxation Commissioner would adopt on the question of Capital Gains Tax. I would understand that the statement from Mr West concerning compensation to tobacco growers is presented as corroboration, though it was not described as such. I would hold that the contents of the relevant communications are admissible on the basis not that they comprise a correct statement of the law, but that they point to the fact that statements concerning the position of the Tax Commissioner on this question were made and the general effect of those statements. It would be a nonsense, of course, for evidence to be admissible to the effect that a statement was made or that a letter was written without there being some indication of the import of the statement or letter. To the extent that it might be needed, I would also make reference to the powers of the Land Court expressed in s.41(5) of the Land Act 1962 which I have set out earlier and which provide that this Court shall be guided by equity and good conscience. In particular, clause (c) provides that the Court may "accept, admit and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not". This evidence may therefore be admitted.
Let me now consider that part of Mr Newby's statements dealing with his own opinion concerning the application of Tax Ruling 95/35. In effect what Mr Newby presents in his statements is his opinion concerning the application of that Tax Ruling. Such rulings issue under the provisions of the Taxation Administration Act 1953 and, in accordance with general principles, a question of the interpretation of such rulings is a question of law. It would be appropriate as a general rule to adduce evidence of the practices of the Taxation Commissioner in given situations, or for an accountant to produce calculations showing how different views of the law would impact. Such evidence comprises application of the law, not interpretation of the law. It sometimes occurs that a witness may be required to state his or her understanding of the law for the purpose of advancing an opinion on an associated matter, however, in the instant case Mr Newby's opinion in relation to the application of Tax Ruling 95/35 is clearly a question of law and, in the absence of an agreement between the parties concerning that evidence and rebuttal evidence from the mining companies and an acceptance by the Court that this is a suitable way to ventilate the issue, it is not appropriate, in my view, for Mr Newby to be called to give that evidence. He cannot swear to the issue on a question of law. This applies equally to the view expressed by Mr Newby with respect to s.281(4)(e) before the Wardens Court and the application that he make reference to that opinion before this Court. Apart from this and putting aside for the moment what rebuttal evidence, if any, might be called, I must say that I fail to see how an opinion from Mr Newby that Capital Gains Tax is not assessable on part of any compensation award, leads to the prospect of a grave injustice. The result is that the application to adduce further evidence from Mr Newby in respect of his opinion as to the application of Tax Ruling 95/35 and the basis for that opinion is refused. This ruling extends to his statement of opinion concerning the assessment of Capital Gains Tax on that part of compensation awarded pursuant to s.281(4)(e) of the Mineral Resources Act. Now in so ruling I am aware that Mr Newby's views and reasoning on this issue form part of the record in each of the matters except for Berry and Parkinson v. BHP and will be placed before me as part of the record in each of those cases. The application to adduce such further evidence regarding s.281(4)(e) can therefore apply only to Berry and Parkinson v. BHP. My refusal of the application is therefore limited accordingly.
I said earlier that it may be the case that matters of expertise may be relevant in the presentation of the evidence concerning Mr Newby's current understanding of the position of the Taxation Commissioner regarding the assessment of Capital Gains Tax on compensation awards. To that extent, it is appropriate that his curriculum vitae be tendered. Indeed, I would see his curriculum vitae not as a separate exhibit, but as very much part of any statement of evidence which is admitted, be it written or oral. It is not appropriate that I be bound by the acceptance of Mr Newby as an expert before the Wardens Court, nor that I be required to accept the basis of such an acceptance, but that I be allowed to form an independent view as to his qualifications. The application to tender the curriculum vitae as further evidence is therefore allowed.
The miners' side complains that the statements provided by Mr Newby contain material which is not new and material which narrates something of the history of Mr Newby's involvement in the various matters. It is said that such evidence should be deleted for these reasons and because its presence offends the requirement for "precision and particularity" (vide Hibiscus). Whilst the points made are valid, I should say that the suggested deficiencies probably stem from the applicants attempting to produce in the one document both the fresh evidence and the reasons for its production. A better method might have been for these two elements to have been presented separately. In the circumstances of my ruling on the application, however, it would be appropriate for Mr Newby's statement to be edited to delete the evidence that I have ruled against and to confine the statement to the admissible fresh evidence only.
Given my ruling that part of Mr Newby's fresh evidence be admitted, it is appropriate that the respondent in each matter, including the cross-appellant, be given leave to adduce rebuttal evidence of a similar compass. I so rule.
RP SCOTT
MEMBER OF THE LAND COURT
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