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- Unreported Judgment
LAND COURT OF QUEENSLAND
Mellish v Redland City Council  QLC 31
Redland City Council
Determination of preliminary question
12 August 2020
Submissions closed 3 August 2020
Heard on the papers
The consolidated brief to each of the traffic, flooding and ecology expert witnesses is not to include the disputed questions.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where the case was directed to Court Managed Expert Evidence – where the parties could not agree on questions to be included in the consolidated brief to certain experts – where the consolidated brief may include questions which are not agreed – where the relevance of certain questions was in dispute – whether that dispute should be resolved before the meetings of experts – where the Court decided the questions should not be included in the brief
Spencer v The Commonwealth of Australia (1907) 5 CLR 418, cited
We Kando Pty Ltd v Western Downs Regional Council  QPELR 451, cited
- Mr Mellish is the owner of a 3.2 ha property resumed by the Redland City Council. He claims compensation assessed on the basis that its highest and best use is as a residential subdivision “generally in accordance with” a plan attached to particulars of his claim. That plan showed a residential subdivision of 35 detached dwelling allotments.
- The Council alleges its highest and best use is the use of the property when resumed; that is for a single residential dwelling.
- The highest and best use to which the property could be put, but for the resumption, is relevant in determining the value of the property and proper compensation, applying the Spencer test.
- To assist the Court in determining compensation, the parties have each engaged a number of experts. The case was directed to Court Managed Expert Evidence to oversee the preparation of expert evidence for the hearing.
- During the CMEE process, the parties could not resolve a dispute about questions Mr Mellish wants the hydrology, traffic and ecology experts to answer. With the parties’ consent, the CMEE Convenor requested I hear from the parties and resolve the dispute.
- The Court has published model directions to guide the parties about the Court’s preferred approach to case management, including the preparation of expert evidence. The model directions provide for the parties to give a consolidated brief to experts in the same discipline. The purpose of a consolidated brief is to ensure both experts have all the information that either party asserts is relevant to their task and that both experts address the questions either party considers relevant in the proceedings. To that end, the parties do not need to agree about the questions posed to experts in a consolidated brief, and a party’s right to challenge the relevance of a particular question is reserved:
Including information or a document in a consolidated brief of instructions is without prejudice to the parties’ rights to object at the hearing to:
- the admission into evidence of all or part of any information or document included in the brief of instructions; and
- any evidence relating to the disputed information or document.
- The questions Mr Mellish wants to pose to the traffic experts are:
12(d)(ii) …having regard to any traffic constraints affecting the Subject Property, whether the Subject Property could have been developed in a way which is consistent with those traffic constraints, in particular:
… (B) whether or not the Applicant’s Proposed Plan represents the highest level of development possible on the Subject Property as at 4 November 2016;
(C) if the Applicant’s Proposed Plan does not represent the highest level of development possible on the Subject Property as at 4 November 2016, what the highest level of development possible on the Subject Property at the date of resumption would have been.
- He proposes a similar formulation for the other experts.
- Council accepts the parties do not need to agree on all questions to be answered by the experts. However, it says the disputed questions are not relevant to the issues in dispute. They invite the experts to express an opinion on alternative highest and best use(s), unconstrained by Mr Mellish’s case. If their relevance is not ruled on now, there is a risk of increased cost and delay as the experts consider development scenarios that have not been identified by Mr Mellish in his claim.
- Mr Mellish says that if the experts answer the proposed questions this will avoid gaps in the expert evidence. Taking into account traffic and flooding constraints, the highest and best use might be a similar, but alternate, residential subdivision which differs slightly from the proposed plan.
- It is not necessary to ask the disputed questions to allow compensation to be assessed in that way. The phrase “generally in accordance with” does not mean “in exact conformance with.” It is open to this Court to assess compensation on the basis of a residential subdivision with fewer allotments, for example.
- The role of the traffic, hydrology and ecology experts in this proceeding is to assist the Court by identifying constraints on the use and development of the property, in the context of Mr Mellish’s case. Council does not object to the experts being asked about those constraints and, having regard to them, considering whether a development “generally in accordance with the plan” would have been possible.
- Their opinions will inform the town planners in considering whether a subdivision generally in accordance with the plan was likely to have been approved at the relevant time. That evidence will, in turn, inform the valuer’s assessment.
- However, the disputed questions go beyond that legitimate enquiry and invite the experts to speculate about uses not in issue in the proceedings. That is not consistent with the role of expert witnesses, which is to advise the Court about matters in issue within their area of expertise. The only uses in issue are a single residential dwelling or a subdivision, generally in accordance with a particular plan.
- The role of particulars is to crystallise the issues in dispute. The intent of the Court’s case management directions and the CMEE process is to clarify and, where possible, narrow the issues in dispute. It is open to Mr Mellish to obtain advice about the potential uses of his former property and, it is safe to assume that he did so before providing his particulars. It is not the function of the expert witnesses to imagine or make a different case for Mr Mellish. If he has a basis for proposing a different highest and best use, or a substantially different type of subdivision than that particularised, it is open to him to amend his claim.
- I accept the Council’s submission that to ask the experts to answer the disputed questions would undermine the objective of the Court’s case management and expert evidence procedures. It risks increasing costs and delaying the hearing, something too frequently encountered in claims of this nature.
- The disputed questions should not be included in the consolidated brief to the traffic, flooding and ecology experts.
The consolidated brief to each of the traffic, flooding and ecology expert witnesses is not to include the disputed questions
Spencer v The Commonwealth of Australia (1907) 5 CLR 418.
Land Court of Queensland, Practice Direction 3 of 2018: Procedure for court managed expert evidence, 30 April 2018.
Land Court of Queensland, Model Directions, 13 July 2020.
Eg. We Kando Pty Ltd v Western Downs Regional Council  QPELR 451 -.
- Published Case Name:
Colin Mellish v Redland City Council
- Shortened Case Name:
Mellish v Redland City Council
 QLC 31
12 Aug 2020