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- Valuers Registration Board of Queensland v Murphy (No. 2)[2022] QCAT 338
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Valuers Registration Board of Queensland v Murphy (No. 2)[2022] QCAT 338
Valuers Registration Board of Queensland v Murphy (No. 2)[2022] QCAT 338
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Valuers Registration Board of Queensland v Murphy (No. 2) [2022] QCAT 338 |
PARTIES: | VALUERS REGISTRATION BOARD OF QUEENSLAND (applicants) V NEIL PATRICK MURPHY (respondent) |
APPLICATION NO/S: | OCR252-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 September 2022 |
HEARING DATE: | 19 September 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lember |
ORDERS: |
4:00pm on 7 October 2022
4:00pm on 12 October 2022
4:00pm on 12 October 2022
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether to issue notice to attend to an expert witness – where witness will only give evidence orally – whether to exclude expert on questions of objectivity at an interlocutory stage – where notice of the application was not given to the applicant until evidence and submissions had closed PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – referral for professional misconduct – where valuer seeks to call expert evidence – whether valuer to give expert evidence should be excluded on questions of objectivity at an interlocutory stage Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28, s 95, s 97 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Briginshaw v Briginshaw (1938) 60 CLR 336 Clough v Tameside and Glossop Health Authority [1998] 2 All ER 971 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Davis v Metro North Hospital and Health Service [2019] QCAT 18 Fox v Percy (2003) 214 CLR 118 Gosbell v Linehurst Pty Ltd [2015] QCAT 74 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68 Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6 Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 2) [2019] QSC 162 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr C Templeton of Counsel, instructed by RBG Lawyers |
Respondent: | Mr T Ritchie of Counsel, instructed by Colin Biggers & Paisley Pty Ltd |
REASONS FOR DECISION
What is this application about?
- [1]This decision addresses Mr Murphy’s application for notice requiring Allen Crawford to attend the final hearing of this matter to give expert evidence about the practices of registered valuers in maters before the Land Court of Queensland and the applicant’s objection to the tribunal issuing that notice.
- [2]The substantive proceedings concern a referral by the Valuers Registration Board of Queensland (the Board) of a complaint made against Mr Murphy arising from his conduct during Land Court proceedings, which the Board says amounts to professional misconduct. It is listed for a two-day hearing before me on 17 October 2022.
- [3]Directions made 22 March 2022 (during a directions hearing in which the parties’ representatives were thoroughly engaged) prepared the parties for the final hearing, and imposed:
- (a)an obligation on Mr Murphy to file and serve any affidavit material including any expert evidence he wishes to rely upon at the hearing by 8 July 2022 (extended to 29 July 2022); and
- (b)an obligation on the Board to file and serve any affidavit material in reply it wishes to rely upon at the hearing by 22 July 2022 (extended to 1 August 2022).
- (a)
- [4]On 1 July 2022 Mr Murphy filed his application for notice requiring Mr Crawford to attend the final hearing but – due an apparent misunderstanding on his solicitor’s part - it was not served and did not come to the attention of the Board until or around 31 August 2022, after its opportunity to file evidence and submissions had closed.
- [5]The Board’s objections to Mr Crawford giving evidence are both procedural and substantive.
- [6]Procedurally, the Board say that:
- (a)Mr Murphy is non-compliant with Practice Direction 4 of 2009 (expert evidence to be given in the formal of a written statement or report) and with the directions made 22 March 2022 (requiring evidence, including expert evidence, by affidavit); and
- (b)the failure to give early notice to the Board and the imminent hearing date have significantly prejudiced the Board and detrimentally impacted its ability to prepare for the final hearing.
- (a)
- [7]Substantively, the Board raise serious concerns about the objectivity of Mr Crawford and say that any evidence he may give is so tainted as to either be inadmissible in its entirety, or such that the weight to be given to his evidence is so negligible that calling him as a witness lacks utility.
- [8]Mr Murphy says that procedural issues can be overcome with appropriate directions and that the remaining time until the hearing is ample and in fact commensurate with the time allowed in the original directions so as not to be prejudicial to the Board.
- [9]He denies concerns of objectivity with respect to Mr Crawford but says, in any event, that these are matters to explore in the final hearing as opposed to at an interlocutory stage.
- [10]Material before the tribunal specific to this application comprises:
- (a)Board’s submissions filed 16 September 2022;
- (b)Affidavit of Mr McEwan, instructing solicitor for the Board sworn 15 September 2022;
- (c)Mr Murphy’s submissions filed 16 September 2022; and
- (d)Affidavit of Mr Lonergan, instructing solicitor for Mr Murphy sworn 15 September 2022.
- (a)
The Board’s submissions
- [11]The Board addresses the relevant principles set out by Bond J in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 2)[1] as follows:[2]
- (a)the point the litigation has reached relative to the final hearing – all steps have been taken and the hearing commences in one month, the proceeding having been on foot since 19 September 2018;
- (b)the extent of the failure to comply with the directed timetable – Mr Crawford’s evidence is not in the form of an affidavit or report, and notice and a reasonable summary of it was not given to the Board until 31 August 2022, by which time, the directions permitting the Board to file evidence in reply and submission had both passed;
- (c)the adequacy of the explanation for the delay in presenting the evidence - no explanation has been given;
- (d)the prejudice which would be caused to the Board if leave is granted - the Board would either be denied a proper opportunity to adduce evidence in reply or would suffer the added costs of having to revise its submissions, and reconsider the issue of whether to adduce evidence in reply;
- (e)the prejudice which would be caused to Mr Murphy if leave is refused, including whether he might be denied a fair opportunity to present his case it is conceded that Mr Murphy may be unable to lead any expert evidence if leave is denied;
- (f)the effect on other litigants awaiting resolution of their proceedings - tribunal time and resources would likely be wasted as the hearing would likely have to be adjourned (this point was conceded by the Board during the directions hearing and directions proposed that would avoid the need to adjourn); and
- (g)the extent to which prejudice on either side can be ameliorated by alteration to the existing timetable – amendments are proposed that would avoid an adjournment.
- (a)
- [12]In addition to the procedural matters identified above, the Board say the relevance and quality of the evidence proposed to be led must be considered.
- [13]They concede relevance but submit that Mr Crawford has been an Assistant member of the Board since 2009 and tendered evidence that Mr Crawford declared a conflict of interest “concerning commercial in confidence matters” on three occasions and excused himself from Board meetings on five occasions when Mr Murphy’s matter was being considered by the Board. So, not only is the expert the respondent seeks to rely on a member of the applicant Board, but he has also recused himself from discussions about Mr Murphy on the grounds that he has a conflict of interest in dealings with Mr Murphy. They say that this conflict impacts the weight to be given to Mr Crawford’s evidence to “zero or negligible” such that there is no utility issuing him the Notice.
- [14]If the evidence is permitted, the Board say it should be in the form of a written report.
Mr Murphy’s submissions
- [15]Summarily, Mr Murphy explains his reliance upon Mr Crawford as follows:
- (a)valuers experienced in Land Court proceedings and of long-standing experience are a “small pool”;
- (b)approaches were made to ten potential witnesses being valuers with requisite experience who declined to give evidence, orally or otherwise;
- (c)Mr Crawford refused to give written evidence but said he would give oral evidence if compelled to do so (and was the only valuer approached who indicated this willingness);[3] and
- (d)if the tribunal refuse to issue notice to Mr Crawford, or if it permits Mr Crawford to give evidence but insists it be in the form of a written report, statement, or affidavit, that will be tantamount to refusing Mr Murphy to bring any expert evidence to the proceeding on the basis that there are no other persons willing or able to attend or to give written evidence.
- (a)
- [16]Mr Murphy argues that there is no proper basis for the tribunal to refuse his application to compel Mr Crawford to give evidence because:
- (a)the evidence of Mr Crawford is of central relevance to the issues in dispute;
- (b)the tribunal must allow a party a reasonable opportunity to call and give evidence and to examine witnesses;
- (c)refusal would deny him that opportunity and be contrary to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act);
- (d)more broadly, the tribunal should not make a procedural decision which:
- prevents the giving of centrally relevant evidence which will assist the tribunal resolve this proceeding according to its substantial merits, as the tribunal is required to do; and
- prevents the respondent from adducing evidence which exonerates him in a disciplinary proceeding, which may have significant ramifications for his livelihood.
- (a)
- [17]In summary, Mr Murphy says:
It would be antithetical to the philosophy of the QCAT Act and Rules for the Tribunal to deprive the Respondent – and itself – of highly relevant evidence which goes to the substantial merits of the case, particularly given it exonerates the Respondent in a disciplinary matter.[4]
What is the legislative framework?
- [18]The objects of the QCAT Act include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick and to enhance the openness and accountability of public administration.[5]
- [19]To achieve these objects the tribunal must, among other things, ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice and ensure the tribunal is accessible and responsive to the diverse needs of persons who use the tribunal.[6]
- [20]Section 28 guides the conduct of proceedings in the tribunal relevantly as follows:
- (a)the procedure for a proceeding is at the discretion of the tribunal, subject to the QCAT Act, an enabling Act and the rules;
- (b)in all proceedings the tribunal:
- must act fairly and according to the substantial merits of the case;
- must observe the rules of natural justice;
- is not bound by the rules of evidence, or any practices or procedures applying to courts of record;
- may inform itself in any way it considers appropriate;
- must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
- must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
- (a)
- [21]The tribunal must also allow a party a reasonable opportunity to call or give evidence, but may refuse to accept evidence if there is already sufficient evidence about the matter before the tribunal.[7]
- [22]The tribunal can require a witness to attend at a stated hearing of a proceeding to give evidence on its own initiative or on the application of a party.[8]
- [23]Evidence may be given orally but must, if the tribunal requires, be given under oath or by affidavit.[9]
- [24]Among other things, Practice Direction No 4 of 2009 provides:
1. This Practice Direction applies whenever a party proposes to call expert evidence in any proceeding, unless the tribunal orders otherwise.
…
3. A party who proposes to call expert evidence at a hearing must give each other party notice of each expert’s name and area of expertise and the issue(s) that each expert will address.
…
4. An expert owes a duty to assist the tribunal which overrides any obligation to any party to the proceeding or any person who is liable for their fee or expenses. The expert’s role is to assist and advise the tribunal on issues in dispute within the expert’s area of expertise. A person must not give, and an expert must not accept, instructions to adopt or reject a particular opinion in relation to an issue in dispute in a proceeding.
- [1]The tribunal must be mindful that their resources serve the public, not just the parties to the proceedings, Justice Wilson noting in Creek v Raine & Horne Real Estate Mossman[10] that:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.[11] Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[12]
- [25]The requisite standard of proof is the balance of probabilities, albeit to a sliding scale. whereby the more serious the consequences, the higher the standard of “reasonable satisfaction” is needed for an application to succeed.[13]
Discussion and Findings
Factors weighing against giving the notice
- [26]The failure of Mr Murphy’s representatives to notify the Board about its intentions for Mr Crawford in a timely manner (that at the latest were known to them by 1 July 2022) and their failure to adequately explore with Mr Crawford the extent to which he considers himself conflicted on matters regarding Mr Murphy is, to say the least, not ideal.
- [27]Mr Murphy’s submissions included the statement that the evidence to be led by Mr Crawford is not new and reflects the case that Mr Murphy always intended to run. This suggests that the search for an expert witness and notification to the Board of the proposed expert could reasonably have occurred much earlier.
- [28]Mr Murphy has been given his section 95 opportunity to call and give evidence in accordance with agreed directions and a long-standing Practice Direction. His application is contrary to the Practice Direction and to directions made specifically in these proceedings in circumstances that have burdened the tribunal and its resources and disadvantaged the applicant, and a decision to permit it should not be made lightly.
- [29]Further, the prima facie concerns regarding Mr Crawford’s ability to be objective as an expert witness are not insignificant.
- [30]
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation…
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise… An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one … . In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report … .
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports … .“
- [31]In Clough v Tameside and Glossop Health Authority [1998] 2 All ER 971 at 977 Bracewell J said:
It is only by proper and full disclosure to all parties, that an expert’s opinion can be tested in court: in order to ascertain whether all appropriate information was supplied and how the expert dealt with it. It is not for one party to keep their cards face down on the table so that the other party does not know the full extent of information supplied.
- [32]It is difficult to see, albeit on the untested evidence currently before the tribunal and before hearing from Mr Crawford, how Mr Crawford can give evidence that is the “independent product of the expert uninfluenced as to form or content by the exigencies of litigation”, that is an “objective unbiased opinion” and that does not risk crossing into path of advocacy, in light of his recusal from discussions by the Board regarding Mr Murphy for reasons not sufficiently explored or yet explained.
Factors weighing in favour of giving the notice
- [33]On the question of delay, I am not satisfied that the Board have been so overly impacted that their detriment cannot be overcome with their proposed directions extending time for the filing of reply evidence and submission in the time frames they proposed. They have, at least, been provided with a summary of evidence.
- [34]To their credit, and I appreciate it may put them to a concerted effort to prepare, they conceded that if time was extended, an adjournment of the final hearing would not be necessary. This is an important consideration in terms of its consequential saving of tribunal resources.
- [35]On the issue of procedural compliance, I am mindful that when the tribunal was established in 2009, the intention was that it would operate differently from the mainstream courts:
Generally, the tribunal is to operate in a more pro-active, inquisitorial manner than what is expected of a traditional court. The primary object is to provide the parties with substantive justice as expeditiously and economically as possible, without the tribunal being bound by formal rules of evidence or procedure.[16]
- [36]The provisions of section 28 reflect this approach and requirements of procedural fairness are adjusted to this framework and applied flexibly depending on the circumstances. At the core of the tribunal’s functions is the obligation to act fairly in all the circumstances and, where directions can overcome procedural noncompliance, the procedural objections do not convince me to refuse the application.
- [37]On the question of objectivity and of calling a witness who, although giving relevant evidence, nonetheless may be so fatally compromised as to be of no assistance to the tribunal as an expert, I am mindful that:
- (a)the requirement to ensure all relevant material is disclosed to the tribunal includes with respect to calling witnesses;[17] and
- (b)as a general principle, on an interlocutory application, the tribunal should not reach final conclusions on contested issues as that will be a matter for the final hearing.[18]
- (a)
- [38]Further, when the interests of two parties compete at an interlocutory stage, fairness requires a consideration of the balance of convenience with a view to taking “whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong”.[19]
- [39]The Board administers the Valuers Registration Act 1992 (Qld)[20] and plays an important protectionist role in ensuring that registered valuers are and remain fit and proper, appropriately qualified, educated, and experienced[21] and in acting on conduct complaints to safeguard consumers of valuation services.[22] This is an important statutory role, but the Board have no personal interest in the outcome of these proceedings in the sense the outcome will not impact their income or ability to continue carrying out the important functions they are charged with. They also have time and the benefit of directions to allow them to prepare for the evidence to be given by Mr Crawford, to cross-examine him and to make submissions at the final hearing.
- [40]Mr Murphy on the other hand is the subject of a disciplinary proceeding that may impact his livelihood. He has found one, and only one, witness willing to act as an expert in this proceeding, but conditionally on the basis that his evidence will only be given orally. I accept his submission that refusing to permit this evidence “may lead to an unjust result and would be inimical to the administration of justice”.[23]
- [41]Although, as stated, the issues of procedural noncompliance are not ideal and the questions raised of objectivity are serious, matters of weight and credit are able to be addressed at the final hearing.
- [42]Allowing Mr Crawford to give evidence and permitting the Board an opportunity to update its evidence and submissions, is, by far, the course of action that carries the least risk of injustice in these circumstances and the balance of convenience therefore favours Mr Murphy.
Decision
- [43]For the reasons given, the decision of the tribunal is to issue notice to Mr Crawford to attend the final hearing to give oral evidence, at Mr Murphy’s expense.
- [44]The question of costs is reserved.
Footnotes
[1] [2019] QSC 162 at [12] – [15].
[2] Applicant’s submissions at [7].
[3] Details of the witnesses approached, their qualifications and their responses are set out in the Affidavit of Mr Lonergan.
[4] Respondent’s submissions at [9].
[5] Section 3 of the QCAT Act.
[6] Section 4, ibid.
[7] Section 95, ibid.
[8] Section 97, ibid.
[9] Section 95, ibid.
[10] [2011] QCATA 226 at paragraph [13].
[11] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217.
[12] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
[13] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
[14] [2001] NSWCA 305 from [79].
[15] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68 at 81-82.
[16] Explanatory note to clause 28 of the Queensland Civil and Administrative Tribunal Bill 2009.
[17] Davis v Metro North Hospital and Health Service [2019] QCAT 18.
[18] Gosbell v Linehurst Pty Ltd [2015] QCAT 74 at [9].
[19] Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6 at [24].
[20] Section 5 of the Valuers Registration Act 1992 (Qld).
[21] Section 30, ibid.
[22] Part 4, ibid.
[23] Respondent’s submissions at [35].