Hydrox Nominees Pty Ltd v Valuer-General
[2016] QLC 56
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- Unreported Judgment
- Hydrox Nominees Pty Ltd v Valuer-General[2016] QLC 56
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Hydrox Nominees Pty Ltd v Valuer-General[2016] QLC 56
Hydrox Nominees Pty Ltd v Valuer-General[2016] QLC 56
LAND COURT OF QUEENSLAND
CITATION: | Hydrox Nominees Pty Ltd v Valuer-General [2016] QLC 56 |
PARTIES: | Hydrox Nominees Pty Ltd (applicant) |
| v |
| Valuer-General (respondent) |
FILE NO: | LVA028-16 |
DIVISION: | General Division |
PROCEEDING: | Hearing of general application |
DELIVERED ON: | 6 October 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | 8 September 2016 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDER: | The general application filed by the appellant on 28 June 2016 is dismissed. |
CATCHWORDS: | REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – NOTICE OF APPEAL – where notice of appeal sought to be amended – where there is no power to amend Land Valuation Act 2010, s 169 Valuation of Land Act 1944 Water Resources Act 1989 Dawson v Department of Natural Resources and Mines (2002-03) 24 QLCR 70. Franklin & Ors v The Valuer-General (1978) 5 QLCR 181 Gibson Investments Pty Ltd v The Valuer-General (1978) 5 QLCR 223 Molloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608 Pratt v The Valuer-General (1981-82) 8 QLCR 145. |
APPEARANCES: | Mr A Storie, Connor O'Meara, solicitors for the appellant. Mr S Fynes-Clinton, instructed by in-house legal for the respondent. |
Background
- [1]The respondent has issued a routine valuation of the appellant’s land located in Bucasia Road, Richmond, Mackay. The land has an area of 10.873 ha and as at 1 October 2014 was valued at $15,000,000 as a site valuation. The appellant contends for a site valuation of $8,150,000 in its notice of appeal filed in Court on 22 January 2016.
- [2]The appeal was proceeding towards a hearing when the appellant filed a general application on 28 June 2016. The respondent has also filed a general application which, the parties agreed, will await the Court’s decision in the matter of the appellant’s general application, which will now be considered.
The general application
- [3]The appellant seeks leave to file an amended notice of appeal which will include the following ground:
“Further, or in the alternative, the value of the land for the purposes of the Land Valuation Act 2010 is its unimproved value, rather than its site value.”
- [4]The respondent opposes this so the question to be resolved by the Court is whether the appellant can be given leave to file an amended notice of appeal. The respondent, although contending that this cannot occur, is a model litigant and takes the position that if leave can be given then it does not oppose the leave sought.
The appellant’s submissions
- [5]The appellant refers to s 169(1) of the Land Valuation Act 2010 (LVA). It is in the following form:
“The hearing must be limited to the grounds stated in the valuation appeal notice.”
- [6]The appellant submitted that neither the Land Court Act 2000 nor the Land Court Rules 2000 provide for the amendment of proceedings before the Court. Due to Rule 4 of the Land Court Rules 2000, it was submitted that the Uniform Civil Procedure Rules 1999 (UCPR) would apply. Rule 4 provides that:
“4 Application of Uniform Civil Procedure Rules
(1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
(2) For subrule (1), an originating process under these rules is to be treated as if it were a claim under the uniform rules.”
- [7]“Originating process” is defined in the Land Court Rules to include a notice of appeal. This point was not in issue.
- [8]Rule 375 of the UCPR states:
375 Power to amend
(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
(2) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(3) If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.
(4) This rule is subject to rule 376.
- [9]It was not submitted that Rule 376 was relevant for present purposes.
- [10]The appellant acknowledged the line of authorities standing against the existence of any power of the Court to allow amendment of the notice of appeal. The provision of the then Valuation of Land Act 1944 (VLA), which was considered in the authorities, was numbered variously at different times and the words surrounding it varied. The core was always in much the following terms:
“Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.”
- [11]The appellant directed the Court to the decision of the Land Appeal Court in Dawson v Department of Natural Resources and Mines.[1] That case was an appeal under the Water Resources Act 1989 (WRA) and s 51 of that Act was being considered.
- [12]At the time, the words in question, “the appeal shall be limited to the grounds so stated”, that is stated in the notice of appeal, were located in s 21(3) of the VLA. The Land Appeal Court said:
“[28] The learned Member in that case relied on the decision of the Land Appeal Court in Pratt v The Valuer-General (1981-82) 8 QLCR 145, where at 148-149, the Court referred to a previous decision of the Land Appeal Court in Franklin v The Valuer-General (1978) 5 QLCR 181, which in turn referred to the decision of the Land Appeal Court in Gibson Investments Pty Ltd v The Valuer-General (1978) 5 QLCR 223, interpreting the then s.21(3) of the Valuation of Land Act 1944.
[29] In Franklin, the appellant attempted to rely on a ground of appeal which was not one of the grounds in the Notice of Appeal to the Land Court. In respect of that additional ground, the Land Appeal Court said at 184:
“The provisions of the Valuation of Land Act as to the appeal procedure are restrictive in their operation, more especially to an appellant who has made his appeal on narrow and particular grounds rather than on a broad general ground such as ‘the valuation is excessive and contrary to law’. The language used by the Legislature is mandatory and binding not only on the parties but also on this Court and the Land Court.”
[30] After setting out the provisions of s.21(3) of the Valuation of Land Act 1944, the Court continued:
“It seems to us that it is not competent for an appellant before us to add to his grounds of appeal as initially contained in his notice of appeal to the Land Court. If he were permitted to do so he would be flouting the mandatory provisions of the Valuation of Land Act previously enumerated. In simple terms in the conduct of his appeal before us an appellant remains limited to the grounds of his original notice of appeal to the Land Court.”
The Land Appeal Court reached a similar conclusion in Gibson Investments at 227.
[31] In Pratt, after referring to those earlier cases, the Land Appeal Court concluded at 149:
“Neither this Court nor the Land Court has the power to permit the land owner to enlarge or add to his grounds of appeal as set out in his Notice of Appeal against the determination of the Valuer-General.”
The Land Appeal Court also referred to the decision of the High Court in Molloy v The Federal Commissioner of Land Tax (1938) 59 CLR 608, where the High Court held that provisions similar to s.21(3) of the Valuation of Land Act were an imperative direction to the Court not a provision merely for the benefit of the Commissioner which he is in a position to waive.
[32] However, while the law seems to be well established in this regard, we are of the opinion that there is a significant difference between s.21(3) of the Valuation of Land Act 1944 and s.51(5) of the Water Resources Act 1989. Section 21(3) provides:
“An appeal under this section shall be instituted by filing in the Land Court registry a Notice of Appeal. Such Notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated, and the burden of proving any and every such ground shall be upon the owner.”
[33] The words “so stated”, in our view, indicate that the intention of the Legislature was that the grounds of appeal be confined to the grounds contained in the Notice of Appeal as filed in the Land Court registry. No amendment of those grounds is contemplated before the hearing.
[34] Similar circumstances applied in Molloy v The Federal Commissioner of Land Tax where s.44M(3) of the Land Tax Assessment Act 1910-1934 provided that:
“A tax payer shall be limited, on the hearing of the appeal to the grounds stated in his objection.” (Emphasis added)
[35] On the other hand, the provisions of s.51(5) state that:
“The notice of appeal must state the grounds upon which the appellant intends to rely and the appellant is not entitled to raise on the appeal a ground not stated in the notice.” (Emphasis added)
Unlike an appellant under the Valuation of Land Act, or an appellant under the Land Tax Assessment Act, an appellant under the Water Resources Act is not confined to the grounds so stated in the Notice of Appeal as filed. In this regard, the observations of Thomas J in Rogers v Sadler as set out in paragraph [26] are pertinent. While on the hearing of the appeal an appellant has no right to argue grounds not stated in the Notice of Appeal, we have come to the view that this would not prohibit amendment of the Notice before the hearing.”
- [13]The Land Appeal Court found that there was a “significant difference” between s 21(3) of the VLA and s 51(5) of the WRA. The Land Appeal Court granted leave to amend the notice of appeal to the Land Court.
- [14]The appellant submitted that the removal of the word “so” from the phrase “so stated”, the relevant distinction of the current s 169(1) from the earlier expression, results in the current provision being more analogous to s 51(5) of the WRA. The result being that amendments to the grounds of appeal are not precluded provided that they take place before the hearing.
- [15]The appellant submitted that the proposed amendment would not result in prejudice to the respondent and notes that when the notice of appeal was lodged the appellant did not have legal representation. The appellant refers to s 7 of the Land Court Act 2000. It relevantly provides that in “the exercise of its jurisdiction” the Court:
“(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.”
- [16]This provision refers to how the Court would exercise the discretion to allow the amendment sought but will not assist in deciding whether or not the discretion exists. As the respondent has taken the position, as a model litigant, that it would not oppose the amendment sought if the Court finds that it can allow the amendment, it is unnecessary to have further regard to this provision.
The respondent’s submissions
- [17]The respondent’s submissions are that s 169(1) is clear and unambiguous. That the hearing “must be limited to the grounds stated in the valuation appeal notice.” The Court’s procedural powers do not permit the words of s 169(1) to be interpreted to allow for the grounds of appeal, as stated in the notice of appeal, to be amended.
- [18]The Court was referred to the decision of the Land Appeal Court in Franklin & Ors v Valuer-General[2] where the Land Appeal Court said, at p 184:
“The provisions of the Valuation of Land Act as to the appeal procedure are restrictive in their operation, more especially to an appellant who has made his appeal on narrow and particular grounds rather than on a broad general ground such as ‘the valuation is excessive and contrary to law’. The language used by the Legislature is mandatory and binding not only on the parties but also on this Court and the Land Court. The relevant part of section 21 (3) states:
“An appeal under this section shall be instituted by filing in the Land Court registry a Notice of Appeal.
Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated, and the burden of proving any and every such ground shall be upon the owner.”
This Court is constituted pursuant to section 44 of the Land Act 1962-75 and all appeals are brought by way of re-hearing.
It seems to us that it is not competent for an appellant before us to add to his grounds of appeal as initially contained in his Notice of Appeal to the Land Court. If he were permitted to do so he would be flouting the mandatory provisions of the Valuation of Land Act previously enumerated. In simple terms in the conduct of his appeal before us an appellant remains limited to the grounds of his original Notice of Appeal to the Land Court.”
- [19]The respondent also directed the Court to the decision of the Land Appeal Court in Pratt v Valuer-General[3] where the Land Appeal Court said, at p 148:
“The law is well established but appears to have been overlooked by both parties in this appeal and we feel it appropriate to restate it in this judgement. The matter was discussed at length by the Land Appeal Court in Townsville in G. Franklin and Others v The Valuer-GeneralShire of Johnstone (1978) 5 QLCR 181 where at page 184 the Court said …”
The Land Appeal Court then set out the passage which has already been quoted above. The Land Appeal Court then continued at p 149 to say:
“Neither this Court nor the Land Court has the power to permit the landowner to enlarge or add to his grounds of appeal as set out in his Notice of Appeal against the determination of the Valuer-General. In Molloy v The Federal Commissioner of Land Tax 59 C.L.R. 609 the High Court held that a provision similar to the provisions of section 21(3) were an imperative direction to the Court and not as a provision merely for the benefit of the Commissioner which he is in a position to waive.”
- [20]The decision in Franklin & Ors v Valuer-General[4] was applied in Finlayson & Anor v Valuer-General,[5] which was not a case where the present issue arose so is not of assistance for present purposes. The respondent referred to it only as an example of the Court having relatively recently referred to Franklin & Ors v Valuer-General.[6]
Resolution
- [21]In Dawson v Chief Executive, Department of Natural Resources and Mines[7] the Land Appeal Court, at [35] expressed its conclusion that at the hearing the appellant could not go beyond the grounds of appeal but that this did not preclude the notice of appeal being amended before then. This was distinguished from the situation then created by s 21(3) of the VLA which used the words “so stated”, indicating the intention to confine the appeal to the grounds in the notice of appeal as filed.[8] A plain reading of s 21(3) leads to the conclusion that “so stated” refers to the earlier words of the same sentence which makes it clear that “so stated” means stated in the notice of appeal. The previous sentence of s 21(3) makes it clear that the notice of appeal is the document that was filed in the Land Court registry. The provisions being considered in that case contrast in their drafting and led the Land Appeal Court to its conclusion.
- [22]In the present case, s 169(1) of the LVA is briefer than the earlier s 21(3) in the VLA. In both cases, however, the reference is to the same thing, whether described, as it was then, as the notice of appeal, or now, as the valuation appeal notice. The present provision, in more modern drafting style, directs that the hearing “must” be limited to the grounds stated in the valuation appeal notice. This is quite different to s 51(5) of the WRA which only restricted what could be raised for the first time at the hearing of the appeal and did not control what might occur before then. Section 169(1) is not different in substance and effect to the earlier s 21(3). The hearing is limited to the grounds stated in the valuation appeal notice. The removal of the word “so” from the earlier expression “so stated” has made no change in substance. The purpose of “so” in s 21(3) was to refer back to the notice of appeal. In the current drafting it is not necessary and its absence does nothing to alter the meaning of what is now expressed in s 169(1). The decision in Dawson v Department of Natural Resources and Mines[9] is not relevant for present purposes and this Court is bound by the decisions in Franklin & Ors v Valuer-General[10] and by Pratt v Valuer-General.[11]
- [23]The clear and unambiguous words of s 169(1) do not require any reference to other material either to find their meaning or to confirm the meaning. The Court has no power to allow the notice of appeal to be amended in this case. The general application filed by the appellant on 28 June, 2016 in this matter must be dismissed.
Order:
The general application filed by the appellant on 28 June 2016 is dismissed.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] (2002-03) 24 QLCR 70.
[2] (1978) 5 QLCR 181.
[3] (1981-82) 8 QLCR 145.
[4] (1978) 5 QLCR 181 at 184.
[5] (2013) 34 QLCR 101, [32].
[6] (1978) 5 QLCR 181.
[7] (2002-03) 24 QLCR 70.
[8] (2002-03) 24 QLCR 70 [33].
[9] (2002-03) 24 QLCR 70.
[10] (1978) 5 QLCR 181.
[11] (1981-82) 8 QLCR 145.