Geldard v Western Downs Regional Council
[2018] QLC 51
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- Unreported Judgment
- Geldard v Western Downs Regional Council[2018] QLC 51
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Geldard v Western Downs Regional Council[2018] QLC 51
Geldard v Western Downs Regional Council[2018] QLC 51
LAND COURT OF QUEENSLAND
CITATION: | Geldard v Western Downs Regional Council [2018] QLC 51* |
PARTIES: | Roger John Geldard (appellant) |
v | |
Western Downs Regional Council (respondent) | |
FILE NO: | LGR077-18 |
DIVISION: | General division |
PROCEEDING: | Application for disclosure |
DELIVERED ON: | 15 May 2018 [ex tempore], published 30 May 2019 |
DELIVERED AT: | Brisbane |
HEARD ON: | 15 May 2018 |
HEARD AT: | Brisbane |
MEMBER: | PG Stilgoe OAM |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – GENERAL PRINCIPLES – where land owner appeals against decision of local authority on the land owners objection to a rating category for the land – where the appellant sought disclosure of documents relating to the reclassification of a neighbour property – where the appellant sought disclosure of documents relating to the respondent council’s decision making process for the subject property Local Government Regulation 2012, s 93 Uniform Civil Procedure Rules 1999, r 211 Coal and Allied Limited v Australian Industrial Relations Commission [2000] 203 CLR 194, applied Marchesi v Noosa Council [2017] QLC 19, considered Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317, cited Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102, cited Theo v Moreton Bay Regional Council [2011] QLC 43, cited Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, applied White v Moreton Bay Regional Council [2017] QLC 51, cited |
APPEARANCES: | RJ Douglas QC (instructed by Thynne & Macartney Lawyers) for the appellant JP Hastie (instructed by King & Company Solicitors) for the respondent |
- [1]In 2017, Roger Geldard bought a property outside Miles from Australian Pacific LNG Pty Ltd. The property has 18 gas wells on it, but Mr Geldard uses it for cattle grazing and the production of fodder crops. The property is approximately 890 hectares in area. It is rated 4/31, which is petroleum, other, greater than 400 hectares. Mr Geldard says that the appropriate rating should be 3/16, rural.
- [2]He has appealed the council’s decision on the objection notice. He has also asked for disclosure of two classes of documents – firstly, documents relating to the reclassification of a neighbour property known as Wilgas, and secondly, documents relating to the council’s decision making process for the subject property.
- [3]Two principles apply in this determination, neither of which is controversial. The first principle is the nature of the Court’s function, and the second is the duty of disclosure.
- [4]Dealing with the duty of disclosure first, it is uncontroversial that the duty is to disclose documents which are directly relevant to an allegation in issue in the proceedings. And that is UCPR[1] rule 211(1)(c). So the documents that Mr Geldard wants disclosed are detailed at paragraph 12 of the affidavit he swore on the 12th of April 2018. The documents which are directly relevant, Mr Geldard says, are those documents which should be of a character which tends to prove or disprove an allegation in issue. And that description is taken from Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 at 105.
- [5]Mr Geldard, through his counsel, further asserts that adjudicating an application for further and better disclosure does not entail excessive rigidity with microscopic examination of each factual averral and response thereto, but rather in an overarching sense to implement the UCPR – and citing Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317, which is a decision of Justice Daubney. Mr Geldard says that the documents are directly relevant because they had been brought into issue in the notice of appeal. And in respect of that, paragraph 11 of the grounds of appeal refers directly to the change of categorisation of the adjacent property, which although not mentioned, the parties concede is Wilgas.
- [6]And paragraph 14 talks about the council’s exercise of discretion not to allow the applicant’s notice of objection. So that brings into issue directly, says counsel for Mr Geldard, these documents. On the other hand, the Council says that the documents cannot be directly relevant because of the nature of the Court’s function in an appeal such as this. And helpfully points out – and uncontroversially points out – that the Court’s appellate function is confined to deciding the correct rating category for the property, citing President Kingham in White v Moreton Bay Regional Council [2017] QLC 51 at [2], and that of Member Cochrane in Marchesi v Noosa Council [2017] QLC 19 at [54].
- [7]So the nature of the hearing is relevant to whether these documents are directly relevant. And I know I am being circular in a sense. But that is the way that I have to look at it. It is uncontroversial that the Land Court’s hearing will be a de novo hearing. And therefore, the reasoning and the exercise of the discretion by the Chief Executive Officer of the council is irrelevant. It’s also irrelevant for a similar reason that this is not a review of an administrative hearing. In a de novo hearing, neither party – nor certainly Mr Geldard, doesn’t have to demonstrate error. And that was made clear in the case of Coal and Allied Limited v Australian Industrial Relations Commission [2000] 203 CLR 194.
- [8]It is also clear that the de novo hearing is a judicial investigation made for the first time on the facts that are before the Court – Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281. So what the Court has to do in the de novo hearing is to determine what is the best rating – what is the appropriate rating category, based on the evidence before it at the time. And I agree – and both parties agree – that it is not an examination of the exercise of the council’s discretion. The council says that any examination of the decision making process is beyond power and, therefore, any document which exposes or comments upon the decision making process is also beyond power. It also makes a point that any consideration of the fairness of the rating system is beyond power – and in that respect, referred me to Theo v Moreton Bay Regional Council [2011] QLC 43.
- [9]In that case, Mr Theo argued that the rating categories used were for wealth-based assessments, not based on the unimproved value of the land, an assertion that was rejected by President McDonald at paragraph 13. And again in Marchesi, to which I have already referred – and was referred to me – Member Cochrane, at paragraphs 108 to 109, observed that Mr Marchesi placed great weight upon what he sees as the inequitable imposition of rates and the level of those rates, and commented that the matters were beyond the jurisdiction of the Court. And I agree with that assessment. Although Mr Geldard’s notice of appeal makes reference to or asserts that the application of the rating system is unfair, that is not his ground of appeal.
- [10]His ground of appeal is that the land should be rated in category 3/16. As Mr Hastie for the Council pointed out, the Court’s decision on that point requires the consideration of two questions – firstly, the use; and secondly, an examination of the categories. As Mr Douglas for Mr Geldard points out, it is not my role to pre-judge the substantive dispute. And while a close reading of the complete categories suggests that this is a case of fairness of application rather than similarity of category, it is not for me to decide. My only decision is whether these documents should be disclosed. The process by which the Land Court makes that decision is set out in regulation 93 of the Local Government Regulations of 2012.[2]
- [11]And it is important to note three things. Firstly, that the Court should conduct the appeal with a view to its prompt disposal. Secondly, it should observe natural justice. And thirdly, it is not bound by the rules of evidence. That demonstrates to me that there is a flexibility of process in the way that the Land Court deals with these matters. There is a further point – and I go back to Member Cochrane’s decision in Marchesi. In paragraph 55, the Member says that:
“The history of site and categorisations that may have applied in previous rating periods are, unless good reason can be shown why regard should be had to them, largely irrelevant.”
and that suggests to me that while the usual rules in relation to disclosure would normally apply, in the more relaxed jurisdiction of the Land Court there may be situations where disclosure of material that might not fall into the directly relevant category should be disclosed. As I have already noted, these matters are raised on the notice of appeal. Mr Hastie, on behalf of the council, says, “but we have consistently and in documents said that they are irrelevant considerations.” And that might be true. But they are before the Court.
- [12]In my view, there is one good reason, in this particular and peculiar circumstance, why there should be an order for disclosure. And that is that a property next door, with the same circumstances – allegedly the same circumstances, because we have not seen the documents yet – was changed from a rating of 4/31 to 3/16 on an application to the Council. And while the reason for that may not be relevant, the factual circumstances underpinning that decision might well be relevant. And in my view, in this particular case, is sufficiently relevant for those matters to be disclosed.
- [13]And for that reason, I do order that the documents in the categories relating to the Wilgas rating change should be disclosed, as they may or may not form evidence which underpins a decision about the use.
- [14]I have formed the view, however, that the second category of documents – which is the documents which relate to the council’s decision making process – are not disclosable because they go to the exercise of the council’s discretion, which – as I have pointed out, not particularly well today – is not a matter for this Court. You get half of what you want, Mr Douglas. You will get the Wilgas documents.
- [15]The order will be the appellant’s costs in any event.
Orders
- By 29 May 2018, the respondent must deliver to the appellant copies of the following documents:
- Notice of Objection against categorisation or request for recategorisation for Lots 36 on SP116140, Lot 27 on CP BWR416 and Lot 35 CP BWR 450 lodged by The Wilgas Property Pty Ltd as trustee following the purchase of these parcels of land by it in 2016;
- any correspondence from the Respondent (including letters and emails) to The Wilgas Property Pty Ltd as trustee or the directors of that company, minutes of meetings, internal memoranda and files notes in relation to the Notice of Objection/request for recategorisation referred to in the preceding paragraph;
- the Decision Notice or the formal communication sent to The Wilgas Property Pty Ltd as trustee by the Respondent in relation to the Notice of Objection/request for recategorisation containing the decision and reasons for the decision (including evidence or other material on which those findings were based).
- The respondent must pay the appellant’s costs of the application in any event.
PG STILGOE OAM
MEMBER OF THE LAND COURT