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ISPT Pty Ltd v Valuer-General QLC 30
LAND COURT OF QUEENSLAND
ISPT Pty Ltd v Valuer-General  QLC 30
ISPT Pty Ltd
ACN 064 041 283
General application to set aside subpoena
30 April 2019 [ex tempore]
30 April 2019
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – Land Court Rules 2000 – Application to set aside subpoena
EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – RELEVANCE – Whether the evidence of a witness is relevant or admissible
Land Court Rules 2000 r 24J, r 24L
F A Pidgeon & Sons Pty Ltd v Valuer-General; 310 Ann Street Nominees Pty Ltd v Valuer-General  QLC 27, applied.
RJ Anderson QC (instructed by Otto Martiens) for the appellant
SP Fynes-Clinton, with JP Hastie (instructed by Clayton Utz) for the respondent
- These are my reasons for decision on a general application filed yesterday, 29 April 2019, at around about 4 pm, on behalf of the respondent, to set aside a subpoena dated the 22 March 2019, directed to Mr Stephen Cross to attend to give evidence.
- Mr Cross, an officer of the respondent Valuer-General, has come to Court today as required. The parties have provided written submissions. Mr Cross was, as stated in ground 3 of the general application, the Valuer-General’s delegate, and I quote: “who decided the objection which the appellant made to the annual valuation for the land the subject of the appeal.”
- The respondent submits that the subpoena should be set aside on the basis that the evidence which Mr Cross – and I quote: “may be expected to give is irrelevant to the issues in dispute in the appeal and, in certain respects, inadmissible.”
- That is taken from paragraph 3 of the written submissions from the respondent.
- The Court must consider the situation as it is presently apparent and I stress that. The Court has not been provided with any witness statement of what evidence Mr Cross is able to give so is required to decide the present question within this constraint. The rules of court provide that, for instance, in the case of a witness not being in the role of an expert in this case, the party must provide to the registry and serve on the other party a statement containing their evidence. That is in rule 24J. It appears to be applicable. It is in these terms:
24J Statement of evidence of a witness other than expert
- (1)This rule applies to a party who intends to do either or both of the following—
- (a)give evidence in a proceeding;
- (b)call another person, other than an expert, to give evidence in a proceeding
- (2)Before giving the evidence or calling the other person, the party must deliver to the registry, personally or by facsimile or email, and serve on each other party, a written statement containing—
- (a)the name, address and occupation of the party or other person; and
- (b)the evidence of the party or other person for the hearing.
- (3)The party must comply with subrule (2) at least 21 days before the date set for the hearing, or if the court directs a different time, within the time directed by the court.
- (4)During examination in chief, the party or other person must not, without the court’s leave, repeat or expand on matters contained in the party’s or person’s statement delivered under subrule (2) or introduced new material.
- The affidavit of the appellant’s solicitor, Belinda Ann Burton, sworn today, which I give leave to read and file, does not address this matter. Nor do any of the submissions. The position is that the appellant, who has subpoenaed Mr Cross, has not demonstrated that it has complied with rule 24J or explained why not.
- That being so, rule 24L prevents it from calling this witness without the Court’s leave, which has not been sought, nor has it been given. Rule 24L is in the following terms:
24L Calling witnesses.
A party to a proceeding must not, without the court’s leave, call an expert or another person to give evidence in the proceeding unless the party has complied with the rules contained in this part.
- That part of the Rules includes the rule which I have referred to earlier, rule 24J. On the basis of the present position which exists, it is premature to decide whether the general application should be allowed or not. It would serve no purpose to do so at present, since there is no leave for this witness to be called. It can therefore not be of any relevance to the conduct of the case at the present point for it to be decided whether or not the subpoena should be set aside, as is sought by the respondent in the general application filed yesterday afternoon.
- The parties chose not to address the Court in relation to this aspect today. It could not be said to be something which would be a surprise to them as it is specifically referred to in a case which both parties provided the Court a copy of with their written submissions. The case to which I refer is the decision of my learned brother Member Smith given ex tempore on 5 September 2018 in this Court in the case of FA Pidgeon & Son Proprietary Limited v Valuer-General. The citation is  QLC 27. His Honour said at paragraphs 30 and 31 of his reasons the following:
“Mr Fynes-Clinton ran this application on the basis of there being no possibility, due to the way the legislation is worded, of there being any evidence that could be relevant. I agree with President MacDonald that there are aspects which would allow evidence to be relevant and, as such, on those narrow grounds, in the limited time I have had available, I think it appropriate to disallow the application brought by Mr Fynes-Clinton. That, however, does not end the matter. There is a very important aspect which also has to be considered and that is the rules of the Land Court. Rule 24J and under the heading ‘non-expert statements of evidence’ is as follows”.
- And his Honour sets out subsection (2) and subsection (3) that I will not read again. His Honour goes on to say at paragraph 31:
“We are well within that time. We are at the seventh day of the hearing. In my view, it will be a matter for the appellants to seek leave to bring further oral evidence by way of the subpoena. Before leave can be granted factors to consider include the procedures adopted, the orders made in preparing this matter for hearing, and the way the orderly conduct of these proceedings are impacted by the late bringing of any of these applications for subpoenas at this time.”
- In the present case it does not matter that this is day 1 of the hearing. What matters are the rules of court to which I have referred and the absence of any leave from this Court to remove the obligation imposed under the rules. The order of the Court in relation to the general application filed on 29 April 2019 is that it would, at least at present, serve no practical purpose to decide it. It may become relevant in the course of the hearing so it will not be dismissed. The hearing of that general application is adjourned. Costs in relation to the general application are reserved.
- The application is adjourned.
- Costs reserved.
MEMBER OF THE LAND COURT
- Published Case Name:
ISPT Pty Ltd v Valuer-General
- Shortened Case Name:
ISPT Pty Ltd v Valuer-General
 QLC 30
30 Apr 2019