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ISPT Pty Ltd v Valuer-General (No 2) QLC 31
LAND COURT OF QUEENSLAND
ISPT Pty Ltd v Valuer-General (No 2)  QLC 31
ISPT Pty Ltd
ACN 064 041 283
General application to set aside subpoena
1 May 2019 [ex tempore]
1 May 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 24K, r 24L
Land Valuation Act 2010 s 155
ISPT Pty Ltd v Valuer-General  QLC 30, cited
RJ Anderson QC (instructed by Otto Martiens) for the appellant
SP Fynes-Clinton, with JP Hastie (instructed by Clayton Utz) for the respondent
- The Court notes that the appeal before it, in accordance with the governing legislation, the Land Valuation Act 2010, is, under section 155 (1), described in the following terms:
155 Appeal right
- (1)An objector may appeal to the Land Court against the objection decision for the objection.
- That has occurred and the appeal is before the Court. The actual dollar amount of the valuation has been changed by a notice under the legislation to an amount that is different to what it was when the valuation on the relevant date in 2015 was originally issued, and to a figure that existed in these proceedings before, essentially, only a short time ago when the figure was revised to be in accordance with that of the valuation expert evidence proposed to be called on behalf of the respondent. The proceedings before the Court is described as an appeal. It is essentially a de novo matter. It is not a judicial review of the decision of the person who appears to be, in this case, it was Mr Cross as the delegate for the Valuer-General who dealt with the objection decision. It is not, in any sense, a judicial review.
- However, the legislation very clearly says the words that I quoted. The Court must give full faith and credit to what the legislature has enacted. It is an appeal to this Court against the objection decision for the objection. It would be not difficult or uncommon to think that the decision in question is not simply the amount of the valuation, but the decision in the sense that decision with reasons is ordinarily considered. And it has certainly been the experience of this Court that the outcome from such a decision is a valuation amount. And if there has been a change, there is some expression of reasons, which may be better or worse than what a party might expect to receive, but nonetheless, there are reasons which are given.
- Now, the issue of the revised figure essentially puts the relevance of the original issued figure into eclipse. The figure that will be contended for is somewhat different. However, the valuation does not include just the amount. It is the things that cause that amount to be arrived at, which will be decisions made by an expert valuer in the exercise of their expertise that cause them to come to a conclusion that is ultimately expressed in the rolled up figure.
- Now, what was put in issue in this Court was the objection decision. The Court has heard that the valuation amount has been more recently changed. I am satisfied that that does not alter the effective position at law that the decision, as made by the Valuer-General’s delegate, and in relation to which the Court informed Mr Cross will be able to give evidence, is still relevant, as that review decision includes more than simply a dollar figure that might be coming out of the end result of it. The appeal was something which exists independently of any changes to the dollar valuation.
- Now, in this case, the rules of Court in relation to the use of evidence of a non-expert witness – and it appears that, in this case, Mr Cross would be in the category of a non-expert witness in the sense that he is not, as I understand it, being put forward as a valuer to give expert evidence in this case, but rather a witness of fact. Those rules are contained in the Land Court Rules 2000, particularly rules 24K and 24L, and they are worthwhile reading as they are rather brief and they are quite apposite.
- Rule 24K is said to be – well, is expressed in the following way:
24K Way evidence given
- (1)Unless the court orders that a witness’s evidence in a proceeding be given by affidavit or in any another way, the evidence may only be given orally.
- (2)Giving evidence orally may include merely swearing to the accuracy of a statement of evidence submitted to the court.
- (3)If the court orders that evidence be given by affidavit, the court may impose conditions on the order.
- And rule 24L:
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.
- And yesterday I gave, in a decision concerning this matter, reference to the previous rule requiring the provision of a statement of evidence, a statement of the witness’ evidence, at least 21 days before the date set for the hearing, which is rule 24J, that I will not read out, but which the parties will be familiar with from the last time the matter was agitated.
- Now, those rules have not been complied with, leaving the default position that the appellant needs the Court’s leave to call the evidence of the witness who has been subpoenaed. That witness is an officer of the Department. The counsel have indicated that the question of the setting aside or not of the subpoena, that is, the matter dealt with by the general application, and the question of the leave in relation to the forgiveness from the strictures of the rule that has been referred to, may be usefully considered together, and that is the approach that has been taken.
- The Court notes that it has not been explained, essentially – it has been adverted to, but there is actually no excuse, to use, I recollect, Mr Anderson’s words that explains why there was no attempt made to interview Mr Cross to endeavour to obtain a statement from him. The circumstance that results is that the Court does not know what Mr Cross would be able to say but must deal with the circumstances before it on the basis of what presently appears to be likely. The proposed evidence has been explained, to the extent possible, in an email sent on the last evening at 7 pm, Thursday 30 April this year, and paragraph 3 sets out a number of areas where it is proposed that Mr Cross would be able to give evidence.
- It is stated that he will give evidence of the following matters:
- (a)The role played by him as the respondent’s delegate for the purpose of the decision on objection the subject of this proceeding;
- (b)His knowledge of the basis for the issued valuation as at 1 October 2015 at $59.5 million;
- (c)His knowledge of the basis for the issued valuation as at 1 October 2015 at $39 million;
- Now, that date was corrected this morning in an email dated today, sent at 8.36 am, to indicate that it should read 1 October 2014. That is 3(c).
- (d)The basis for his decision on objection to reduce the valuation to $53 million;
- (e)Whether the subject had a determined highest and best use for the purpose of the decision on objection and, if so, what that was;
- (f)Whether the so-called ‘merged market theory’ was applied in the determination of the decision on objection;
- (g)Whether regard was had to comparable sales for the purpose of determining the decision on objection and, if so, their identity and details;
- (h)Whether, if the sales at 38 Wharf and 97 Elizabeth Street were applied, their sale price was adjusted to allow for infrastructure charge concessions;
- (i)Whether the sale of the subject was brought to account in the determination of the decision on objection and, if so, in what amount;
- (j)Whether any easement burdening the subject was brought to account in the determination of the decision on objection and, if so, how.
- Now, the Court must look at the situation as it appears at the present time and weigh up the merits. If rules have not been complied with, leave will be required to call the witness. The possibly relevant evidence that would be the basis of the decision being applied is apparently the matters (a) to (j). The Court takes into account that the Valuer-General can indeed change the basis of the valuation from that originally relied on, but no suggestion of this has been heard yet. If it did, it has not changed the words of the Act, although it may affect the utility of the proposed evidence.
- The Court has regard to the words of section 155(1) that were read out earlier, that the appeal is against the objection decision for the objection, and it appears that Mr Cross was the officer who was the delegate for the Valuer-General, that is the respondent, in the making of that decision. What is important is the appellant’s duty to make out their case. In view of the wording of the Act referring to the review decision, it is presently apparent that Mr Cross may be able to give relevant evidence about what is the subject of the appeal. Mr Cross is an officer of the respondent. He resides in Cairns and is presently available to the Court in Brisbane to give evidence.
- The balance is resolved this way. It falls in favour of allowing Mr Cross to be called. In this matter, it is relevant that the hearing is in progress and that the usefulness of the evidence to be given can be subject to submissions at the close of the hearing, as well as to objections when it has been given, and I particularly note the possibility in relation to items 3(b) and (c) are areas where it is not absolutely clear that Mr Cross would be necessarily able to give useful evidence, although there is contrary submissions from Mr Anderson. The respondent, a model litigant, will retain the ability to object to any matters thought not to be relevant, and also retains the ability to make submissions as to the usefulness of the evidence which the witness may end up giving at the end of the case.
- The order of the Court will be that the subpoena will not be set aside. Mr Cross will be allowed to be called in accordance with its terms, and for the reasons that I have given, I also order that the general application filed on 29 April 2019 is dismissed. Costs are reserved.
- In order to ensure that there is no unfairness to the respondent, the Court orders that the costs of and incidental to Mr Cross giving evidence now, without due compliance with the Rules, must be borne by the appellant on the standard basis of assessment.
- It is also ordered that the costs of any adjournment necessary for the respondent to be in a position to deal with evidence by Mr Cross will be borne by the appellant on the standard basis.
- Subpoena allowed.
- The general application to set aside the subpoena is dismissed.
- Costs are reserved.
- Costs of and incidental to Mr Cross giving evidence, without due compliance of the Rules, will be borne by the appellant on the standard basis of assessment.
- Costs of any adjournment necessary for the respondent to deal with evidence by Mr Cross, will be borne by the appellant on the standard basis of assessment.
MEMBER OF THE LAND COURT
ISPT Pty Ltd v Valuer-General  QLC 30.
- Published Case Name:
ISPT Pty Ltd v Valuer-General (No 2)
- Shortened Case Name:
ISPT Pty Ltd v Valuer-General (No 2)
 QLC 31
01 May 2019