Kennards Self Storage Pty Ltd v Valuer-General
[2023] QLC 3
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- Unreported Judgment
- Kennards Self Storage Pty Ltd v Valuer-General[2023] QLC 3
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Kennards Self Storage Pty Ltd v Valuer-General[2023] QLC 3
Kennards Self Storage Pty Ltd v Valuer-General[2023] QLC 3
LAND COURT OF QUEENSLAND
CITATION: | Kennards Self Storage Pty Ltd v Valuer-General [2023] QLC 3 |
PARTIES: | Kennards Self Storage Pty Ltd (appellant) v Valuer-General (respondent) |
FILE NO: | LVA131-22 |
PROCEEDING: | General application |
DELIVERED ON: | 13 March 2023 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 20 February 2023 |
HEARD AT: | Heard on the papers |
MEMBER: | PG Stilgoe OAM |
ORDERS: |
|
CATCHWORDS: | REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – OTHER MATTERS – where an appellant seeks orders for disclosure of calculations used by Valuer-General – whether disclosure should be given before pleadings REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – OTHER MATTERS – where an appellant contends that the original valuation is relevant in appeal before Land Court – whether a valuation appeal before the land Court under the Land Valuation Act 2010 is a hearing de novo Land Court Rules 2022 (Qld) Land Valuation Act 2010 (Qld) Uniform Civil Procedure Rules 1999 (Qld) |
Aldrich v Boulton & anor [2000] QCA 501 FA Pidgeon & Sons Pty Ltd v Valuer-General [2018] QLC 27 Gale v Denman Picture Houses [1930] 1 KB 588 GPT Funds Management 2 Pty Ltd v Valuer-General LVA079-18, LVA080-18, LVA081-18, LVA082-18 ISPT Pty Ltd v Valuer-General [2019] QLC 31 Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114 Ure v Robertson [2010] QSC 483 Valuer-General v Body Corporate for ‘Tennyson Reach’ Community Titles Scheme 39925 [2018] QLAC 7 | |
APPEARANCES: | Not applicable |
- [1]Kennards Self Storage Pty Ltd objected to the 2021 valuation of its property at 21 Turbo Drive Coorparoo.
- [2]In his objection decision, the Valuer General decided that the valuation was to remain unaltered. As is common in this jurisdiction, the Valuer General’s objection decision gave short pro forma reasons.
- [3]Kennards appealed the objection decision. As is also common in this jurisdiction, the grounds of appeal were pro forma, and broad brushed.
- [4]The parties attended a preliminary conference chaired by the Judicial Registrar. After the preliminary conference, the Valuer General provided a copy of a Form 58 Objection Decision.
- [5]The standard directions in land valuation appeals require parties to deliver detailed statements of facts and issues and then complete disclosure. Kennards has applied for disclosure of certain documents referred to in the Form 58 before it delivers its statement of facts and issues. Kennards’ application is very specific. It wants:
- (a)“the calc” referred to in the Objection Decision;
- (b)the “Applied (Rate)” calculation for the sales sale of 19 Proprietary Street, Tingalpa and 7 West Link Pl, Tingalpa referred to in the Objection Decision; and
- (c)the “Analysed (Rate)” and “Applied (Rate)” calculations for the sale of 1133 Ipswich Rd, Moorooka and 1117 Ipswich Rd, Yeerongpilly referred to in the Objection Decision.
- [6]This is my decision in relation to that application.
- [7]There is no right to disclosure in this Court[1]. The rules relating to disclosure are limited. Where they are silent, the Court has recourse to the Uniform Rules[2]. The land valuation jurisdiction is unique in that disclosure is ordered as a matter of course, after delivery of the parties’ statements of facts and issues.
- [8]Kennards says that the documents will “assist to reveal the matters considered by the Valuer General in assessing the valuation appealed against”.
- [9]Kennards relies on two decisions of the Land Court to support its contention that the reasoning of the decision maker for the Objection Decision is relevant. The first is F A Pidgeon & Son Pty Ltd v Valuer General (No 2)[3]. In this case, the objection decision maker gave evidence. Member Smith acknowledged the appellant bore the onus of proof but found that, because it was an appeal from the objection decision, the decision maker’s reasoning was relevant[4].
- [10]The second decision is ISPT Pty Ltd v Valuer General (No 2)[5]. Member Isdale took the same approach as Member Smith, allowing a subpoena to issue against the objection decision maker because that person may have been able to give relevant evidence about the subject of the appeal.
- [11]These cases may point to the potential relevance of the decision maker’s deliberations, but they are otherwise of limited assistance. They are not cases that deal with disclosure. In both cases, the appellant called for the decision maker to give evidence at the hearing. Unlike the present case, by that time both parties had filed statements of facts and issues, so the issues were clearly defined.
- [12]The Land Valuation Act 2010 (Qld) (LVA) makes it clear that an appeal to this Court is not of the House v King[6] variety. Kennards does not have to demonstrate that the reasoning of the objection decision maker was incorrect. It must establish that its grounds of appeal justify a different valuation[7]. Kennards bears the onus of proof[8] but, because the appeal is by way of rehearing[9], it is not bound by the material before the decision maker[10].
- [13]
It is not enough to show that the issued valuation and objection decision process were conducted erroneously; all of the evidence must be considered before deciding whether the onus of proof of any of the grounds of the appeal has been discharged.
- [14]Kennards also says that early disclosure will facilitate the just and quick resolution of the issues in the proceeding and avoid undue delay, expense and technicality in the proceeding. It says it needs these documents to produce its statement of facts and issues because there is a lack of particularity in the Valuer General’s reasons for decision.
- [15]The “just and quick resolution of the issues” horse has bolted. If the standard directions had issued in the usual way, disclosure would have been completed by the end of January 2023, expert witnesses would have been identified and the parties would have been given a hearing date in the first half of this year.
- [16]It is true that the Valuer General’s objection decision lacks particularity, but this is not a case where Kennards is ignorant of the issues in the appeal. The LVA is prescriptive about the contents of an objection[12]. Kennards had to nominate the valuation it was seeking. It had to provide the information it relied on to establish each objection ground, the details of any comparable sale, the reasons why that sale was comparable and the basis for the comparison. Kennards identifies the issues; it is for the Valuer General to respond.
- [17]The Valuer General submits that disclosure before pleading is not available in this Court. He submits that Kennards’ application is analogous to an application for preliminary disclosure under Chapter 7 Part 1 of the Uniform Rules and that there is no other power to require disclosure before pleadings.
- [18]Preliminary disclosure is available, only in the Supreme Court,[13] if the applicant may have a right of relief against a prospective defendant, it is impractical to start a proceeding without reference to a document, objectively, the prospective defendant has that document, inspection of the document would assist the applicant to make a decision about starting a proceeding and the interests of justice require an order to be made[14]. I agree with the Valuer General that none of these considerations apply here.
- [19]I disagree with the Valuer General that there is no other scope for disclosure before pleading. The time for delivery of lists of relevant documents under the Uniform Rules includes “if an order for disclosure is made before the close of pleadings – the time stated in the order.”[15]. Although not explicitly provided, clearly the Uniform Rules contemplate that parties may apply for disclosure prior to the close of pleadings. It also follows that a party could apply for disclosure after filing the originating process but before pleading.
- [20]This Court does not have pleadings in the sense understood by the Uniform Rules but the statements of facts and issues effectively takes the place of pleadings, as parties are required to state[16] all the issues they consider the court must decide, the material facts on which the party relies, and any conclusions or points of law that are relevant.
- [21]In civil actions, disclosure before pleading in rarely ordered. Usually, a party must show exceptional circumstances and that it is impossible to plead without disclosure[17].
- [22]
A plaintiff who issues a writ must be taken to know what his case is. If he merely issues a writ on the chance of making a case he is issuing what used to be called a ‘fishing bill’ to try to find out whether he has a case or not. That kind of proceeding is not to be encouraged. For a plaintiff after issuing his writ but before delivering his statement of claim to say, ‘Show me the documents which may be relevant, so that I may see whether I have a case of not’, is a most undesirable proceeding.
- [23]
It is clear that such an order for discovery prior to particulars is not the norm, except under exceptional circumstances, such as one party keeping back something the other is entitled to know.
- [24]The cases also make it clear that pre-pleading disclosure is not to be used as a fishing exercise. Member Smith reinforced this point in Pidgeon[20].
- [25]Kennards is seeking early evidence to justify its position, not evidence without which it is impossible to properly plead its position.
- [26]Kennards has not satisfied me that there is any exceptional circumstance that would justify early disclosure. Its statement of facts and issues may require a later amendment but, as was recently submitted to me, the process of valuation appeals is a fluid one. One of the advantages of pro forma, broad brushed grounds of appeal is that it can accommodate substantial changes to the statements of facts and issues as the evidence unfolds.
- [27]The duty of disclosure is a continuing one[21]. It is likely that each party will engage an expert valuer and history shows that their opinions are often very different from the objection decision maker. They often nominate a different highest and best use, different land conditions and different comparable sales. The deliberations of the Objection Decision maker are rarely relevant, as both Members Smith and Isdale acknowledged in Pidgeon[22] and ISPT[23].
- [28]Kennard’s application for disclosure prior to the filing of its statement of facts and issues is dismissed.
Orders
- The application for disclosure is dismissed.
- Any submissions seeking a costs order in this proceeding must be filed and served within 14 days of the publication of these reasons.
Footnotes
[1]Land Court Rules 2022 (Qld) r 14.
[2] Ibid r 3.
[3] [2019] QLC 25.
[4] F A Pidgeon & Son Pty Ltd v Valuer General (No 2) [2019] QLC 25 at [162].
[5] [2019] QLC 31.
[6] (1936) 55 CLR 499.
[7]Land Valuation Act 2010 (Qld) s 169(1).
[8] Ibid s 169(3).
[9] Ibid s 169(2).
[10] Aldrich v Boulton & anor [2000] QCA 501 at [37].
[11]ISPT Pty Ltd v Valuer General (No 2) [2019] QLC 31 at [45].
[12] Land Valuation Act 2010 (Qld) s 113.
[13]Uniform Civil Procedure Rules 1999 (Qld) r 208A.
[14] Uniform Civil Procedure Rules 1999 (Qld) r 208D.
[15] Ibid r 214(2)(a).
[16] Land Court Rules 2022 (Qld) r 12.
[17]Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114.
[18] [1930] 1 KB 588 at 590.
[19] [2010] QSC 483 at [61].
[20]F A Pidgeon & Son Pty Ltd v Valuer General (No 2) [2019] QLC 25 at [163].
[21]Uniform Civil Procedure Rules 1999 (Qld) r 211(2).
[22]F A Pidgeon & Son Pty Ltd v Valuer General (No 2) [2019] QLC 25 at [155] – [158], [162].
[23]ISPT Pty Ltd v Valuer General (No 2) [2019] QLC 31 at [45].