9_._ The rules of evidence as applied in the ordinary Courts evolved in such a way as to exclude from admissibility certain otherwise relevant evidence. One of the principal exclusionary rules is that which excludes evidence of opinion, which exception may be expressed in this way: A witness who is an expert, such as in medical or scientific matters, may give evidence of his opinion provided that he has such qualifications and experience that he may be regarded as an expert in the given field.

Section 33(1) of the Administrative Appeals Tribunal Act 1975 provides so far as relevant as follows:

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. "

This provision gives a clear warrant to the Tribunal to refrain from applying the rules, or some particular rule, of evidence, for it provides that the Tribunal is not bound by such rules. But it does not provide that the Tribunal shall not apply the rules of evidence, and the provision that the Tribunal is not bound by the rules of evidence is not to be read independently of the other provisions of s.33(l)(c), namely that "the Tribunal ... may inform itself on any matter in such manner as it thinks appropriate". The requirements of s.33 as a whole may thus lead the Tribunal in certain cases to consider that at least the principles underlying a rule of evidence, if not the strict rule itself, may offer clear guidance as to how it should inform itself. That it is not the rule itself, but rather the principle underlying it that is important, is demonstrated by the fact that in this application I did not decline to hear what the applicant said about the additional sales. To the extent that the rules of evidence are exclusionary rules, they make inadmissible the evidence sought to be led by the applicant. The question here, however, is one not of admissibility but of the weight to be accorded to such evidence.

In the very recent decision of the President of this Tribunal in Re: L. Pochi and The Minister for Immigration and Ethnic Affairs (No. 78/117) he made it clear that the emphasis must be upon the fair finding of facts upon the basis of material that is logically probative. In his reasons Brennan J. said:

"To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeals Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at p.256

'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'.'

That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner, ex parte Moore (1965) 1 QB 456 at p.488 said:

'These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.'

Lord Denning M.R. in T.A. Miller Ltd. v. Minister of Housing and Local Government (1968) 1 WLR 992 at p.995 said much the same:

'Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law.'

and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall (1974) 1 QB 624 at p.633."

The fact is that, properly understood, the rule of evidence in relation to opinion is not technical, and there is a principle of good sense underlying it that relates to the logically probative force of assertions of opinion made before any tribunal. If a question of opinion as to a medical condition arises, who can doubt but that an administrator, and on review, the Tribunal, must give weight to the opinion of a medical practitioner but not to that of a layman? A number of such situations have already been considered by the Tribunal. The trend of the market, for example, is a matter in respect of which only an expert opinion will carry any weight: see Re: Rovere (above). Another example is that of opinion as to the level of depreciation of improvements: see Re: J.M. Firth (above). Many fields of expertise can be brought to mind, but for present purposes it is enough to point out that the valuer's task requires for its exercise the gaining of qualifications and the addition of experience. When the training and experience of the valuer are applied to the valuation exercise in question, the estimation of value "is inevitably and intrinsically a matter of opinion. But an opinion based on experience and training is of evidentiary value": see Re Firth (above).

In having regard to the evidence before it, the Tribunal may itself conclude that the valuer has given insufficient weight, or undue weight, to a particular fact or to particular facts. Such facts may arise as evidence of facts within the knowledge of an applicant which have been deposed to by the applicant at the hearing. Factual evidence may also be given by other witnesses having actual knowledge of those facts, or expert evidence may be given by a qualified person. But the Tribunal in making its decision can only have regard to the evidence before it, and cannot rely upon the supposition of the parties. Thus it is appropriate for an applicant to make a submission to the Tribunal in the course of a hearing, that the facts proved in evidence tend to lead towards a certain conclusion. It is not appropriate, however, for an applicant to offer his non-expert opinion as a fact upon which the Tribunal ought to base its conclusion. If, of course, on the material before it, the Tribunal concludes that a valuation is too high, it will vary the re-determined value: see Re: H.D. and P.B. Palmer and The Minister for the Capital Territory (above).

15. The case must now be considered in which the applicant offers an opinion in an area that seems to me to be fundamental to the valuer's expertise, involving decisions as to the utility in terms of the time of, as to the analysis of, and as to the assessment of the comparability of, sales of land said to be relevant to the valuation of the subject land.

In fact I do not think, in the face of Mr Clarke's evidence, that I can properly give any weight either to the applicant's opinion that the two later sales should be taken into account or to his opinion as to the deduced value, upon analysis, of the land component reflected in those sales and in Sale B. Having heard Mr Clarke's evidence, I also accept what he said in relation to the assessment of depreciation. In this respect there is no need to repeat what was said by the Tribunal in Re: J.M. Firth (above).

Turning then to the sales evidence offered by Mr Clarke, of the three sales referred to, Sale A possesses outstanding comparability. It is on the other side of the street from the subject, and only four blocks away. It is 177m2 smaller than the subject. It rises slightly above road level and is a fairly regular shape. Any traffic that passed the subject would also pass Sale A, which would additionally be affected, unlike the subject, by traffic passing along Baudin Street. Sale A has electricity wires running along its eastern boundary. It has a manhole on the driveway. There is a small electricity sub-station, having dimensions of about lm by 2m by 2.5m in height, on the nature strip immediately adjacent to the front driveway. The deduced value of the land component was $48,000. If this figure is correct, the applicant's land has clearly been significantly under-valued. I do not wish to go at any length into the question which was raised in Re: Grove and the Minister for the Capital Territory (No. 78/5048) and has since been raised again and again, but this much must be said: Sale A, which analysed at $48,000 was in fact rated at $38,000. Sale B, analysed at $31,000, was rated at $27,500. Sale C, analysed at $49,000, was rated at $42,500. One of the significant factors in this problem is that if a valuer has adopted a figure for rating purposes in relation to a parcel of land that is well below the deduced figure at which he had arrived on analysis, various conclusions are open. It is possible that the analysis was wrong in some way. Alternatively, other sales may indicate that the sale price was out of line. Again, the valuer may have simply undervalued the parcel of land, either alone or in conjunction with other parcels in the neighbourhood. But if other evidence suggests that the deduced value is correct, there is no reason why it should not be adopted as the benchmark. The curious thing here was that the applicant in fact agreed that the deduced value of Sale A was $48,000. Were I, contrary to what I have said earlier, to accept his opinion in relation to the value of Sale A, I would have to conclude, as I have already said, that the subject was significantly undervalued. But, to be consistent with my previously stated views, I place no reliance upon that opinion. The subject must be compared with the other sales upon the basis of the values assigned to them for rating purposes, in particular as considerable reductions were made in the case of all three.

Interestingly enough, the applicant's analysis of one of the two new sales which he introduced, namely Block 12 of Section 41, in my view supported, having regard to its comparability with the subject, the assailed value of the latter. But once again it would be inconsistent with what I have said as to the weight of evidence to have regard to this.

Sales B and C are less comparable. Sale B is 266m2 smaller than the subject. It would collect traffic from Tennyson Crescent, Empire Circuit and from around Arthur Circle as well as from Baudin Street and Dampier Crescent. Apart from traffic, the value of the subject was thought by Mr Clarke to be "far superior" to Sale B, in particular in terms, apparently, of its location. Sale C is a large block containing 2497m2. It falls away to the rear boundary. The location is superior to that of the subject. While neither of these sales are as useful in arriving at the value of the subject as is Sale A, they support the value that has been adopted in respect of Sale A. My conclusion is that Sale A is overall slightly superior to the subject and that in consequence the value of $36,000 adopted in respect of the subject is fully supported.

Finally, in relation to the general points raised by the applicant, and referred to in paragraph 3(a) above, it must be said that all of the matters there referred to are matters of opinion that need to be assessed in the light of sales evidence as interpreted by trained and qualified people. The same comments may be made in relation to them as I have made above and as were made by the Tribunal in Re: J.M. Firth (above) in relation to the assessment of depreciation.

In the result it is quite clear to me that the Minister's re-determination was not too high and that the Tribunal should affirm the decision to confirm the re-determination at the amount of $36,000.