Supreme Court of the NT|1987-05-13

Meyering v Northern Territory of Australia [1987] NTSC 22; 47 NTR 21; 86 FLR 473; 62 LGRA 160 (13 May 1987)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Muirhead A.J.(1) CWDS Practice and procedure - Appeal from Lands Acquisition Tribunal - Directions sought - Whether rehearing or hearing de novo - Powers and functions of Tribunal - Legislative intent - Lands Acquisition Act 1978, s.86. Cases referred to: Builders Licensing Board v. Sperway Constructions (Sydney) Pty. Ltd. [1976] HCA 62; (1976) 14 ALR 174 Dare v. Dietrich [1979] FCA 47; (1979) 26 ALR 18 Davern v. Messell [1984] HCA 34; (1983-1984) 155 CLR 21 Gabriel v. Williamson Messell v. Davern Rabuntja v. Minister for Education Traut v. Faustman Bros ; HRNG DARWIN #DATE 13:5:1987 Counsel for the Appellant: N. Henwood Solicitor for the Appellant: Cridland and Bauer Counsel for the Respondent: N.A. Hemmings QC Solicitor for the Respondent: Solicitor for the

Northern Territory ORDER Order that the costs of these applications should abide the results of the appeal and they will thus be costs in the cause. Give the parties liberty to apply as to the directions. SCHEDULE DIRECTIONS

The appeal proceed by a hearing de novo, the parties being entitled to adduce further evidence.
The appellant to provide further particulars of the grounds of appeal within 14 days of this date.
The Registrar of the Tribunal shall as soon as practicable deliver to the Master of the Court the material and evidence placed before the Tribunal and the determination or determinations of the Tribunal.
Either party be at liberty to tender upon the hearing of the appeal the material and evidence considered by the Tribunal which such party wishes to be considered upon appeal. Whether or not such evidence shall be considered will be in the discretion of the judge hearing the appeal.
The parties shall within 20 days of this date provide mutual discovery of documents.
Inspection of documents shall take place within 30 days of this date.
There shall be a mutual exchange of any

valuation reports, not considered by the Tribunal, which the parties intend to adduce upon the appeal, within 40 days of this date. 8. The appellant shall within 50 days of this date apply to the Deputy Master for a hearing date for the hearing of the appeal. 9. Not less than 20 days prior to the hearing date each party shall provide to the other a proof of the

evidence of any witness intended to be called, whose evidence was neither called nor tendered before the Tribunal. 10. On the hearing of the appeal the appellant shall first present his case. 11. Either party be at liberty to apply for further directions upon 3 days notice to the other. JUDGE1 I have before me two Interlocutory Summonses in which the parties seek directions concerning the conduct on an appeal instituted by the appellant pursuant to the provisions of the Lands Acquisition Act 1978 ("the Act"). 2. I have been informed by counsel that this is the first appeal of this nature to the Supreme Court under that legislation. No Rules of Court have been enacted "prescribing the practice and procedure applicable to the hearing" of such an appeal" (Section 88(1)(b)). Thus, an issue having arisen as to the nature of the appeal, the matter assumes some importance. 3. A brief background will suffice. The Lands Acquisition Tribunal has been set up under the Act. One of its functions is to determine the "amount of compensation to which claimants may be entitled following compulsory acquisition." 4. The appeal in this court was instituted by Notice of Appeal filed on 15th December last. The appellant appeals from the determination of the Tribunal dated 21st November,1986 when it apparently assessed the compensation due for land acquired from the appellant at $383,500. The Notice of Appeal asserts that the Tribunal erred "in failing to take into account the full potential of the acquired land ---". 5. By interlocutory summons dated 2nd April,1987 the appellant seeks directions which include mutual discovery and inspection of documents, mutual exchange of "evaluation reports" (sic), the supply of particulars and directions as to interrogatories. Such directions, on face at any rate, envisage that further evidence will be admitted upon the hearing of the appeal. The respondent objects to such directions, its argument quite simply being that the appeal must be conducted upon the evidence before the Tribunal, i.e. a rehearing of such evidence, and that no further evidence should be admitted without leave and then only in special circumstances. 6. Mr Hemmings QC for the appellant does not contend that the appeal is stricto sensu, that is to say, where the sole matter for determination is whether the declaration of the Tribunal was right or wrong when given on the material before it. His contention is that the appeal must be by way of rehearing, not as Toohey J. described it in Gabriel v. Williamson (1979) 1 NTR 6 at 9 "a rehearing in its most literal form --- with the hearing of fresh evidence", but a rehearing on the evidence and material before the Tribunal with a statutory power to receive further evidence (Builders licensing Board v. Sperway Constructions (Sydney) Pty. Ltd. [1976] HCA 62; (1976) 14 ALR 174." 7. Mr Henwood for the respondent however contends that the Lands Acquisition Act, and the law, require a hearing de novo and he relies on authorities such as Dare v. Dietrich [1979] FCA 47; (1979) 26 ALR 18 and Traut v. Faustman Bros [1983] FCA 137; (1983) 48 ALR 313 which I mention later. To understand the distinction between appeals stricto sensu, appeals in the nature of a rehearing and appeals de novo does not always provide the solution where the legislation in question is silent or ambiguous. Certain principles emerge but a steady eye must be kept on the nature of the decision in question, the structure of the decision-making body and the legislation which enables the appeal to be brought. 8. O'Leary J. (as he then was) stated in Rabuntja v. Minister for Education 19 NTR 5 at 7 "To determine the nature of an appeal provided for in any particular case; it is first of all necessary to consider the nature of the decision from which the appeal is brought and, in particular, to consider whether it is an administrative or a judicial or quasi-judicial decision". His Honour was there dealing with an appeal from an executive decision. After referring to this fact he said "That, however is not the end of the matter, for, an appeal being a remedy given by statute, the question of the nature of the appeal must in the end be considered and delivered in the context of the legislation providing for it". To what extent, in determining the nature of the appeal the court can go further and consider topics such as subject matter, expediency, i.e. practical considerations, is not so well determined by authority. 9. What then is the nature of the appeal? In so determining, it is necessary first to examine both the constitution and functions of the Tribunal and those sections of the Act which enable an appeal to this Court. 10. I refer briefly to the Tribunal and its powers and functions. Section 7 provides that its members shall have relevant qualifications e.g. legal practitioners, surveyors, valuers and the like. The chairman must be a legal practitioner (s.8). Division 2 relates to hearings. The Act contemplates that the attendance of persons may be required, documents produced and persons may be legally represented. It provides that evidence may be given on oath, and for immunity to witnesses as "in proceedings before the Supreme Court". Section 25(2) provides that the Tribunal "is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks fit" and "is not bound to act in a formal manner and shall act without regard to legal forms and technicalities". The right to appeal is provided by Section 84 which simply provides: "A person aggrieved by a determination of the Tribunal under Sections 58 or 81 may appeal to the Supreme Court." 11. This may be contrasted with the more elaborate references to the nature of appeal contained in Sections 163, 176 and 176A of the Justices Act and Section 116 of the Work Health Act which restricts an appeal to "a question of law". The absence of any restrictive words and the broad powers granted by Section 86 suggest that the legislature did not intend to limit the scope of the appeal. Section 86 provides: "(1) The Supreme Court has jurisdiction to hear and determine appeals under this Part and may: (a) confirm the determination of the Tribunal (b) vary that determination (c) substitute its own determination for that determination; or (d) dismiss the appeal. "(2) ..... "(3) A determination under this section has effect as if it were a determination of the Tribunal". 12. The Act is thus silent as to the nature of the appeal. The Supreme Court is granted wide powers of disposal. Section 26 of the Act provides that the Tribunal may, in acquisition proceedings, refer matters arising upon a hearing "of any proceedings --- to the Supreme Court for hearing and determination". That appears to envisage something more than references, akin to a case stated or for advice on an evidentiary point, and contemplates the hearing of evidence by the Court itself on issues arising in the course of the hearing before the Tribunal. This may not be of much importance. There does not appear to be power in the court for a determination to be remitted to the Tribunal for hearing according to law, or for further hearing. 13. In Builders Licensing Board v. Sperway Construction (Sydney) Pty. Ltd. (supra) at 621 Mason J. stated: "The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. "On the other hand the character of the function undertaken by the administrative authority in

arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. "But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly

illuminated by the Delphic utterance that the appeal is by way of rehearing." 14. The legislative intent is frequently rather elusive. I turn, before further consideration of some authorities to precis one or two matters of a practical nature put to me by counsel. Mr Hemmings QC stressed the 'expert' constitution of the Tribunal. The Board in Sperways Case was similarly composed but there was some division of responsibility between a member and the Board, in that one member could hold the enquiry, whereas the Board made the determination from which an appeal lay to the District Court. He pointed out that persons constituting the Tribunal, are likely, by their callings, to understand the issues. He stressed that the determination in question (which I have not seen) resulted after about 9 days hearing, a visit to the subject land and the like. I understand a transcript of evidence is available. Mr Hemmings QC argued, as the appeal to this court is not subject to leave, that a ruling that the appeal may be heard "de novo" means that the most protracted and expensive litigation will prove but a preliminary skirmish to perhaps more protracted and expensive litigation in this Court. He submitted that the principle that there should be an end to litigation (or at least a limit to its processes) will thus be denied. Mr Henwood for the appellant stressed that when property is compulsorily acquired from a citizen, this frequently involves substantial monetary issues, and that whilst the constitution of the Tribunal is perhaps designed as a practicable forum for assessment, the property owner should be entitled to an ultimate and full hearing on the merits before this court. There is practical logic in all these submissions and I do not overlook them. However, in seeking to determine the legislative intent I doubt if they are of great assistance. I turn to a brief consideration of some of the authorities which I will carry out in roughly a chronological fashion. I have referred to Sperways Case, so often a starting point to such considerations and I have referred to a passage of Mason J's. judgment. In that case the legislation provided that the appeal should be in accordance with the regulation and "shall be dealt with by way of rehearing". Jacobs J. referred to the discretion of the court in determining the scope of the appeal. He said at p 629: "In the absence of statutory provision or of rules governing the procedure of established practice, the adoption of one or another of the courses open, a rehearing de novo or a rehearing on the material before the person or body from whom the appeal is

brought with the reception of further evidence, involves the exercise of a judicial discretion applying principles of fairness and reasonableness. The procedure adopted will depend largely on the nature of the appeal - whether it is from an administrative tribunal on a question of fact, or the decision of a judicial tribunal on such a question. It will also depend upon the questions in issue in the appeal. Moreover, it may be fair to allow a respondent in the tribunal at first instance to produce further evidence but it may not always be fair to allow the moving party to reframe the case which he made before the tribunal at first instance, a principal of fairness which recalls the old Chancery rules which I have explored." 15. His Honour stressed earlier that how far "fresh evidence will be received, in the absence of statutory provision and subject to consideration of fairness, reasonableness and justice, depends upon the procedure of the court to which the appeal lies". 16. In Dare and Dietrich [1979] FCA 47; 26 ALR 18 the Federal Court considered an appeal from the decision of an arbitrator acting under the Workmen's Compensation Ordinance 1949 (N.T.). The section enabling appeal provided that the appeal might be on a question of law or fact or both and "may be in the nature of a rehearing". The court took a liberal approach to the scope of the appeal (based to some extent on the similarity to the then Commonwealth Employees' Compensation Act 1930) and held that the rehearing may be a hearing de novo. The observations of Deane J. at p 32 are of importance: "Section 6D of the Ordinance provides that, subject to the Ordinance, the Tribunal's procedure is within its own discretion, that the Tribunal will act without regard to technicalities and legal forms and that the Tribunal is not bound by the rules of evidence "but may inform itself on any matter in such manner as it thinks fit". These provisions make it clear that, while the Tribunal is, no doubt, under an obligation to act with judicial detachment and fairness, the proceedings before the Tribunal are not governed by the ordinary principles relating to the determination of disputed questions of fact by a judicial tribunal. They confirm that the appeal to the Supreme Court from a decision of the Tribunal calls for an exercise of original jurisdiction by the court and was intended, where dispute questions of fact are involved, to provide for a judicial review, conducted in accordance with those ordinary principles, of the decision of the Tribunal. The statement in s.26 of the Ordinance that "the appeal may be in the nature of a re-hearing" should not be construed in a narrow technical sense as meaning no more than that the appeal is to be determined as at the date of its hearing. The statement should be construed as conveying that the re-hearing may be a hearing de novo upon which it is for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence before it (see generally, Phillips' case, supra). 17. As the use of the word "may" indicates, this does not mean that it will be necessary or desirable in every case for the parties to present their evidence afresh to the Supreme Court so that the appeal may be a re-hearing de novo in every sense. Where questions of law or inferences from undisputed facts are involved, it may well be both convenient and appropriate for the evidence before the Supreme Court to consist of the record (if there be one) of proceedings before the Tribunal. 18. It follows that the respondent was entitled to adduce new evidence on the hearing of the appeal to the Supreme Court and that the learned judge was not in error in admitting such fresh evidence or taking it into account in his decision. I note that my conclusion in that regard accords with previous statements both in this court and in the Supreme Court of the Northern Territory: Connair Pty. Ltd. v. Frederiksen (1977) 16 ALR 148 and 149 (Muirhead J.) and, on appeal, (1978) 20 ALR 579 at 581, 592 and 605; McMahon Constructions Pty. Ltd. v. Bonetti, 17 October 1978, unreported (Supreme Court of the Northern Territory, Forster C.J.)." (Emphasis is mine). 19. Then in Messell v. Davern 9 NTR 21 (1981 35 ALR 35) the Full Court of this Territory considered the nature of an appeal from the then Justices Act. This decision is of limited value owing to the provisions of the Justices Act. Section 176 provided in effect that save by consent of the parties, or order of the court "no evidence shall be received on the hearing of the appeal" other than the records from the court below. By virtue of amendments to the legislation, successive sections gave the court wide powers to hear fresh evidence. The court's conclusion appears at p 28: "We have said enough to indicate our view that the nature of an appeal under Pt VI is not an appeal in the strict sense and is not a rehearing de novo. It is a rehearing, i.e. a new trial of the issue raised by the notice of appeal using the evidence in the court below with a discretion to receive further evidence. In the exercise of that discretion the court may in special circumstances hear the whole case again. Whatever way the court proceeds, its function is to determine the rights of the parties by reference to the circumstances as they then exist at the conclusion of the appeal, by reference to the law as it then exists and to give such judgment as ought to be given if the case at that time came before the court of first instance." 20. As I have said this decision was very much based on the unusual provision of the Justices Act, was somewhat of a compromise between an appeal stricto sensu and a hearing de novo. Consequential events drew some comment from Gibbs C.J. in Davern v. Messell [1984] HCA 34; (1983-1984) 155 CLR 21 at 27 when the Chief Justice stated the relevant sections "strongly suggest that the intention of the legislature was that an appeal under s.163 should proceed upon a record of the evidence taken at first instance and that an order that further or l evidence be received should be made only in exceptional circumstances when for some reason it became necessary to call a particular witness". In that case section 163(1) of the Justices Act merely provided, so far as is relevant that the parties "may appeal to the Supreme Court from any conviction etc." 21. In Traut v. Faustman Bros Pty. Ltd. [1983] FCA 137; 48 ALR 313 the Federal Court again considered an appeal under the Workmen's Compensation Act in the Territory following Dare v. Dietrich (supra) and had to consider the awkward question, the appeal being de novo, as to who, on appeal, should begin. Should it be the employer, the appellant, or should it be the workman who on a fresh hearing de novo could be said to have the burden of proving his entitlement. This authority does illustrate the procedural questions which arise on a de novo hearing, although a majority of the Federal Court held that despite the nature of the appeal, the legal and evidential burden rests with the party disputing the determination of the Tribunal (See per Toohey J. at 319-320). 22. Having considered these authorities I have reached the conclusion that the nature of the appeal contemplated by the legislature is an appeal de novo. There are no limitations upon the nature of the appeal in the Act, the powers of the court in disposing of the appeal are wide and there are at present no Rules of Court to suggest to the contrary. I do not disregard the constitution of the Tribunal, its procedures and powers. But the right of the Crown to acquire an individual's property has far reaching consequences, monetary and otherwise, and the interests of the citizen in the face of such acquisition are best protected (if necessary) by the ultimate decision of the court. Whilst an appeal by way of rehearing, would in "special" or "exceptional" circumstances enable a party to adduce further evidence, subject to the discretion of the judge hearing the appeal, I take the view that upon a "rehearing" very considerable, and possibly difficult procedural problems would be encountered, not only before, but during the conduct of the appeal. Upon a hearing de novo either party should have the right to tender the evidence and material before the Tribunal, and hopefully the appeal process may be shortened by agreement that much of the evidence before the Tribunal be tendered as evidence upon the appeal. Furthermore, much of the testimony in such matters is likely to be the opinion evidence of experts. Where conflicts emerge, if the appellate judge has no opportunity of evaluating and weighing the evidence and forming his own view as to reliability, I fear the appeal may be one of form and will not constitute a full and fair consideration on the merits. 23. In Sperways Case (supra) at 624 Mason J. referred to the fact that the "appeal cannot be fully or readily undertaken if the court is to be confined to the materials adduced at the inquiry and which also indicate that considerations of fairness to the defendant made it more likely that the District Court appeal was to involve a hearing de novo." 24. To sum up I am satisfied that the Legislature intended an appellant to have an unrestricted right to have his case retried upon appeal. 25. I understand that Rules of Court dealing inter alia with appeals under the Lands Acquisition Act are likely to come into force later this year. I have not referred to those Rules for the purposes of these reasons, the parties being entitled to a determination on the law as it now stands. 26. The parties have submitted suggested directions. My directions, on the appellant's interlocutory summons filed on 25th March last and the respondent's summons filed on 28th April, are attached as a Schedule to these reasons. 27. They are designed, as far as practicable, to simplify the hearing of the appeal. I suggest that when a date of hearing is fixed, the parties should seek further directions from the judge who will hear the appeal. By that stage it may be practicable to more effectively recognize the problems and to simplify or shorten the hearing. 28. I order that the costs of these applications should abide the results of the appeal and they will thus be costs in the cause. 29. I give the parties liberty to apply as to the directions. SCHEDULE DIRECTIONS

The appeal proceed by a hearing de novo, the parties being entitled to adduce further evidence.
The appellant to provide further particulars of the grounds of appeal within 14 days of this date.
The Registrar of the Tribunal shall as soon as practicable deliver to the Master of the Court the material and evidence placed before the Tribunal and the determination or determinations of the Tribunal.
Either party be at liberty to tender upon the hearing of the appeal the material and evidence considered by the Tribunal which such party wishes to be considered upon appeal. Whether or not such evidence shall be considered will be in the discretion of the judge hearing the appeal.
The parties shall within 20 days of this date provide mutual discovery of documents.
Inspection of documents shall take place within 30 days of this date.
There shall be a mutual exchange of any

Lands Acquisition Act 1978

Workmen's Compensation Ordinance 1949

Employees' Compensation Act 1930

Lands Acquisition Act 1978

Workmen's Compensation Ordinance 1949

Employees' Compensation Act 1930

Meyering v Northern Territory of Australia [1987] NTSC 22; 47 NTR 21; 86 FLR 473; 62 LGRA 160

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Meyering v Northern Territory of Australia [1987] NTSC 22; 47 NTR 21; 86 FLR 473; 62 LGRA 160 (13 May 1987)

Parties

Legislation Cited (6)

Cases Cited (6)