RIDDIFORD AND ANOR V HER MAJESTY'S ATTORNEY GENERAL HC WN CIV 2006-485-833

RIDDIFORD AND ANOR V HER MAJESTY'S ATTORNEY GENERAL HC WN CIV 2006-485-833 31 March 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-833UNDER the Land Valuation Proceedings Act 1948 IN THE MATTER OF a decision of the Land Valuation Tribunal at Wellington dated 9 December 2005 BETWEEN DANIEL THOMAS SPENCER RIDDIFORD AND YVONNE ADA RIDDIFORD First Appellants AND DANIEL THOMAS SPENCER RIDDIFORD Second Appellant AND HER MAJESTY'S ATTORNEY GENERAL Respondent Hearing: 17 March 2008 Appearances: J M Morrison for appellants M T Parker for Respondent Judgment: 31 March 2008 at 4pm In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 31 st day of March 2008.RESERVED JUDGMENT OF MACKENZIE J[1] This is an application by the appellants for leave to adduce further evidence on appeal. The decision appealed against is a decision of the Land Valuation Tribunal, on an application for compensation under s 290 of the Local Government Act 1984. The application is made under r 716 of the High Court Rules. MrMorrison submits that a consideration of the nature of the right of appeal in this case is required, because this is not an appeal within the ordinary court structure. [2] The right of appeal in this case arises from s 26 of the Land Valuation Proceedings Act 1948. There is an appeal as of right, and the appeal is to be by way of rehearing. The nature of an appeal by way of rehearing is described by Somers J in Pratt and Wanganui Education Board [1977] 1 NZLR 476 at 490 in these terms:"But the direction that an appeal shall be by way of rehearing does not mean that there is to be a complete rehearing as, for example, in the case of a new trial. Under such a direction the appeal is to be determined by the court whose members consider for themselves the issues which had to be determined at the original hearing and the effect of the evidence then heard as it appears in the record of the proceedings but applying the law as it is when the appeal is heard and not as it was when the trial occurred."[3] As Mr Morrison notes, the procedure on an appeal from the Land Valuation Tribunal is prescribed by the Land Valuation Tribunal Rules 1977. That provision is now outdated, in that it refers to the procedures prescribed in the now repealed High Court (Administrative Division) Rules 1969. Mr Morrison places emphasis on the provision which appeared in those Rules at r 38(3), namely that the court should have full discretionary power to hear and receive further evidence on questions of fact, either by oral evidence or by affidavit. Mr Morrison submits that this provision, though repealed, indicates that the statutory framework deliberately leaned against putting any fetter on the court when hearing an appeal from the Land Valuation Tribunal. He submits that proposition is consistent with the analysis of Cooke P inShotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437, at [439], where he referred to the right to a de novo hearing. [4] It is desirable to trace briefly the history of the provisions dealing with appeals from tribunals. From 1969 to 1991, such appeals were dealt with in the then Administrative Division of this court. The 1969 rules were promulgated when the Administrative Division was established, and were, in effect, a supplement to the then Code of Civil Procedure. When the High Court Rules were enacted in 1985, the 1969 rules were repealed, and largely re-enacted as Part 9 of the High Court Rules. Rule 696(3) was in the same terms as the previous r 38(3) and gave the court "full discretionary power to hear and receive further evidence on questions of fact, eitherby oral evidence or by affidavit". Rule 700 made specific reference to matters referred to the court under s 22(2) of the Land Valuation Proceedings Act 1948, but did not otherwise deal specifically with appeals from a Land Valuation Tribunal. In the original High Court Rules, other appeals to the High Court were generally covered by Part 10. [5] When the Administrative Division was abolished in 1991, Part 9 of the High Court Rules was repealed, and Part 10 was substantially amended. Part 10 now applied to appeals formerly governed by Part 9. The court's discretionary power to hear and receive further evidence was continued, in the same terms as previously, in r 718(4). [6] Part 10 was further substantially altered in 2003. The way in which evidence before the decision maker appealed against was to be brought before the court was prescribed in r 714, provision was made for a report to be obtained from the decision marker, and the admission of further evidence was governed by r 716. The proposition that all appeals must be by way of rehearing was expressly stated in r 718. The former r 718(4), giving the court full discretionary power to hear and receive further evidence, was not retained by the 2003 amendments. [7] I consider that that legislative history demonstrates clearly that any distinction between appeals to which the Land Valuation Tribunal Rules 1977 apply, and other appeals which are subject to Part 10 of the High Court Rules, so far as the discretion to hear further evidence is concerned, no longer exists. [8] Nor do I consider that the decision in Shotover Gorge Jet Boats Ltd v Jamieson should lead to a different conclusion. That was concerned with the question of whether the District Court, on an appeal from the decision of a lay authority, should conduct a full hearing of oral evidence. That is far removed from an appeal under Part 10 of the High Court Rules. [9] Accordingly, I consider that the usual test to be applied for the admission of further evidence under r 716 is to be applied in this case. Under r 716(3) leave to adduce further evidence may be granted only if there are special reasons for hearingthe evidence. One such reason is that expressed in the rule itself, namely that the evidence relates to relevant matters that have arisen after the decision. As to what other special reasons may suffice, the principles to be applied in appeals to the Court of Appeal were described in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 at 192 in these terms: "the conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial." Those principles were described by the Supreme Court in Paper Reclaim Ltd v Aotea International Limited (1) [2007] 2 NZLR 1 at 4 as: "well understood and firmly established". It is convenient to adopt those same three tests of freshness, credibility and cogency when considering an application under r 716. [10] I turn now to the application. That seeks leave to adduce further evidence: (a) By way of inspection of the subject property; (b) Updating information on "comparable" properties; (c) Quotable Value reduction to assessed land value having regard to the taking of the Esplanade Reserve; (d) Failure to give effect to a Deed of Management; (e) As to the costs and disbursements incurred by the appellants. [11] I deal with each of these in turn. On the question of inspection of the property, Mr Morrison notes that no order is required, and that it is within the discretion of the court when hearing the appeal to decide whether or not there should be an inspection. Mr Parker submits that it would be unusual in appeals for an inspection to take place, and that this issue should be left for the presiding judge's discretion. I consider that this matter must be left to the presiding judge. [12] As to comparable properties, the appellant seeks to have evidence admitted of two sales which occurred in 2006, Glen Burn Station and a section at Wharekauhau.The question is whether this evidence meets the cogency test. The essential issue before the Tribunal was the value of the esplanade reserve, and the effect of the creation of the reserve on the appellant's adjoining property, as at 1999. The valuers, in particular the valuers called by the respondent, gave evidence, in the usual way, of sales of comparable properties upon which they had relied in forming their opinion as to the valuation of the subject property. Sales which have occurred at or near the date on which the property is to be valued are clearly relevant to such an assessment. Sales some distance from and particularly after, the relevant date, became progressively less important in the assessment of comparable transactions. Mr Parker refers to the decision of the Land Valuation Court in Poverty Bay Catchment Board v Forge [1956] NZLR 811. There, Archer J said; at 812:"A valuer now valuing the property is entitled to have regard to all relevant facts within his knowledge, including information as to sales subsequent to the specified date for valuation, but should use that information only for the purpose of determining the market value of the land at that date. It follows that though a valuer is entitled to make use of the facts disclosed by subsequent sales, he is not entitled to assume that such information was available to buyers or sellers at the specified date".[13] There is here no evidence from a valuer, in support of the application for leave to adduce further evidence, as to what reliance a valuer would place on the two sales in question, both of which occurred some seven years after the relevant date. On the face of it, they would appear to be of marginal relevance. Further, if the evidence were admitted, then the valuers would have to be called to give evidence as to the effect which that evidence would have on their respective opinions. To do so would in effect open up the appeal to a substantial hearing of the evidence afresh. [14] For these reasons I hold that the evidence of the two sales in 2006 is not sufficiently cogent to justify the granting of leave. [15] The next item of evidence for which leave is sought is a letter from Quotable Value dealing with the appellant's objection to the 2003 rating valuation for the property. The appellant submits that that letter indicates that Quotable Value must have taken the view that the effect of the taking of the reserve on the value of the remaining property is greater than that which the Tribunal has held.[16] The application seeks to leave to adduce the letter itself. Clearly, the letter is hearsay, so far as the truth of its contents, or any inference to be drawn from its contents, is concerned. If leave were granted, it would have to extend to evidence from the valuer who conducted the negotiations and assessments concerning the objection to valuation. There is no draft affidavit from the witness. The usual practise in an application under r 716 is for the detail of the evidence which is sought to be adduced to be made available to the court, in the form of a draft affidavit or witness brief. That has not been done here. [17] To admit evidence relating to the objection to valuation would involve opening up for consideration the appellant's objection and Quotable Value's consideration of that objection. That is not a matter which was dealt with by the tribunal. It is at best peripheral to the issues which arise on this appeal. This evidence too fails the cogency test. [18] The next item of evidence is evidence as to an alleged failure to give effect to a Deed of Management entered into in 1995. The Deed of Management was entered into between the appellant and the administering authority for the reserve before the reserve was finally dedicated. The appellant seeks to adduce evidence from Mr Riddiford that the terms of the Deed of Management have not been complied with. [19] The effect of the Deed of Management, and the rights which it secured for the appellants, was the subject of consideration by the Tribunal in its assessment of the valuation. What is relevant from a valuation perspective is the effect of the rights conferred by the Deed, not what has in fact occurred pursuant to the Deed. If there have been breaches of the Deed, then the appellants may have remedies in respect of these. But it is difficult to see that breaches of the Deed could have a material effect on the value of the property. This evidence too fails the cogency test. [20] The final item on which leave is sought to be adduced relates to the costs incurred by the appellant. That evidence, if relevant, is relevant to a subsequent decision given by the Tribunal as to costs and interest. There is at present no appeal extant in respect of that judgment. Leave to appeal out of time would now berequired. In the circumstances, it would be premature to consider whether leave to adduce that evidence should be granted. The evidence is not relevant to the decision which is currently under appeal. [21] For these reasons, leave to adduce the further evidence sought is refused."A D MacKenzie J"Solicitors: DLA Phillips Fox, Wellington for appellant Crown Law Officer, Wellington for Respondent