RALPH MEYERING v. NORTHERN TERRITORY OF AUSTRALIA

Supreme Court of the Northern Territory of Australia

MUIRHEAD A.J.

29 & 30 April and 13 May,1987 at Darwin '

Practice - Appeal	from	Lands	Acquisition	Tribunal Directions sought - Whether	rehearing or hearing de nova Powers and	functions of	Tribunal		- Legislative	intent Lands Acquisition Act 1978, s.86.

CASES REFERRED TO:

Builders Licensincr Board	v. Sperway Constructions	(Sydney) Pty.Ltd. (1976) 14 ALR 174
Dare v. Dietrich (1979) 26 ALR 18
Davern v. Messell (1983-1984) 155 CLR 21
Gabriel v. Williamson (1979) 1 NTR 6
Messell v. Davern 9 NTR 21
Rabuntja v. Minister for Education 19 NTR 5 Traut v. Faustman Bros (1983) 48 ALR 313

Counsel for the Appellant Solicitor for the Appellant

Counsel for the Respondent Solicitor for the Respondent

Mr N.Henwood Cridland & Bauer

Mr N.A.Hemmings Q.C. Solicitor for the
Northern Territory

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN No.935 of 1986
(8629355)

ON APPEAL FROM THE LANDS ACQUISITION TRIBUNAL

BETWEEN:
RALPH MEYERING

Appellant

AND:
NORTHERN TERRITORY OF AUSTRALIA
Respondent

MUIRHEAD A.J.

REASONS FOR JUDGMENT

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").

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 applicable	to	the

the	practice		and hearing"	of	such	an

procedure appeal"

(Section 88 (1) (b}}.

Thus, an issue having arisen as to

the nature	of	the	appeal, the	matter	assumes	some importance.

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."

Notice of appellant

The appeal in	this court	was instituted Appeal	filed on		15th December	last. appeals		from		the	determination	of

by The 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 accuunt the full potential of  the acquired land
"

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.

Mr Hemmings Q.C. 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@	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 licensing Board v. Soerway Constructions Pty.Ltd. (1976) 14 ALR 174."

(Builders (Sydney)

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) 26 ALR 18 and Traut v. Faustman Bros (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.

O'Leary J.	(as	he

then	was)	stated	in

Rabuntja v. Minister	for Education	19 NTR 5	@   7	"To

determine the nature of an particular case;	it	is

appeal provided for in first of	all	necessary

any 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
the end of the	matter, for, an given by statute,	the question

"That, however is	not
appeal being a	remedy 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 considerat­ ions, is not so well determined by authority.

What then is the nature of the appeal? In so determining, it is necessary first to examine both the constitution and functions of the Tpbunal and those
sections of	the Act	which enable	an appeal	to	this Court.

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.''

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:

''Ill The Supreme Court has jurisdiction to hear and	determine appeals	under	this Part and may:

{a) confirm	the	determination	of	the Tribunal
{bi vary that determination

{cl 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".

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.

In	Builders	Licensing	Board	v.	Sperway

Construction (Sydney) Pty.Ltd. stated:

(supra) @   621	Mason J.

"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."

elusive.

The legislative intent	is frequently	rather 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 Q.C. 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)

8

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 Q.C. 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

9

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@ 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."

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".

In Dare and Dietrich 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 relatincr to the determination of disouted 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).

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.										·

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 CJ)." (Emphasis is mine).

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."

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 CJ in =D a v e=r n, v,._,_._ ,M e=s s e l l (1983-1984) 155 CLR 21 @ 27 when the Chief Justice stated the relevant sections ''strongly suggest that the intention of the legi lature 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 oral evidence be re eived 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."

In Traut v. Faustman Bros Pty.Ltd. 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).

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 monetary	and	otherwise,	and

reaching	consequences, 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.

In	Sperways	Case	(supra)	@	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."

To sum up I am satisfied that the Legislature intended an appellant to have an unrestricted right to have his case retried upon appeal.

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.

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.

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.

I order that the costs of these applications should abide the results of the appeal and they will thus be costs in the course.

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 valuation reports, not considered by the Tribunal, which the parties intend to adduce upon the appeal, within 40 days of this date.
The appellant shall within 50 days of this date apply to the Deputy Master for a hearing date for the hearing of the appeal.
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. ·

On the hearing	of the	appeal the	appellant shall first present his case.

Either party be at liberty to apply further directions upon 3 days notice to other.

for the