The LAND COURT and ADR PROCEDURESby

CAC MacDonald, President, Land Court of Queensland

andGraham Smith, Judicial Registrar, Land Court

(Resolution Institute : 21 April 2016)

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BACKGROUND

Land Court structure Jurisdiction

Statutory Valuations : Land Valuation Act 2010 (LVA)

Mining lease applications and objections : Mineral Resources Act 1989 (MRA)

Associated environmental authorities : Environmental Protection Act 1994 (EPA)

Compulsory Acquisition of land : Acquisition of Land Act 1967

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LAND COURT ADR PROCESSES

Preliminary Conferences (s 36 Land Court Act 2000)

Mediations

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ADR Procedures in the Land Court – Legislation

Section 37 Land Court Act 2000

Part 6 Civil Proceedings Act 2011 (CPA)

Uniform Civil Procedure Rules 1999 (UCPR) : Chapter 9, Part 4

(see rule 4, Land Court Rules 2000)4

Procedures for referring disputes to mediator

Sections 42 – 44 CPA

Land Court’s practice

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Procedures for conducting and concluding a mediation

CPA: Sections 44, 48, 49, 50

UCPR: Rules 322, 325, 326(3), 327, 329, 331(2)

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Graham Smith, Judicial Registrar, Land CourtTHE LAND COURT and ADR

PROCEDURES1. Preliminary Conference2. Mediation ( & Negotiation pursuant to Consent Order)

1. Preliminary Conference

“Preliminary Conference”- The main ADR process available to litigants in the Land Court.

Aim is to be a quick and informal process (no preliminary paperwork) Available in respect of all disputes is offered automatically to Land Valuation

Act appeals.   The Preliminary Conference is provided for by s 36 LCA and the main points of

the sections are:36 Preliminary Conference

(1) …prepared to identify and discuss the issues….in an attempt to negotiate a settlement.

(2) lawyer or agent…. have authority to settle the matter or any issue discussed.

(3) the Member or Judicial Registrar may dispose of the matter in the way agreed.

(4) If no agreement, the Member or Judicial Registrar may, with the consent of the parties, dispose of the matter without a further hearing.

(5) A member or Judicial Registrar who presides may not, without leave of parties, preside over hearing.

(6) Evidence of anything said or admission made is not admissible without consent.

Preliminary Conference - Generally In Brisbane, PC’s will generally be held in Chamber Court 43 and

generally in the nearest Courthouse to the subject property in regional areas.

Conferences are generally scheduled for one hour but this can be extended if necessary.

Scheduling is undertaken by Land Court Deputy Registrar Chris De Marco. Conferences can generally be rescheduled to meet parties’ availability.

Conferences are attempted to be scheduled within 12 months of filing however this may be longer in more remote regional areas.

Parties and representatives are expected to attend in person but may apply for leave to appear by phone.

The Conference Chair will facilitate discussions between the parties and can resolve the matters by consent or withdrawal

In accordance with s 36 the parties are expected and encouraged to identify and discuss issues in an attempt to negotiate a resolution.

Preliminary Conference - Valuation Appeals Matters that are pursuant to the LVA, the Valuer-General will always

be the statutory respondent. All appeals < $5M the parties will automatically be offered a

Preliminary Conference - in most cases presided over by Judicial Registrar.

Appeals > $5M will have already had an ICC (Independently Chaired Conference) so a Preliminary Conference will be granted in exceptional circumstances.

Valuer-General - necessarily very familiar with the process and generally represented by the responsible valuer and a “delegate”.

The “delegate” is usually a more senior valuer who is ultimately responsible for any decision regarding the resolution of the proceedings.

Valuer-General may be legally represented in respect of more contentious matters and is represented by the legal section of DNRM.

Appellants will be mostly investors represented by corporate valuation firms, owners of primary production/farming land and homeowners.

Conduct of Preliminary Conference Parties are notified of time and place of Preliminary Conference. Generally no position statement or paper work is required beforehand -

some government departments provide a statement of position at the conference.

Appeal or application documents will usually provide a good starting point re the issues - the oral opening statement almost always provides a bigger picture

Informal, flexible “without prejudice” conference. Steps- 1. Introductions/Housekeeping, 2. Opening Statements, 3.

Discussion-issues/options, 4. Private meetings, 5. Options/Resolution. Agreements can be formalised immediately by consent order or

withdrawn in most cases. Generally each party will bear their own costs. If the matter is unresolved parties may be given some additional time (3-

4 weeks) to pursue further negotiations & advise if the Court if resolved. Consent Orders can be provided by email and formalised without the conference re-convening.

If no resolution is reached the matter will be referred to the Registrar for allocation to a Member for a directions hearing date or hearing date if matter is straight forward.

2. Mediation Mediation is more involved than a preliminary conference and

generally utilised in respect of more complex matters e.g. substantial mining and compulsory acquisition cases involving expert witnesses.

Litigants may request a mediation by the Court utilising either a private mediator or the Judicial Registrar (or in some instances a Member). Generally where a private mediator is engaged the procedure/venue/timing for the mediation will be as arranged between the parties and the mediator.

With private mediation the Courts further involvement will be making any necessary orders to reflect any resolution reached or a further directions hearing or full hearing if the matter remains unresolved.

Today’s discussion focuses on the Court supervised mediation undertaken by the Judicial Registrar as part of the Court’s ADR role.

Mediation - Preliminary Steps

Although parties can request mediation from the outset it will initially be discussed at the first directions hearing when the Court will canvass matters such as attempts at resolution/prospects of settlement and the suitability of ADR in the context of the suggested directions i.e. the Court will want to know 1. Do the parties wish to mediate? 2. Court supervised or private? 3. When should the mediation be scheduled in the sequence of directions?

The parties views regarding the timing of mediation will be important as in complex cases it may be preferable to schedule the mediation after expert reports or joint statements have been filed and exchanged. (these documents can identify issues and why and where the experts disagree-streamlining the mediation) Once directions are resolved the Court will make an order appointing the Judicial Registrar (or other mediator) to mediate within a specified time frame.

Mediation - Preliminary Steps

The responsible deputy registrar (usually Chris De Marco) will contact the parties/representatives re provision/exchange of any issues, statements or other specific mediation documents. Ready access to documents is crucial to the smooth progress of a complex mediation.

Generally the Judicial Registrar will issue directions regarding the provision of this additional material if the prevailing Orders do not already do so.

The Deputy Registrar will request parties to advise of the names/roles of proposed attendees and an estimated duration. The parties will be advised of the venue for the mediation e.g. in Brisbane, usually the Brisbane Magistrates Court Level 8 and in regional areas usually the local Courthouse.

Mediation

Will usually commence at 10.00 am [or sometimes 1.00 pm if the parties are certain the matter can be dealt with in < 4 hours]

A compressed flexible version of the IAMA 10 Step model is follows:

1. Introductions/Housekeeping/Suggestions/Questions2. Opening statements3. Discussion - constructive engagement re issues/resolution4. Private meetings [if required]5. Options/Negotiation/To do list/Interim Agreement/Agreement6. Closure [if fully resolved] adjournment/partial resolution/next steps

- re-convene.

Mediation (Continued) Mediation usually scheduled in accordance with parties estimate or

extended if necessary. Agreement may be interim/conditional e.g. preliminary planning

approval-adjournment can be for this purpose. Imperative that the interim nature of such an agreement is noted

unequivocally & any to-do items listed. Also important that mediation can be re-convened if any impasse

arises during the adjourned period – this avoids waiting until the adjourned date.

If a final resolution is reached and can be resolved by consent orders, those orders can usually be made by the Court that day.

If the resolution is by a separate agreement rather than by consent order-costs and the discontinuance of the proceedings will usually be dealt with as part of that overall agreement.

Direct Negotiation by Consent Order Not uncommon for parties to request an adjournment to undertake

“discussions” in an attempt to resolve matters by direct negotiation. What sometimes can happen is that the negotiations appear not to

have progressed at all or if so in a haphazard fashion. What is sometimes sought rather than an adjournment generally is a

specific order setting out timeframes etc. an example is set as follows:The Court ORDERED by consent of the parties that:1. By 21 May 2016 the parties shall attend, participate in and act reasonable and genuinely in a “without prejudice” meeting to attempt to resolve the appeal or narrow the issues.2. By 6 June 2016 the parties jointly advise the Court if the appeal has or has not settled.3. If the appeal is unresolved, the matter is listed for review and directions on Monday 13 June 2016.

ADR - General Observations

Tension and formality can severely reduce prospects of an ADR process.

Less formality encourages engagement and participation and can lead to a clearer insight and options at an earlier stage, this is a real strength of the ADR process.

PC/Mediation - and is often the first time the parties have met i.e. often the start off a working relationship of complete strangers on the first day of a hearing.

Lines of communication are created earlier - this enhances settlement prospects.

Recital of long written submissions or contended facts during a mediation can at times, tend to stifle progress.

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ADR - General Observations (continued) Structure & Flexibility – err on the side of flexibility-structure is

important but rigidity can be counter productive.

A unrepresented party may often commence proceedings after feeling left out, ignored or confused by government agencies, large corporations e.g. resumption.

ADR can put a human face and a name on government agencies or large corporations - a genuine explanation and understanding from a government body or large corporation will often assist greatly.

ADR allows the parties to agree on a solution that fits best for them - the options from a contested hearing will be limited to those in the statute - parties are able to agree to a far wider range of options.

Far better and less expensive to consider your options months before at a mediation than hours before on the steps of the Courthouse.

Directions Hearings have an ADR plan in advance of the directions hearing - meet your counterparts beforehand and discuss ADR and settlement options if possible - not uncommon for matters to resolve at a directions hearing.