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1972

VICTORIA

REPORT

FROM THE

STATUTE LAW REVISION COMMITTEE

UPON THE

PROPOSALS CONTAINED IN THE

LANDS TRIBUNAL BILL 1971

TOGETHER WITH

EXTRACTS FROM THE PROCEEDINGS OF THE

COMMITTEE AND APPENDICES

Ordered by the Legislative Assembly to be printed, 14th November, 1972

By Au1hori1y: C. H. RIXON, GOVERNMENT PRINTER, MELBOURNE.

D.-No. 3.-10467/72.-PRICE 50 cents

EXTRACTED FROM THE MINUTES OF THE PROCEEDINGS OF THE

LEGISLATIVE COUNCIL

TUESDAY, 5TH SEPTEMBER, 1972.

STATUTE LAW REVISION CoMMITTEE.-The Honorable Sir Gilbert Chandler, moved, by leave, That the Honorables W. M. Campbell, M. A. Clarke, D. G. Elliot, F. S. Grimwade, R. W. May, and J. M. Tripovich be members of the Statute Law Revision Committee, and that the said Committee have power to send for persons, papers, and records.

Question-put and resolved in the affirmative.

EXTRACTED FROM THE VOTES AND PROCEEDINGS OF THE

LEGISLATIVE ASSEMBLY

TUESDAY, 5TH SEPTEMBER, 1972.

STATUTE LAW REVISION CoMMITTEE.-Motion made, by leave, and question-That Mr. Edmunds, Mr. Evans (Ballaarat North), Mr. Lovegrove, Mr. Maclellan, Mr. Smith (Bellarine), and Mr. Whiting be members of the Statute Law Revision Committee; and that the Committee have power to send for persons, papers and records (Mr. Hamer)-put and agreed to.

REPORT

THE STATUTE LAW REVISION COMMITTEE, appointed pursuant to the provisions of the Parliamentary Committees Act 1968, has the honour to report as follows :-

1. On 31st August, 1971, the Lands Tribunal Bill-a Bill to provide for the Constitution of a Lands Tribunal and to define the Jurisdiction Powers and Procedure of the Tribunal and for other purposes-was initiated and read a first time in the Legislative Assembly. On 31st August the debate on the second reading was adjourned. The debate was resumed and again adjourned on 26th October, and on 9th November the House referred the proposals contained in the Bill to the Statute Law Revision Committee for examination and report.

2. The evidence of the following witnesses who appeared before the Committee is appended* to this Report :-

At Melbourne Mr. J. C. Finemore, Q.C., Chief Parliamentary Counsel. Mrs. J. Lewis, Assistant Parliamentary Counsel. Mr. C. P. Allen, Registrar of Titles. Mr. L. Voumard, Q.C. Mr. A. L. Bohn, Secretary, and }H . C · · Mr. W. Creighton, Estates Officer ousmg ommtsswn. Mr. R. Bird, Chief Estates Officer, State Rivers and Water Supply Commission. Mr. J. D. Pagan, Secretary, Municipal Association of Victoria. Mr. J. L. Pilley, and} t' th G lb V 11 L A . . Mr. J. F. Riordan represen mg e ou urn a ey aw ssoctatwn. Mr. E. R. Inglis, Secretary for Local Government. His Honour Mr. Justice Barber. Mr. W. C. Ellis, Secretary, Melbourne and Metropolitan Board of Works. Mr. P. J. Paris, Registrar of Land Valuation Appeals. Mr. G. Portelli, Deputy-Registrar of Land Valuation Appeals. Mr. C. C. Liddell, D. eputy-Secretary, and}c t R d B 1 Mr. D. T. Veitch, Estates Officer oun ry oa s oarc · Mr. J. A. Gobbo, Q.C., representing the Victorian Bar CounciL Mr. G. J. O'Meara, Estates Officer, Education Department.

Mr. L. G. Quinn, Vice-President, and representmg .t e r an an nstitute Mr. W. T. McCure, President } · h U b L d I ·

Mr. P. Day, Executive Committee of Austraba.

At Sydney Mr. D. Forrester } Mr. B. Doyle, and representing the Law Society of New South Wales. Mr. E. Hall Mr. K. A. Way, Chief Metropolitan Valuer, Valuer General's Department, New

South Wales. Mr. R. P. Long, Chairman of the Board of Subdivision Appeals, New South Wales. Mr. D. J. Finney, representing Lewis Land Corporation, New South Wales. Mr. A. S. Vogan, President, and}representing the Institute of Real Estate Mr. J. Deane, Council Member Development, New South Wales. Mr. T. W. Waddell, Q.C., representing the New South Wales Bar Association. Mr. M. R. Wilcox, Barrister.

3. The creation of a Lands Tribunal as provided for in the Bill, would bring a large number of questions of dispute in land matters, currently dealt with by a number of courts, under one jurisdiction. At the present time there is a multiplicity of statutes dealing with land arbitration issues. Under the terms of the Bill it is proposed that certain of these matters be withdrawn from the courts and transferred to the jurisdiction of a Lands TribunaL

The heads of jurisdiction to be transferred can readily be found in clause 12 of the Bill (see Appendix " A ") and a study of the schedule to the Bill indicates that Magistrates' Courts, the County Court and the Supreme Court would all lose some areas of their present jurisdiction.

4. The concept of establishing a Lands Tribunal in Victoria was first raised by a previous Statute Law Revision Committee in a Report upon Restrictive Covenants in 1963'. In that Report it was recommended that a tribunal, similar to the United Kingdom Lands Tribunal, be established in Victoria and that it have jurisdiction in relation to the discharge and modification of restrictive covenants, the machinery of which is set down in section 84 of the Property Law Act 1958.

* Minutes of Evidence not printed. 1 Victorian Parliamentary Paper-D. No. 9-Session 1963-64.

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5. This recommendation appeared secondary to the main considerations of that Report and little attention was given at that stage to the matters of constitution of the Tribunal, the terms of appointment of its members, the extent of its jurisdiction and its procedure. Subsequently these matters have been considered by an expert committee chaired by Mr. L. Voumard, Q.C., the findings of which Committee (see Appendix "B ") are reflected to a large degree in the provisions of the Lands Tribunal Bill.

6. The Committee has sought as widely as possible the views of organizations frequently involved, or likely to be involved, in matters of dispute in relation to land. An analysis of the large volume of evidence received revealed several varied viewpoints, and it is proposed that each be dealt with in turn.

7. It is desired to state firstly the issues advanced in evidence supporting the establishment of a Lands Tribunal in the form envisaged by and embodied in the provisions of the Bill. The main advantage put to the Committee was that a tribunal of this nature would enable specialists to deal in what was stated to be a specialized field.

In considering the nature and extent of the jurisdiction proposed to be conferred on the Tribunal, some witnesses stressed what they considered to be the importance and difficulty of the subject matter. It was indicated to the Committee that in matters of dispute in relation to land, there is often considerable involvement with titles to property and their conveyance.

8. It was put to the Committee that the interaction of a large number of statutes such as the Transfer of Land Act 1958, the Sale of Land Act 1962, the Property Law Act 1958, the Strata Titles Act 1967, and the Valuation of Land Act 1960, has created complexity in litigation. This view led a number of witnesses to the conclusion that a specialized tribunal with specialized knowledge would in the long term be of benefit to the community. Other comment proffered was that the tendency for more active participation in preserving the environment has led to greater control over land use and, accordingly, a need for a more sophisticated appeal system.

9. Further argument in favour of the establishment of such a tribunal drew reference to the ever increasing practice of compulsory acquisition of land, the likelihood of a corresponding increase in appeals against the amounts of compensation offered and the necessity for the expeditious hearing of appeals. This aspect was initially alluded to by the Voumard Committee in its Report to the Honorable the Attorney-General.

Another likely advantage advanced by the Voumard Committee and by certain witnesses before this Committee was that legal costs would be minimized as a result of proceedings before the Tribunal being dealt with expeditiously.

10. An additional factor in support of the belief that a specialized body is advantageous was the view expressed that every case would not have to start from basic principles.

The Committee was informed that with the present use of Magistrates' Courts, the County Court and the Supreme Court in the determination of disputes, the situation arises where the arbitrator involved may hear such cases rarely and that it is preferable to have continuity of cases in order to develop expertise and endeavour to reduce costs. During the course of this Inquiry the question of costs was one that gave the Committee a good deal of concern and this aspect will be the subject of some comment in the later stages of this Report.

11. From an examination of the proposed jurisdiction of the Lands Tribunal, it appears that the overwhelming proportion of the work which would occupy the Tribunal would be within the activities expressed in paragraphs (b), (g), (j), (k) and (o) of clause 12 of the Bill. These relate to-

(1) determinations pursuant to the Drainage of Land Act 1958 as to whether drainage works affecting land of an adjoining owner will cause injury to the owner or other person interested in the land, whether the injury will be fully compensated for by money, the amount of compensation and how it should be apportioned ;

(2) claims for compensation referred to in section 840 of the Local Government Act 1958, which deals with determination of compensation payable by a municipality consequent upon the exercise of powers conferred on it by the Act in cases where the amount of compensation is in dispute and the claim exceeds $1,000 ;

(3) applications under the Property Law Act 1958 for the discharge or modification of restrictive covenants ;

(4) determination under the Sale of Land Act 1962 of applications to extinguish or grant easements to enable land to be subdivided efficiently, appeals against the refusal of municipal councils to seal plans of subdivision, and appeals against requirements made by a municipal council for the construction of roads or drains upon a proposed subdivision ; and

(5) determination under the Valuation of Land Act 1960 of claims for compensation for compulsory acquisition of land which exceed $10,000 or raise questions of unusual difficulty .or importance.

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The Committee sought information from the Secretary to the Law Department concerning the number of matters determined in the period 1969 to 1971 inclusive, under the sections of the Acts referred to in clause 12 of the Bill. Statistics supplied in response to this request confirmed the above viewpoint.

12. In connexion with claims under the Valuation of Land Act 1960 it should be noted that the creation of a Lands Tribunal would not disturb the existing jurisdiction of the Land Valuation Boards of Review which were created to hear certain appeals against land valuations made by, or for, rating and taxing authorities and to hear claims for compulsory acquisition of land by various State instrumentalities and statutory authorities.

13. The extent of the claim or rate involved has direct bearing on the appeals which are required to be heard by the Land Valuation Boards of Review.

If an appeal is against a capital improved value of less than $10,000 or an unimproved capital value of less than $2,000 or a net annual value of less than $500, it is required to be determined by a Board. An appeal against a higher valuation can be determined by a Board or the Supreme Court at the option of the appellant, or at the option of the rating authority if the appellant does not exercise his option within one month of being requested to do so by the authority.

14. In disputed claims for compensation, a claim not exceeding $10,000 is required to be determined by a Board. A claim exceeding $10,000 can be determined by a Board or the Supreme Court at the option of the claimant, or at the option of the acquiring authority, if the claimant does not exercise his option within one month of being requested to do so by the acquiring authority.

15. Irrespective of the amount, the Supreme Court has jurisdiction to hear any case if it is satisfied, on the application of any party, that it raises questions of unusual difficulty or of general importance.

Material submitted to the Committee showed that over the past six years 98 per cent. of all land valuation appeals and 60 per cent. of all claims for compensation were referred to the Land Valuation Boards of Review.

16. Before commenting further on the desirability of constituting a Lands Tribunal it is pertinent to refer to an alternative approach which has been suggested to the Committee. Several witnesses favoured a course which, instead of establishing a separate tribunal, would confer the proposed heads of jurisdiction upon the Supreme Court to be dealt with in their entirety by a special list or division of that court.

An indication was given in paragraph 11 of this Report of the areas which it is thought would provide the majority of the work for a specialized tribunal. The viewpoint has been expressed by some witnesses that these matters involve complex questions of law, often involve large sums of money and as such are competent to be determined at Supreme Court level.

17. The Committee was informed that if this course was adopted a number of advantages would flow. Some witnesses expressed concern that with the creation of a Lands Tribunal outside the established judicial structure, there could be dangers in the appointment of only one judge bearing in mind, in particular, that such judge may hold office for a number of years. The doubt expressed here relates to the possibility of the judge developing an inflexible or particular viewpoint in his determinations.

Witnesses expressing this doubt agreed that this was a somewhat hypothetical consideration and that whilst there may prove to be no great need to interchange judges, the alternative course of establishing a specialized division of the Supreme Court, would provide the power to make changes if necessary.

18. It was also stated that a Lands Tribunal with one or two judges would cause limitation of beneficial discussion between judges enjoyed in the present Supreme Court structure. Several other considerations were raised in examining the desirability that judges involved be members of and remain within the Supreme Court. As the volume of work will no doubt vary, the judge or judges seconded to this new jurisdiction would be able to perform normal Supreme Court duties from time to time. The view was also placed before the Committee that this alternative would be more economical and convenient in that it was thought that the Prothonotary's Office could cope with the additional administrative work involved and that the need for a new administration and separate premises required by the formation of the Lands Tribunal as an entirely separate court would be avoided.

19. The Committee continued to receive support for both courses of action referred to thus far, i.e. both the establishment of a Lands Tribunal and the recasting of the Bill in order to confer the whole of the jurisdiction proposed for the new Tribunal on a division of the Supreme Court. As the Inquiry progressed the matter became further involved through additional suggestions as to the form of legislation appropriate to the needs of the situation.

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20. One such suggestion concerned the operations of the Land Valuation Boards of Review whose jurisdiction has been referred to in paragraphs 12 to 15 of this Report. This further submission reasoned that the establishment of a Lands Tribunal is not necessary and that the matters proposed to be transferred to it could competently be determined by the Land Valuation Boards of Review. Once again attention was focussed on the inadequacy of the present fragmented system whereby a number of courts are empowered to determine the issues under the various Acts cited in clause 12 of the Bill.

In order to assess this proposal the Committee sought further information regarding the present operations of the Boards.

21. As currently constituted each Land Valuation Board of Review has a barrister and solicitor as its chairman and two members who are independent qualified valuers with experience in the valuation of rural or urban lands. Valuers are drawn from a panel of 18 qualified valuers appointed by the Governor in Council. The jurisdiction now held by the Boards was previously exercised by the County Court and the Courts of Petty Sessions.

22. The Committee was advised that any party to proceedings before a Board may appear and be heard personally or be represented by a qualified legal practitioner or by an agent authorized in writing. Figures sought by the Committee showed that in a total of 1,448 cases before the Boards, 11 appellants retained senior counsel, 98 were represented by counsel, 212 were represented by a solicitor, and 1,127 appeared personally or were represented by an agent.

23. The Committee was also advised that any party to proceedings before a Board is not precluded from appealing to the Supreme Court on a question of law or from applying to have a special case determined by the Supreme Court. In regard to such appeals the Committee was informed that only seven appeals had been filed over the past six years.

24. Several witnesses indicated their support for a system which would enable determination of disputes at a level lower than either the Supreme Court or the proposed Lands Tribunal. It therefore became necessary for the Committee to give consideration to whether the jurisdiction proposed for the Lands Tribunal could appropriately be vested in the Land Valuation Boards of Review or a similar body at that level.

25. The foregoing remarks endeavour to summarize the various categories of opinion put to the Committee and to provide an indication of the development of the Inquiry. Reference has been made to the main arguments advanced in support of each principle. It is now desired to deal with the Committee's analysis of these submissions.

26. The overriding argument in support of the establishment of a Lands Tribunal appears to be that it would provide specialization in a complicated field. The Committee agrees that generally speaking specialization in an area may lend itself to greater expertise. The Committee also recognizes the argument that such specialization would tend to limit argument about basic principles and procedures in court actions.

27. The Committee believes that the benefits of a specialized tribunal would not be achieved without some resultant disadvantages. Advocates of the Lands Tribunal stated that it would give rise to minimization of legal costs. However, no concrete proposition was placed before the Committee to indicate that this would necessarily be so.

Clause 4 of the Bill provides for the constitution of the Tribunal and provides that a Judge of the Tribunal shall be a person qualified to be a Judge of the Supreme Court. It is also provided in the Bill that the Tribunal shall assume certain functions previously vested in the Supreme Court. It therefore seems that the Tribunal would virtually be of Supreme Court status and that costs involved in actions before it would be comparable with costs in the Supreme Court.

Thus, while the advantages of specialization may be achieved, the Committee believes that this would most likely be accompanied by costs which would tend to be prohibitive, particularly where small claims are involved.

28. The Committee is mindful that in respect of disputes in matters of compensation payable for compulsory acquisition of property and in circumstances where the claim exceeds $10,000 claimants would retain the choice of taking the matter to the Land Valuation Boards of Review or the Lands Tribunal. However, there would be no such choice in regard to other matters, some of which are currently dealt with at a level lower than Supreme Court standing. Applications under the Sale of Land Act 1962 which are dealt with by arbitrators appointed pursuant to that Act are in this category. It has been well recognized that informal and expeditious procedures have been developed for dealing with the questions which have arisen under that Act.

29. Earlier in this Report, it was indicated that, under the terms of the Bill, the Magistrates' Courts and the County Court would both be divested of portion of their present jurisdiction in favour of the Lands Tribunal. It has been argued in evidence that these courts lack the time and expertise to devote sustained attention to this field. The Committee agrees that this argument has some merit but it is also firmly of the belief that this problem cannot be solved merely through the elevation of this jurisdiction to the level of the Supreme Court.

30. The Committee therefore considers that the establishment of a Lands Tribunal in the form envisaged by the Bill should not proceed.

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31. For similar reasons the Committee could not give favourable consideration to the establishment of a specialized division of the Supreme Court. It did appear, however, that this proposal could have overcome a number of the objections to the creation of a Lands Tribunal. Whilst providing the benefits of specialization it would also have enabled the interchange of judges and the use of existing administration. The Committee also agrees that it would have been an advantage to be in the position whereby the specialized division judges could be engaged in regular Supreme Court matters when the volume of work in the specialized division permitted.

32. The remaining major submission placed before the Committee concerned the operations of the Land Valuation Boards of Review and their competence to assume the functions proposed for the Lands Tribunal.

33. An examination of the various Acts all of which deal with the determination of rights in respect of land reveals that, in many cases, quite different issues are in question. In a number of instances, the issues appear to relate solely to matters of valuation of land or property. This is evident in appeals pursuant to section 19A of the Probate Duty Act 1962 concerned with assessment of the value of land for the purposes of probate. Such appeals are currently heard by either the Land Valuation Boards of Review or the Supreme Court depending on the figure of the assessment.

Other determinations appear to involve more than the factor of valuation alone. This is evident in section 37 of the Drainage Areas Act 1958 where the question involves whether an action may injuriously affect water or works under the control of a Water Authority. Similarly section 8 of the Drainage of Land Act 1958 is concerned with the question of whether proposed drains or improvements in drains will cause injury to adjoining owners of land. In the case of section 68 of the Groundwater Act 1969 appeals relate to questions of land use rather than a requirement for valuation and assessment of compensation.

34. In its examination of the current operations of the Land Valuation Boards of Review the Committee found no reason to suggest that they are not operating satisfactorily. Many witnesses indicated a preference for the use of boards of this type, particularly as there is no doubt that minimization of costs can be achieved in proceedings before them.

However some doubt was expressed as to whether the Boards, as presently constituted, are suited to be given jurisdiction in this wider range of appeals.

35. The Committee is unable to give wholehearted support to any of the proposals referred to thus far, however, it still recognizes the need for a more specialized system. The Committee agrees that many of the matters which are the subject of dispute are complicated and that to some extent the existing courts are not specialized to deal with them. It is stressed that, whilst there is merit in the creation of a specialized appeal system, that system should be such that appeals may be conducted with a minimum of expense.

36. At various stages of the Inquiry references were made to the appeal system in operation in New South Wales. It was recognized by the Committee that the history and development of the system in New South Wales would differ markedly from the circumstances applying in Victoria. However, it was agreed that a study of this system may prove to be of some benefit to the Committee's deliberations and it was decided to undertake a brief visit to Sydney to engage in discussions with the appropriate authorities. The following comments will largely reflect information obtained from these sources and from a guide to the practice of the Board of Subdivision Appeals prepared by Mr. R. M. Squire, Secretary of the Board.

It is not intended to cover the full history of the appeals system which has developed in New South Wales, but merely to give an indication of the structure and jurisdiction of the system.

37. The structure of the appeals system in New South Wales has been subject to very recent changes through the promulgation of the Local Government (Appeals) Amendment Act 1971 on 1st September, 1972.

Prior to the implementation of the provisions of this Act three separate boards were utilized. Two of these were Building Boards established to exercise jurisdiction in relation to building matters. Each Building Board undertook similar functions concerning appeals against the decisions of local councils in respect of building applications or the neglect or delay of councils to give decisions. Each Building Board also exercised jurisdiction in hearing objections to the strict application of building ordinances to any particular building.

Basically the only difference in the two boards lay in the geographical area which each served.

38. The third board utilized prior to the recent changes was the Board of Subdivision Appeals. The function of this board was to hear appeals in respect of decisions on applications for council approval to the opening of new public roads or the subdivision of land or the neglect or delay of councils to make such decisions. It also exercised certain power in relation to the drainage of land the subject of subdivision.

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39. Both the Building Boards and the Board of Subdivision Appeals were comprised of a full-time chairman and four part-time members expert in the technical aspects of subdivision and prominent in their respective callings.

40. All witnesses indicated their complete satisfaction with the competence of these boards. The impression was given that their decisions were based on sound practical knowledge with a minimum of time, cost and litigious contention in the settlement of matters within their jurisdiction and that they satisfied a special public need.

However, in spite of satisfaction in regard to the mode of operation, the Committee was informed that one of the basic difficulties in the overall structure of the system has been the multiplicity of courts, boards and authorities which handle the various types of appeals-the State Planning Authority and the Land Valuation Court also exercising jurisdiction in the general field of land arbitration. It was highlighted that the problem lay in difficulty of definition and consequent overlapping of jurisdiction.

41. The Committee was informed that as a result situations have arisen whereby two separate appeals on the same matter and to different bodies have been required with the possibility of two different decisions being handed down. Through the introduction of the Local Government (Appeals) Amendment Act 1971 it is hoped to overcome the difficulty encountered by applicants who may have on occasions been compelled to pursue two or more avenues of appeal. One of the main features of this legislation is the abolition of the Building Boards and the Board of Subdivision Appeals and the creation of a Local Government Appeals Tribunal in their stead. The Committee was informed that whilst the new Tribunal is designed to overcome the difficulty of multiple appeals, it is also intended to preserve the practice of providing a speedy, inexpensive and informal means of appeal.

42. The Local Government Appeals Tribunal consists of a chairman and a number of other persons expert in particular disciplines. From the members of the Tribunal there are constituted various boards to hear appeals against decisions of councils on building, subdivision, and town planning matters, the composition of each board depending on the nature of the appeal to be determined. The Tribunal is seen as the means of providing boards competent to deal with an appeal in whatever area is applicable.

43. The new Tribunal also assumes certain functions previously the province of the Land and Valuation Court and the State Planning Authority. The Land and Valuation Court will lose its jurisdiction in relation to appeals on planning matters of appellants dissatisfied with the decisions of councils on applications for development consent under prescribed planning schemes. The State Planning Authority will lose jurisdiction in relation to appeals on planning matters in the period of interim development.

44. In its examination of the New South Wales system the Committee recognized a number of features which appear to be of advantage to all parties concerned, the operation of the Board of Subdivision Appeals providing a suitable illustration. During its period of operation this Board showed that-(a) appeals can be determined quickly (usually less than three months) ; (b) the cost of lodging an appeal can be minimal ($10) ; (c) neither party need be represented by a barrister ; and (d) informal hearing of evidence enables appellants to fully express the merits of their case.

Evidence suggests that such advantages are attributable to the fact that the matters in dispute are determined outside the established court structure.

45. Earlier in this Report it was stated that the creation of an appeals system providing the benefits of speed, economy and informality is desirable. The Committee has already agreed that the proposed Lands Tribunal is not the appropriate instrument in Victoria.

The development of the appeal systems in Victoria and New South Wales have been geared to differing circumstances. Nevertheless, it does appear that the principle involved in the New South Wales structure could be beneficially utilized in Victoria, and that the benefits of speed, minimization of costs and informality can best be achieved through a board drawing on panels of experts with qualifications and experience in various disciplines.

46. With its acknowledgment of the merits of such a system, the Committee returned its attention to the Land Valuation Boards of Review. The earlier objection to the Land Valuation Boards of Review assuming the functions proposed for the Lands Tribunal lay solely in the manner of their constitution as it was indicated that in many instances matters requiring determination would not relate solely to questions of valuation. Apart from this objection, it appeared that the procedures of Land Valuation Boards of Review achieve minimization of costs and enable an appellant to appear personally. ·

47. Upon further considering this aspect the Committee formed the opinion that with suitable reconstitution of the Land Valuation Boards of Review this objection could be overcome and the jurisdiction of the Boards extended.

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However, the Committee also agreed that any proposal for reconstitution should be accompanied by a minimum of disturbance to their present structure and that rather than advocating total reconstitution the objective could best be achieved by establishing an additional division of the Boards.

48. It was contemplated that the existing Boards could operate as at present with a chairman and two independent valuers continuing the "valuation function". The concept emerged that the additional division could be constituted to determine the wider range of appeals not necessarily restricted to matters of valuation. Such a division would be regarded more appropriately as a "general division " rather than a "valuation division".

49. In regard to the constitution of a "general division" of the Boards, the Committee holds the view that because of the wide range of matters likely to be submitted for determination then consideration should be given to the New South Wales system of drawing on panels of experts in various disciplines.

50. Accordingly the Committee recommends that the Land Valuation Boards of Review be reconstituted with provision for an additional Board to exercise jurisdiction in the matters designated for the Lands Tribunal.

It is also recommended that the additional Board consist of a chairman being a barrister and solicitor and, with due regard to the nature of individual appeals before the Board, assessors drawn from a panel of experts appointed by the Attorney-General. The Committee also considers that in proceedings before such Board the existing procedures observed by the Land Valuation Boards of Review be followed. It is considered that as is the case with the present Boards, assessors should form part of the board rather than acting in an advisory capacity.

51. The creation of an additional division within the structure of the Land Valuation Boards of Review appears to be a far more economic proposition than the establishment of a separate board at that level or any higher level. It also seems logical that the chairman appointed for the new division assisted by qualified valuers, would be able to reduce the work load of the existing Boards in valuation matters. This would be of great benefit to the existing Boards as evidence suggests there is considerable pressure on them in regard to the number of appeals currently lodged.

52. The Committee can see no real difficulty in the concept of re-constituting the Land Valuation Boards of Review. However, should this proposal be implemented, the matter of appropriate administration will need to be resolved.

At present the Boards are administered from within the Local Government Department. There appears to be no real reason or advantage in this arrangement being made in the first instance and certainly no compelling reason why the re-constituted Boards should remain within this department. It is evident that many of the authorities involved in disputes with the public have connexion with or are subject to certain controls from within the Local Government Department and it would seem desirable that the appeals machinery should bear no such relationship.

In addition the Committee considers that the functions to be performed are of a definite judicial nature and would be more appropriately carried out from within the Law Department. Accordingly, the Committee recommends that the administration of the Boards be transferred to the Law Department.

53. An examination of clause 12 of the Bill showed that in some matters of dispute an alternative exists in that the issue may be taken before the Land Valuation Boards of Review or the Supreme Court. In some instances the appeal body is determined according to the extent of the claim involved (see paragraphs 13 and 14).

In compiling this Report the Committee has drawn attention to its desire to prevent appeals from being elevated to Supreme Court level with no alternative mode of appeal. The recommendation has also been made that the scope of the Land Valuation Boards of Review be widened. However, it is recognized by the Committee that in some cases appellants will be desirious of taking their cases to the highest authority. The Committee therefore recommends that the Land Valuation Boards of Review and the Supreme Court should have concurrent jurisdiction to hear all matters irrespective of the amount involved in a claim and that the several Acts which provide for a minimum to establish the jurisdiction of the Supreme Court should be amended.

It is also recommended that, as is the case at present, any party to proceedings before the Boards should not be precluded from appealing to the Supreme Court on a question of law or from referring a special case for the opinion of the Supreme Court.

54. An additional proposal was submitted to the Committee which it is felt has considerable merit. The Committee was informed that the position sometimes arises where a claimant is discouraged from litigating a claim for compensation because of obscurity as to the meaning and effect of legislation. The public authorities concerned tend to treat such claims as " test cases "

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and do not readily compromise, except on terms favourable to themselves, for fear of creating a precedent. It was suggested that where these cases arise, it is extremely unfair that individuals should carry the whole burden and risk of litigating to provide a ruling both for claimants and for the public authorities concerned.

In order to provide more satisfactorily for such circumstances, it was further suggested that the Boards or Court concerned should be enabled to certify in advance that a particular case involves a difficult point of law or principle of general importance in the application of the particular legislation in question. It was suggested that in such instances the Appeal Costs Fund should carry such portion of the costs as the Boards or Court think just. The Committee concurs with this suggestion.

55. In the course of the Inquiry it was stated that payments made by statutory authorities and other bodies carrying out compulsory acquisition were frequently inadequate to replace the property acquired and to compensate for other losses incurred by the owner in the course of the transfer to other premises.

It was suggested to the Committee that compensation should be based on the principle of equitable re-instatement.

It was further pointed out to the Committee that people whose properties adjoin schemes involving acquisitions but are not directly involved can suffer considerable losses for which they are not entitled to compensation.

The Committee recommends that all these matters should be the subject of further examination.

Committee Room,

25th October, 1972.

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DIVISIONS.

The following extracts from the Minutes of the Proceedings of the Committee show Divisions which took place during the consideration of the Draft Report :-

MONDAY, 9TH OCTOBER, 1972. Paragraph 6.

The Committee has sought as widely as possible the views of organizations frequently involved, or likely to be involved, in matters of dispute in relation to land. An analysis of the large volume of evidence received revealed several varied viewpoints, and it is proposed that each be dealt with in turn.

Amendment proposed-That after the word " land " there be inserted the following expression ", but not individual persons or groups of persons whose land has been acquired ".

Question-That the expression proposed to be inserted be so inserted-put.

The Committee divided.

Ayes, 3. Hon. W. M. Campbell Mr. Maclellan Hon. J. M. Tripovich

And so it passed in the negative.

Paragraph 10.

Noes, 5. Mr. Edmunds Mr. Evans Mr. Lovegrove Hon. R. W. May Mr. Smith

-{Mr. Maclellan).

An additional factor in support of the belief that a specialized body is advantageous was the view expressed that every case would not have to start from basic principles.

The Committee was informed that with the present use of Magistrates' Courts, the County Court and the Supreme Court in the determination of disputes, th~ situation arises where the arbitrator involved may hear such cases rarely and that it is preferable to have continuity of cases in order to develop expertise and endeavour to reduce costs. During the course of this Inquiry the question of costs was one that gave the Committee a good deal of concern and this aspect will be the subject of some comment in the later stages of this Report.

Question-That paragraph 10 stand part of the Report-put.


Ayes, 7. Noes, 1. Hon. W. M. Campbell Mr. Edmunds

Mr. Maclellan

Mr. Evans Mr. Lovegrove Hon. R. W. May Mr. Smith Hon. J. M. Tripovich

And so it was resolved in the affirmative.

TUESDAY, lOTH OCTOBER, 1972. Paragraph 17.

The Committee was informed that if this course was adopted a number of advantages would flow. Some witnesses expressed concern that with the creation of a Lands Tribunal outside the established judicial structure, there could be dangers in the appointment of only one judge bearing in mind, in particular that such judge may hold office for a number of years. The doubt expressed here relates to the possibility of the judge developing an inflexible or particular viewpoint in his determinations.

Witnesses expressing this doubt agreed that this was a somewhat hypothetical consideration and that whilst there may prove to be no great need to interchange judges, the alternative course of establishing a specialized division of the Supreme Court, would provide the power to make changes if necessary.

Amendment proposed-That all the words after "judge" (where first occurring) be omitted with the view of inserting in place thereof the following expression " The doubt expressed here relates to the possibility of the judge developing an inflexible or particular viewpoint in his determinations over a period of years. It was suggested that a specialized division of the Supreme Court could provide the power to make changes if necessary".

-{Hon. W. M. Campbell)

14

Question-That the words proposed to be omitted stand part of the paragraph-put.


Ayes, 6. Hon. M. A. Clarke Mr. Edmunds Mr. Evans Mr. Lovegrove Hon. J. M. Tripovich Mr. Whiting


Noes, 2. Hon. W. M. Campbell Mr. Maclellan



Ayes, 7. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds Mr. Evans Mr. Lovegrove Hon. J. M. Tripovich Mr. Whiting


Paragraph 29.

Noes, I. Mr. Maclellan

Earlier in this Report, it was indicated that, under the terms of the Bill, the Magistrates' Courts and the County Court would both be divested of portion of their present jurisdiction in favour of the Lands Tribunal. It has been argued in evidence that these courts lack the time and expertise to devote sustained attention to this field. The Committee agrees that this argument has some merit but it is also firmly of the belief that this problem cannot be solved merely through the elevation of this jurisdiction to the level of the Supreme Court.



Ayes, 6. Noes, I. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Evans Mr. Lovegrove Hon. J. M. Tripovich Mr. Whiting


Paragraph 31.

Mr. Maclellan

For similar reasons the Committee could not give favourable consideration to the establishment of a specialized division of the Supreme Court. It did appear, however, that this proposal could have overcome a number of the objections to the creation of a Lands Tribunal. Whilst providing the benefits of specialization it would also have enabled the interchange of judges and the use of existing administration. The Committee also agrees that it would have been an advantage to be in the position whereby the specialized division judges could be engaged in regular Supreme Court matters when the volume of work in the specialized division permitted.



Ayes, 6. Noes, I. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Evans

Mr. Maclellan

Mr. Lovegrove Hon. J. M. Tripovich Mr. Whiting


15

THURSDAY, 12TH OCTOBER, 1972. Paragraph 34.

In its examination of the current operations of the Land Valuation Boards of Review the Committee found no reason to suggest that they are not operating satisfactorily. Many witnesses indicated a preference for the use of boards of this type, particularly as there is no doubt that minimization of costs can be achieved in proceedings before them.

However some doubt was expressed as to whether the Boards, as presently constituted, are suited to be given jurisdiction in this wider range of appeals.


The Committee divided. Ayes, 6.

Hon. M. A. Clarke Mr. Edmunds Mr. Evans Hon. R. W. May Hon. J. M. Tripovich Mr. Whiting


Noes, I. Mr. Maclellan

WEDNESDAY, 18TH OCTOBER, 1972. Paragraph 49.

In regard to the constitution of a " general division " of the Boards, the Committee held the view that because of the wide range of matters likely to be submitted for determination then consideration should be given to the New South Wales system of drawing on panels of experts in various disciplines.

Amendment proposed-That the word '' held " be omitted with the view of inserting in place thereof the word "holds ".-(Mr. Whiting).

Question-That the word proposed to be omitted stand part of the paragraph-put.


Mr. Maclellan

And so it passed in the negative.

Noes, 9. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds Mr. Evans Hon. F. S. Grimwade Mr. Lovegrove Hon. R. W. May Hon. J. M. Tripovich Mr. Whiting

Question-That the word proposed to be inserted be so inserted-put.


Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds Mr. Evans Hon. F. S. Grimwade Mr. Lovegrove Hon. R. W. May Hon. J. M. Tripovich Mr. Whiting


Noes, 1. Mr. Maclellan

Question-That paragraph 49 as amended stand part of the Report-put.


Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds Mr. Evans Hon. F. S. Grimwade Mr. Lovegrove Hon. R. W. May Hon. J. M. Tripovich Mr. Whiting



16

Paragraph 50.

Accordingly the Committee recommends that the Land Valuation Boards of Review be reconstituted with provision for an additional Board to exercise jurisdiction in the matters designated for the Lands Tribunal.

It is also recommended that the additional Board consist of a chairman being a barrister and solicitor and, with due regard to the nature of individual appeals before the Board, assessors drawn from a panel of experts appointed by the Attorney-General. The Committee also considers that in proceedings before such Board the existing procedures observed by the Land Valuation Boards of Review be followed. It is considered that as is the case with the present Boards, assessors should form part of the Board rather than acting in an advisory capacity.



Ayes, 10. Noes, 1. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds

Mr. Maclellan

Mr. Evans Hon. F. S. Grimwade Mr. Lovegrove · Hon. R. W. May Mr. Smith Hon. J. M. Tripovich Mr. Whiting


Paragraph 51.

The creation of an additional division within the structure of the Land Valuation Boards of Review appears to be a far more economic proposition than the establishment of a separate board at that level or any higher level. It also seems logical that the chairman appointed for the new division, assisted by qualified valuers, would be able to reduce the work-load of the existing Boards in valuation matters. This would be of great benefit to the existing Boards as evidence suggests there is considerable pressure on them in regard to the number of appeals currently lodged.


The committee divided.

Ayes, 10. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds Mr. Evans Hon. F. S. Grimwade Mr. Lovegrove Hon. R. W. May Mr. Smith Hon. J. M. Tripovich Mr. Whiting



WEDNESDAY, 25TH OCTOBER, 1972.

Question-That the Draft Report as amended be the Report of the Committee-put.


Ayes, 7. Hon. W. M. Campbell Hon. M. A. Clarke Mr. Edmunds Mr. Evans Hon. F. S. Grimwade Hon. R. W. May Hon. J. M. Tripovich



17

APPENDIX "A"

LEGISLATIVE ASSEMBLY Read 1 o 31 August, 1971.

(Brought in by Mr. Reid and Mr. Borthwick.)

A BILL To provide for the Constitution of a Lands

Tribunal and to define the Jurisdiction Powers and Procedure of the Tribunal and for other purposes.

BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and

the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is

5 to say) :-

1. (1) This Act may be cited as the Lands Tribunal Act 1971. Short title.

(2) The several provisions of this Act shall come into force commence

on a day or days to be fixed by proclamation or successive ment.

proclamation& of the Governor in Council published in the 10 Government Gazette.

2. The Acts referred to in the Schedule shall be amended as provided therein.

Amendment other Acts.

3. (1) For the purposes of this Act there shall be a Lands ~~ili~nai. Tribunal.

15 (2) The Tribunal shall be a superior court of record and shall have an official seal which shall be judicially noticed.

6-[28]-600 /31.8.1971.-1088. 4. (1) The

10467/72.-2

2

Constitution of Tribunal.

18

1971. Lands Tribunal. No.

4. {1} The Tribunal shall be appointed by the Governor in Council and shall consist of one or more Judges who shall be persons qualified to be appointed as Judges of the Supreme Court.

(2) A person appointed as a Judge of the Tribunal shall be entitled to an annual salary of $19,000 and an annual allowance 5 of $750.

(3} A Judge of the Tribunal shall not (save with the consent of the Governor in Council) engage directly or indirectly in any business or employment other than the duties of his office.

(4) A Judge of the Tribunal shall not be capable of being elected 10 or of sitting as a member of the Legislative Council or Legislative Assembly.

(5) A Judge of the Tribunal who accepts any other office or place of profit under the Crown in the right of the Commonwealth or of a State or who becomes a member of the Commonwealth 15 Parliament shall thereupon cease to be a Judge of the Tribunal.

(6) No person who has attained the age of 72 years shall be appointed to be a Judge under this Act.

(7) Subject to the provisions of this Act any person who is appointed Judge of the Tribunal shall hold his office during good 20 behaviour.

(8) A Judge of the Tribunal shall continue in office during good behaviour and may only be removed by the Governor in Council on an address praying for such removal being presented to the Government by the Legislative Council and the Legislative 25 Assembly in the same session of Parliament.

(9) The Governor in Council may from time to time appoint one of the Judges of the Tribunal to be Chairman of Judges of the Tribunal and may at any time revoke any such appointment.

Pension, 5. Every Judge who attains the age of 72 years shall thereupon 30 retire from office.

6. (1) Every Judge who-

(a) has attained the age of 60 years and has served for not less than ten years in the office of Judge under this Act; or 35

(b) has become afflicted with some permanent incapacity disabling him from the due execution of his office-

shall upon resignation or upon retirement as aforesaid from office be entitled to a pension payable at the rate per annum of 50 percentum of the annual salary for the time being fixed under 40 sub-section (2} of section 4.

(2} Upon

19


(2) Upon the death of any Judge of the Tribunal his widow shall until her death or re-marriage be entitled to a pension payable fortnightly at the rate of five-sixteenths of the annual salary for the time being fixed under sub-section (2) of section 4 :

5 Provided that no pension shall be payable to the widow in any case where she married such former Judge after his resignation or retirement.

(3) Unless the Governor in Council by Order published in the Government Gazette otherwise determines in any particular case

10 the right of a Judge to a pension under this section-( a) shall cease upon his accepting appointment to any

judicial office in or outside Victoria ; and (b) shall be suspended while-

(i) he holds any office or place of profit under 15 the Crown in right of the Commonwealth

or of a State ; or (ii) he is engaged in the practice of the profession

of a barrister or a solicitor in any State or Territory of the Commonwealth or is

20 employed by any barrister or solicitor in connexion with his practice in any such State or Territory.

( 4) All pensions under this section shall be payable out of the Consolidated Revenue which is hereby appropriated accordingly.

25 (5) In this section "Judge" does not include an additional Judge of the Tribunal.

7. (1) Where-(a) a Judge is ill or absent ; (b) a Judge deems it not proper or desirable that he should

30 adjudicate in any proceedings pending before the Tribunal ; or

(c) the Tribunal is unable to deal properly and expeditiously with matters awaiting hearing-

the Governor in Council may appoint a qualified person or persons 35 to act temporarily as an additional Judge or additional Judges of

the TribunaL

(2) Any additional Judge of the Tribunal shall for the period specified in his appointment be paid the same salary as a Judge of the Tribunal and shall have all the powers immunities and

40 privileges and fulfil all the duties of a Judge of the Tribunal.

8. (1) The Governor in Council may appoint one or more registrars of the Tribunal each of whom shall be a barrister and solicitor of the Supreme Court of Victoria.

(2) The

Additional Judge.

3

4

Officers not subject to No. 6349.

20

1971. Lands Tribunal. No. ------------------

(2) The persons who are appointed under sub-section (1) shall not in respect of their offices be subject to the provisions of the Public Service Act 1958.

savi.ng of public (3) If any person appointed as officer was immediately before servtce nghts of • • 5 certain officers. his appomtment-

Saving of superannuation ri~hts of certain officers,

Secretary and other officers.

Any matter may be determined by one Judge.

(a) an officer of the public service ; or

(b) (having formerly been an officer of the public service) engaged or employed in any office or capacity in which he was eligible on the recommendation of the Public Service Board to be re-appointed upon the 10 termination of such engagement or employment to some office in the public service-

such person shall be eligible on the recommendation of the Public Service Board to be re-appointed at or before the termination of his term of office under this Act to some office in the public service 15 with a classification and emolument corresponding with or higher than those which he held in the public service immediately prior to his appointment or to his engagement or employment as aforesaid (as the case may be) as if the whole period of his service under this Act and (where the case so requires) in any other such office 20 or capacity had been a period of service in the public service.

(4) If any person appointed under sub-section (1) was immediately prior to that appointment an officer within the meaning of the Superannuation Act 1958 or any corresponding previous enactment he shall notwithstanding that appointment be deemed 25 to continue subject to that Act to be an officer within the meaning of that Act.

9. Subject to this Act and the rules a registrar of the Tribunal may hear and determine such classes of matters as are specified in the rules as being matters which may be heard and determined 30 by him and while so engaged shall constitute the Tribunal for the purposes of this Act.

10. (I) Subject to the Public Service Act 1958 there shall be appointed a Secretary and such other officers of the Tribunal as may be necessary. 35

(2) For the purposes of this Act the Minister with the consent of the Minister administering any other Government department may make use of the services of any officer or employe employed in such other department.

11. Any matter coming before the Tribunal may be heard and 40 determined by a Judge sitting alone.

12. (1) The

21


12. (1) The Tribunal shall have jurisdiction to hear and Jurisdiction.

determine-

( a) any matter under section 37 of the Drainage Areas Act 1958 ;

5 (b) any matter under section 8 of the Drainage of Land Act

10

1958 ;

(c) any matter under section 31 of the Extractive Industries Act 1966 ;

(d) any appeal from the Groundwater Appeals Board under section 68 of the Groundwater Act 1969 ;

(e) any matter under section 58 section 60 or section 65 of the Lands Compensation Act 1958 ;

(f) any application under section 150 of the Liquor Control Act 1968 ;

15 (g) any claim for compensation referred to in section 840

20

25

30

35

40

of the Local Government Act 1958 ;

(h) any appeal under sub-section (4) of section 22 or under section 23 of the Milk Board Act 1958 ;

(i) any objection referred to in section 19A of the Probate Duty Act 1962 in respect of which jurisdiction was conferred prior to the commencement of this Act on the Supreme Court ;

(j) any application under section 84 of the Property Law Act 1958 ;

(k) any matter under the Sale of Land Act 1962 or any other Act in respect of which jurisdiction was conferred prior to the commencement of this Act upon an arbitrator appointed under the Sale of Land Act 1962 ;

(/) any appeal under sections 17 and 23 of the Soil Conservation and Land Utilization Act 1958 ;

(m) any application under sub-section (2) of section 10 of the Strata Titles Act 1967 ;

(n) any application under sub-section (4) of section 13 of the Urban Renewal Act 1970 ;

(o) any matter under the Valuation of Land Act 1960 in respect of which jurisdiction was conferred prior to the commencement of this Act upon the Supreme Court (other than an appeal under sub-section (4) of section 12 of that Act) ;

(p) any

5

6

Tribunal may do any matter or thin~ in the same manner as Supreme Court.

Assessors.

22


(p) any arbitration under sub-section (4) of section 11 of the Victorian Inland Meat Authority Act 1958.

(2) Any matter referred to in any paragraph of sub-section (1) which at the commencement of that paragraph is part heard shall be heard and determined as if that paragraph had not come into 5 operation.

(3) Any matter referred to in any paragraph of sub-section (1) which is pending at the coming into operation of that paragraph shall be heard and determined by the Tribunal.

( 4) Where under this section the jurisdiction to hear and l 0 determine any matter which is pending is transferred to the Lands Tribunal the appeal objection claim or matter may be heard and determined as if it had been commenced under the provisions of this Act and anything done in relation to such appeal objection claim or matter shall be deemed to have been done under this 15 Act.

13. ( 1) Subject to this Act and to any Act in relation to which the Tribunal is exercising jurisdiction the Tribunal may do any matter or thing relating to any application or proceedings (including the ordering of the payment of costs by any party) in the same 20 manner and to the same extent as the Supreme Court may do in relation to any application or proceedings before that Court.

(2) An order of the Tribunal may be made a rule of the Supreme Court on the application of either of the parties.

14. (1) A Judge of the Tribunal in determining any matter 25 under this Act may if he thinks fit elect to sit with one or more assessors.

(2) A Judge shall not be bound by the opinion or finding of any such assessor.

(3) An assessor shall be selected from a panel of persons 30 appointed by the Attorney-General published in the Government Gazette.

(4) Notice of the appointment of a person to the panel shall be published in the Government Gazette.

(5) An assessor shall be entitled to such sitting fees as are 35 fixed from time to time by the Minister.

15. The Tribunal may if it thinks fit reserve any question in the form of a special case for the opinion of the Full Court of the Supreme Court.

16. There

23


16. There shall be the same right of appeal from the Tribunal to the Full Court of the Supreme Court as there would be if the Tribunal were a single Judge of the Supreme Court and the rules of the Supreme Court relating to such appeals shall, with such

5 modifications as the circumstances require, apply to appeals from the Tribunal.

10

17. (l) The Judges for the time being of the Tribunal may Rules,

make rules for or with respect to-

(a) regulating any matters relating to the costs of proceedings in the court ;

(b) regulating and prescribing the scales of fees and costs to be paid to counsel and practitioners ;

(c) regulating and prescribing expenses to be paid to witnesses ;

15 (d) regulating and keeping all registers books entries and

20

accounts ;

(e) regulating the sittings of the Tribunal ;

(/) prescribing matters of which notice shall be given and regulating the manner of giving such notice ;

(g) regulating the means by which particular facts may be proved and the manner in which evidence thereof may be given in any proceedings or on any application in connexion with any proceedings ;

(h) regulating the enforcement of judgments and orders ;

25 ( i) the form of cases on appeal to the Full Court of the

30

35

Supreme Court and the time within which such appeals should be prosecuted ;

(j) the form of special cases reserved for the opinion of the Full Court of the Supreme Court ;

(k) prescribing matters which may be heard and determined by registrars and regulating procedure upon such applications and providing for appeals by way of rehearing or otherwise from registrars to a Judge of the Tribunal ;

( I) the duties of the registrars the secretary and other officers of the Tribunal ; and

(m) generally

7

No. 6237.

No. 6238.

1971.

24

Lands Tribunal. No. ----~- ------------------

(m) generally for regulating any other matter relating to the practice and procedure of the Tribunal and initiating proceedings therein.

(2) Rules made under the provisions of sub-section (1) shall not come into operation without the prior approval of a law officer 5 and shall be subject to disallowance by Parliament.

(3) In any case not provided for in this Act or by the said rules the general principles of practice and the rules observed in the Supreme Court may be adopted and applied to any action or matter with such modifications as the different constitutions of the 10 two courts may render necessary.

SCHEDULE.

1. Section 37 of the Drainage Areas Act 1958 shall be amended as follows :(a) In sub-section (3)-

(i) for the words " any judge of county courts " there shall be substituted the words "a registrar of the Lands Tribunal " ;

(ii) the words " and a request in writing to determine the question" shall be repealed ;

(b) For sub-section (4) there shall be substituted the following sub-section:-" (4) The Lands Tribunal may thereupon upon the application

by either party summon the other party to appear before it at a time and place to be named in the summons and upon the appearance of such parties or in the absence of any of them upon proof of the due service of the summons it shall be heard and determined the question whether the intended act will or may injuriously affect the said water or works." ;

(c) In sub-section (5)-(i) for the word "judge " there shall be substituted the word

" Tribunal "; (ii) for the word " he" there shall be substituted the word " it ";

(d) In sub-section (6)-(i) for the word "judge" there shall be substituted the word

"Tribunal" ; (ii) for the word " he " there shall be substituted the word " it ";

(e) Sub-section (7) shall be repealed.

2. The Drainage of Land Act 1958 shall be amended as follows :-(a) In section 8 for the words " a stipendiary magistrate " there shall be

substituted the words " the Lands Tribunal "; (b) The first sentence of section 9 shall be repealed ; (c) In section 10--

(i) for the words "the stipendiary magistrate" (wherever occurring) there shall be substituted the words " the Lands Tribunal ";

(ii) in the second paragraph the words "in their judgment entitled thereto " shall be repealed ;

(d) In section 11 for the words "stipendiary magistrate" there shall be substituted the words "the Lands Tribunal";

SCHEDULE

25

1971. Lands Tribunal. No. --------------------------------

SCHEDULE--continued.

(e) In section 12 for the expression" The stipendiary magistrate or arbitrators (as the case may be), in the event of their approving of a scheme of drainage as proposed by the applicant or as modified by themselves, shall cause a map thereof to be prepared, and shall certify under their hands the correctness of such map " there shall be substituted the expression " Where the Lands Tribunal or arbitrators approve a scheme of drainage as proposed by the applicant or in a modified form a map thereof shall be prepared and a Judge of the Tribunal or the arbitrators (as the case may be) shall certify thereon the correctness of such map".

3. Section 31 of the Extractive Industries Act 1966 shall be amended as follows (a) In paragraph (a) of sub-section (2) for the expression "a magistrates'

court " there shall be substituted the words " the Lands Tribunal "; (b) In sub-section (6) for the expression "a magistrates' court sitting near

the locality of the land and consisting of a stipendiary magistrate sitting alone" there shall be substituted the words "the Lands Tribunal".

No. 7499.

4. In section 68 of the Groundwater Act 1969 for the words "a judge of the No. 7849. County Court whose decision shall be final " there shall be substituted the words "the Lands Tribunal".

5. In sections 36, 58, 60 and 65 of the Lands Compensation Act 1958 for the words No. 6286. "Supreme Court" (wherever occurring) there shall be substituted the words "Lands Tribunal ".

6. In section 150 of the Liquor Control Act 1968 for the words "Supreme Court" No. 7695. (wherever occurring) there shall be substituted the words "Lands Tribunal".

7. The Local Government Act 1958 shall be amended as follows :(a) In section 840-

(i) in sub-section (1) for the words " a single arbitrator who shall be the County Court Judge appointed to act as such arbitrator by the Governor in Council " there shall be substituted the words " the Lands Tribunal ";

(ii) sub-section (2) shall be repealed ; (b) Sections 841-848 shall be repealed ; (c) In section 849-

(i) in sub-sections (1) and (2) for the words " Supreme Court " (wherever occurring) there shall be substituted the words " Lands Tribunal ";

(ii) in sub-sections (1) and (2) the word "arbitrator " (wherever occurring) shall be repealed ;

(iii) in sub-section (3) the words " under the arbitration in which such award or apportionment has been so made " shall be repealed;

(d) The Thirty-first Schedule shall be repealed.

8. The Milk Board Act 1958 shall be amended as follows (a) In sub-section (4) of section 22 for the words " Minister whose decision

shall be final and " there shall be substituted the words " Lands Tribunal whose decision "

(b) In sub-section (4) of section 23 for the words "Minister whose decision shall be final and " there shall be substituted the words " Lands Tribunal whose decision".

No. 6299.

No. 6381.

9. Section 19A of the Probate Duty Act 1962 shall be amended as follows :- No. 6890.

(a) For sub-section (1) there shall be substituted the following sub-section "(1) Notwithstanding the provisions of section 19 whereupon

the objection referred to be treated as an appeal is an objection against the valuation of land the Commissioner shall, subject to sub-section (2) cause the appeal to be set down for hearing befor

SCHEDULE

9

10

No. 6344.

No. 6975.

1971.

26

Lands Tribunal. No.

SCHEDULE-continued.

the Lands Tribunal or refer the appeal for hearing and determination by a land valuation board of review (hereinafter in this section called the board) constituted pursuant to Part Ill. of the Valuation of Land Act 1960.";

(b) In sub-section (2) for the word "Court" (wherever occurring) there shall be substituted the word "Tribunal ".

10. The Property Law Act 1968 shall be amended as follows:-(a) In section 84 for the word "Court" (where first occurring) there shall

be substituted the words " Lands Tribunal " and for the word " Court " (where thereafter occurring) there shall be substituted the word "Tribunal";

(b) In section 85 for the word "Court" there shall be substituted the words "Lands Tribunal".

11. The Sale of Land Act 1962 shall be amended as follows :(a) In section 1 in the Table of Parts and Divisions-

(i) the expression " Division 2.-Arbitrators " shall be repealed ; (ii) those parts of the Table referring to Parts 11. and Ill. of the

Act shall be repealed ; (h) In section 2-

(i) the interpretation of " arbitrator " shall be repealed ; (ii) the interpretation of " rules " shall be repealed ; (iii) after the interpretation of " terms contract " there shall be

inserted the following interpretation :-'"Tribunal" means the Lands Tribunal constituted under

the Lands Tribunal Act 1971.'; (c) In paragraph (a) of sub-section (2) and in sub-section (6) of section 3 for

the words "an arbitrator" (wherever occurring) there shall be substituted the words "the Tribunal";

(d) In sub-sections (4) and (6) of section 4 for the words " an arbitrator" (wherever occurring) there shall be substituted the words" the Tribunal";

(e) In section 5-(i) for the word " an arbitrator" (wherever occurring) there shall

be substituted the words " the Tribunal "; (ii) for the words " the arbitrator " (wherever occurring) there shall

be substituted the words " the Tribunal "; (iii) in paragraph (g) of sub-section (5) and in sub-sections (6) and

(7) for the word " he " (wherever occurring) there shall be substituted the word " it ";

(f) In sub-section (6) of section 7 for the words "an arbitrator" there shall be substituted the words " the Tribunal ";

(g) In sub-sections (2) and (5) of section 8 for the words " an arbitrator " (wherever occurring) there shall be substituted the words " the Tribunal ";

(h) In sub-sections (1) and (2) of section 10 for the words "an arbitrator" (wherever occurring) there shall be substituted the words " the Tribunal ";

( i) In sub-sections (I) and (2) of section 11 for the words "an arbitrator" (wherever occurring) there shall be substituted the words " the Tribunal ";

(j) In section 14A-(i) In sub-section (1) for the words "an arbitrator for his consent"

there shall be substituted the words " the Tribunal for its consent";

(ii) in sub-section (2) for the words " an arbitrator " there shall be substituted the words " the Tribunal ";

(iii) in sub-section (2) for the word " he " there shall be substituted the word "it";

SCHEDULE

27


SCHEDULE-continued.

(k) After section 14A there shall be inserted the following section :-.. 14s. The Tribunal shall not make any order affecting the register

book under the Transfer of Land Act 1958 without prior consultation with the registrar or his nominee.";

(I) In paragraph (c) of sub-section (2) of section 15 for the words "an arbitrator " there shall be substituted the words " the Tribunal ";

(m) Division 2 of Part I. shall be repealed.

12. The Soil Conservation and Land Utilization Act 1958 shall be amended as No. 6372. follows:-

(a) In paragraph (b) of sub-section (3) of section 17 for the words "a Judge of the County Court whose decision shall be final without appeal " there shall be substituted the words " the Lands Tribunal ";

(b) In paragraph (d) of sub-section (4) of section 23 for the words "a judge of the County Court whose decision shall be final and without appeal" there shall be substituted the words " the Lands Tribunal ".

13. Sub-section (2) of section 10 of the Strata Titles Act 1967 shall be amended No. 7551. as follows:-

(a) In paragraph (a) for the word " Court " (where first occurring) there shall be substituted the words " Lands Tribunal ";

(b) In paragraph (a) for the word "Court" (where thereafter occurring) there shall be substituted the word " Tribunal ";

(c) In paragraph (b) for the word "Court" there shall be substituted the words "Lands Tribunal".

14. Section 13 of the Urban Renewal Act 1970 shall be amended as follows :- No. 8052.

(a) In sub-section (3) for the words " Supreme Court" there shall be substituted the words " Lands Tribunal ";

(b) In sub-section (4)-(i) for the words " Supreme Court " there shall be substituted

the words " Lands Tribunal "; (ii) for the word " Court " there shall be substituted the word

"Tribunal".

15. The Valuation of Land Act 1960 shall be amended as follows :- No. 6653.

(a) In section 14-(i) the interpretation of " court " shall be repealed ;

(ii) in the interpretation of" judge " for the words " Supreme Court " there shall be substituted the words " Lands Tribunal ";

(iii) after the interpretation of " special act " there shall be inserted the following interpretation :-

' " Tribunal " means the Lands Tribunal constituted under the Lands Tribunal Act 1971.' ;

(b) In Part IIJ. for the word "Court" (wherever occurring) there shall be substituted the word " Tribunal ";

(c) Sub-section (2) of section 45 shall be repealed ; (d) Sub-sections (4) and (5) of section 47 shall be repealed.

16. For sub-section (4) of section 11 of the Victorian Inland Meat Authority Act No. 6411. 1958 there shall be substituted the following section :-

" (4) If the Authority and the party interested therein do not agree as to the amount of compensation the Minister shall direct that the matter be determined by the Lands Tribunal."

11

28

APPENDIX "B ".

REPORT OF COMMITTEE APPOINTED TO INVESTIGATE AND MAKE RECOMMENDATIONS IN RESPECT OF THE ESTABLISHMENT OF A LANDS TRIBUNAL.

To The Honourable the Attorney-General

Sir,

1. On the lOth day of September, 1969, The Honourable The Attorney-General appointed a committee to investigate and make recommendations as to the advisability of establishing a tribunal similar to the Lands Tribunal of the United Kingdom.

2. The following were the terms of reference-

" To investigate and make recommendations to the Attorney-General upon-

1. The establishment of a tribunal similar to the Lands Tribunal established by the Lands Tribunal Act 1949 (U.K.).

2. A suitable name for such a tribunal, the constitution thereof and terms of appointment of its members.

3. The number and qualifications of officers likely to be required by the tribunal within the first year of its operation, particularly having regard to any need for hearings outside the Melbourne Metropolitan area.

4. The jurisdiction to be conferred on the tribunal-(a) in light of the provisions of :

(i) the Drainage Areas Act 1958 ; (ii) the Drainage of Land Act 1958 ;

(iii) the Lands Compensation Act t958 ; (iv) Subdivision (3) of Division 9 of Part XIX. and Part XLIV. of the

Local Government Act 1958 ; (v) Section 84 of the Property Law Act 1958 ;

(vi) the Sale of Land Act 1962 ; (vii) the Strata Titles Act 1967 ;

(viii) the Valuation of Land Act 1960 ; and (ix) any other statutory provision which the Committee deems relevant.

(b) having regard to proposals set out in the Property Law (Basements) Bill.

5. Procedure of and appeals from the tribunal, bearing in mind the desirability of minimising costs of applicants.

6. The provision of panels of assessors to assist the tribunal in any specialised field.

7. Reporting, or other means of making generally available, the decisions of the tribunal.

8. Any other aspects of the matter which the Committee feels should be drawn to the attention of the Attorney-General.

9. Draft legislation and rules thereunder to give effect to the recommendations of the Committee upon the foregoing matters."

3. The members of the Committee wereMr. L. Voumard, Q.C., Chairman; Mr. Stephen, Q.C., and later Mr. Xavier Connor, Q.C. (representing the Victorian bar) ; Mr. John Finemore, Q.C. (Chief Parliamentary Counsel) ; Mr. C. P. Allen (Registrar of Titles) ; Mr. Leon Velik of the firm of Slonim, Velik and Emanuel and later Mr. B. D. O'Callaghan

of the firm of Corr and Corr (representing the Law Institute of Victoria) ; Mrs. J. Lewis, Parliamentary Counsel.

The Committee met for the first time on the 18th day of November, 1969 and thereafter on many further occasions.

4. During the course of its deliberations the Committee considered three substantial major questions, namely-

( a) Whether a Lands Tribunal should be constituted at all ; (b) The nature and extent of the jurisdiction which should be conferred on the Tribunal ; (c) The constitution of the Tr~bunal, the proc~~ure ~o be observed in proceedings before the

Tribunal, and the appomtment of admmistrative officers.

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5. As to the first of these questions, all members of the committee were firmly of opinion that it would be in the best interests of the administration of justice in this State that a Lands Tribunal should be constituted. Such a tribunal, it is thought, will promote uniformity of decision in matters within its jurisdiction, it will permit the economical and most advantageous use of the services of those having experience in the valuation of land and other matters concerning real property, and it will expedite the hearing of claims for compensation upon the compulsory acquisition of land and of all other matters in respect of which jurisdiction is conferred. It is further felt that by devising appropriate rules of procedure the legal costs of proceedings before the tribunal will be minimised.

If the recommendations of the committee as to the extent of the jurisdiction of the tribunal are accepted one of the consequences will be, it is thought, a material diminution in the amount of work which the Judges of the Supreme Court are at present called upon to perform ; and it may well be that if the tribunal is constituted the Supreme Court will be able to function with one Judge less than the present number.

6. Before making any final decision as to the jurisdiction to be conferred on the tribunal the committee sought the views of various government departments and statutory bodies, and requested information as to any matters relating to the determination of rights in respect of land which affected the respective departments or bodies. Replies received from these departments and bodies were of material assistance in arriving at a decision as to the jurisdiction which might with advantage be conferred upon the tribunal, if and when constituted.

A draft of a suggested Bill is forwarded with this report. It sets out in detail the extent and nature of the suggested jurisdiction, the most important items being perhaps the following-

(i) All matters relating to claims for compensation on the compulsory acquisition of land and all matters involving questions of the valuation of land ;

(ii) The functions at present performed by the Arbitrator under the Sale of Land Act and the Local Government Act, the principal matters here being applications to extinguish or, as the case may be, to grant easements necessary or desirable to enable land to be subdivided efficiently, appeals against the refusal of municipal councils to seal plans of subdivision submitted to them for sealing, and appeals against requirements made by a municipal council for the construction of roads or drains upon a proposed subdivision of land ;

(iii) All matters relating to the discharge and modification of restrictive covenants.

7. The question which occasioned the greatest difficulty to the committee concerned the constitution of the proposed tribunal. In the result, the view of the committee was that the tenure and emoluments of members of the tribunal should be such as to induce senior members of the profession with wide experience in the law of real property to accept an appointment to the tribunal. The work of the tribunal will, in the view of the committee, be of the greatest importance to the community, more particularly having regard to the strong probability that in the years to come a great deal of land will be compulsorily acquired for public purposes. In these circumstances the committee feels strongly that a member of the tribunal should have security of tenure similar to that enjoyed by Her Majesty's Judges and that the salary offered should be in excess of that of a Judge of the County Court and not materially less than that of a Judge of the Supreme Court. Some members of the Committee are of the opinion that the salary offered should be equal to that of a Judge of the Supreme Court.

Members of the tribunal should also, it is felt, enjoy pension rights similar to those enjoyed by a Judge. In keeping with the status which, in the view of the committee, the tribunal should have, it is thought that it should be called " The Lands Tribunal ", that it should be a court of record, and that the members should have the title of "Judge".

8. The Committee gave consideration to the Property Law (Easements) Bill. In its view this measure should be enacted independently of, and prior to, any legislation constituting a Lands Tribunal.

9. Clause 2 of the proposed bill provides for a Schedule whereby various Acts will be amended. As these amendments will be merely consequential it was felt that no good purpose would be served by drafting these amendments until a final policy decision has been made as to the form and contents of the Lands Tribunal Act. The effect of these amendments will be to confer on the Tribunal exclusive jurisdiction in relation to the matters specified in clause 12 of the Bill.

10. Three other matters engaged the attention of the Committee-

(a) The making of Rules for the purpose of regulating proceedings before the Tribunal. The views of the committee as to this matter find expression in clause 17 of the bill. The nature and content of these rules will depend upon the form of the legislation as eventually adopted ; and it was felt that the question of the framing of rules of procedure should be left to the Judge or Judges of the Tribunal. In this regard attention is drawn to the safeguard provided by sub-clause (2) of clause 17. '

(b) The reporting of decisions of the Tribunal. The speedy and accurate reporting of the decisions of the Tribunal will be essential in the public interest. These decisions could appropriately be included in the Australian Local Government Reports (L.G.R.A.) published by the Law Book Company ; and although the committee has as yet made no specific enquiries, it feels that the publisher of this series of Reports would readily publish all reportable decisions. ·

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(c) The number of officers likely to be required within the first year. From the outset it will be necessary to have a full-time secretary stationed in Melbourne (and appointed from within the Public Service) whose duties will correspond with those of the Prothonotary of the Supreme Court. He will, of course, require clerical assistance which, it is thought, may also conveniently be provided from within the Public Service.

The number of officers and the extent of the secretarial assistance will depend upon the time or times at which the various provisions of section 12 are brought into operation. It is suggested that jurisdiction should not be conferred on the Tribunal until provision has been made for an adequate clerical and secretarial staff to perform the associated administrative work. It would seem desirable that jurisdiction be conferred in stages, and that the jurisdiction first to be conferred should include that at present exercised by the Arbitrator under the Sale of Land Act and the Local Government Acts and the jurisdiction proposed to be conferred by the Property Law (Basements) Bill. At this stage it would seem that one Judge will be sufficient. It is thought that it will not be necessary to appoint a Registrar until some short time after the Tribunal has commenced operations. The precise time for the making of this appointment will depend upon the volume of work which the Tribunal is called upon to perform.

The Committee feels that in all probability there will be very few occasions upon which the Tribunal will find it necessary to sit outside the Melbourne metropolitan area. If, and in so far as there may be need for hearings outside this area, it is thought that the duties performed in Melbourne by the secretary of the Tribunal could well be performed in a country centre by the local Clerk of Courts.

Equity Chambers,

Melbourne.

March 17th, 1971.

Signed,

L. VOUMARD.

By Authority: c. H. RIXON, Government Printer, Melbourne.

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