This document discusses alternative dispute resolution (ADR) procedures used by the Land Court of Queensland, including: 1. Preliminary conferences, which are informal and aim to quickly identify and discuss issues to negotiate a settlement without requiring preliminary paperwork. If no agreement, the matter proceeds to a hearing. 2. Mediation, which is used for more complex cases and can be supervised by the court or involve a private mediator. Mediations follow a flexible process and aim to resolve matters through constructive engagement and negotiation between parties. 3. Direct negotiation by consent order, where the court may order parties to specific timeframes and requirements to attempt to resolve the matter through direct "without prejudice" discussions before proceeding to further hearings

1. The LAND COURT and ADR
PROCEDURES
by
CAC MacDonald, President, Land Court of
Queensland
and
Graham Smith, Judicial Registrar, Land Court
(Resolution Institute : 21 April 2016)
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2. 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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3. LAND COURT ADR PROCESSES
 Preliminary Conferences (s 36 Land Court Act 2000)
 Mediations
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4. 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)
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5. Procedures for referring disputes to mediator
 Sections 42 – 44 CPA
 Land Court’s practice
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6. 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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7. Graham Smith, Judicial Registrar, Land Court
 THE LAND COURT and ADR PROCEDURES
 1. Preliminary Conference
 2. Mediation
( & Negotiation pursuant to Consent Order)

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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/Questions
2. Opening statements
3. Discussion - constructive engagement re issues/resolution
4. Private meetings [if required]
5. Options/Negotiation/To do list/Interim Agreement/Agreement
6. Closure [if fully resolved] adjournment/partial resolution/next steps
- re-convene.

16. 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.

17. 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.

18. 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.

19. 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.