Commissioner of Highways v Koukos - [2025] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
COMMISSIONER OF HIGHWAYS v KOUKOS & ORS
[2025] SASC 152
Judgment of the Honourable Justice McIntyre
10 September 2025
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - PROCEEDINGS FOR COMPENSATION - SOUTH AUSTRALIA - APPEALS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
This is an appeal from a decision of an Auxiliary Associate Justice of the Supreme Court granting the respondents’ interlocutory application for orders in relation to two valuation reports (the Thamm reports). The decision, which concerns four related actions being heard together, found that the Thamm reports were inadmissible except with the consent of parties pursuant to s 23BA of the Land Acquisition Act 1969 (SA) (the LAA).
The appellant appeals on three grounds, contending that the primary judge erred in her construction and application of s 23BA of the LAA and s 67 of the Evidence Act 1929 (SA). The respondents maintain that s 23BA of the LAA applies to the Thamm reports and that, absent consent, they are inadmissible.
Held, granting leave to appeal but dismissing the appeal:
1.The phrase “anything said or done” in s 23BA of the LAA extends to the Thamm reports and is not confined only to concessions, admissions and offers made by a party in the course of negotiations.
2.The Thamm reports were produced “in the course of a settlement conference” and are inadmissible unless all parties consent to their tender.
3.Consent to tender the Thamm reports was not expressed in explicit terms and cannot be inferred from joint instructions or the expert’s terms of engagement.

Uniform Civil Rules 2020 (SA) rr 74.3, 213.1; Land Acquisition Act 1969 (SA) ss 23A, 23BA, 23C; Evidence Act 1929 (SA) s 67C; Legislation Interpretation Act 2021 (SA) s 10, referred to.
Falland v Symbion Health Ltd (2010) 269 LSJS 189, considered.

COMMISSIONER OF HIGHWAYS v KOUKOS & ORS
[2025] SASC 152
Civil: Appeal
McINTYRE J:

This is an appeal from a decision of an Auxiliary Associate Justice of the Supreme Court, granting the respondents’ interlocutory application for orders in relation to two valuation reports prepared by Mr Alex Thamm (Mr Thamm) of CBRE Valuation & Advisory Services. The Auxiliary Associate Justice delivered reasons for her decision on 18 October 2024 and made orders that Mr Thamm’s reports are not admissible except with the consent of all parties. There are four related actions being heard together.[1] The decision and this appeal are relevant to each of the matters.
[1] CIV-24-010797; CIV-24-010800; CIV-24-010801; CIV-24-010803.
As this is an interlocutory decision. leave to appeal is required under r 213.1 of the Uniform Civil Rules 2020 (SA) (‘UCR’). For the reasons that follow, I grant leave to appeal the decision but dismiss the appeal.
Background facts
The respondents owned four parcels of land at Undo Road, Waterloo Corner SA 5110. By notices of acquisition…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commissioner of Highways v Koukos

Details

AGLC: Commissioner of Highways v Koukos [2025] SASC 152
Case: [2025] SASC 152
Decision Date: 10 September 2025

CaseChat Overview and Summary

In the case of Commissioner of Highways v Koukos, the appellant, the Commissioner of Highways, sought leave to appeal a decision made by the Supreme Court of South Australia. The dispute arose from the compulsory acquisition of land owned by the respondents, the Koukos family, under the Land Acquisition Act 1969 (SA). The central issue was the admissibility of expert valuation reports, prepared by a third party jointly engaged by both parties during a settlement conference, in subsequent litigation regarding compensation for the acquired land. The appellant argued that these reports were not subject to the inadmissibility rule under s 23BA(3) of the Act, which was intended to protect the confidentiality of settlement negotiations.

The legal issues before the court were twofold: the interpretation of the phrase "anything said or done" in the context of s 23BA(3) of the Land Acquisition Act, and whether the preparation of the expert reports by an independent third party during the settlement conference fell within the scope of the inadmissibility rule. The court needed to determine whether the statutory privilege extended to actions taken by independent experts engaged by both parties during the settlement process, and whether these actions could be considered as "anything done" in the course of the settlement conference.

The court held that the statutory rule in s 23BA(3) was intended to ensure the confidentiality of the settlement process, similar to the common law rule of settlement privilege. The court rejected the appellant's argument that the term "anything said or done" should be narrowly construed to exclude actions taken by independent experts. Instead, the court found that the term was broad and inclusive, and that anything said or done during the settlement process, including the preparation of expert reports by an independent third party, was intended to be protected by the inadmissibility rule unless all parties consented. The court emphasised that the mandatory nature of the settlement conference process, which required both parties to participate, meant that any action taken as part of that process should be protected from disclosure in subsequent litigation.

Consequently, the court granted leave to appeal but dismissed the appeal on the merits. The court concluded that the expert reports prepared by Mr. Thamm during the settlement conference were inadmissible in the compensation proceedings unless all parties consented to their use. This decision underscored the importance of the confidentiality of the settlement process and the legislative intent to protect actions taken during such conferences from later disclosure in litigation.

Orders

Orders of the court

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Background

Background to the litigation

As this is an interlocutory decision. leave to appeal is required under r 213.1 of the Uniform Civil Rules 2020 (SA) (‘UCR’). For the reasons that follow, I grant leave to appeal the decision but dismiss the appeal. Background facts The respondents owned four parcels of land at Undo Road, Waterloo Corner SA 5110. By notices of acquisition published in the South Australian Government Gazette on 2 June 2016 the appellant acquired the respondents’ interest in that land (‘the acquisition’). The appellant made offers of compensation to the respondents and paid that compensation into the Supreme Court. Those offers were made consistent with independent expert valuation reports obtained by the appellant (‘the Brooke reports’). The respondents obtained their own valuation report (‘the Christodoulou report’). Those reports differed. A conference was convened on 7 June 2021 between the valuers under s 23A(7) of the Land Acquisition Act 1969 (SA) (‘LAA’). The valuers were unable to resolve their differences. A settlement conference was requested by the respondents under s 23BA of the LAA. A conference coordinator was appointed on 12 August 2022. The conference coordinator gave written directions to the parties by letter dated 23 August 2022 which, inter alia, reminded the parties that:[2] Evidence of anything said or done in the course of a settlement conferences is inadmissible in proceedings before a court (other than proceedings under Act, s36) except by consent of all parties to the proceedings: s 23BA(3).[2] Appeal Book at 10. On 12 September 2022, a settlement conference was held and adjourned. The conference coordinator noted in his directions that the parties had agreed to jointly instruct a third independent valuer to provide a further expert valuation of the land. The appellant invited the respondents to choose one of three nominated valuers. That list included Mr Thamm. On 7 October 2022, the parties agreed to instruct Mr Thamm. On 5 April 2023, a joint letter of instruction, signed by both parties’ legal representatives, was sent to Mr Thamm (‘joint instructions’).[3] On 13 December 2023, the parties received Mr Thamm’s valuation reports in relation to the land; one report dealt with three of the allotments and the other dealt with the fourth (‘the Thamm reports’).[4] The parties continued discussions but were unable to resolve their differences. On 24 January 2024, the conference coordinator directed that the settlement conference be closed.[5] [3] Appeal Book at 16 – 27.[4] Appeal Book at 30 – 132.[5] Appeal Book at 133. On 20 July 2024, the respondents initiated proceedings by way of cross claim in the Supreme Court under s 23C of the LAA in relation to their claim for compensation (‘proceedings’). There was correspondence between the parties in which the respondents indicated that they did not consent to the use of the Thamm reports in the proceedings. The appellant maintains an entitlement to rely on the reports.[6] It was determined that the dispute about admissibility of the Thamm reports would be heard as a preliminary point. [6] Appeal Book at 13 – 14.Leave to appeal

Evidence

Evidence Before The Court

The second relates to s 67C of the EA which provides as follows:67C—Exclusion of evidence of settlement negotiations (1) Subject to this section, evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings. (2) Such evidence is, however, admissible if— (a) the parties to the dispute consent; or (b) the substance of the evidence has been disclosed with the express or implied consent of the parties to the dispute; or(c) the substance of the evidence has been partly disclosed with the express or implied consent of the parties to the dispute, and full disclosure of the evidence is reasonably necessary to— (i) enable a proper understanding of the other evidence that has already been adduced; or(ii) or avoid unfairness to any of the parties to the dispute; or (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or (e) the proceeding in which the evidence is to be adduced is a proceeding to enforce an agreement for the settlement of the dispute or a proceeding in which the making of such an agreement is in issue; or (f) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or (g) the making of the communication, or the preparation of the document, affects the rights of a party to the dispute; or (h) the communication was made, or the document was prepared, in furtherance of— (i) the commission of a fraud or an offence; or (ii) the doing of an act that renders a person liable to a civil penalty; or(iii) the abuse of a statutory power. (3) Subsection (1) does not apply to parts of a document that do not concern attempts to negotiate a settlement of a dispute, if it would not be misleading to adduce evidence of only those parts of the document.Section 23BA Ground 1 of the appeal raises the proper construction of the expression “anything said or done in the course of a settlement conference” in s 23BA(3). Ground 2 deals with the proper application of s 23BA(3). It is convenient to deal with these grounds together. The submissions The appellant contends that s 23BA is concerned with concessions, admissions and offers made by a party in the course of negotiations but does not extend to the Thamm reports which were produced by an independent expert jointly engaged by the parties and based on objective facts. The appellant says that s 23BA(3) of the LAA is a statutory expression of common law settlement privilege. The appellant relies upon the second reading speech to the Land Acquisition (Miscellaneous) Act Amendment Bill[8] to support that contention and says, moreover, that the statutory construction is informed by the context in which s 23BA(3) operates and the underlying common law regarding settlement privilege. In the second reading speech, the Minister stated that the settlement conferences were to be conducted on “a without prejudice basis”. The appellant points to the policy behind common law “without prejudice” communications being to encourage and facilitate negotiations by protecting communications, concessions and admissions by the parties from being adduced in any later litigation. However, mere agreement that an expert report is to be procured in the course of negotiations is not sufficient to attract the common law settlement privilege.[9] The appellant contends that s 23BA(3) ought to be construed as operating in the same way. [8] South Australia, Parliamentary Debates, House of Assembly, 25 September 2019, 7561 (The Honourable V.A. Chapman, Deputy Premier of South Australia and Attorney-General). [9] Falland v Symbion Health Ltd (2010) 269 LSJS 189 at [22] (‘Falland’).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent on the other hand says that s 23BA makes inadmissible, subject to any consent, anything said or done by participants in the course of a settlement conference. It is further contended that this includes anything done by participants as part of the conference process such as obtaining a report or having calculations performed which are directed to settlement. Participants include the conference convenor, a party or other participant such as an expert. It is said that the words “in the course of a settlement conference” includes acts preparatory to, inclusive of and incidental to, the conference process and applies, as in this case, during a period between the convening of two or more conferences.[10][10] Respondent Written Submissions at [9] (FDN 7).Consideration The scope of the evidentiary rule in s 23BA(3) LAA has two elements “anything said or done” and “in the course of a settlement conference”. The former element appears to be the issue raised in ground 1 of the appeal. Was the learned Auxiliary Associate Justice correct to find that the words “anything said or done” did not apply only to concessions, admissions and offers made by a party in the course of negotiations. The latter element is the issue raised in ground 2.1 where it is said that “Her Honour should have found that the Thamm reports were not said or done in the course of a settlement conference”. I do not accept the appellant’s submissions in relation to the UCR. The UCR provide for, inter alia, the form of expert reports and for disclosure of those reports but do not in my view have any bearing on the construction of s 23BA(3) of the LAA. The evidentiary rule in s 23BA(3) must be read as a whole and in the context of the legislative scheme. The section has the purpose of advancing the public interest in the resolution of disputes about compulsory acquisitions of land in an efficient manner. The combined effect of s 23BA and s 23C(1a) is to compel a claimant to apply for a settlement conference and to take part in the conference prior to embarking on litigation. The LAA requires not only attendance at a settlement conference but also participation in the process. Failure to comply with directions of the conference coordinator without reasonable excuse constitutes an offence under s 23BA(5). It is moreover open to the appellant to oppose a matter proceeding further in the absence of a claimant taking part in a settlement conference. Section 23BA conferences are therefore different to other forms of settlement conference by reason of these mandatory features. The appellant contends that “anything said or done” is concerned with “concessions, admissions and offers made by a party in the course of negotiations”. It is uncontentious that Mr Thamm was not aware of the respective positions of the parties. He did not represent either of the parties and had no authority to make concessions, admissions or offers. He provided expert reports at the joint request of the parties. In my view the appellant’s contention is not tenable in the light of the statutory text. The term is expansive and the use of the word “anything” is all encompassing. There is no warrant in the section to restrict the term as the appellant contends. Given the mandatory nature of this process, and that things may be said or done as a result of the compulsion to attend and engage, it is understandable that anything said or done in the process would be inadmissible in later proceedings unless by consent. The appellant’s construction of s 23BA is not assisted by the second reading speech. The Minister’s description of the statutory settlement conferences being conducted on a “without prejudice basis” is consistent with what is contended by the respondents and does not provide a foundation for equating this statutory rule of evidence with the applicable common law rule.