Hornsby Shire Council v Valuer General of New South Wales
[2013] NSWSC 1183
•27 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: Hornsby Shire Council v Valuer General of New South Wales & Ors [2013] NSWSC 1183 Hearing dates: 26 and 27 August 2013 Decision date: 27 August 2013 Jurisdiction: Common Law Before: Beech-Jones J. Decision: Application for view refused.
Catchwords: EVIDENCE - whether appropriate for trial judge to view property the subject of compensation determination - scope of view - purposes of view - Evidence Act 1995, ss 53 and 54. Legislation Cited: - Evidence Act 1995
- Land Acquisition (Just Terms Compensation) Act 1991
- Trade Practices Act 1974 (Cth)Category: Interlocutory applications Parties: Hornsby Shire Council (Plaintiff)
The Valuer General of New South Wales (First Defendant)
The State of New South Wales (Second Defendant)
Brian Rushton Nicholson (Third Defendant)
Alcorn Corbin Nicholson Pty Ltd (Fourth Defendant)
CSR Limited (Fifth Defendant)
Peter Charles Cunningham (Sixth Defendant)Representation: Counsel:
T.F. Robertson SC, J.E. Lazarus, D.A. Hughes (Plaintiff)
P. Menzies QC, Ms B. Nolan, Ms S.L. Ross (1st, 2nd and 6th Defendants)
M.A. Jones SC, Ms C.O. Gleeson (3rd and 4th Defendants)
A.J.L. Bannon SC, R.C. Beasley SC, C.D. Wood (5th Defendant)
Solicitors:
Storey & Gough (Plaintiff)
I.V. Knight, Crown Solicitor's Office (NSW) (1st, 2nd and 6th Defendants)
Norton Rose Fulbright Australia (3rd and 4th Defendants)
Minter Ellison (5th Defendant)
File Number(s): 2009/297428
EX TEMPORE Judgment
At a directions hearing held on 22 August 2013, and again during the first day of its opening, the plaintiff, Hornsby Shire Council (the "Council"), has suggested that the Court undertake a view of the property the subject of these proceedings. This application was opposed by all of the defendants.
The property is a former quarry located within the area regulated by the Council. The Council was required to acquire the property in 2002. The relevant planning instrument enabled the then owner, CSR Limited ("CSR"), to effectively put the property to the council. In doing so, CSR thereby acquired a right to receive compensation assessed pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the "Act").
A determination was made by, or at least on behalf of, the Valuer General of New South Wales purportedly under s 47 of the Act that the amount of compensation to be paid for the acquisition was just over $25 million. At some later time the Council paid that amount to CSR. It now sues CSR, the Valuer General and the State Government on the basis that it is vicariously liable for the actions of the Valuer General. It also sues a private valuer, Mr Nicholson, and his company on the basis that either he, it or both were retained by the Valuer General to at least assist in the making of the compensation determination.
The causes of action are varied, but they include an allegation that both the Valuer General and Mr Nicholson performed their various tasks negligently. The Council also contends that CSR's conduct in submitting material to Mr Nicholson and to the Valuer General amounted to procuring the determination of compensation by fraud, that it constituted false and misleading conduct undertaken in contravention of former s 52 of the Trade Practices Act 1974 (Cth) and that it uttered negligent misstatements.
The undertaking of a view is governed by ss 53 and 54 of the Evidence Act 1995. They provide:
"53 Views
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
(2) A judge is not to make an order unless he or she is satisfied that:
(a) the parties will be given a reasonable opportunity to be present, and
(b) the judge and, if there is a jury, the jury will be present.
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:
(a) whether the parties will be present,
(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence,
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,
(d) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,
(e) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.
(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
54 Views to be evidence
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection."
The elevation of the status of the view that is effected by s 54 in my view warrants some caution before ordering that a view be undertaken. In addition to the matters noted in s 53(3), two particular factors should be borne in mind.
First, there needs to be a clear identification of what matters of fact, if any, it is said that a view will assist in resolving and, at the very least, a clear identification of the purposes and scope of the view. Those matters should be identified in advance so that the parties will have the opportunity in open court to make it clear what they contend should be observed by the judicial officer when the view is undertaken.
Second, there needs to be a clearly articulated protocol for how the view will be conducted, who will communicate what to the judicial officer and on what topic, if any. Unless those matters are clarified with precision in advance then there is an obvious potential for the integrity of the proceedings to be compromised via innocent but nevertheless ex parte communications with the judge. These difficulties are magnified if there is any suggestion that the communications are to be between potential witnesses, as opposed to legal practitioners, and the judge.
Senior Counsel for the Council, Mr Robertson SC, indicated that his client was proposing to have a surveyor mark out various locations on the property. These markings, as I understand it, are meant to reflect the location of buildings that were proposed on a concept plan that CSR put forward to Mr Nicholson in 2002 in support of its application for compensation. The markings are also said to indicate the buildings proposed on two subsequent versions of the concept plan put forward by CSR during these proceedings.
Part of the Council's case is that the 2002 concept plan was either not technically possible or would otherwise be prohibitively expensive because of various geotechnical deficiencies with the site. There is some dispute about the relevance of the two subsequent concept plans put forward by CSR, but it at least contends that they are a rejoinder to the contention that residential development on the site was either not possible or prohibitively expensive because of its geotechnical features.
Having regard to the concerns noted above, I asked Mr Robertson SC to identify the reasons for conducting the view. The first identified reason was said to be the need to "recreate the position for the court that Mr Nicholson would have been in when he entered the quarry with a CSR officer and a map and an overlay showing where these various buildings are".
This submission was a reference to an occasion some time in late 2002 or early 2003 when Mr Nicholson, accompanied by an employee of CSR, inspected the property. There is a factual dispute as to whether, at that time, Mr Nicholson had any aerial photographs or overlays. It does appear to be clear that Mr Nicholson did not have the benefit of any surveyor's markings. For that reason alone, I am not persuaded there is anything that could usefully assist me in determining whether Mr Nicholson was negligent by my inspecting the site in 2013 with the benefit of surveyor's markings when he did not have them.
The second matter identified by Mr Robertson SC was as follows:
"Because Mr Nicholson was skilled in the valuation of quarries and was in fact a member of the Quarry Masters Association, he would have understood from the information he had been given that in the overburden storage area and in the product stockpile area there was fill, and that fill was obvious from the view. And had he applied that observation to the map that he had with him when he visited the site, he would have known that there were buildings proposed to be constructed which would involve the huge excavation of materials, significant geotechnical works.
So, part of our case is that just from the observation he would have made with the assistance of that information, he must have known that there were geotechnical problems which were not part of the costing."
Thus it is said that I would be able to draw information about what must have been obvious to Mr Nicholson based upon my observations of certain aspects of the property and in circumstances where it was said to be apparent from a map and certain materials that were before Mr Nicholson that there were various difficulties.
I have serious misgivings about using ss 53 and 54 as a means of placing the judicial officer in the position of a professional, and asking that judicial officer to draw conclusions based on their own observations of what must have been obvious to that professional when undertaking some specialised task. In my view, such an approach has a real risk of not properly reproducing the event in question (s 53(3)(d)). This is more so when the event takes place ten years later in circumstances where at this point not much is known about what Mr Nicholson did or did not do and had in his possession when he undertook his on-site inspection.
An inspection or view under s 54 might be of assistance to enable a court to understand the position of witnesses to events, especially events that are within the ordinary experience of lay people such as the scene of car accidents or the like (s 54(b)). However, that is not this case. An attempted reproduction of what should have been apparent to an expert in a specialised field is better undertaken by hearing evidence from experts in that field. If there is some feature of the property whose direct observation would assist in understanding those experts' evidence, then that may warrant a view being undertaken. However, that is not the basis upon which it was suggested by the Council that the view should be undertaken.
The third matter raised by Mr Robertson SC as warranting a view was as follows:
"So, it's necessary for your Honour to evaluate the damages case as if your Honour was a judge of the Land and Environment Court doing a resumption hearing, a resumption case, and exercising your duty as a judicial valuer to know where precisely this development is to go."
The reference to the Land and Environment Court reflects an aspect of CSR's case which is said to be that, if the Valuer General had determined an amount of compensation that was below a certain figure, then CSR would have exercised its right to appeal the merits of that determination to the Land and Environment Court. However, this submission only begs the question of what it is about the view that would assist the Court in determining any question that may ultimately arise as to the "appropriate" value of the land.
At some point I expect I will have the benefit of various maps and explanations concerning the features of the property and its relationship to CSR's concept plans. Needless to say, I will also have the benefit of a number of experts' reports on all matters affecting its value. I can accept that at some point of the trial it may become apparent that my understanding of that material and that expert evidence would be assisted if I was to undertake a view (s 53(3)(b)). A view undertaken for that limited purpose would involve a very confined inspection of the site and would only be undertaken in the presence of all the legal representatives with very strict controls on what was to be communicated to the judicial officer at the time.
If I was to undertake such a view, I would require the parties to identify in open court in advance the features of the property that it is submitted I should observe, and why those features and such observations will assist in understanding other evidence that has been or is to be given. Such an inspection could extend to observing survey markings, but only if the parties had the opportunity to verify them. Those survey markings would not be utilised for the purposes of assessing Mr Nicholson's conduct in the matter that I have already rejected.
However, at this point all this is theoretical. Presently I am not persuaded that a view should be ordered. I refuse the application.
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Decision last updated: 28 August 2013
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