Owners Corporation of Strata Plan 30859 v Roads and Traffic Authority of NSW

[2008] NSWLEC 192

Land and Environment Court

of New South Wales

CITATION:	Owners Corporation of Strata Plan 30859 v Roads and Traffic Authority of NSW [2008] NSWLEC 192
PARTIES:	APPLICANT Owners Corporation of Strata Plan 30859 RESPONDENT Roads and Traffic Authority of NSW
FILE NUMBER(S):	30742 of 2007
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- whether new evidence can be relied on
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991
DATES OF HEARING:	11 June 2008
EX TEMPORE JUDGMENT DATE:	11 June 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr M Wright SOLICITOR Brennan Tipple Partners RESPONDENT Mr C Bova SOLICITOR Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

11 June 2008

30742 of 2007 Owners Corporation of Strata Plan 30859 v Roads and Traffic Authority of NSW

EX TEMPORE JUDGMENT

1 Her Honour: This compulsory acquisition matter under the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) is set down for hearing on 18-20 June 2008. It was listed before me today for pre-trial mention due to the unavailability of the trial judge. The Respondent’s counsel handed up short minutes of order seeking orders for leave to rely on two additional statements of evidence, one of Mr Campbell filed 3 June 2008 and one of Mr Dransfield filed 10 June 2008. A statement of evidence of Mr Atkins filed 4 June 2008 concerning acoustic evidence is also sought to be relied on.

2 No notice of motion and affidavit in support of an application for leave to rely on additional expert evidence has been filed. Paragraph 40 of the Class 3 Practice Notes has not been complied with in that respect. I consider I should deal with the matter on the basis that the Respondent makes an oral application for leave to rely on additional expert and other evidence today, rather than leave the matter to be determined by the trial judge next week as the Applicant will be in a difficult position if the matter is not resolved today.

3 Orders have been made for the conduct of this matter including the identification of expert evidence to be relied on by the parties in November 2007, February 2008 and April 2008.

4 Mr Campbell’s and Mr Dransfield’s evidence has been prepared in response to the reports of the Court appointed expert, Dr Joliffe, on flooding impacts which may result if the road proposed by the Respondent as at the date of acquisition is built. The new evidence is apparently directed to demonstrating that the road design is to be amended by the Respondent to reduce flooding impacts on the Applicant’s land. The final design of the road has not been provided but will be in the next couple of days. According to the Respondent’s counsel, Dr Joliffe, the court appointed expert, is able to consider the material early next week and report back to the Court at the hearing.

5 The Applicant says it is grossly prejudiced if the additional evidence is admitted because it will need to seek its own expert advice on both engineering and acoustic matters and it is too late to do so before the hearing next week. If the evidence is admitted, the Applicant seeks vacation of the hearing dates next week and its costs. The Respondent submits that if the hearing dates are vacated the question of costs ought be reserved.

Finding

6 The parties’ submissions and this decision have had to be done “on the run” because of the way this matter has been brought forward without notice, very late in the hearing preparation and without effective explanation by the Respondent for the lateness. Dr Joliffe’s reports were prepared firstly in February 2008 and secondly on 3 April 2008. Mr Campbell’s statement dated 2 June 2008 was served on about 5 June 2008. Mr Dransfield’s affidavit is sworn 6 June 2008 and was served shortly thereafter. The new evidence is dated approximately two months after the report of Dr Joliffe it is responding to.

7 Mr Atkins’ report is dated 3 June 2008. It was prepared in response to the joint valuers’ report dated 13 May 2008. It is sought to be relied on as a basis for contesting the statement of the Applicant’s valuer that additional compensation due to noise impact should be awarded.

8 The late admission of the evidence is prejudicial to the Applicant. In weighing up whether the evidence should be admitted and the hearing dates be vacated as a result, the necessity for ensuring the efficient dispatch of proceedings while ensuring fairness for both parties must be considered. If the hearing is vacated it is not always sufficient that costs are payable to overcome the prejudice to a particular party. In this case the Applicant will have its hearing for compensation further delayed. Another consideration militating against vacation of hearing dates is that the amount of compensation and the issues raised between the parties needs to be kept in perspective in weighing up the costs of case preparation. Vacation of dates inevitably results in greater costs being incurred. The matter has been under preparation for hearing for a considerable period and numerous directions have been made to ensure that it is ready for hearing. I do not consider that the circumstances of the lateness of the evidence, particularly in the absence of an explanation, justify allowing the Respondent to rely on the additional evidence so close to the hearing. Vacation of dates where it arises because of the unexplained lateness of fresh evidence should not be done lightly.

9 It is also not immediately apparent that the affidavits of Mr Campbell and Mr Dransfield have any relevance to the proceedings as these relate to decisions being made now by the Respondent in relation to road design when the date of acquisition was 23 March 2007. As a general proposition compulsory acquisition under the Just Terms Act is assessed on the basis of events pertaining at the date of acquisition. Only in limited circumstances are events after the date of acquisition relevant and that is to confirm a foresight. The fact that the Respondent is choosing now to amend its road design cannot be relevant to confirming a foresight at the date of acquisition.

10 I decline to make the orders sought by the Respondent in relation to relying on new evidence in prayers 1-5 of the Short Minutes of Order handed up in Court today.