Valuer-General of New South Wales v In Adam Pty Ltd

[2011] NSWCA 306

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Valuer-General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306

Hearing dates:

19 September 2011

Decision date:

19 September 2011

Before:

Giles JA

Decision:

Notice of Motion filed on 7 September 2011 dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - expedition - delay after trial decision - expedition would displace another case - expedition refused - necessity to act promptly if reason for expedition.

Legislation Cited:

Valuation of Land Act 1916

Category:

Principal judgment

Parties:

Valuer-General of New South Wales - Applicant
In Adam Pty Ltd - Respondent

Representation:

J A Ayling SC - Applicant
I Hemmings - Respondent
I V Knight, Crown Solicitor - Applicant
Hones La Hood Layers - Respondent

File Number(s):

CA 2011/180273

 Decision under appeal 

Date of Decision:

2011-04-01 00:00:00

Before:

Biscoe J

File Number(s):

L&E 30850/10 and 30942/10

Judgment

1. HIS HONOUR: This is an application for expedition of proceedings which already have a hearing date. The proceedings are an application for leave to appeal from a decision in the Land and Environment Court. The application for leave to appeal is to be heard at a concurrent application, that is, as if an appeal. The date fixed for that occasion is 28 November 2011.

1. The application for expedition was brought by notice of motion filed on 7 September 2011. For the reasons which follow, I propose to refuse the application. I do not intend to be critical of any particular person, but the explanation I give in doing so will, I trust, explain the necessity for more prompt attention than occurred in this case when there is reason for expedition in the hearing of an appal.

1. The proceedings in the Land and Environment Court were concerned with the construction of s 14G of the Valuation of Land Act 1916 and how valuation attention was to be given in the case of heritage buildings. There was a first hearing before Commissioners in 2010, who decided in favour of the Valuer General. The matter came on as an internal appeal before Biscoe J on 23 March 2011, who gave his decision on 1 April 2011 against the Valuer General. What then occurred, or did not occur, provides the lesson for the future.

1. On 14 April 2011 the Valuer General filed a notice of intention to appeal. He filed his summons for leave to appeal on 30 May 2011. It was accompanied by the white folder and the summary of argument, as was appropriate.

1. The summons was returnable on 11 July 2011. On that occasion directions were given for further preparation and the matter was listed for callup on 2 August 2011.

1. On 2 August 2011 some supplementary directions in relation to preparation were given and the matter was set down for hearing on 28 November 2011.

1. What will be apparent from this is that there was not great attention by the Valuer General to expedition following the decision of Biscoe J on 1 April 2011. Further, nothing was said about expedition on 2 August, and it was not until that date that the Valuer General first took steps in communication with the Registrar to enquire into an earlier date than that which had been allocated.

1. The reason now given for requiring expedition is contained in an affidavit of Mr Philip Western, the Valuer General. A considerable number of properties is affected by the decision adverse to the commissioner given by Biscoe J. Mr Western says that he will be issuing notices of valuation in January 2012 and that from 1 July 2012 many local councils will be using the land values as the basis for assessing their rates and the Office of State Revenue from an even earlier time will be will be using the values for land tax assessments. He says that in order to apply the ruling made by Biscoe J his officers will be obliged to "hand craft" the valuations for all the properties affected by s 14G or a like s 125. The basis for the application for expedition is that this process will involve substantial additional costs. Thus, Mr Weston says, if he is successful on appeal the costs will have been wasted, and further administration costs will be incurred in reascertaining land values.

1. The affidavit is a little short on the necessity for the Valuer General to deal with the properties affected by the ruling of Biscoe J in January 2012. I am nonetheless prepared to accept that there will be not inconsiderable administrative convenience and associated savings of costs if the outcome of the appeal, should it be favourable to the Valuer General, is known earlier rather than later; and it can not be said with confidence that a hearing on 28 November 2011 will produce a result by the end of this year.

1. Nonetheless, the exposure to the administrative inconvenience and additional costs comes back to the failure of the Valuer General to act more promptly from the beginning of April this year when he must have been aware of the desirability, to say the least, of having his position established on appeal in time for him to do what has to be done (if indeed it has to be done) in January 2012. The failure can not be excused when the Valuer General is not an infrequent litigant, represented by the Crown Solicitor who is familiar with the conduct of litigation in this Court, and must have an understanding of the state of the lists; and in particular when, according to an affidavit of the respondent's solicitor, on 29 July 2011 the Land and Environment Court was informed that the first available date for the appeal to this Court to be heard was in November. Even at that date the Valuer General was not provoked into seeking expedition at the call-up on 2 August. In early August the Valuer General communicated with the Registrar seeking an earlier date, and there was some toing and froing until on 17 August it became plain that a date convenient to the parties could not be made available and that an earlier date could not be found unless some other case was displaced. Even then it was not until 7 September that the Valuer General filed the present motion.

1. The circumstances are such that I am not prepared to displace another case, that still being the situation according to my enquiries of the Registrar, in order that the Valuer General should have the expedition he seeks.

1. The lesson to be learned is the necessity, where there is reason for expeditious disposal of an appeal, for the party concerned to act promptly, and not allow time to go by as occurred here. The result of the earlier leisurely attention to the matter, notwithstanding the situation in early 2012 now relied on which could readily be foreseen, was that after 2 August the Valuer General found himself in a position where he could not obtain an earlier date without displacing other litigants. As I have said, the circumstances are in my view not such as to require that that be done.

1. Accordingly, the notice of motion filed on 7 September 2011 will be dismissed with costs.

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Decision last updated: 23 September 2011