Valuer-General v Perilya Broken Hill Limited

[2013] NSWCA 16

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Valuer-General v Perilya Broken Hill Limited [2013] NSWCA 16

Hearing dates:

8 February 2013

Decision date:

08 February 2013

Before:

Allsop P

Decision:

Order the respondent, when a copy of these reasons is available, to deliver it to the ABC in Broken Hill, the Barrier Daily Truth and to any other persons to whom the Chief Executive Officer of the respondent, Mr Arndt, spoke about this matter.

[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:

PRACTICE AND PROCEDURE - no question of principle

Cases Cited:

Commissioner of Taxation v Indooroopilly Children Services (QLD) Pty Ltd [2007] FCAFC 16; 158 FCR 325

Category:

Procedural and other rulings

Parties:

Valuer-General (Applicant)

Representation:

Counsel:
T S Hale SC and J B Maston (Applicant)
R Lancaster SC and L Thomas (Respondent)
Solicitors:
Crown Solicitor (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2012/345737

 Decision under appeal 

Citation:

Perilya Broken Hill Limited v Valuer-General [2012] NSWLEC 235

Date of Decision:

2012-10-19 00:00:00

Before:

Lloyd AJ

File Number(s):

2011/30076

Judgment

1. ALLSOP P: In this matter the parties brought forward on Wednesday an application for expedition of an appeal from the Land and Environment Court as to the valuation of assets of the respondent. The valuation of the mining assets of the respondent forms the foundation of moneys payable by the respondent to the local council, which is not a party to these proceedings.

1. The commercial position as it stands at the moment is that if the Land and Environment Court judgment is correct, the Council is obliged to refund significant sums of money to the respondent. The respondent is a commercial entity perfectly able to look after its own interests.

1. The matter came before the Registrar who consulted with me (as President and as the judge hearing the motions on Wednesday) as to how the expedition application should be dealt with. As is well known by practitioners who practise in the Court of Appeal, the list of the Court of Appeal is such that in the ordinary general course matters obtain a date approximately three to four months after callover. Thus, there are dates available in the ordinary course three, four or sometimes five months from any particular date. If a matter is to be truly expedited so as to require litigants who have taken their place in the listing procedure to be removed, then that degree of expedition must be justified. However, the Court is always willing to meet the legitimate concerns and commercial and governmental needs of parties. Whether that means removing someone from the list or squeezing an appeal in between the existing list, thereby adding a burden to the judges of the Court, depends upon the degree of justifiable expedition. The Court appreciates that quite often the Valuer-General needs matters dealt with quickly in order that other valuations be dealt with in accordance with the Court's views. Perfectly properly in those circumstances, as part of the executive the Valuer-General always takes the view that subject to changes in the law he should follow the views of the judicial branch in the application of relevant legislation, cf Commissioner of Taxation v Indooroopilly Children Services (QLD) Pty Ltd [2007] FCAFC 16; 158 FCR 325.

1. When the matter came before him, the Registrar, in his usual efficient way, asked the parties what date they were looking at. He could give them July if that was satisfactory. If it was not satisfactory they would need to come to me to ask for an earlier date and to explain the nature of the expedition.

1. The parties consulted amongst each other and agreed between themselves that July was satisfactory, and a July date was given. Let me emphasise that the parties agreed amongst themselves, taking into account their own commercial and governmental interests, that July was a satisfactory date. If the Registrar had been told that it was not satisfactory the parties would have been referred to me and been given the earliest possible date that conformed with their reasonably required expedition.

1. I had the matter called in the list this morning because the Court became aware that an ABC journalist in Broken Hill was being told by someone that the parties were unhappy with the Court giving a July date. Implicit in that was the proposition that the Court was either unable or unwilling to meet the reasonable exigencies and demands of its litigants. Further, today it has come to my attention through material distributed in the ordinary course in the Court and in material handed up by the parties today that it appears that the Chief Executive Officer of the respondent, a Mr Arndt, told at least the Barrier Daily Truth and also possibly the ABC that his company was ready to partake in the appeal and resented the long wait. He apparently told the Barrier Daily Truth that he was frustrated that the appeal process was taking so long when all the parties wanted to accelerate it, that he was hoping for a much earlier date and was ready to go with the appeal now, and that he understood that it came down to the availability of the respective barristers and the judge.

1. I called the matter back after this morning because it seemed to me that the Chief Executive Officer of the respondent, if these words were to be attributed to him, which from what has passed today I can assume they can be, made statements to the public through the media that were grossly inaccurate.

1. Mr Lancaster SC, who appears leading Ms Thomas today for the respondent, accepts that these statements were inaccurate. He has indicated that on his instructions they were the product of a misunderstanding.

1. I wish there to be no misunderstanding about this: The deliberate or reckless misstatement about the business of this Court, reflecting badly on this Court for someone's own commercial interests, might have to be justified by reference to the law of contempt. This Court was and is ready to meet the legitimate exigencies and demands of these litigants. These litigants chose the date in July and it is quite wrong for Mr Arndt to have said to the Barrier Daily Truth and to anyone else anything to the effect that this Court was not willing or able to do so.

1. I order the respondent, when a copy of these reasons is available, to have them delivered to the ABC in Broken Hill, to the Barrier Daily Truth and to any other person to whom Mr Arndt spoke about this matter. It is not appropriate for me to order Mr Arndt to apologise to this Court because that would imply that he needed to purge a contempt, a matter upon which I do not form a view at the moment. In any event, the respondent and Mr Arndt have, through Mr Lancaster SC and Ms Thomas, conveyed their apologies to this Court during today's proceedings.

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Decision last updated: 13 February 2013