Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority

[2009] NSWCA 178

New South Wales

Court of Appeal

CITATION:

WALKER CORPORATION PTY LTD v SYDNEY HARBOUR FORESHORE AUTHORITY [2009] NSWCA 178

HEARING DATE(S):

12 May 2009

 
JUDGMENT DATE: 

3 July 2009

JUDGMENT OF:

Beazley JA at 1; Basten JA at 2; Young JA at 112

DECISION:

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent’s costs of the proceedings in this Court.

(3) Lift the stay on the further proceedings in the Land and Environment Court made by order 4 in this Court on 22 October 2008.

CATCHWORDS:	APPEAL - nature of appeal - decision on question of law - interlocutory appeal on procedures - Land and Environment Court Act 1979 (NSW), s 57 - APPEAL - decision on question of law - interlocutory ruling - rejection of proposed amendment to pleading - whether amendment a rejected basis of valuation - APPEAL - decision on question of law - interlocutory ruling - whether power to refuse to hear further evidence - whether power properly exercised - Land and Environment Court Act 1979 (NSW), s 38 - EVIDENCE - expert evidence - evidence adduced at earlier hearing - court differently constituted on remittal - refusal to hear further evidence - PROCEDURE - remittal following appeal - scope of remitter - court differently constituted - power to reject proposed amendment to pleading - power to reject further evidence - whether power properly exercised - WORDS AND PHRASES - "or", "matter", "rehearing", "remitter", "reopening"
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth), s 44 Environmental Planning and Assessment Act 1979 (NSW), s 70 Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 98; Sch 1 Federal Court of Australia Act 1976 (Cth), ss 22, 28 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 56, 57 Land and Environment Court Act 1979 (NSW), ss 38, 57 Migration Act 1958 (Cth), ss 481, 501 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 31.19, Pt 31, Div 2; Sch 1
CATEGORY:	Principal judgment
CASES CITED:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 208 Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; 126 LGERA 339 Brackenreg v Comcare Australia (1995) 56 FCR 335 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207 Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 House v The King [1936] HCA 40; 55 CLR 499 In re Grover (1886) 3 WN (NSW) 52 McCarthy v McIntyre [2000] FCA 1250 Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; 82 FCR 374 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 MZXOT v Minister for Immigration and Citizenship (The Remitter Case) [2008] HCA 28; 233 CLR 601 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256 Repatriation Commission v Nation (1995) 57 FCR 25 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Smith v New South Wales Bar Association (1992) 176 CLR 256 State of New South Wales v Burton (No 2) [2008] NSWCA 319 Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; 63 NSWLR 407 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [No. 2] [2006] NSWCA 386; 68 NSWLR 487 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 Vaitiaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2004] NSWLEC 315; 134 LGERA 195 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2006] NSWLEC 138 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Wilsher v Essex Area Health Authority [1988] 1 AC 1074
PARTIES:	Walker Corporation Pty Ltd (Appellant) Sydney Harbour Foreshore Authority (Respondent)
FILE NUMBER(S):	CA 40334/08
COUNSEL:	I M Jackman SC/R Beasley/J K Taylor (Appellant) B W Walker SC/A Galasso SC/E Hyde (Respondent)
SOLICITORS:	Minter Ellison Lawyers (Appellant) Deacons Lawyers (Respondent)

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 30024/03
LOWER COURT JUDICIAL OFFICER:	Biscoe J
LOWER COURT DATE OF DECISION:	3 October 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282

CA 40334/08
LEC 30024/03

BEAZLEY JA
BASTEN JA
YOUNG JA

3 JULY 2009

WALKER CORPORATION PTY LTD v SYDNEY HARBOUR FORESHORE AUTHORITY

Judgment

1 BEAZLEY JA: I agree with Basten JA and the additional comments of Young JA in [112]-[118].

2 BASTEN JA: This appeal is concerned with two orders made by Biscoe J in the Land and Environment Court (“L&E Court”). On 3 October 2008 Biscoe J refused the appellant leave to amend its points of claim in two respects. His Honour also dismissed a motion seeking to rely upon three further reports of experts, each obtained in September 2008: see Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282.

3 On 22 October 2008 the appellant was granted leave to appeal with respect to both of these orders. On more detailed consideration, it might have been open to revoke the grant of leave. No such order was sought; the grant of leave should stand, but the appeal be dismissed.

Background

4 The underlying matter is the valuation of land situated at Ballast Point on Sydney Harbour, which was resumed in February 2002 by the Sydney Harbour Foreshore Authority (“the Foreshore Authority”) for the purpose of public open space. At the date of acquisition, the land was owned by the appellant, Walker Corporation Pty Ltd (“Walker Corporation”). The land had originally been used by Caltex Ltd (“Caltex”) (and its predecessor, Ampol Ltd) for storing and transporting oil and petroleum products. That use had ceased many years before the land was acquired by the Foreshore Authority.

5 In 1997, Caltex had granted an option to a company in the Walker Group to purchase the land for $16.5 million. At that time most of the land was zoned “waterfront industrial”. Pursuant to the zoning provisions in the Leichhardt Local Environmental Plan 2000, made on 22 December 2000 by the Minister for Planning, the land was rezoned “Industrial”.

6 On 19 February 2002 the Premier announced a proposal to acquire the land for public open space. Two months later, on 19 April, the appellant exercised its option to purchase the land. On 26 September 2002 the land was acquired by the Foreshore Authority.

7 The appellant sought compensation for its interest in the acquired land which, on 23 December 2002, was assessed by the Valuer-General at $10,100,000. That assessment was not accepted by the appellant which, on 14 January 2003, commenced compensation proceedings in the L&E Court. The first judgment of the L&E Court was delivered on 9 July 2004 by Talbot J, who determined that the market value of the land was $60 million and the appropriate compensation was that figure less the purchase price: see Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2004] NSWLEC 315; 134 LGERA 195 (a case which the parties have, for simplicity, referred to as “LEC 1”).

8 An appeal from LEC 1 resulted in a judgment of this Court delivered on 27 July 2005, setting aside the orders in LEC 1 and remitting the matter to the L&E Court to be determined according to law: see Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; 63 NSWLR 407 (“CA 1”).

9 On the first remittal to the L&E Court, the matter came before Talbot J for a second time, his Honour reaching the same conclusion as on the first occasion, purportedly in accordance with the legal principles articulated in CA 1: see Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2006] NSWLEC 138 (“LEC 2”).

10 A second appeal was brought to this Court which, on 21 December 2006 again set aside the orders made in the L&E Court: Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [No. 2] [2006] NSWCA 386; 68 NSWLR 487 (“CA 2”).

11 Before a third hearing could be undertaken in the L&E Court, the appellant obtained from the High Court of Australia special leave to appeal against both decisions of this Court. On 27 February 2008 the High Court delivered judgment dismissing both appeals: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259.

12 The legal issues which have been in dispute in earlier parts of the proceedings have turned upon the proper construction of ss 55 and 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“the Land Acquisition Act”). Section 55 required the L&E Court to determine the amount of compensation to which the appellant is entitled, having regard to “the market value of the land on the date of its acquisition”: s 55(a). The term “market value” is defined in s 56 as follows:

“ 56 Market value
(1) In this Act:
market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid):
(a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired ….”

13 Critical to a determination of the market value of the land at the date of acquisition was the possibility that the land could be developed for residential purposes. Subject to two subsidiary arguments which need not be addressed, the land could not be so developed while it was zoned waterfront industrial or industrial. It was zoned industrial at the date of acquisition. If the imposition or retention of that zoning was an activity which constituted the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, any decrease in the value of the land caused thereby would need to be disregarded in assessing its market value for the purposes of determining the compensation payable by the Foreshore Authority.

14 The fact that the zoning was effectively determined by the Leichhardt Council (being the local government body with planning authority for the land) did not, Walker Corporation contended, preclude that matter being taken into account as decreasing the value of the land in a way which should be disregarded pursuant to s 56(1)(a). Consistently with the approach adopted in this Court, the High Court held that it was the resuming authority which carried out the public purpose for which the land was acquired and which formulated the “proposal” to carry out that purpose. The intention, conduct or purposes of Leichhardt Council in respect of zoning, did not provide a basis for disregarding any decrease in the value of the land caused by the zoning.

15 It is not in dispute that the land at all material times until resumption, had an industrial zoning. The appellant now recognises, it would appear, that if it is to rely upon decisions made in either 1992 or 2000 with respect to the zoning of the site, it will be necessary to demonstrate that such decisions were part of the carrying out of or the proposal to carry out the public purpose for which the land was acquired, being a proposal embraced at that time, by the State Government. What led the Foreshore Authority to object to the two paragraphs now in issue was a twofold concern: first, that the appellant not be permitted to run a case for a third time on a basis which in substance (if not in form) adopted the legally erroneous approach of LEC 1 and LEC 2. Secondly, it was concerned that the appellant not be allowed to recast its factual allegations so as to render irrelevant the legal analysis which had resulted in the remitter for further hearing in the L&E Court.

16 In part independently of the application to replead, Walker Corporation also claimed a right to call further evidence. It relied on two matters referred to by the High Court in the final paragraphs of its reasons, which read as follows:

“[55] Two further points should be noted. The Foreshore Authority correctly accepted that the market value disregard for which par (a) provides is predicated upon the application of Spencer's Case by the opening words of s 56(1). Matters of debate or doubt as to the outcome of controversy respecting use of particular land might affect the perception of the willing but not anxious market participants well before there is ‘the proposal’ which is the means selected by the resuming authority to end the controversy. How that proposition would apply to the facts and valuation process in the present case is beyond the scope of these appeals.
[56] The second point concerns the time-scale of ‘the proposal’ of the resuming authority in this case. In its second set of reasons the Court of Appeal expressed some doubt as to the findings of the primary judge. It said that before the announcement of 19 February 2002, the Planning Minister had had ‘a certain preference, but declined to take a decision which might commit the State Government to significant expenditure’. The primary judge had seemed to recognise that it was not until shortly before February 2002 that the State Government itself had adopted the proposal to carry out the public purpose. In its written submissions, Walker sought to place the date of the proposal by the State at some significantly earlier time.
[57] Resolution of any controversy of this nature must be for the further proceedings in the Land and Environment Court on the remitter ordered by the Court of Appeal on 21 December 2006.”

17 A number of submissions were made in respect of these paragraphs. The Foreshore Authority did not accept that these paragraphs should be read as inconsistent with, or qualifying, the judgment and orders in CA 2. Secondly, it argued that whether or not they qualified the reasons, they did not vary the orders: that was the inevitable consequence of the fact that the only order made by the High Court was that the appeal should be dismissed with costs: at [58].

18 The appellant contended that it had an express mandate from the High Court to raise for determination in the L&E Court issues with respect to the date of the proposal and in particular the contention that it predated either the original zoning of the land as industrial or the continuation of that zoning by the promulgation of LEP 2000. Accordingly, to the extent that the orders made by Biscoe J were intended to foreclose that opportunity, Walker Corporation contended they revealed legal error.

19 The issues on this appeal should properly be identified in terms of the scope of an appeal available in this Court. That requires reference to s 57 of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”), which provided at the relevant time:

“ 57 Class 1, 2 and 3 proceedings—appeals
(1) A party to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law.
(2) On the hearing of an appeal under subsection (1), the Supreme Court shall:
(a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or
(b) make such other order in relation to the appeal as seems fit.”

20 As has been explained in a number of recent decisions, jurisdiction of the kind presently in question falls into one of three categories, namely an appeal where:

(a) identification of a question of law is a precondition to engaging the Court’s jurisdiction, but is not a limitation on that jurisdiction, once engaged;
(b) the question of law is not a mere precondition to ground an appeal but is the sole subject matter of the appeal, and
(c) it is the decision of the Tribunal on a question of law which is the subject matter of the appeal.

21 In common with many such provisions in this State, the present case falls into the last category: see Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; and, in relation to s 57(1) in particular, Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673 at [55], departed from in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 at [88] ff, but only in respect of the exercise of a discretion with respect to costs.

22 As a result, it was necessary for the appellant to identify a decision on a question of law said to have been erroneously determined by the L&E Court. The grounds relied upon were in substance as follows:

(1) his Honour decided that part of the proposed new pleading was inconsistent with this Court’s earlier determinations, as upheld in the High Court, when the issues sought to be raised were expressly contemplated by the High Court in its judgment;

(2) his Honour erred in deciding that the appellant required leave to adduce further evidence, in relation to matters on which there were no findings of fact made by the L&E Court at the earlier hearings;

(3) on the assumption that the question of further evidence lay within the discretion of the trial judge, his Honour erred in refusing to grant leave to the appellant to adduce evidence from three further experts.

23 A resolution of the issues raised by (1) requires reference to the jurisdiction of this Court exercised in the earlier appeals, the order of the Court in CA 2, the order of the High Court and the remarks of the High Court in making that order. It also requires an understanding of the scope and powers of the L&E Court on remittal. Issues (2) and (3) will also depend upon an understanding of the powers of the Court on remittal; that topic is therefore addressed next.

24 To the extent that the decisions of the trial judge in the present case involve the exercise of a discretionary power, it will be necessary for the appellant to establish, not merely that this Court would have exercised the power otherwise, but that his Honour erred in law in exercising it by refusing to grant leave. That test is not less demanding and may in certain respects be more demanding than the test identified in House v The King [1936] HCA 40; 55 CLR 499 at 505. To the extent that the appellant alleged erroneous fact-finding by the trial judge or sought a different evaluation of relevant factors which were undoubtedly considered by his Honour, such matters are insufficient to permit interference. Available contentions are addressed below, separately in relation to the amendment of the pleadings and the calling of further evidence.

25 In the course of its written submissions, the appellant sought to identify a number of factual findings which, it asserted, had not been affected by the appeals to this Court and the High Court. Its proposed amendments were said to be based upon those findings. The failure to deal seriatim with the findings supposedly unaffected is not to be taken as implicit support for the contentions raised by the appellant. Indeed, some of the findings relied upon are not, on their face, available to be relied upon.

Nature of hearing on remittal

26 The starting point in considering the nature of an order of remittal from this Court is the statutory conferral of power. That arises primarily from s 57(2) of the LEC Act, set out at [19] above.

27 It is not necessary for present purposes to consider whether the powers of this Court on such an appeal are augmented by s 75A(10) of the Supreme Court Act 1970 (NSW), as to which see Thaina Town and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 208.

28 In its terms, the drafting of s 57(2) is by no means pellucid. Except in the case of interlocutory orders, there would be no purpose in remitting a matter to the L&E Court for determination if the appeal were dismissed. Where the appeal is allowed, it would be necessary to set aside the order of the L&E Court in order to provide a basis for further consideration. Such a power must be implicit in s 57(2)(a). Further, paragraphs (a) and (b) may not necessarily be alternatives, although joined by the disjunctive “or”: Thaina Town at [92] (Spigelman CJ). Other orders may well include orders as to costs, although that power may be sourced to s 98 of the Civil Procedure Act 2005 (NSW). (The sparse nature of s 57 may be compared with a provision such as s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which spells out in some detail the powers of the Federal Court in exercising jurisdiction with respect to “appeals” from the Administrative Appeals Tribunal (“the AAT”).)

29 The next question arising from the terms of s 57(2) is the identity of the “matter” which is the subject of the remitter.

30 The subject matter of the appeal under s 57(1) may be identified as the order or decision of the L&E Court on a question of law, or the grounds upon which it is said to be erroneous. Where an appeal against a decision on a question of law is upheld, the consequences for the further determination of the matter in the L&E Court will depend upon the precise nature of the decision and the nature of the error. The only step taken in CA 2, beyond ordering remittal of the matter for determination by the L&E Court according to law, was the identification of the issue for determination as the “assessment of the market value of the land”. The only effect of that limitation (which was not controversial) was to exclude from reconsideration the amount allowed in the earlier proceedings for loss attributable to disturbance under s 55(d) of the Land Acquisition Act.

31 The scope of the power of this Court to make such order (other than remittal) “as seems fit” is constrained by the context in which it is conferred; the proper exercise of the power is constrained by the circumstances in which it is engaged: see, with respect to the power of review conferred by s 481 of the Migration Act 1958 (Cth), Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [16] (Gleeson CJ); [39]-[41] (McHugh J) and [60]-[62] (Gummow and Hayne JJ). A relevant aspect of the statutory context in the present case is that the appeal is from a superior court and not from an administrative tribunal: see Wang at [17] (Gleeson CJ) and [71] (Gummow and Hayne JJ); see also MZXOT v Minister for Immigration and Citizenship (The Remitter Case) [2008] HCA 28; 233 CLR 601 at [45] (Gleeson CJ, Gummow and Hayne JJ).

32 On occasion the Court will give directions as to how the matter is to be dealt with on remitter, although that may give rise to its own difficulties. In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207, a case involving a complaint of religious vilification, the Victorian Court of Appeal remitted the matter to the Victorian Civil and Administrative Tribunal. The Court directed that the Tribunal be differently constituted and that the matter be heard and decided again without the hearing of further evidence: at [114] (Nettle JA); [119] (Ashley JA) and [134] (Neave JA). That order was made in circumstances where a good faith defence was open to the defendant but the first Tribunal had found that the principal defence witness was “not a credible witness” at [85].

33 It is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than “according to law”, a phrase which undoubtedly includes the conclusions of the appellate court as to the applicable law. On occasion, the appellate court has ordered a “rehearing”, a term of some imprecision. An example of the difficulties which can arise from use of that term is to be seen in Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200, which also involved a remittal of valuation proceedings to the L&E Court. On remittal, the trial judge, Stein J, was faced with two contradictory propositions, one that the applicant was entitled to tender such admissible evidence as he thought fit, the other that no further evidence was admissible. Gleeson CJ (with whom Clarke JA agreed) noted that it would not be usual for this Court to allow leave to appeal with respect to the admissibility of a particular piece of evidence in respect of a part-heard matter: p 2 (40). However, his Honour thought it appropriate to deal with the question whether a party had a right to call evidence at all on a further hearing. His Honour was of the view that such a right did exist and that the trial judge had been wrong to deny it. His Honour noted that no reliance had been placed on s 38 of the LEC Act: p 3 (10). Rather he was concerned that use of the term “rehearing” had caused the primary judge to treat the matter as would this Court on an appeal by way of rehearing.

34 Priestley JA gave additional reasons, to similar effect. However, he noted that it was open to the trial court to have in mind “the various aids to avoidance of unnecessary repetition of what had happened at the first trial”: p 3 (30)-(35). It appears that his Honour thought that such directions could be given under s 38 of the LEC Act, a proposition which must now be strengthened by the fact that ss 56 and 57 of the Civil Procedure Act apply in the L&E Court. (These provisions were expressly relied on by the trial judge in the present matter.)

35 By way of contrast, the Full Court of the Federal Court has considered the validity of a hearing on remittal where the primary judge (sitting in the AAT) considered himself bound to rehear the whole case afresh: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; 82 FCR 374 (Black CJ, Burchett and Tamberlin JJ).

concerned an application for an entry visa which had been refused by the Minister on the ground that the applicant would incite discord in a segment of the Australian community, being a ground of refusal under s 501(1) of the Migration Act. A member of the AAT affirmed the decision on that basis, but found that there was insufficient evidence to satisfy an alternative basis of refusal under s 501(2). Before a single judge, Sackville J, the Minister conceded that the AAT had erred in law. The only question was the form of the order to be made, namely a remitter for the matter to be determined in accordance with law or a remitter with a direction that s 501 did not apply. Sackville J made the more limited order (without a direction). When the matter was reheard by Purvis J in the AAT, his Honour felt compelled to permit the Minister to call further evidence in relation to the alternative ground. The refusal of the visa was upheld by the AAT on that ground. The Full Court held (at 389-390):

“The order of Sackville J left to the discretion of the AAT the question whether it should allow a ‘rehearing’, and to what extent. It did not compel a rehearing.
…
In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of [the AAT] as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour’s reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law.”

37 Nor are such questions limited to remittal in circumstances where the remitting court is engaged in judicial review or an appeal limited in some way to errors of law. On an appeal by way of rehearing, which may include review of factual findings, the appellate court may have power to remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the court thinks fit: see, eg, Federal Court of Australia Act 1976 (Cth), s 28(1)(c). Alternatively, there may be a power to order a new trial or a retrial, though little seems to turn on the precise language used in respect of the scope of the power. Directions limiting the scope of a remitter may themselves cause difficulties: see, eg, Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [17]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ agreeing); State of New South Wales v Burton (No 2) [2008] NSWCA 319. Nor is it in doubt that where the terms of the order are unclear, it is appropriate to have regard to the judgment constituting the reasons for the order: see, Repatriation Commission v Nation (1995) 57 FCR 25; Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256 at [19] (Downes, Lander and Buchanan JJ).

38 Furthermore, in considering both the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute. Thus, a different approach may be taken in respect of a claim which is to be determined in accordance with the facts as they exist at the time of the remitted decision, as compared with a claim which involved the assessment of facts at a fixed time in the past. The present case falls into the latter category.

39 In many cases, there will be merit in leaving to the discretion of the trial court decisions as to the scope of any rehearing. As explained by Gummow and Hayne JJ in Wang:

“[73] … [T]he findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented.”
[74] It follows, therefore, that to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present. If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles may, indeed often would, skew the second factual inquiry by the Tribunal.”

40 While their Honours were at pains to distinguish the repeat of an administrative decision-making process from a further judicial hearing in adversarial litigation, there is nevertheless force in the statement of principles, as applied to adversarial litigation. An important point of distinction between the two kinds of proceedings is that in adversarial litigation the parties will define the issues, whereas before an administrative tribunal it is the tribunal which is to a greater extent responsible for identifying issues: Wang at [71].

41 In its original pleading, the appellant had alleged that:

“11. The zoning of the resumed land as Industrial was a step in the resumption process being for the purpose of discouraging development pending acquisition for open space.”

42 That approach was inconsistent with the construction of s 56(1)(a) upheld in CA 1. Nevertheless, there appears to have been no attempt to amend the pleadings prior to LEC 2. Whether that caused difficulty in LEC 2 is not clear, but the approach to the valuation exercise adopted in LEC 2 was also rejected by this Court and by the High Court: see [2008] HCA 5, at [53](iii). When the matter came to be repleaded, the following appeared as a proposed new paragraph 14:

“14. The imposition or retention of the zoning of the Resumed Land as Industrial by the making of LEP 2000 was a manifestation of the respondent’s proposal to carry out the public purpose of a harbourside public park on the Resumed Land (‘ the Proposal ’).”

43 Each of paragraphs 15, 16, 17, 19 and 20 identified “the Proposal” as defined in par 14, as the source of the change in value to be disregarded. However, the definition of “the Proposal” is imprecise. If the zoning carried out by the making of LEP 2000 was a “manifestation” of the proposal, the proposal was, it should be inferred, in existence at the time. However, the proposal itself, as opposed to the manifestation, is not clearly defined. If the Court were not satisfied that there was such a proposal, at or before the time of the making of the LEP 2000, the consequential pleadings would be rendered inapplicable. If there were a relevant proposal of the State Government in effect at that time, a further factual issue would arise as to the connection between it and the industrial zoning contained in the LEP 2000.

44 The two pleadings which were rejected were as follows:

“19. Absent the Proposal, in the alternative to paragraph 16 above, as at the Date of Resumption, the Resumed Land would have been zoned in the manner permitting the uses identified in the draft Framework Plan prepared for the Resumed Land by the Department of Planning in September 2000 (Exhibit H, Tab 66).
…
27A. As a consequence of the matters pleaded in paragraphs 9 to 20 above, when determining the ‘ market value ’ of the Resumed Land for the purposes of s.56(1) of the Just Terms Act , the Court will disregard the decrease in value caused by the ‘ industrial ’ zoning of the Resumed Land in LEP 2000 as compared to:
(a) the value of the Resumed Land based on a zoning permitting residential development; or, alternatively,
(b) the value of the Resumed Land based on a zoning permitting residential development with open space and maritime facilities.”

45 The key findings were identified in CA 2 at [20] in the following terms:

“One is the factual finding … that at neither of the two key points in time (February 1992 and December 2000, when the Council addressed the zoning of the land), did the State Government propose to purchase or compulsorily acquire the land for the public purpose for which it was acquired in September 2002. The second element is that at no stage after the State Government formulated a proposal to acquire the land did any change in the zoning occur.”

46 These were not facts found by this Court, which had no power to find facts. Rather they were identified as underpinning the false legal premise on which the case had been decided in the L&E Court. To similar effect, in LEC 2, having held that the Council adopted a proposal to acquire the land on 6 February 1992 (at [17]) Talbot J stated at [18]:

“Between 1992 and 2000 the council and the State Government were at odds in respect of potential residential development of the land. Accordingly, during that period, the actions of the council are the only matters to be disregarded for the purposes of s 56(1)(a) … as having the effect of decreasing the value of the land.”

47 His Honour continued at [32]:

“Ultimately the common purpose of the local government and state bodies converged when the respondent acted to bring the land into public ownership.”

48 The Foreshore Authority submitted that it was fundamental that a party on the further hearing of a remitted matter should not be permitted to reagitate findings which had been the basis of the earlier appeal. Some support for that principle may be obtained by analogy from circumstances where a party has both lodged an “all grounds” appeal against the decision of a lower court and has proceeded by way of judicial review. Because success on the appeal would remove the basis of the judicial review proceeding, the moving party will be required to elect as to which course it wishes to pursue. The present case is analogous because the appeal from the L&E Court in its class 3 jurisdiction is limited to an appeal from a decision on a question of law: s 57(1). Although not limited to jurisdictional error or error of law on the face of the record, in practice there is a close analogy between such appeals and judicial review.

49 It appeared in the course of argument in the present appeal that Walker Corporation sought a new factual finding to the effect that the State Government had adopted a proposal to acquire the land for public open space in 1992 or, in the alternative, in December 2000 and, because the Minister was responsible for making the LEP 2000, adopted the course of zoning the land industrial to maintain its availability for that purpose. Indeed, until the course of oral argument, the contention had itself been unclear.

50 The critical paragraph in the redrafted points of claim was paragraph 14, set out at [42] above. This paragraph did not plead the proposal with any particularity. A finding that the Foreshore Authority itself had adopted any such proposal at that time would appear to be inconsistent with the findings made and relied upon in LEC 1 and LEC 2.

51 In CA 2, it was held that the findings made by the primary judge “do not demonstrate that the inaction of the Council in failing to rezone the land for residential purposes [was] part of the carrying out of the proposal to acquire the land for the purpose of public open space, nor did the decision of the Council on 6 February 1992, or any decision thereafter, constitute ‘the proposal’ to carry out the public purpose”: 68 NSWLR 487 at [63]. In concluding otherwise, the primary judge was held to have erred. The Court continued at [64]:

“Upon the findings made by the primary judge, the precondition for notionally setting aside the industrial zoning in place at the date of acquisition has not been established. The Court below erred in law in proceeding on the basis that it could notionally set aside that zoning.”

52 On the further appeal, the High Court noted a number of submissions of the Foreshore Authority which it accepted, at [54]. The submissions were in the following terms at [53]:

“The Foreshore Authority submitted that (i) the statutory definition required what might be called a Spencer's Case valuation in the sense explained above; but (ii) this was to be followed by any disregard which para (a) required; and (iii) the reference in para (a) of the objects set out in s 3(1) to eventual acquisition indicated that the proposal might predate by a significant period the acquisition of the land in question; (iv) but (iii) did not render applicable to s 56(1) the proposition drawn from San Sebastian as to the sufficiency of an ‘indirect relationship’ where the maintenance of the planning restriction by the Council is seen as ‘a step in the process of resumption’; (v) this is because the market value disregard in para (a) looks to the public purpose for which the land might by law be acquired by the Foreshore Authority by compulsory process under the Compensation Act and to ‘ the proposal’ to carry it out; (vi) ‘ the proposal’ here was not that of the Council as the proposed resuming authority, or some aggregation over time of the policies of the Council and later of the Carr Government; (vii) to give the statutory expression that operation, as had the primary judge in fixing upon ‘unity of purpose displayed by the two arms of government’, was an error of law.”

53 The joint judgment continued:

“The construction of the market value disregard in para (a) for which the Foreshore Authority correctly contends, links ‘the proposal’ to that of the resuming authority. It puts aside anterior discussions or agitations by the council and others in favour of classifying the Land as public space. In this way there is reflected in the terms of para (a) of s 56(1) a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority is responsible.”

54 Their Honours then noted the two further points set out at [16] above.

55 The appellant sought to identify some degree of inconsistency between the approach adopted in the comment of the High Court at [57] and the approach adopted in this Court. If that were correct, it must also involve inconsistency with the submissions of the Foreshore Authority expressly accepted by the High Court only three paragraphs earlier. In fact, there is no inconsistency. The change in value to be disregarded is any change “caused by” (relevantly) “the proposal to carry out the public purpose for which the land was acquired”. The proposal must be that of the Foreshore Authority as an emanation of the State. The date on which the proposal came into existence might not necessarily be the date on which the Foreshore Authority adopted it, if it had earlier been adopted by the State Government. What is not in doubt is that the proposal is that of the Foreshore Authority or another arm of the State Government.

56 Where the trial Court has adopted a legally incorrect approach to the question to be resolved, it may have made factual findings which are no longer relevant. It may also have made factual findings which are now seen to be relevant, but which may have been made in passing and not given full consideration, because they were not central to the issue as identified by the Court. Alternatively, the relevant facts may simply not have been found.

Redefining basis of valuation: par 27A(a)

57 Because the original points of claim did not properly identify the question in terms of the statutory provision (s 56(1)(a)) it is unsurprising that an amendment is required to raise the correct question. What is surprising is that it was not sought before LEC 2. (That is not to say that leave would necessarily have been granted to replead the case after a full hearing on the evidence.) So far as proposed paragraph 19 is concerned, its legitimacy will turn upon the operation of paragraph 14. The same may be said of new paragraph 27A: see [44] above. In each case, the factual issue which the appellant must establish is the causal relationship between the proposal and the zoning in the LEP 2000.

58 The appellant suggested that paragraph 27A is “no more than the logical conclusive pleading … to paragraphs 11-16”. That may be so, but the utility of the paragraph is then dependent upon the utility of the earlier paragraphs referred above. In any event the bringing of the appeal indicates that Walker Corporation sees a need to rely on par 27A specifically.

59 Before the primary judge, the Foreshore Authority objected only to new paragraphs 19 and 27A and not to other amendments proposed by Walker Corporation. The objection appears to have had two limbs. The first was that the amendments sought to value the land as if it had in fact been zoned residential, an approach which was treated as erroneous in this Court: see primary judge at [16]. Secondly, a new alternative basis of valuation was sought to be relied upon, namely that of “residential with open space and maritime facilities”, an approach which had not been relied upon previously. (Further valuation evidence was tendered in support of this new valuation approach.)

60 Before this Court, the Foreshore Authority acknowledged that there was inconsistency in objecting to paragraphs 19 and 27A, but not paragraph 14, which provided a new definition of “the proposal” and paragraphs 15-17 and 20 which were consequential upon paragraph 14. In recognising the apparent inconsistency in approach, the Foreshore Authority foreshadowed a possible motion before his Honour to disallow those paragraphs, in addition to those which had been disallowed.

61 Walker Corporation did not seek in the L&E Court to adduce any further evidence in relation to the existence or timing of the proposal. Indeed, it was part of its submission in favour of allowing the amendments that it sought to uphold and rely upon a number of findings in fact made by the trial judge in LEC 1 and LEC 2. Those findings, of course, stand, but some at least have been rendered immaterial by the construction of s 56 relied upon by the trial judge but held to be erroneous. To the extent that his Honour considered that the new pleading was intended to rely upon a case not legally available to the appellant, he was entitled to reject it. His Honour accepted a submission by the Foreshore Authority that par 27A “pleads, as an assumed basis for valuation, a residential ‘zoning’, a matter specifically rejected by the Court of Appeal”: at [17]. The appellant submitted that the pleading “does no such thing”. It continued:

“Rather, it contemplates the ‘industrial’ zoning under LEP 2000, and introduces a ‘residential’ zoning potential (and value) only in relation to the ‘disregard’ that s 56(1)(a) specifies.”

62 This response has an air of semantic legerdemain and is tendentious. It fails to come to terms with the view of the trial judge that the pleading seeks to reagitate a claim made and rejected by this Court. Underlying the reasoning in LEC 1 was the proposition that the “public authority primarily responsible for zoning of the land” was Leichhardt Council: LEC 1 at [112](c). Inconsistently with that approach, Walker Corporation now seeks to rely upon the proposition that it was the State Government, through its responsible Minister, which was responsible for the zoning, because it made LEP 2000: Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”), s 70(1). Putting to one side the consideration that that proposition does not reflect the whole of the scheme of the EP&A Act for the making of an LEP, the amended pleading, including the paragraphs in dispute, fails to allege any purpose on the part of the Minister, linked to an extant proposal of the State Government for use of the land as public open space. Whether such a change in direction, which should have occurred after LEC 1, should now be permitted would be a matter for the trial judge. However absent such additional pleadings, the trial judge was entitled to conclude that the amendments sought to be relied upon were, in substance, an attempt to reagitate in different form an approach to valuation which had been held to be unavailable.

63 The factual material sought to be relied upon was not considered in the course of the present proceeding; although it was not expressly stated, some of the submissions suggested that the Minister was to be treated as constructively holding the same opinions as those of the Leichhardt Council. However, that was not pleaded either, and no more need be said about it at this stage.

64 The appellant has treated his Honour’s ruling against the amendment proposed in paragraph 27A(a) as precluding it from relying upon a valuation based on a residential zoning of the land, regardless of the intended scope and effect of paragraph 14. Because it has failed to identify an erroneous decision made by the trial judge on a question of law, the appeal should be dismissed in that respect.

The proposed amendments: a new basis of valuation

65 The second limb of paragraph 27A sought to rely upon “a zoning permitting residential development with open space and maritime facilities”.

66 According to proposed paragraph 19, the new valuation basis is derived from a plan prepared by the Department of Planning in September 2000. (The plan was not before this Court, nor was there any explanation as to how it related to the proposition that the State Government was, at about the same time, proposing to acquire the land for public open space.) After setting out the proposed amendments, the trial judge said of the ones presently under consideration:

“[15] Paragraphs 19 and 27A(b) introduce a new valuation basis which has not previously been pleaded or addressed in evidence or otherwise in the proceedings. Walker proposes to tender the new valuation reports of Mr Wotton and Mr Dempsey to support it.
…
[19] As the new valuation basis proposed by paragraphs 19 and 27A(b) depends for its proof on the new valuation reports of Mr Wotton and Mr Dempsey, it is convenient at this point to turn to Walker’s application for leave to rely on those reports.”

67 From [20]-[44], his Honour considered whether the further evidence should be admitted. That evidence addressed both the bases of valuation considered in LEC 1 and LEC 2, and the proposed new basis of valuation. For reasons to which it will be necessary to return, his Honour concluded at [44] that “the existing valuation issues can be appropriately decided on the basis of the extensive valuation evidence that was before Talbot J at the previous hearings, including the transcript of the cross-examination of the experts”.

68 Although his Honour dealt separately with the different aspects of the proposed fresh valuation evidence, a suggestion may be drawn from [19] that the question of admissibility should be considered globally. The logic underlying such an approach might be that if further evidence were to be allowed with respect to five bases of valuation, there would be little to be gained from denying the appellant an opportunity to raise a further basis of valuation, especially as the experts treated it as giving rise to no different result than one of the other valuation bases (although they differed as to which). Although this reasoning is not made explicit, if his Honour’s ruling with respect to further evidence were to be set aside, his ruling with respect to this particular amendment would also need to be reconsidered.

69 It was open to his Honour to conclude that this new alternative was simply a variation of the proposed reliance on residential zoning “potential” subject to qualifications with respect to open space and maritime facilities, which could have been rejected on the same basis as that noted above with respect to the first limb of s 27A. Indeed, his Honour accepted that view at [45]:

“Walker also seeks leave to raise one new valuation issue through an amendment to its pleading, in the proposed new paragraphs 19 and 27A(b), which it then proposes to value by tendering the new reports of Mr Wotton and Mr Dempsey. It is valuation basis 5, … described in their reports and in the annexure to this judgment as ‘ Residential with open space and maritime facilities ’. I decline to grant leave to amend to raise valuation basis 5. As SHFA submits, it is inconsistent with the decision of the Court of Appeal that it is erroneous to value the land as if it had in fact been zoned residential. This disposes of the application for leave to amend to introduce this new valuation basis and to call the new valuation evidence in support.”

70 Given the qualifications noted at [69] above, the rejection of the second proposed amendment, dealt with by his Honour at [45], was not shown to involve any erroneous decision on a question of law.

71 The further evidence sought to be called by Walker Corporation fell into three categories, namely:

(a) reports from two valuers assessing the value of the resumed land on five bases which had been the subject of reports filed to LEC 1;

(b) evidence of valuers with respect to the new basis of valuation raised by the proposed amendment to the points of claim, and

(c) a report from an expert on “access”, which was relevant to one basis of valuation (raised in the evidence prior to LEC 1), namely use of the land for housing for aged and disabled persons (the SEPP 5 proposal).

(a) Further valuation evidence

72 Walker Corporation challenged both bases on which his Honour had refused to admit evidence in category (a), namely by denying the appellant the right to call such evidence and, in the alternative, by refusing leave to call such evidence, on the assumption that leave was required. The latter ground assumes the existence of a discretionary power and challenges the exercise of the discretion. It is appropriate to consider first whether the appellant had a right to call such evidence.

73 The argument in favour of such a right depended upon the cumulative effect of the following considerations:

(a) the upholding of the appeal required an assessment of the value of the land on a basis other than that which had been undertaken in the earlier proceedings;

(b) the further hearing was to be undertaken by a judge other than the trial judge at the earlier proceedings;

(c) the valuers upon whom Walker Corporation had relied at the first hearing were no longer available, and

(d) a further assessment of the value of the land required the resolution of conflicting evidence given by the valuers called in the first hearing.

74 The proposition that a trial judge has no power to refuse to hear evidence proffered by a party should be treated with some caution. It is not difficult to envisage circumstances in which such an absolute proposition could not be accepted. In any event, the limitations which must be applied to such a proposition require its rejection in that form. Three such limitations should be noted.

75 The first limitation arises from the specific statutory powers applicable in proceedings being conducted in class 3 of the L&E Court’s jurisdiction: see LEC Act, s 19(e) and s 24. Section 38 of the LEC Act provides:

“ 38 Procedure
(1) Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.
(2) In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.
(4) In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.”

76 The second limitation arises from the provisions with respect to expert witnesses provided by the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), which apply in the L&E Court by virtue of Sch 1 to the UCPR. Part 31, Div 2 identifies a procedure to be followed by any party seeking to call expert witnesses. Rule 31.19 contains the following provision:

“(3) Unless the court otherwise orders, expert evidence may not be adduced at trial:
(a) unless directions have been sought in accordance with this rule, and
(b) if any such directions have been given by the court, otherwise than in accordance with those directions.”

77 Thirdly, as his Honour noted, the L&E Court is required, in accordance with Sch 1 to the Civil Procedure Act, to give effect to the overriding purpose of the Act and the rules, namely “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: s 56. The obligation of the Court is to manage proceedings so as to give effect to the objects identified: ss 57 and 58.

78 In a particular case, an issue may arise as to the interaction of the obligations imposed by the Civil Procedure Act and the powers conferred under the LEC Act; no such issue arises for present purposes. What is apparent from the statement of the legislative provisions set out above is that no party has an unqualified right to conduct civil proceedings, including the calling of witnesses, as that party wishes. To say that the powers of the Court to control its process are qualified is not to identify limits beyond which the parties have unqualified rights. The proposed corollary would have the effect of conferring on this Court the power to override any judgment of the trial judge where some hypothetical qualification on power was established as a fact. That would be an incorrect approach.

79 The listing of factors which are said to give rise to the unqualified right in the present case illustrates the error in asserting such a right. Each of those factors is clearly a matter to which the trial judge should properly give consideration but none, nor any combination, allows for only one answer. Accordingly, it is necessary to consider whether his Honour erred in the approach he took to the evaluation of these factors or, if such be the case, his failure to evaluate those factors.

80 To this end, the appellant relies upon two principal errors. First, it was contended that his Honour fell into error in treating the application to call further evidence as analogous to an application by the appellant to “reopen” its case after judgment. Secondly, his Honour, as the new trial judge, had not had the benefit of hearing the oral evidence from the various experts and, further, one of Walker Corporation’s experts had since died and the other was unavailable.

(b) The “reopening analogy”

81 In respect of the first contention, it will be necessary to consider shortly the manner in which his Honour did adopt such an analogy, but it is helpful to consider why the analogy is said to be wrong, as a matter of principle. Once the judgment of the trial court has been set aside there are extant proceedings which have yet to be finally determined. Superficially, they are proceedings in which both parties have closed their cases, but further steps may be required before the case is reserved for judgment. In such a case, the moving party may have presented evidence on three different bases, but succeeded on one which is later found not to have been open, as a matter of law. What should happen next may depend upon whether the matter can be remitted to the judge who first considered it.

82 In other circumstances, the moving party may have succeeded on the sole basis upon which he or she presented a claim and may now wish to proceed on another basis. Whether that should be permitted will probably not depend to any great extent on whether the matter goes back to the earlier trial judge, or to a new judge.

83 It is readily apparent that a range of different issues are raised by these hypothetical cases: the range of issues could readily be multiplied by more specific examples. In each case, the term “reopening” may be apt to identify the kind of application in question, but the outcome must depend upon the nature and circumstances of the particular application. That being said, the language of “reopening” is widely used. Thus, in Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 at 416, the High Court made the following comments in respect of proceedings under the Trade Practices Act 1974 (Cth):

“[75] The order for remitter is not an order for retrial. Nothing we have said, however, should be understood as indicating any view about whether, on remitter, an application by either side for leave to reopen its case to lead further evidence should be granted. That question has not yet arisen. We do not have the full record of the evidence led at trial that may bear upon the assessment which must now occur. We do not know whether, or to what extent, either side may contend that the evidence already led is deficient. We do not know how, or why, any deficiency of proof or answer at trial may have come about.

[76] While the length, the complexity and, in some of its branches, the futility of this litigious saga is to be deprecated, it will be for the trial judge to deal with any question of reopening that is raised. If that is the footing on which the litigation leaves this Court, the Federal Court will be better equipped to discharge its obligation to ensure that ‘as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided’.”

84 The words quoted at the end of [76] referred to the Federal Court Act, s 22 and thus emphasised the power of the trial court to resolve such questions in accordance with its statutory remit.

85 Having held that he had a discretion to allow further evidence, Biscoe J concluded that, in principle, that discretion should be seen as confined by three factors.

86 First, he noted that an appeal which had succeeded on a question of law should be treated as identifying the limits of the defects in the earlier judgments. He continued at [24]:

“On the pending remitter, the undisturbed findings stand and all that seems to be called for is a determination of the outstanding issues on the existing evidence in accordance with law – subject to the admission of any further evidence and any leave to amend, which lie in my discretion ….”

That statement reveals no error.

87 Secondly, his Honour identified as a constraint the public interest in the finality of litigation: at [25]. He continued:

“There is a book containing the undisturbed findings of the primary judge and the evidence at the earlier hearings. There is no reason why the book should be rewritten or supplemented by additional evidence unless the errors of law found on appeal require it or other circumstances make it appropriate to do so.”

88 So far as it goes, that statement is also unexceptionable: the real question was whether there were circumstances which made it appropriate to rehear evidence or to allow further evidence to be called.

89 Thirdly, his Honour saw merit in approaching the circumstances of the remitter on a principled basis. In that context, he referred to the principles discussed in his own earlier decision in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [11]-[17]. He was later to say that even if the Mosca general guidelines are put to one side, he would decline to permit reliance on additional evidence: at [28]. That approach recognised in Mosca a further confinement of the correct approach, but one which was not applied in the circumstances of the case. Accordingly, no detailed consideration of the principles identified in Mosca is required.

90 Nevertheless, because they were the subject of criticism on the part of Walker Corporation, it is appropriate that those criticisms should be acknowledged. In Mosca at [12], his Honour made the following statement, apparently in respect of a remittal where no “rehearing” had been prescribed:

“The considerations relevant to the exercise of the discretion are, in my view, normally similar to those which are to be taken into account when a party applies to re-open a case and adduce further evidence after judgment has been delivered. Such leave to re-open should only be granted ‘in very limited circumstances’: … De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 ….”

91 His Honour gave some further content to such circumstances at [13]:

“In circumstances where leave is sought to re-open the proceedings following delivery of judgment, the appeal rules relating to fresh evidence, whilst not determinative, provide a ‘useful guide’ as to the manner in which the discretion should be exercised: Smith v NSW Bar Association (1992) 176 CLR 256 at 266-7 ….”

92 It is sufficient for present purposes to say that the aptness of the analogy is by no means self-evident, in two respects. First, once the initial judgment has been set aside as erroneous, the more obvious analogy is with reopening prior to delivery of judgment. Alternatively, that may be seen as the appropriate analogy in so far as the proposed further evidence relates to matters which have not been properly decided, as opposed to those findings which are apparently unaffected by the appellate reversal. Secondly, the circumstances of remittal may involve a degree of complexity not found in an application to reopen a trial. The danger of relying upon analogy is that it will distract attention from the specific circumstances of the particular case. Appropriate guidelines promote uniformity of approach and are desirable; guidelines adopted by analogy may be helpful in some situations, but not in others.

93 Nevertheless, the approach in Mosca has support in the Full Court of the Federal Court: McCarthy v McIntyre [2000] FCA 1250 (Whitlam, Emmett and Hely JJ) at [30]. This Court would not decline to follow that judgment unless convinced that it might be distinguished or was clearly wrong. As the trial judge decided the application before him on another basis, no reconsideration of McCarthy is warranted.

94 There is no reason to suppose that the trial judge did not in fact address the arguments before him, as he indicated he would, without reference to the Mosca guidelines. Thus, at [29]-[44] he identified the primary contentions of Walker Corporation and dealt with each in turn. He concluded that the mere existence of unresolved issues and the fact that their resolution required reference to expert opinion involving significantly different views were not of themselves sufficient to warrant the calling of further expert evidence: at [33]. That approach demonstrated no error on any question of law.

(c) Failure to allow oral evidence

95 The substance of the appellant’s second complaint was that, absent the further evidence, the trial judge would be required to decide the value of the land without oral testimony from expert valuers. His Honour was in error, it was contended, in dismissing this difficulty on the basis that there was nothing in the earlier judgments, or in the nature of the valuation issues “which would suggest that it is necessary or important that I hear and observe oral evidence from expert valuers or that I would derive any particular assistance from doing so”: at [44].

96 Walker Corporation contended that that reasoning demonstrated error because it is well-understood that the advantages of hearing oral evidence are not restricted to cases where decisions have to be based upon the credibility of witnesses, but extended to more subtle influences of demeanour. Further, one should not necessarily expect a trial judge to identify such factors in preferring the evidence of one expert to that of another; the absence of reference to such factors in LEC 1 was therefore immaterial.

97 This challenge falls down at a number of stages. First, once it is accepted that his Honour’s decision was an exercise of a discretionary procedural power, and that his Honour addressed the considerations raised by the appellant, it is difficult to perceive any decision on a question of law from which an appeal could be brought. It may be that, had his Honour dismissed the argument as entirely irrelevant, there was an implicit determination of a legal question about which the appellant could complain. His Honour did not do that.

98 Secondly, his Honour was entitled to take into account, as he expressly did, the nature of the evidence. The mere fact that it is expert evidence, rather than the evidence of eye-witnesses to events, may not be determinative, but it is a relevant factor. That proposition was not accepted by the appellant, which relied upon remarks of Lord Bridge of Harwich in Wilsher v Essex Area Health Authority [1988] 1 AC 1074 at 1091, as to the difficulty for an appellate court in determining a conflict of opinion between experts as to the cause of a medical condition. His Lordship stated:

“Where expert witnesses are radically at issue about complex technical questions within their own field and are examined and cross-examined at length about their conflicting theories, I believe that the trial judge’s advantage in seeing them and hearing them is scarcely less important than when he has to resolve some conflict of primary fact between lay witnesses in purely mundane matters. So here, in the absence of relevant findings of fact by the judge, there was really no alternative to a retrial.”

99 That statement, in the circumstances of Wilsher was entirely understandable; it does not, however, provide a rule of general application in every case, as opposed to a basic principle to be applied to particular circumstances. The present case did not involve “complex technical questions” of medical science. Principles of valuation of land do not arise in a field of scientific study far removed from the law: indeed, they are to a significant extent principles developed by the law. There is no doubt that their application involves evaluative judgment and that there is an important benefit in hearing from the witnesses, if they are to be cross-examined, but that is best seen as a factor to be weighed in the balance. It was.

100 The importance of oral presentation of some kinds of evidence should not be overstated. The proper resolution of conflicting testimony may better be achieved by a careful consideration of the written word than by reliance on the variable qualities of oral presentation. As this Court recently stated in Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [16], after identifying the advantages of a trial judge:

“In recent times the limitations of the use of the ‘ subtle influence of demeanour ’ in the assessment of witnesses giving oral testimony has been pointed out: see Fox v Percy at [28]-[31]; and CSR v Della Maddalena at [180]. The limitations include a degree of wariness about the risks of intuitive judgment which has led to a greater emphasis being placed on objective circumstances, such as consistency with contemporaneous records, by appellate courts.”

101 Thirdly, to evaluate the appellant’s argument, it is necessary to understand its practical application. In the present case, it was common ground that all of the evidence which had been given before the first trial judge would be before Biscoe J on the remitter hearing by way of reports and transcript. Two of the three experts called by Walker Corporation at the first hearing had since died. With respect to the remaining expert, his Honour was not persuaded that he was unavailable, if required; he nevertheless addressed the submissions on the basis that he was not available: at [37]. The fact that at least one and possibly both of the appellant’s valuation experts were unavailable was of limited significance where the Foreshore Authority did not seek to cross-examine them further. As their evidence would not in any event have been given orally in chief, any further oral evidence would only have been by way of cross-examination. As the trial judge noted, “[p]rima facie, it is in Walker Corporation’s interest that Mr Dundas [one of its experts] not be cross-examined further”: at [39]. His Honour also noted that if Walker Corporation wished to further cross-examine the valuer for the Foreshore Authority, it could seek leave to do so, but that that was a different matter: at [39].

102 Thus, it was only by calling further evidence, which would be the subject of cross-examination and challenge, that Walker Corporation could obtain a degree of oral testimony at the further hearing. That in turn would give rise to a further difficulty for the trial judge who would then need to resolve potential conflicts between witnesses he had heard and those he had not.

103 There were thus both matters of principle and practical matters to be assessed by the trial judge in considering the appellant’s application. This Court is normally reluctant to grant leave to appeal in respect of such decisions, absent some manifest breach of procedural fairness or where, for some other reason, a serious irregularity has been identified. A further constraint arises in the present case because of the limited nature of the appeal.

(d) Rejection of further evidence: conclusion

104 In summary, Walker Corporation identified two errors of law in refusing to allow further valuation evidence; one being the application of the “reopening” principles, by analogy; the other being the misunderstanding of the difficulties affecting the identification and reliance upon subtle effects of demeanour. While the first error may have had the potential to impose too high a burden on a party seeking to call further evidence, to the exclusion of proper consideration of the relevant circumstances, it is clear that it did not have that effect in the present case.

105 In respect of the second error, a consideration of his Honour’s reasons fails to demonstrate that he misconceived the question he was required to answer or the considerations he was required to take into account. No relevant error of law has been demonstrated in respect of the decision to refuse leave to call further valuation evidence on the grounds of valuation which had been addressed in the earlier hearings. Thus, Walker Corporation had to establish in effect, that no other decision was properly available in response to its application to call further evidence, than to grant it. There were entirely justifiable practical considerations in the circumstances of the case which warranted dismissal of the application. That challenge must fail.

(e) Valuation evidence: additional ground

106 As discussed above, the proposed new valuation reports included a further basis of valuation, being that contained in the second limb of the proposed amendments. In dismissing the challenge to his Honour’s refusal to allow the second limb of the amendments, it was noted that the structure of his Honour’s judgment suggested that he might have allowed the second amendment if he had been inclined to admit the further valuation evidence. As there was no error in his Honour’s refusal of the further valuation evidence in respect of the existing bases of valuation, there is no reason to reconsider the result of the appeal with respect to the disallowed amendment.

Expert evidence as to access to land

107 There was a third aspect of the additional evidence sought to be called by the appellant. One basis of valuation which had been considered in the earlier hearings was, as noted above, the possibility of consent to construct housing commonly known as a retirement village, under SEPP 5. The likelihood of consent with respect to such a development application depended at least in part upon access to relevant facilities and services at a distance of no more than 400 metres, or the availability of transport to such facilities and services, with the accessible transport being available. Walker Corporation sought to tender a report from a civil engineer with expertise in assessing “accessibility”. The fact that the site was more than 400 metres from relevant services and facilities was not in doubt. There may have been some benefit in expert evidence as to whether the nearest bus stop was accessible in the sense required by the State Environmental Planning Policy, but the proposed evidence concluded, against the interests of Walker Corporation, that it was not. The solution, was that the development could include the provision of a mini-bus service with a “dedicated bus driver”.

108 No issue arose on the present appeal as to whether or not that evidence involved expert or lay opinion. Indeed, counsel for the appellant sensibly eschewed any attempt to “overstate the value of expert evidence” and promised to “pass over that lightly”: CA Tcpt, p 14. It does not appear from the written submissions, the oral argument, or the notice of appeal that any different issue arose with respect to that evidence, as compared with the valuation evidence. The need for further evidence was said to arise from the fact that the planning expert relied upon in the earlier hearings had since died. Consistently with the appellant’s position, it maintained a right to rely upon this evidence without any requirement for leave and asserted precisely the same errors with respect to the exercise of any discretionary power as applied to the valuation evidence. Those arguments having failed, the appeal must be dismissed in so far as it relates to the additional planning evidence.

Conclusions

109 On the further consideration which has been given to this matter on the hearing of the appeal, there would be a strong case in favour of revoking the grant of leave to appeal. However, neither party sought that order. Accordingly, the appropriate orders are that the appeal be dismissed and that the appellant pay the respondent’s costs, including the costs of the application for leave to appeal and of the motion dealt with on the leave application.

110 The Court hearing the leave application ordered, on 22 October 2008, that certain orders made in the L&E Court on 25 June 2008 relating to the timetable for the further hearing of the matter should be stayed “until further order”. The relevant dates in the stayed orders are now long passed; further, dismissal of the appeal should terminate the stay. However, lest the stay be thought to preclude the fixing of further dates, it should be expressly lifted.

111 The orders of the Court should therefore be:

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent’s costs of the proceedings in this Court.

(3) Lift the stay on the further proceedings in the Land and Environment Court made by order 4 in this Court on 22 October 2008.

112 YOUNG JA: I agree with the reasons given by Basten JA and with his Honour’s proposed orders. However I wish to add some comments of my own on the matter of what may happen when this Court remits a matter to the Land and Environment Court under s 57(2) of the LEC Act.

113 First, in my view, in most situations, the “matter” that is remitted is the whole of the proceedings before the lower court. Obviously there are exceptions such as where the appeal arises from that court addressing separate questions.

114 Secondly, in the light of s 57(2)(b) the Court may, in lieu of remitting the matter, order a more limited remitter or a rehearing.

115 When an order under s 57(2)(a) is made to remit the matter to the Land and Environment Court, that Court then needs to reconsider the whole case aided by the decision of this Court on the points of law considered by this Court.

116 The Land and Environment Court may not merely say, “The Supreme Court have told me I’m wrong in finding for the defendant, so I find for the plaintiff” to paraphrase what a magistrate was found to have done, wrongly, in In re Grover (1886) 3 WN (NSW) 52.

117 In particular I endorse what Basten JA has said that the approach of the Land and Environment Court on remitter will be different depending on the circumstances of each case. That Court needs to consider how in the changed atmosphere it should proceed to reach a just result.

118 In my view, when so proceeding the Land and Environment Court does not proceed according to the strict guidelines dealing with reopening cases after judgment. It exercises a broad discretion as to how the matter is to be concluded in a fair and just way. Probably no better guidelines can be laid down than those uttered by Biscoe J in the present case at [24]:

“… the undisturbed findings stand and all that seems to be called for is a determination of the outstanding issues on the existing evidence in accordance with law – subject to the admission of any further evidence and any leave to amend, which lie in my discretion … .”

119 The Court certainly has power to remit a matter to a different judge. My researches have not discovered any overriding principle as to when it does so, but there are guidelines in the authorities. The key question is whether there will be a perception of a fair trial if the case is remitted to the judicial officer who previously heard it.

120 As Kirby J said in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at 556, a direction to remit to a fresh person:

“ … is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where the decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice).”

121 The guidelines include the following:

(1) Ordinarily, the Court of Appeal will not interfere with the assignment of the matter by the trial court: Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 576; (1993) 80 LGERA 323 at 336 per Kirby P; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at 87 per Basten JA.

(2) The power to direct a remittal to a fresh person is to be exercised sparingly: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at [12].

(3) [Note, however, the Full Federal Court in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 took the contrary view, see per Davies and Foster JJ at 42 and that view has prevailed in subsequent cases in the Federal Court; see eg Vaitiaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 615].

(4) It must always be borne in mind just what is the extent of the power of the appellate court to order remitter: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at 87 per Basten JA and see Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 494.

(5) It may well be a ground for remitting a matter to a differently constituted court or tribunal where there have already been strong findings about the credibility of a party; see eg Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269 per Brennan, Dawson, Toohey and Gaudron JJ.

(6) If there has been stringent criticism of the judge or tribunal member in the appeal court, the appearance of justice might recommend that the matter be remitted to a fresh mind: Brackenreg v Comcare Australia (1995) 56 FCR 335 at 352 per Sheppard J.

(7) If there is a reasonable likelihood that a judicial officer or tribunal member will be perceived to have pre-judged an issue to be remitted to him or her, the matter should be remitted to a fresh mind: Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 at 345 per Tobias JA with whom Handley and Ipp JJA agreed.

(8) If the appeal hearing throws up a reasonable suggestion of bias in the original decision maker, remittal to a different person will be ordered: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 per Tobias JA at 73.

(9) In Land and Environment Court matters the Court follows Baulkham Hills Shire Council v Basemount Pty Ltd. It might be noted that the Full Federal Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 at 204 and 213 seemed to consider that Basemount was merely a decision on particular facts and circumstances. This Court places greater significance on it.

122 However, in the light of the result of this appeal, no precise attention need be given to the application of these guidelines in the instant case.

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