Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority - [2008] NSWLEC 282

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282

PARTIES:
APPLICANT:
Walker Corporation Pty Ltd
RESPONDENT:
Sydney Harbour Foreshore Authority

FILE NUMBER(S): 30024 of 2003

CORAM: Biscoe J

KEY ISSUES:
Practice and Procedure :- whether leave to amend and leave to rely on additional evidence should be granted after remitter from Court of Appeal.
Evidence: - whether leave to rely on additional evidence should be granted after remitter from Court of Appeal.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 64
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 3, 56(1)(a)
Land and Environment Court Act 1979 (NSW), s 57(1)
State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability
Uniform Civil Procedure Rules 2005 (NSW), r 31.20(e)

CASES CITED: Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379
Commissioner of Succession Duties (South Australia) v Executor Trustee Agency Company of South Australia (1947) 74 CLR 358
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2004] NSWSC 1219
Latoudis v Casey (1990) 170 CLR 534
Leichhardt Council v Roads and Traffic Authority of New South Wales (No 2) [2008] NSWLEC 1
Lockyer v Macready (1965) 83 WN (Pt 2) (NSW) 147
Maurici v Chief Commissioner of State Revenue (No 8) (2007) 155 LGERA 115
Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200
Morales v Minister For Immigration and Multicultural Affairs (1998) 82 FCR 374
Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79
Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 664
Oshlack v Richmond River Council (1998) 193 CLR 72
State of NSW v Mulcahy [2006] NSWCA 303
State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146
Sydney Harbour Foreshore Authority v Walker Corporation Ltd (2005) 63 NSWLR 407
Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2] (2006) 68 NSWLR 487
Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) 134 LGERA 195
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2006] NSWLEC 138
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383

DATES OF HEARING: 29/09/08, 2/10/08

DATE OF JUDGMENT:
3 October 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr I. Jackman SC, Mr R. Beasley and Ms J. Taylor
SOLICITORS:
Minter Ellison
RESPONDENT:
Mr A. Galasso SC, Mr M. Gilbert and Mr E. Hyde
SOLICITORS:
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

3 October 2008

30024 of 2003

WALKER CORPORATION PTY LTD v SYDNEY HARBOUR FORESHORE AUTHORITY

JUDGMENT

1 HIS HONOUR: Following a second remitter by the Court of Appeal, the applicant now seeks leave to amend its Points of Claim and to rely on additional expert evidence, and the respondent seeks to strike out a part of the Points of Claim.

2 The proceedings concern an application by Walker Corporation Pty Ltd (Walker for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) for the market value of land at Ballast Point compulsorily acquired by the respondent, Sydney Harbour Foreshore Authority (SHFA), in September 2002. Commenced in 2003 and first heard in 2004, the proceedings have a long and substantial history:

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority

Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority

Sydney Harbour Foreshore Authority v Walker Corporation Ltd

CA 1

)

Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2]

CA 2

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority

3 Currently before the Court is the second remitter from the Court of Appeal. It is fixed for a third hearing in this Court commencing on 1 December 2008 before me. The parties do not seek to disturb matters determined by Talbot J in his two judgments which were not disturbed on appeal.

4 Before the Court at the moment are two notices of motion, both filed on 24 September 2008. One notice of motion is by Walker and seeks the following orders:

(a) leave to amend its Points of Claim in accordance with the Further Amended Points of Claim filed on 5 September 2008 (and annexed to its notice of motion);

(b) leave to rely upon the following expert reports at the hearing:

5 The other notice of motion is by SHFA and seeks an order that paragraph 27(a) of the existing Points of Claim be struck out.

Strike-out and amendments to Points of Claim

6 Generally, a party should be permitted to amend its points of claim to raise an arguable issue provided any prejudice to the other party can be compensated in costs.

7 There is High Court authority that only in extreme circumstances should case management principles shut a party out from litigating an issue which is fairly arguable: State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 154. However, that case was not decided on legislation such as now controls the power of amendment of documents in civil proceedings in NSW: Civil Procedure Act 2005 ss 64 and 56-59. The Court of Appeal has held that when regard is paid to those provisions, there are significant alterations in (a) the approach to amendments which the judgments in State of Queensland v J L Holdings treated as appropriate; and (b) the relative importance of the way in which an action is conducted at earlier stages on the one hand, and of a party’s wish to put forward a new matter as one of the real questions raised by or otherwise depending on the proceedings on the other: State of NSW v Mulcahy [2006] NSWCA 303 at [25] – [29].

8 Section 64(2) directs that, subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings. Section 58 – to which s 64(2) is subject – relevantly provides as follows:

58 Court to follow dictates of justice

(i) any order for the amendment of a document, and

9 It is noted that s 58(2)(a) mandates that the Court have regard to ss 56 and 57, which provide:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3).
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

57 Objects of case management

10 As regards s 56(1)(a), in the present case, for a variety of reasons, there has been no quick and cheap resolution of the issues. Walker’s position is that, in order for the proceedings to be justly disposed of, leave to amend should be granted.

11 The Court should consider the positions of both the party seeking to amend, and the consequences of the amendment on the opposing party: Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2004] NSWSC 1219 at [1]. Significant prejudice to an opposing party is likely to defeat a timely application to amend for proper purposes: State of Queensland v J L Holdings; Ingot Capital at [49] – [65]. “Prejudice” in this context is not concerned with the merits of the matters sought to be raised by the amendment. The prejudice may consist of prejudice in relation to wasted costs and time for which the other party cannot be compensated adequately if leave to amend is granted.

12 SHFA opposes leave being granted to Walker to amend its Points of Claim by the addition of new paragraphs 19, 20 and 27(c). SHFA neither consents to nor opposes the other proposed amendments: I propose to grant leave to amend in those other respects. The proposed paragraphs 19, 20 and 27(c) and the existing paragraph 27(a) (the subject of SHFA’s strike out motion) are 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).

20. In the alternative, absent the Proposal, as at the Date of Resumption an hypothetical purchaser as contemplated by s 56(1) of the Just Terms Act would have regarded the prospects of the Resumed Land being rezoned as Residential as substantial.

13 During the course of the hearing of the motions, Walker abandoned paragraph 27(a) (the subject of SHFA’s strike out motion) and its proposed paragraph 27(c) and substituted the following new paragraph 27A, which SHFA also opposes:

market value

Just Terms Act

industrial

LEP 2000

14 The proposed new paragraph 20 does not appear to introduce any new contention. In other words, on the existing pleadings, the finding which it invites is open. Although paragraph 20 appears to be unnecessary, I propose to grant leave to amend by adding it.

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.

16 SHFA submit that paragraph 27(a) should be struck out and the proposed paragraph 27(c) should not be allowed because the Court of Appeal held that it is erroneous to value the land as if it had in fact been zoned residential. I accept the submission. The land should be valued on the basis of its existing industrial zoning together with any premium that the market might have allowed for the possibility of the rezoning of the land for residential use, noting any decline attributable to the statutory consideration in s 56(1)(a) of the Just Terms Act: CA 1 at [67], [83]; CA 2 at [21]. In any case, as Walker has abandoned paragraph 27(a), I propose to strike it out.

17 SHFA submits that the position with respect to the proposed substitute paragraph 27A is a fortiori with paragraph 27(a) and(c), in that paragraph 27A pleads, as an assumed basis for valuation, a residential “zoning”, a matter specifically rejected by the Court of Appeal. I accept the submission.

18 SHFA also submits that there are the following additional reasons why Walker ought not to be granted leave to amend in accordance with the proposed paragraphs 19 and 27A(b):

(a) it introduces a new valuation basis five years after commencement of the proceedings, after all the evidence has been completed, after this Court has considered Walker’s claim for compensation on two occasions, and after the matter has been before the Court of Appeal on two occasions as well as the High Court.
(b) it would require the reopening of Walker’s case, further evidence being led by Walker and further evidence being adduced by SHFA. In light of the time available prior to the commencement of the remitter for SHFA to obtain necessary evidence to address the new claim, it could prejudice SHFA such that even an order for indemnity costs would be unlikely to provide an adequate remedy.

(c) Walker has not discharged the onus of establishing why leave ought to be granted in circumstances where:

(i) Walker ought to have considered, and come to a final view as to, the basis on which compensation would be sought by the time of the first hearing and it had another opportunity to do so on the first remitter;
(ii) no explanation is proffered by Walker as to why the new claim is now sought to be pursued, and as to the delay in seeking the amendments; the issue which gives rise to the application to amend has not recently arisen (the framework plan being referred to in the first judgment of Talbot J); and the need to amend has not arisen due to circumstances outside Walker’s control.

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.

The discretion to permit reliance on additional evidence on a remitter

20 The order made by the Court of Appeal, and endorsed by the High Court, was that the proceedings were remitted to this Court for “assessment of the market value of the land according to law”. There is an issue as to the principles which should apply to an application for leave to rely upon additional evidence on the remitter.

21 Walker submits that on such a remitter:

(a) although the undisputed findings of the primary judge cannot be challenged, as regards undetermined issues the remittal order has the same effect as if the court had ordered a “ rehearing ” such that a party is entitled to adduce further evidence as a right and without limitation: Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200; Morales v Minister For Immigration and Multicultural Affairs (1998) 82 FCR 374 at 387E.
(b) Walker’s motion for leave to rely on additional evidence (although unnecessary) is a convenient vehicle for the exercise of any discretion;
(c) if additional evidence on the remitter is limited in the way described in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79, the Court nevertheless has a discretion to grant leave to rely on additional evidence. In the circumstances, the discretion should be exercised in Walker’s favour.

22 SHFA submits that on such a remitter:

Land and Environment Court Act 1979

Mosca v Roads and Traffic Authority of NSW

Leichhardt Council v Roads and Traffic Authority of New South Wales (No 2)

Mosca

(i) leave to reopen should only be granted in very limited circumstances;

(ii) three conditions must be satisfied: it must be shown that the fresh evidence could not have obtained with reasonable diligence for use at the trial; the evidence must be such that there is a high degree of probability that there could be a different verdict; and the evidence must be credible.

23 In Morales v Minister For Immigration and Multicultural Affairs (1998) 82 FCR 374 a judge of the Federal Court allowed an appeal from the Administrative Appeals Tribunal (AAT) and remitted the matter to the AAT to be dealt with “in accordance with law”. Following the hearing of the remitter by the AAT, there was a further appeal where the Full Court of the Federal Court held that: (a) the reference to “law” in the terms of the remitter was a reference to the judgment of the judge together with the relevant statutory and common law; (b) the AAT had erred in law in acting on the basis that it was bound by the judge’s direction to conduct a full rehearing of the matter with further evidence; and (c) it was open to the AAT, if it thought it appropriate in all the circumstances, to act on the evidence put before the Tribunal on the previous occasion and not to permit further evidence to be adduced.

24 An appeal from this Court is limited to a question of law: s 57(1) Land and Environment Court Act 1979. The successful appeals from the judgments of Talbot J established that there were defects in his judgments on certain questions of law. There are no established defects in any other respect. 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: Morales; Lockyer v Macready (1965) 83 WN (Pt 2) (NSW) 147 at 158.

25 Where an appeal has succeeded and an issue is remitted to this Court for redetermination according to law, in my opinion, there is a discretion whether to admit additional evidence. However, the public interest in the finality of litigation favours firm limits on the calling of additional evidence. 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. If the discretion to admit further evidence is to be exercised consistently and rationally, it is essential or at least desirable, in my view, that general principles or guidelines be formulated that can be applied in most cases when considering such other circumstances, provided that they do not fetter the discretion or harden into rules of law. Strong statements to this effect in relation to the costs discretion are to be found in Latoudis v Casey (1990) 170 CLR 534 at 541 per Mason CJ, quoted with approval by the Court of Appeal in Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150, [2007] NSWCA 300 at [34]; and in Oshlack v Richmond River Council (1998) 193 CLR 72 at [72] per McHugh J (Brennan CJ agreeing), quoted by me in Maurici v Chief Commissioner of State Revenue (No 8) (2007) 155 LGERA 115 at [41].

26 Influenced by the pervasive principle of finality in litigation, the limitation of an appeal from this Court to a question of law and the form of the remitter, in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [11] – [17] I proposed that on a remitter for compensation to be assessed according to law (as distinct from a remitter for rehearing), such general principles or guidelines should be similar to those that apply when a party applies to reopen a case and adduce further evidence after judgment has been delivered. In my subsequent decision in the same proceedings I granted leave to the applicant to rely on additional evidence: Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 664. I did so after balancing the principle of finality of litigation against the potential for injustice in the particular circumstances of that case if the proposed evidence were not adduced. In support of that principle, I quoted at [23] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34] – [36] where Gleeson CJ, Gummow, Hayne and Heydon JJ held (omitting citations):

fresh evidence rule

Coulton v Holcombe

[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.

27 Walker’s submissions cite Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379. There the Full Court of Federal Court (Pincus, Gummow and French JJ) held that the primary judge had not erred in the exercise of his discretion in refusing the applicants leave to adduce further affidavit evidence three to four weeks before the trial, notwithstanding that the consequence of the refusal was that the applicants would almost certainly fail at trial. That was in circumstances where there had been many directions hearings and the matter had been fixed for trial on the express basis that the applicants were alive to highlighted deficiencies in their affidavits but nonetheless wished to proceed to trial and after the primary judge had cautioned the applicants about the contents of their affidavits.

28 Even if the Mosca general guidelines are put to one side, I do not consider that the discretion to permit reliance on additional evidence should be exercised in Walker’s favour at this late stage. My reasons are as follows.

Proposed additional valuation evidence

29 At the first hearing before Talbot J, expert valuation evidence was given by Mr Egan for Walker and Mr Wood for SHFA. At the second hearing before Talbot J, Mr Egan having died, expert valuation evidence was given by Mr Dundas for Walker and Mr Wood for SHFA.

30 Walker now wishes to rely on two additional expert valuation reports both dated 24 September 2008, one by Mr Wotton and the other by Mr Dempsey, which contain evidence as to six different valuation bases. Annexed to this judgment is a comparative summary, prepared by SHFA, of the valuation evidence before Talbot J and Walker’s proposed additional valuation evidence relating to the six valuation bases. Only valuation basis 5 “Residential with open space and maritime facilities” is new: it is the subject of Walker’s proposed new paragraphs 19 and 27A(b) of its Points of Claim, set out at [12] and [13] above. It can be seen from the annexed comparative summary that Mr Wotton considers that the valuation for scenario 5 is the same as his valuation for scenario 4 and that Mr Dempsey considers the valuation for scenario 5 is the same as his valuation for scenario 1.

31 Walker points out that it must receive compensation on “just terms” not less than the market value of the land (Just Terms Act s 3) and that any doubt is to be resolved “in favour of a more liberal estimate” (Commissioner of Succession Duties (South Australia) v Executor Trustee Agency Company of South Australia (1947) 74 CLR 358 at 374). Therefore, Walker submits, given the significant dispute between the experts on several issues, the Court will best be assisted by allowing oral evidence in relation to all unresolved matters, and granting leave to Walker to rely on the further reports.

32 Walker submits that the Court should exercise its discretion to allow it to rely upon this further expert valuation evidence for the following reasons:

(i) the proceedings are to be heard by a different judge from the one who presided over the original hearing and the first remitted hearing, who had the benefit of hearing and observing oral evidence from the various expert witnesses;
(ii) there remain unresolved issues that are fundamental to the Court’s assessment of market value;
(iii) those issues involve the resolution of expert opinion in circumstances where the experts for the parties maintain significantly different views;
(iv) the applicant is now unable to call its two previous expert valuers to give oral evidence, Mr Egan having died, and Mr Dundas having retired.

33 Reasons (ii) and (iii) are insufficient, of themselves, in my view, to permit Walker to rely on the proposed additional expert valuation evidence. Large differences of opinion between valuation experts are, unfortunately, a common occurrence in this Court. The solution does not lie in permitting the parties to call more valuation experts to join the fray.

34 However, Walker’s submission is that, having regard to the differences of views over unresolved issues, I should have the benefit of hearing and observing oral evidence from valuers, that Mr Dundas is unavailable to give oral evidence, and that Walker should therefore be permitted to call valuation evidence from Mr Wotton and Mr Dempsey. SHFA submits that the evidence is insufficient to establish that Mr Dundas is unavailable to give evidence orally; and, in any event, it is unnecessary for me to hear oral evidence from valuers and I should decide the existing valuation issues on the valuation evidence that was before Talbot J.

35 The evidence upon which Walker initially relied for the conclusion that Mr Dundas is unavailable was that he has retired. Senior counsel for SHFA then informed me from the bar table that he is in a part heard case in this Court in which Mr Dundas is an expert witness and which is due to resume on 17 November 2008. Leaving aside that information, I would be disinclined to infer that Mr Dundas is unavailable or unwilling to give oral evidence at the third hearing simply from the fact that he has retired. In this state of the evidence and information, Walker obtained leave to reopen this application after obtaining further evidence as to Mr Dundas’ unavailability. The evidence comprised a telephone discussion between Walker’s solicitor and Mr Dundas, as follows:

Solicitor: If you recall we spoke about this matter in early March 2008 and you advised me you had retired and would be unavailable to be involved further in this matter. The matter has been set down for hearing from 1 to 19 December 2008. There has been some argument before the Court as to whether you would be available to give evidence at the hearing notwithstanding that you had retired. Are you available and willing to give evidence in support of Walker Corporation’s case at the hearing set down for 1 – 19 December 2008 or at any other time next year (assuming the hearing dates are changed).

Mr Dundas: I have been involved in a matter before the Court since 2003. I did my first report in that matter in June 2003. It’s now set down for hearing on 17 November 2008. I have already been in the witness box. It’s been adjourned. It’s now been scheduled for one week. There is no way I can get out of it. It’s that complicated that it could not be given to anyone else. It involves the acquisition of stratums for which there are 99 year leases. It was listed in 2006 and 2007 and it’s kept going on and on and on. It’s an exception. It could not be given to anyone else to do.

I have no computers, no materials, no nothing. It would be very difficult for me to do [the Walker Corporation matter]. I now live down at Mollymook.

I don’t want to get involved in something that will tie me up for 18 months or so. I want to be able to have the freedom to do what I want to do and not be bound to have to come to Court. I just don’t have the time to devote to it. I might accept simple work where I can do a report and it only takes a couple of hours of my time but I don’t accept complex matters.

36 SHFA submits that this evidence is still insufficient to establish that Mr Dundas is unavailable for, or unwilling to attend, the December hearing. I think that the evidence indicates not that Mr Dundas is unavailable but that he is unwilling to be involved. However, it also suggests a misunderstanding as to what the involvement would be. Mr Dundas’ words “I don’t want to get involved in something that will tie me up for 18 months or so” has little to do with the reality of his involvement if he were required to attend so I could hear and observe his oral evidence. If I had to hear and observe Mr Dundas give oral evidence, it would be relatively short and could be done in December. It would not involve scrapping his evidence before Talbot J, either his written evidence or his oral evidence recorded on the transcript (nor is that suggested by Walker). I am not satisfied that he would be unwilling to give evidence in December if the position were adequately explained to him.

37 Lest I am in error, I will proceed on the contrary assumption that Mr Dundas is unavailable to give oral evidence or is reluctant to do so such that Walker should not have to call him for that purpose.

38 There are then a number of difficulties with, or answers to, Walker’s submission referred to at [34].

39 First, SHFA does not wish to cross-examine Mr Dundas further (if he were available), nor any of the witnesses who appeared before Talbot J. Thus, there would be no further oral evidence from Mr Dundas in cross-examination. Prima facie, it is in Walker’s interest that Mr Dundas not be cross-examined further. While it has become this Court’s general practice for expert witnesses (after they have provided a joint written report) to be cross-examined concurrently in flexible way, the practice is not mandatory and is driven to a significant extent by the usual circumstance that the parties wish to test each other’s experts. It is not suggested that I would be obliged to call the valuation experts who gave evidence before Talbot J (if they were available) to give such concurrent evidence, and I do not think that I would be under any such obligation. Given all that has gone before at the first two hearings, I would not be minded to require them (assuming they were available) to do so. Thus, there would be no vehicle for Mr Dundas to give further oral evidence, if he were available to do so. If Walker wishes to further cross-examine SHFA’s valuer, it can seek leave to do so, but that is a different matter.

40 Secondly, if I were to accept the notion that it is important that I hear and observe valuation witnesses give evidence orally, then the same must be true of all witnesses on other issues where there are also large differences, such as between the planning experts. There is no submission that I should proceed generally in that way.

41 Thirdly, if leave to call evidence from Mr Wotton and Mr Dempsey were to be granted, Walker would then have evidence from four valuation experts before the Court while SHFA would have evidence from only one valuation expert. In principle, Walker’s proposal to expand the number of its valuation experts should be viewed with considerable caution, particularly at this very late stage of the proceedings. If leave were to be granted, in fairness SHFA would have to be given leave to expand the number of its valuation experts to the same extent. The potential spectre of, say, eight valuation experts should be viewed with concern. It is not something that the Court normally would countenance. The undesirability, normally, of large numbers of experts giving evidence on an issue such as market value underlies the Court’s power to give directions limiting the number of expert witnesses who may be called to give evidence on a specified issue: Uniform Civil Procedure Rules 2005 r 31.20(e).

42 Fourthly, SHFA submits that if Walker were to be granted leave to call this additional evidence, it could not reasonably respond to it, and should not be put under pressure by being required to respond to it, with its own additional expert evidence within the eight weeks remaining before the hearing is fixed to commence. Walker disputes that proposition. However, I think that it has substance; all the more so when there is factored into the limited timeframe, compliance with the Court’s salutary general practice of requiring expert witnesses, after service of their individual reports, to confer and produce a joint report stating the matters on which they agree, the matters on which they disagree and the reasons for any disagreement.

43 Finally, there is no sufficient reason to permit the proposed additional and new valuation evidence to be introduced, unless it is necessary that I hear and observe oral evidence of valuers (assuming that a vehicle for doing so could be devised in the circumstances of this case). SHFA submits that it is unnecessary. Walker makes the general submission that the credibility and reliability of experts come into play and that I would be assisted by hearing the cross-examination of valuation experts and by observing their demeanour.

44 In many cases that come before the Courts, the evidence in chief of witnesses is in writing but issues of credibility and reliability are such that it is essential that the judge hears and observes their oral evidence in cross-examination. I do not consider that this is such a case insofar as it concerns the valuation evidence that was before Talbot J. It is not submitted, nor can I see, that there is anything in the judgments of Talbot J or the appellate courts 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. The valuers who gave evidence before Talbot J were cross-examined and the transcript of their oral evidence will be before me. Therefore I will have the benefit of their oral evidence. I do not think that it is significant if I have not heard them utter, and observed them uttering, the words that are recorded on the transcript. In my view, the existing valuation issues can be appropriately decided on the basis of the extensive valuation evidence that was before Talbot J at the two previous hearings, including the transcript of the cross-examination of the experts.

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, referred to at [30] above, 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. However, lest I am incorrect, I would decline to grant such leave for the following reasons:

(a) the valuation based on valuation basis 5 is the same as the valuation based on valuation basis 1 according to Mr Dempsey and the same as the valuation based on valuation basis 4 according to Mr Wotton. If this additional valuation evidence of Mr Dempsey and Mr Wotton were to be admitted, it would be difficult – indeed I think it would be practicably impossible – to limit their evidence to valuation basis 5. Thus, valuation basis 5 would throw open the door for the introduction of additional valuation evidence in relation to the other valuation bases;
(b) there would be evidence from four valuation experts for Walker before the Court and evidence from only one expert valuer for SHFA before the Court unless SHFA were permitted to match the numbers. In fairness, it would have to be granted that permission. I have commented earlier on the undesirability, normally, of such large numbers of expert witnesses;
(c) I have also commented earlier on the likelihood that, as a result of all this, the hearing dates in December would have to be vacated;
(d) no explanation has been provided as to why valuation basis 5 was not put in issue before now. If valuation basis 5 had been put in issue at the first or second hearing, it should have been addressed in the evidence at that time and Walker’s perceived need to call additional evidence to support it at this late stage could not be sustained. If it makes any difference, in April 2008 the Court directed that any notice of motion seeking leave to adduce additional evidence be made returnable on 23 June; that was not done, further directions were obtained and the leave notice of motion was eventually filed on 24 September and heard on 29 September;
(e) embedded in these reasons is a degree of prejudice to SHFA by reason of the lateness of this application for which, when viewed against the lengthy history of this matter, I do not think costs would be adequate compensation.

46 For these reasons, I decline to permit Walker to rely on the reports of Mr Wotton and Mr Dempsey or to amend to plead the proposed paragraphs 19 and 27A.

Proposed expert evidence in relation to access

47 One of the undecided issues is whether the acquired land is capable of being developed pursuant to the provisions of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (SEPP 5) and, if so, the market value of the land on this basis. A sub-issue concerns access to the proposed development as required by SEPP 5. There was competing evidence before Talbot J by an access expert for each party: Mark Relf for SHFA and Karen O’Donnell for Walker. Walker now seeks to rely on an additional report of a further expert, David Goding, dated 23 September 2008 on the same access issue. It appears from Mr Goding’s report that, in part, he has undertaken a peer review of the evidence of the other access experts.

48 Walker’s original submission was that I would not have the benefit of oral evidence on this issue, and given the real differences between the experts, leave should be granted to rely on Mr Goding’s report. It was said that it “provides only an additional expert perspective on the issue of access/private bus transport which is central to the determination of merit aspects of the SEPP 5 issue”. In my opinion, this is an insufficient reason to permit this additional evidence to be called, particularly at this late stage. It is incorrect, in a real sense, to say that I would not have the benefit of oral evidence. That is because the oral evidence of the access experts before Talbot J was recorded on the transcript that will be before me. In addition, there is no explanation as to why this evidence could not have been obtained with reasonable diligence for use in the prior two hearings. I note that, if it were to be admitted, SHFA considers that it is highly likely that it would wish to obtain comment from its access expert and instruct a further expert to respond to the additional evidence. It submits that this probably could not be achieved in the time remaining before the remitter is to commence, particularly in circumstances where Walker has had since at least June to prepare its proposed evidence. However, the access sub-issue is sufficiently limited that I think the proposed access evidence, if leave were to be granted to rely upon it, probably could be responded to in the time remaining before the hearing.

49 Walker obtained leave to reopen this application in order to introduce new evidence which it submits indicates that its original witness, Ms O’Donnell, is unlikely to be able to attend the third hearing in December due to ill-health. In a telephone conversation with Walker’s solicitor, Ms O’Donnell said that she “had received some bad news about my health. I know I gave evidence before but I am not well and I will not be in a position to give evidence in December. Is it possible you could find someone else?” To the solicitor, Ms O’Donnell did not sound well on the telephone, she was short of breath and was very softly spoken. The solicitor did not want to pry any further into Ms O’Donnell’s personal affairs. SHFA submits that this evidence is insufficient to establish that she is unavailable for the December hearing. I disagree. I consider that it establishes that it is unlikely that Ms O’Donnell will be able to give evidence in December. Walker submits that this constitutes a reason for granting it leave to call evidence from Mr Goding because I should hear and observe access witnesses give oral evidence I disagree. I do not consider that it is necessary to hear oral evidence from access witnesses, substantially for the reasons that I gave when considering the application for leave to rely on additional valuation evidence. In my view, it is appropriate to determine the access sub-issue on the evidence that was before Talbot J.

50 For these reasons, I make the following orders:

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Citations

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282

Most Recent Citation

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CITATION:	Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282
PARTIES:	APPLICANT: Walker Corporation Pty Ltd RESPONDENT: Sydney Harbour Foreshore Authority
FILE NUMBER(S):	30024 of 2003
CORAM:	Biscoe J
KEY ISSUES:	Practice and Procedure :- whether leave to amend and leave to rely on additional evidence should be granted after remitter from Court of Appeal. Evidence: - whether leave to rely on additional evidence should be granted after remitter from Court of Appeal.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 64 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 3, 56(1)(a) Land and Environment Court Act 1979 (NSW), s 57(1) State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability Uniform Civil Procedure Rules 2005 (NSW), r 31.20(e)
CASES CITED:	Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 Commissioner of Succession Duties (South Australia) v Executor Trustee Agency Company of South Australia (1947) 74 CLR 358 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2004] NSWSC 1219 Latoudis v Casey (1990) 170 CLR 534 Leichhardt Council v Roads and Traffic Authority of New South Wales (No 2) [2008] NSWLEC 1 Lockyer v Macready (1965) 83 WN (Pt 2) (NSW) 147 Maurici v Chief Commissioner of State Revenue (No 8) (2007) 155 LGERA 115 Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200 Morales v Minister For Immigration and Multicultural Affairs (1998) 82 FCR 374 Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 664 Oshlack v Richmond River Council (1998) 193 CLR 72 State of NSW v Mulcahy [2006] NSWCA 303 State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 Sydney Harbour Foreshore Authority v Walker Corporation Ltd (2005) 63 NSWLR 407 Sydney Harbour Foreshore Authority v Walker Corporation Ltd [No 2] (2006) 68 NSWLR 487 Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) 134 LGERA 195 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2006] NSWLEC 138 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383
DATES OF HEARING:	29/09/08, 2/10/08
DATE OF JUDGMENT:	3 October 2008
LEGAL REPRESENTATIVES:	APPLICANT: Mr I. Jackman SC, Mr R. Beasley and Ms J. Taylor SOLICITORS: Minter Ellison RESPONDENT: Mr A. Galasso SC, Mr M. Gilbert and Mr E. Hyde SOLICITORS: Deacons