Applicant v Respondent

2 MGP is part of the Dennis Family Group of companies. The land compulsorily acquired for the RRL project belonged to two other companies within the Dennis Family Group, Manor Lakes Werribee ('MLW') and Manor Lakes Commercial ('MCC'). None of the acquired land belonged to MGP. However, MGP claimed an interest in the acquired land by reason of its participation in an agreement made with MLW, MCC and the responsible authority pursuant to s 173 of the Planning and Environment Act 1987 on 16 January 2006 ('2006 agreement') in relation to development contributions payable by MLW and MCC.

3 MGP owns the undeveloped western section of Manor Lakes Estate, which is the remnants of a farming property known as 'Manor Park'. MGP has a longstanding arrangement with MLW and MCC whereby land owned and held by MGP as rural land is gradually transferred to them for development as the Manor Lakes Estate.

4 In its claim for compensation dated 19 December 2013, MGP claims 'a right, charge, power or privilege in, under, over, affecting or in connection with [the acquired land]' arising from the 2006 agreement. In substance, MGP's claims compensation for the increased cost burden to it resulting from the need to upgrade Ison Road (which runs between the eastern and western sections of the Manor Lakes Estate) because Armstrong Road to the east is no longer available to be upgraded as an arterial road due to the implementation of the RRL project.

5 MGP claims compensation in the form of compensation for the loss of market value of its land in the western section of Manor Lakes Estate and, in the alternative, as loss attributable to disturbance. The claim for loss of market value is $13,270,000; the disturbance loss claimed is $21,669,000.

6 The separate questions answered by the Court on 29 April 2016 concerned whether, on the relevant dates of acquisition, MGP had an 'interest' in the acquired land within the meaning of s 3(1) of the LAC Act. Each of the questions was answered 'no'.

7 Although reasons for decision were delivered, no final orders were made, as the parties requested time to consider the reasons before making submissions on the question of costs.

8 MGP now seeks leave to reopen its case in the trial of two of the separate questions, which relate to a portion of the acquired land previously owned by MLW known as 'Area C', and to adduce new evidence in relation to the nature of its interest in that land. It says that it held a farming lease and occupied part of the Area C land for grazing purposes at the date of acquisition of the Area C land.

9 This means, in effect, that MGP seeks to reopen questions (c) and (d) of the separate questions answered by the Court on 29 April 2016. MGP seeks to establish a new interest as the basis for its claim for compensation. The claim remains the same to the extent that the amount of compensation sought is referrable to the cost to MGP of the upgrade of Ison Road.

10 Marshall Glen Dennis, a director of MGP, has made two affidavits[1] in support of MGP's application to reopen its case and to adduce new evidence establishing its interest in the acquired land.

11 Mr Dennis was the director of MGP who, at all relevant times, provided instructions to MGP's solicitors, Minter Ellison, in relation to the claims made by MGP for compensation relating to the compulsory acquisitions. He also provided instructions to Minter Ellison on behalf of MCC and MLW.

12 Mr Dennis deposes that as a director of MGP, he actively participates in decisions about the operations on the MGP-owned land within Manor Park and that he is the director primarily responsible for strategic and day-to-day decisions relating to MGP's farming operations, wherever located. These include grazing and maintaining livestock, cereal grain cropping and fodder conservation. He deposes that until approximately 5:30 pm on 23 May 2016, he did not turn his mind to and did not realise that, at each of the dates of acquisition, MGP occupied and farmed part of the land compulsorily acquired from MLW and that such occupation gave rise to an 'interest' in the acquired land for the purposes of s 3(1) of the LAC Act. He is now conscious of the relevance of that interest in the acquired land, which he believes provides a proper and indisputable basis for MGP to claim compensation as a result of the compulsory acquisition. He deposes that at all times relevant to the acquisitions, including at each relevant acquisition date and since, except for land acquired by the Authority south of Lollipop Creek (Area C), MGP has occupied and farmed land of which MLW is the registered proprietor (the 'MLW farmland').

13 Mr Dennis has exhibited to his first affidavit a copy of an agreement entitled 'Farm Lease' dated 1 July 2005 between MLW and MGP, which provides for MGP to lease from MLW approximately 25 hectares, marked on an attached plan, for a period of five years at a yearly rental of $50 per hectare plus GST. It is common ground that the land covered by the Farm Lease includes part of the acquired land. He deposes that, while the Farm Lease was for a fixed term until 30 June 2010, MGP continued to occupy the MLW farmland and to farm it both up to and including 3 April 2012 (the date of acquisition of the Area C land).

14 Mr Dennis deposes at length to his dealings since August 2010 with MGP's lawyers in relation to MGP's claim. He deposes that at all times up to and including the making of MGP's claim on 19 December 2013, the only interest in land that was discussed, and of which he was conscious as being relevant, was MGP's interest said to arise under the 2006 agreement.

15 Mr Dennis deposes that he continued to be involved in discussions and conferences with Minter Ellison and counsel prior to and leading to the referral of the claim to the Supreme Court on 3 September 2014. At no time during these communications was the farming or occupation of the MLW farmland ever discussed, with all discussions and communications focussing on the 2006 agreement. Minter Ellison also took instructions from other senior management in the Dennis Family Group who work within a section of the business which is independent of the operations of MGP, and these people had no reason to be aware of the Farm Lease or MGP's occupation of the MLW farmland.

16 Mr Dennis deposes that he was also consulted and provided instructions in relation to the determination of the separate questions following the Court's order that there be a trial of the separate questions. Again, there was no discussion at any time about farming or MGP's occupation of the MLW farmland. The issue never came up, was never discussed and he never turned his mind to it as an alternative basis for MGP to claim an interest in the acquired land. He attended various conferences with counsel in connection with the trial of the separate questions and, again, there was no discussion or communication about the Farm Lease or occupation of MLW farmland. The issue was simply never discussed.

17 According to Mr Dennis, the issue only came up in a conference with counsel on 23 May 2016, following the delivery of reasons for judgment on the separate questions. The conference was convened to discuss MGP's prospects on appeal and how compensation would be assessed, were an appeal to be successful.

18 Mr Dennis has exhibited to his first affidavit notes made in the course of the conference and has waived privilege in those notes insofar as they record the discussion of how to determine compensation. Mr Dennis said that in the course of this conference he realised, for the first time, that MGP's occupation of the MLW farmland was relevant to its claim for compensation. This was the first occasion on which he had ever discussed with lawyers MGP's occupation of part of the acquired land and the relevance of that occupation to the question of MGP's interest in the acquired land as the basis for its claim for compensation.

19 MGP has also filed an affidavit of Philip Bisset made on 16 June 2016. Mr Bisset is a partner of Minter Ellison. He has advised the Dennis Family Group on the compulsory acquisition process for the RRL project since September 2009. He deposes that it was known by 2010 that the RRL project would result in an increase in the cost of developing Ison Road and that during 2010 and 2011, he and other solicitors at Minter Ellison considered whether MLW might be able to claim compensation for that cost or part of it. Mr Bisset deposes at some length to the progress of the compulsory acquisitions and the evolution of the compensation claim made by MLW.

20 Mr Bisset deposes that in February 2010, Minter Ellison and the Dennis Family started putting together a brief of key documents relating to Manor Lakes and the RRL project. This task was undertaken progressively through the course of the compensation process. Documents were provided by various parts of the Dennis Family Group, and they included the 2006 agreement. However, it was not until February 2012 that senior counsel expressed a preliminary view that MGP may have a claim by virtue of its interest in the acquired land under the 2006 agreement.

21 Mr Bisset deposes that by the time of the compulsory acquisition of the Area C land in April 2012, the task of collating relevant materials was well advanced. He does not recall Minter Ellison making any inquiry about whether MGP had occupation rights or a leasehold interest in the land south of Lollypop Creek (the Area C land), or asking Mr Dennis or any other Dennis Family representative whether MGP might have had any form of interest in the acquired land other than by virtue of the 2006 agreement. He does not recall counsel raising any question with MGP about these matters.

22 It is uncontroversial that the Court has a discretion in an appropriate circumstance to grant leave to a party to reopen its case after the trial has been completed and before final orders have been made. However, the parties differ on the form and stringency of the test to be applied by the Court.

23 MGP submits that in every case, the overriding principle to be applied is whether the interests of justice are better served by allowing or by rejecting the application to reopen. Although it acknowledges that the discretion should be exercised cautiously, MGP submits this is a clear case in which leave should be granted, because:

(a) it has given a 'clear and fulsome' explanation for why it did not raise the interest derived from the Farm Lease and occupation of the MLW farmland at the trial of the separate questions;

(b) the substantive application has significant merit; and

(c) the Authority will not be prejudiced by the delay or the reopening if it is indemnified for its the costs of the previous hearing and MGP waives its right to statutory interest for the relevant period.

24 According to MGP, the relevant guidance for the Court is to be found in Inspector General in Bankruptcy v Bradshaw,[2] where Kenny J summarised the authorities on the grant of leave to reopen as follows:[3]

The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to reopen, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law. In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.

25 MGP submits that the second and third categories are relevant in this case. It also submits that the 'ultimate criterion' for the grant of leave to reopen a case is the interests of justice.

26 The Authority disputes that the overriding principle is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen. According to the Authority, High Court authority makes it clear that a case can only be reopened in exceptional circumstances, having regard to the public interest in the finality of litigation. The starting point is not what the interests of justice in the particular case require, because the High Court has said that there is a more important interest which takes priority. That is why exceptional circumstances are required.

27 The passage in Bradshaw relied upon by MGP was referred to with approval by the Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd.[4] It was more recently quoted with approval by the Court of Appeal in David Wellesley Marriner v Australian Super Developments Pty Ltd,[5] less the final sentence concerning the 'interests of justice'. In Marriner, the Court of Appeal went on to state:[6]

Where a case has been closed and judgment reserved, exceptional circumstances will be required for a court to allow the case to be reopened. This rule applies with even greater force where reasons for judgment have already been delivered but final orders have not yet been made. The rule is necessary to ensure finality in litigation and the efficient administration of justice, and to avoid a reopened hearing being 'bedevilled by arguments about ... the scope of the reopened proceeding'.

28 The Court of Appeal has thereby reconciled the law as described in Bradshaw with the requirement for exceptional circumstances. The public interest in the finality of litigation militates against permitting cases that have been fully argued to be reopened. In order for matters relevant to the interests of the party to outweigh the public interest in the finality of litigation, those matters must be weighty indeed, that is, they must be exceptional.

29 The Authority makes two further submissions in relation to the application of the test in this case. It says, first, that any misapprehension of fact or law must be a misapprehension by the court, not the parties. Secondly, a party cannot rely on a misapprehension of fact or law that arises solely from the party's own default or neglect. In this case, so the Authority contends, MGP falls at both hurdles.

30 The Authority relied, in particular, on the judgment of Mason CJ in Autodesk Inc v Dyason,[7] where his Honour said that the jurisdiction to reopen was to be exercised with great caution, having regard to the finality of litigation, and that '[g]enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.'[8] His Honour restated this proposition a little later in his judgment:[9]

What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to misapprehension of the facts or the relevant law and that the misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.

31 Further, in De L v Director General, New South Wales Department of Community Services & Anor [No 2],[10] the High Court again emphasised that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', that is, 'without attribution of neglect or default to the party seeking reopening'.[11]

32 However, in De L, the High Court permitted argument to be reopened on a costs order to enable a party to raise a statutory provision it had previously neglected to raise. It did so in circumstances where there was a risk of injustice, the order on its face being contrary to a statutory rule. The oversight was described as 'accidental'. Summarising the law in relation to the reopening of a final order, the High Court expressed its power broadly as follows:[12]

The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law', where 'there is some matter calling for review' or where 'the interests of justice so require'.

33 The High Court then referred to the heavy burden cast on the applicant for reopening and the need to show that such an exceptional course is required without fault on his or her part. It continued:[13]

By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principal of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.

34 In De L, the High Court referred to a range of circumstances in which the court might exercise its power to reopen its judgments or orders, including (citing Gaudron J in Autodesk), 'where the interests of justice so require'. It also placed the requirement for the absence of fault in the context of the competing objectives of the law to provide finality in litigation and to prevent injustice where 'accidents' and 'oversights' have occurred. The 'oversight' in question (the failure to have regard to the statutory provision) in effect encompassed a default by the party seeking to reopen the costs order. The High Court permitted the costs order to be reopened 'to safeguard against the risk of injustice that could flow from the unconsidered making of an order on its face apparently contrary to [the regulation].[14] This was despite finding that the party seeking reopening, the Director-General, did not refer to the regulation in his submissions and the court acknowledging that there was force in the submission made by the opposing party that the source of the problem lay in the failure of those representing the Director-General to make submissions on the point of costs.[15]

35 I do not accept that there is a hard and fast rule that the party seeking to reopen its case must be free of any responsibility for the circumstances giving rise to the need to reopen the case. Even in Wentworth v Woollahra Municipal Council,[16] to which both Mason CJ and Dawson J referred in Autodesk in support of the proposition that the party seeking reopening must be without fault, the proposition was prefaced by the words, 'Generally speaking'.[17]

36 Having regard to the public interest in the finality of litigation and the need to prevent injustice to a party, what the authorities seek to guard against is giving an unsuccessful party a 'second bite at the cherry' in the form of permission to re-agitate arguments already heard or re-present its case in a better form. Thus, in Autodesk, Mason CJ said:[18]

... it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put.

...

The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases.

37 An unsuccessful party may come up with an argument after the event that will win the day but, because of the way in which it chose to run its case in the first place, it will not be allowed to advance the new argument. In Metwally v University of Wollongong,[19] the High Court said:[20]

It is elementary that a party is bound by the conduct of its case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

38 Likewise, in Smith v New South Wales Bar Assn (No 2),[21] in relation to an application to reopen a case to lead new evidence, the High Court said:[22]

If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application.

39 In Multiplex Constructions Pty Ltd v Irving,[23] the New South Wales Court of Appeal refused leave to reopen a case to enable argument about a provision in a statute not previously raised, on the basis that the applicant for reopening had had a clear and full opportunity to place before the court all the submissions that it wished to make at the appropriate time. Full and detailed oral argument had taken place and the failure to raise the statutory provision was due solely to the conduct of the applicant. The statutory provision was 'now raised simply as an afterthought and a contentious one at that.'[24] To allow it to be raised would subvert the appeal process.[25]

40 Again, the basis for the court's decision was a refusal to allow arguments to be re-run and enhanced, particularly where the matter sought to be argued was raised as an 'afterthought' and was contentious.

(a) MGP made a claim for compensation based on an asserted interest in the acquired land arising from the 2006 agreement.

(b) MGP did not assert an interest in the acquired land on any other basis.

(c) Separate questions for determination were formulated by the parties which asked generally whether MGP had an interest in the acquired land rather than whether it had an interest in that land by reason of the 2006 agreement.

(d) After a hearing lasting several days and comprehensive and complex submissions by the parties on the rights and obligations created by the 2006 agreement, the Court answered the separate questions as to whether MGP had an interest in the acquired land by answering 'no' to each of them.

(e) Reasons for judgment, which contained a judicial determination that MGP had no interest in the acquired land, were delivered on 29 April 2016.

(f) Had final orders been made, they would have included an order dismissing MGP's claim for compensation on the basis that MGP had no interest in the acquired land.

(g) After the delivery of reasons for judgment, but before the making of final orders, MGP realised that it had an interest in part of the acquired land by reason of its right to occupy part of the acquired land for farming purposes.

(h) MGP asserts that this occupancy or leasehold interest gives it the right to claim compensation for the divestment of this interest, which includes the costs of upgrading Ison Road.

(i) The Authority concedes that it is probable that MGP had an interest in the acquired land by reason of a permissive occupancy. However, the Authority disputes that such an interest entitled MGP to compensation of the kind claimed.

42 MGP has provided a detailed explanation as to why it did not rely on the Farm Lease and the occupancy of the MLW farmland to assert an interest in the acquired land for the purposes of the LAC Act. MGP, through its director, Mr Dennis, always knew of the Lease and the occupancy. However, he did not appreciate their significance until recently. MGP has ascribed this state of affairs to its lawyers proceeding down a particular path (focussing on the legal effect of the 2006 agreement) as a result of the way in which the acquisitions and the corresponding claims for compensation evolved over time and the way in which relevant material was drawn from the different arms of the Dennis Family Group, principally in order to support claims made by MLW and MCC as the owners of the acquired land.

43 The Authority concedes that it is probable on the evidence that MGP can establish an interest in the acquired land on the basis of the Farm Lease and its occupancy of the MLW farmland. It says that the interest would most likely be in the nature of a tenancy at will. It is uncontroversial that a tenancy at will is an 'interest' in land for the purposes of s 3 of the LAC Act, the divestment or diminishment of which entitles the holder of the interest to make a claim for compensation pursuant to s 30 of the LAC Act.

44 However, the Court decided the separate questions on the basis that the only possible interest MGP could have in the acquired land was by virtue of the rights and obligations conferred by the 2006 agreement. The separate questions were framed in general terms concerning the existence of 'an interest' in the acquired land. The lawyers and the Court proceeded under the misapprehension that there was no basis for MGP to have an interest in the acquired land other than by virtue of the 2006 agreement.

45 There is no value to MGP in appealing the Court's decision on the separate questions. A successful appeal could not result in the recognition of the interest in the acquired land now sought to be asserted.

46 In my view, this is not a case where a party seeks to re-agitate arguments already put, but in a better way, or to pursue its argument in an aspect not previously pursued. MGP now seeks to make a claim for compensation on a separate and distinct basis from the basis previously advanced. Had the separate questions been framed by reference to an interest arising from or under the 2006 agreement, as they probably should have been, it would now be open to MGP to seek an extension of time under the LAC Act in which to make a new and separate claim on the basis of the interest derived from the Farm Lease and occupancy of the MLW farmland. However, the very general way in which the separate questions were formulated and the general nature of the answers given by the Court ('MGP had no interest in the acquired land') most likely precludes a new and separate claim from being brought in respect of the land referred to in the questions. The Court has made a judicial determination that MGP has no interest in the acquired land. MGP is therefore left to make an application to reopen the trial of two of the separate questions.

47 In deciding whether exceptional circumstances exist, the context of the application to reopen the trial of the separate questions needs to be considered.

48 MGP's claim for compensation arises from the compulsory acquisition of land, which it says resulted in a divestment of its interest in the acquired land. The compulsory acquisition of land involves a positive act by a government to expel an owner or occupier from the land which it owns or in which it has an interest. The owner or occupier has no choice in the matter; it is replaced by the taking authority by the operation of the statute. What it retains is a right to be paid compensation.[26] The purpose and policy of the LAC Act is to provide for compensation to be paid where an interest in land has been divested or diminished by compulsory acquisition. Under compulsory acquisition legislation, including the LAC Act, compensation is awarded to a person who has already been given, by the statute, a right to receive it.

49 The special nature of compensation proceedings following compulsory acquisition has long been recognised. In Minister for the Environment v Florence,[27] Wells J said:[28]

Compulsory acquisition cases differ of course from ordinary claims dealt with in the general jurisdiction in one significant respect: the claimant, unlike the ordinary plaintiff, has no choice whether to make a claim or not; the mere acquisition by compulsory process gave him ... a claim to compensation which he could hardly be expected to renounce.

50 In Al Amanah College Inc v Minister for Education and Training (No 4),[29] Biscoe J described the exceptional costs principle in compulsory acquisition cases as being consistent with the protection of property rights by the common law (including its presumption, in the interpretation of statutes, against an intention to interfere with vested property rights) and with the international recognition of the right to property as a human right.[30]

51 Having regard to these principles, a person whose interest in land is divested or diminished because the land has been resumed in the broader public interest must be given considerable latitude in seeking to articulate its claim for compensation. The LAC Act is complex, particularly having regard to concepts such as 'special value' and 'severance'. The application of the 'before and after' analysis to determine market value required by s 41(3) of the LAC Act involves a conceptual scrambling of other heads of claim with market value and has given rise to a range of difficult questions. Well-trained legal minds may differ on the best route to obtain just compensation in any given circumstance.

52 The Authority submits that MGP has been represented by highly competent lawyers throughout, and should not now be permitted to recast its claim. I disagree that what is proposed is a 'recasting' of the claim. It is a proposal to make a new and separate claim. Moreover, the lawyers acting for the Dennis Family Group were required to deal with a complex picture, having regard to the different interests of the entities in the Dennis Family Group, the arrangements for the transfer of land between them, the existence of historical arrangements with the local council for the leasing, management and development of different parcels of land, and the arrangements for the payment of development contributions by one or more of those entities as a condition of obtaining subdivisional approval. It is plain to me that Mr Dennis did not have any idea that the Farm Lease could be relevant to MGP's claim for compensation and that the lawyers did not know of its existence. Why would they otherwise have sought to rely on the opaque terms of the 2006 agreement to establish an interest in the acquired land?

53 The Authority submitted that reopening the trial of the preliminary questions would be futile: MGP would not be entitled to the compensation that it seeks, even if it could establish a periodic tenancy or a tenancy at will. Given the limited and precarious nature of the interest that is now asserted, its market value would not amount to very much at all. Certainly, so the Authority says, MGP would not be entitled to the loss of market value of other land that it owns, particularly land outside the Manor Lakes East area, and the disturbance claim is without foundation because MGP will not be able to establish that the cost to it of the upgrade of Ison Road is the direct, natural and reasonable consequence of the compulsory acquisition of its interest in the Area C land.

54 MGP submitted that, it having been determined that the trial should be split, the utility of reopening was to be assessed by reference to the trial as split. It is not relevant at this stage to consider its prospects of obtaining the compensation that is sought. Furthermore, even if viewed more broadly, it is not possible at this juncture to draw any conclusions about the prospects of obtaining the compensation sought in a way that could shape the exercise of the discretion to allow the case to be reopened. The arguments are complex and there will be a trial of matters of real substance.

55 I accept MGP's submission that the arguments about the availability of the compensation sought will be complex. It is not possible to conclude, at this point in time, that MGP's multi-million dollar claim is hopeless or has no real prospects of success. Furthermore, at this stage the Court is concerned with the reopening of the separate questions, which go only to whether there is an interest and the nature of that interest, if any. If MGP can establish an interest in the acquired land, it will most likely be entitled to compensation of some kind. It would therefore not be futile to permit reopening.

56 The Authority submitted further that there is no utility in permitting reopening because MLW has agreed to indemnify the Authority for any compensation payable under the LAC Act with respect to the acquisition of the subject land and any compensation payable to MGP by the Authority will therefore be paid by MLW. This amounts to the money going around in a big circle.

57 This submission is based on the terms of settlement between the Authority and MLW dated 12 February 2015. It is also based on the proposition that MLW and MGP are 'different pockets in the same pair of trousers', and on evidence given in a related proceeding by Mr Bert Dennis to the effect that within the Dennis Family Group of companies, there is an 'evening up' of profits and losses.

58 The terms of settlement are unclear in relation to the scope of the indemnity for amounts paid for disturbance losses. In the absence of far more detailed submissions, I cannot conclude that MLW will be bound to indemnify the Authority in respect of all of the amounts of compensation paid to MGP. In any event, MGP and MLW are separate legal entities. There may or may not be an 'evening up' between them in any given circumstance. I am not persuaded that this factor affects the exercise of the Court's discretion to permit the trial of the separate questions to be reopened.

59 If leave to reopen the trial of the separate questions is not granted, MGP will be shut out of making its claim for compensation in circumstances where it has a viable case that it has an interest in land that has been divested by reason of the compulsory acquisition of the land.

60 MGP has gone to considerable lengths to explain why it did not assert this interest from the outset. I accept this explanation.

61 The public interest in the finality of litigation is paramount. However, having regard to the context of a compulsory acquisition, and the consequences of the way in which the separate questions for formulated and answered by the Court, I consider that this is an exceptional case warranting the grant of leave to reopen the two separate questions in issue.

62 In so deciding, I am satisfied that the Authority will not suffer prejudice on the basis that MGP has agreed to pay the Authority's costs thrown away on an indemnity basis and to forgo any entitlement to interest under the LAC Act for the period between 18 December 2013 and 27 May 2016.

63 Leave to reopen questions (c) and (d) of the separate questions is granted, subject to the giving of the undertaking in relation to costs thrown away and interest referred to in the preceding paragraph.

[1] The first sworn on 26 May 2016; the second sworn on 22 June 2016.

[2] [2006] FCA 22.

[4] (2012) 46 VR 1, 7 [25].

[5] [2016] VSCA 141.

[6] Ibid [185], referring to Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1, 5 [17]-[18].

[7] [1993] HCA 6; (1993) 176 CLR 300.

[8] Referring to Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, 684. Justice Dawson set out the out the relevant passage in his judgment at 317.

[10] [1997] HCA 14; (1997) 190 CLR 207 ('De L').

[15] Compounded by the failure of the Attorney-General to respond to her submissions on the regulation.

[16] [1982] HCA 41; (1982) 149 CLR 672.

[19] [1985] HCA 28; (1985) 60 ALR 68.

[21] [1992] HCA 36; (1992) 176 CLR 256.

[23] [2005] NSWCA 1.

[26] Douglas Brown (ed), Land Acquisition (Butterworths, 4th ed, 1996) 1.

[27] (1979) 21 SASR 108.

[29] [2012] NSWLEC 26.

[30] Ibid [13]. See R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603, 619-620 [40] - [44].