Applicant v Respondent

1. In this proceeding, reasons for judgment were delivered on 26 March 2026.[1] The determination in that judgment was that Mr Barrett was entitled pursuant to ss 98 and 99 of the Planning and Environment Act 1987 (Vic) to compensation of $27,925,000. This was the amount claimed by Mr Barrett in the course of the proceeding of $28,275,000, with an amount of $350,000 subtracted which related to the financial impact of an issue relating to a 'Paper Road' on his land, which I determined against Mr Barrett.
2. The parties were given an opportunity to file short submissions and affidavits on costs, interest and the appropriate orders. I also heard oral submissions from the parties yesterday.
3. The parties have appropriately agreed on a number of issues and limited issues remained to be resolved in the hearing yesterday.

1. Section 91(1) of the Land Acquisition and Compensation Act 1986 (Vic) provides that 'the Court ... may award such costs as it thinks proper', and that the Court must, if it considers it appropriate to do so, take into consideration the matters listed in ss 91(1)(a) and (b).
2. Mr Barrett refers to observations of the Court of Appeal in Love v Roads Corporation, in which the Court stated:

We accept that the position of a claimant in proceedings under the Act is not that of an ordinary litigant and that the starting point for the exercise of the Court's discretion as to costs is that the dispossessed owner should recover the costs of making the claim. The discretion as to costs in compensation proceedings is tilted in favour of the claimant. [2]

1. The Authority accepts that Mr Barrett is entitled to most of his costs of the proceeding,[3] but makes submissions as to certain exceptions and limitations on the costs he should receive.
2. Section 91(1)(a) of the Land Acquisition and Compensation Act refers to the amount of compensation awarded by the Court as compared with the amount (if any) offered by the Authority.
3. In this proceeding, after initially making no offer within the time period identified in the Land Acquisition and Compensation Act, and subsequently making nil offers, the Authority made an offer of $18,650,000 for compensation for financial loss in March 2025. The amount that I determined in my Reasons was payable for compensation for financial loss was $27,925,000. The amount awarded was plainly in excess of the amount offered and is a factor in favour of the grant of costs.
4. Mr Barrett also refers to the considerations in ss 91(1)(b)(i) and (iv), which refer to

the extent to which, in the opinion of the ... Court, the proceedings have arisen from, or been affected by -

(i) unreasonable conduct on the part of the claimant or the Authority; or

...

(iv) an unduly depressed offer by the Authority.

1. Mr Barrett submits that there was relevant unreasonable conduct on the part of the Authority in making a nil offer and only advancing a monetary offer on 14 March 2025. A preliminary question, relating to a threshold argument by the Authority that no financial loss was caused by the reservation and no entitlement to compensation arose under s 99 of the Planning and Environment Act, had been heard a year earlier in March 2024. The Authority at that hearing formally conceded that it did not maintain any argument that the requirements of s 99 of the Planning and Environment Act were not satisfied but did not make any substantive offer at the time, nor until March 2025.
2. The history relevant to the offers is set out at [6] and [7] of the Reasons for judgment. Evidence filed with the application also identified that Calderbank offers had been made and that Mr Barrett had sought an advance of compensation on 21 March 2025 (a week after the Authority, by its Further Amended Particulars of Offer offered a substantive amount).[4] The Authority did not advance any funds until after the trial, on 31 July 2025 when it advanced $18,226,000 to Mr Barrett.[5]
3. I do regard the Authority's conduct in this respect as relevant. The compensation scheme under the Planning and Environment Act and the provisions relating to determination of claims imported by s 105 of that Act from the Land Acquisition and Compensation Act is a scheme which is intended primarily to be a non-litigious administrative process.[6] Section 37(4) of the Land Acquisition and Compensation Act sets a time period within which it is expected that the Authority will make an offer of compensation for financial loss. It was unreasonable of the Authority to make no offer, in reliance initially on a position that no financial loss was caused and no liability to compensation arose under s 99. It acknowledged at the hearing of the separate question that this was not a strong position. After conceding that it no longer relied on a submission that no liability to compensation arose, the Authority still did not make an offer of compensation until a year later. Even if this was on the basis that the Authority wished to ascertain compensation by reference to expert reports to be filed in the proceeding, this is not a necessary basis on which the Authority is to ascertain compensation. The Authority could have made some open offer of, and indeed some advance on compensation, well prior to March 2025.
4. With respect to whether the offers were 'unduly depressed' within the meaning of s 91(1)(b), I also accept that this is a relevant matter, but do not give it significant weight in determining that the Authority should pay Mr Barrett's costs. The amount offered by the Authority was significantly lower than the amount awarded by reason of the approach to the 'development ready' or cultural heritage management plan (CHMP) issue, and the approach to the Argoona Road Land and whether its potential enhancement was to be taken into account in determining compensation for the Subject Land.
5. The CHMP argument was, in my view, an unnecessarily complicated approach to the question of compensation, which was not consistent with the focus of the Planning and Environment Act on a strict but 'commonsense'[7] test of direct, natural and reasonable connection between a reservation and the financial loss caused.[8] To the extent that it was pursued as the primary reason why the compensation sought by Mr Barrett should be substantially reduced that did have some effect of 'unduly depress[ing]' the Authority's offer.
6. The Argoona Road Land argument was open, and raised some complex issues, even if I did not ultimately accept it. I would not regard this argument as a factor which 'unduly' depressed the offer, notwithstanding that the offer was reduced by an amount reflecting the Authority's approach to the Argoona Road Land.

1. Calderbank offers were exchanged by the parties. On 24 September 2024, the Authority offered $21,000,000 for financial loss and $160,000 for expenses, together with statutory interest. That offer expired on 8 October 2024 and was taken to be rejected. The Authority repeated that offer on 12 May 2025.[9]
2. On 26 May 2025, Mr Barrett responded to the Authority's renewal of that offer by making his own Calderbank offer of $27,000,000 for financial loss and $160,000 for expenses, with costs on a standard basis and statutory interest to the date of payment. The Authority rejected that offer on 10 June 2025.[10]
3. The outcome achieved by Mr Barrett in the proceeding was plainly more favourable than the terms of his 26 May 2025 offer.
4. The Authority reasonably and appropriately accepted that Mr Barrett's costs should be calculated on an indemnity basis from 10 June 2025,[11] and I will make that order.

1. The Authority submits that the Court should exercise its wide discretion on costs to apportion costs by reference to the Authority's success on the Paper Road issue, given that it, with two other major issues, was identified as one of the three material contested issues to be determined in the proceeding.[12]
2. The Authority submits that the claim in respect of the Paper Road was 'hopeless' and that the Authority should not have to pay the costs on that issue given Mr Barrett's failure to establish his claim in that respect. It seeks an order that Mr Barrett pay 7.5% of its costs of the proceeding on the basis that the costs of that issue should follow the event. The Authority refers to the costs and expense of responding to this issue in the valuation evidence, to consideration of Mr Barrett's traffic engineering evidence and to legal submissions.[13]
3. The costs discretion of the Court involves attempting to do substantial justice between the parties.[14] There is discretion to depart from what is the general approach (in standard litigation) that costs follow the event, and may involve apportionment of costs where there is success on some issue and not on others. Generally 'the event' for the purposes of the principle that costs follow the event is success in the proceeding generally, but may be success on particular issues.[15] In Priestley v Priestley (No 2), White J explained that the 'event' is primarily to be understood as the outcome of the litigation as a whole:

With some hesitation I think that the picture that emerges from the course of authority is that what is the relevant event for the purposes of the rule is primarily to be determined by reference to the outcome of the litigation and whether or not the plaintiff has obtained judgment in his favour and that that is so even if the defendant has defeated some claims and has succeeded on others, or has succeeded on some issues. I think that emerges from the history of the rule where even though the event was capable of referring to particular issues such that the defendant might be entitled to costs referable to the issues upon which he succeeded, nonetheless, a plaintiff who obtained judgment was entitled to his general costs of the proceedings.[16]

1. Apportionment is more readily available where there has been success in relation to an issue in the trial which is clearly severable and the costs of that issue clearly identifiable. In Vicinity Funds Re Ltd v Commissioner of State Revenue (Vic) (No 5), Nichols J observed:

A court will be reluctant to apportion costs between different issues depending on success or failure on those issues where it is likely to be difficult, if not impossible, to allocate items of costs between the different issues. Accordingly, the severability of the issues is an important factor. The issues should be 'sufficiently distinct' or 'separable'. It is relevant to consider whether the issues on which a party failed were major issues in the action which involved substantial questions of fact and law, or substantially increased the costs of the action. It might be relevant to consider whether a party has succeeded on a 'technicality' but has not been 'generally successful'. [17]

1. In the present case, I do not accept that the Paper Road claim was 'hopeless'. I accepted that there was arguably a valuation approach which would be consistent with valuing the land on the basis that value should be attributed to the land, not on the basis that it is owned or occupied by Mr Barrett but that a prospective purchaser would factor in the potential to buy it from the Crown.[18] I was not, however, satisfied that the valuation evidence addressed the issue in a way that did establish that Mr Barrett should be compensated for it.[19]
2. The issue was a discrete one which is in one sense severable form the other issues. This is at least the case with respect to the legal argument on the claim and the amount that the issue was said to be worth. However, that does not make it as easy to identify the costs of that issue. Mr Barrett did have an expert addressing the issue, but the Authority did not and the Authority pointed only to the fact that it was considered as a material matter in the valuation report, as well as to the fact that costs were expended on the written and oral legal submissions. The amount of time at trial devoted to the Paper Road was relatively confined, but did include time addressing the admissibility of the expert report of Mr Barrett's traffic engineering expert, which I concluded was inadmissible in part.[20]
3. The amount referable to the Paper Road, at $350,000, is minor in comparison to the overall award of compensation of $27,925,000.
4. Taking into account the above considerations, the costs of the Paper Road issue did not substantially increase the costs of the proceeding. The issue was not a major feature of the proceeding and it had low monetary value in comparison to the overall compensation awarded. It would be entirely disproportionate to require Mr Barrett to pay 7.5% of the Authority's costs of the proceeding, having regard to the minor role the issue played in the proceeding and the limited evidence and legal submissions attributed to it, when compared to the other considerations which make it appropriate for the Authority to bear its own costs.
5. The one qualification I consider it appropriate to make with regard to costs in relation to the Paper Road issue is that I will exclude from Mr Barrett's costs to be paid by the Authority the costs of the expert report of the traffic engineering expert. As noted in my Reasons for judgment,[21] I upheld objections to the admissibility of certain parts of the expert report and had no recourse to it in my reasons. That matter and Mr Barrett's failure on the Paper Road issue make it appropriate that the Authority not pay the costs of and relating to that expert report.

1. In the interlocutory phase of the proceeding, hearings were held on 25 September 2024 and 11 October 2024 relating primarily to additional evidence Mr Barrett sought leave to file. I made an order on 13 December 2024 that the Authority's costs of those hearings be paid by Mr Barrett. The Authority sought costs on an indemnity basis, but I did not consider it appropriate at the time to make the costs payable on that basis in view of the possibility that subsequent events may be relevant to any delay caused by the late filing of the evidence.
2. The Authority does not now seek those costs on an indemnity basis.[22] I will order that the Authority's costs of the hearings on 25 September 2024 and 11 October 2024 be paid by Mr Barrett on a standard basis.

1. The Court, at the application of the Authority, issued a subpoena on 25 October 2024 requiring production of documents by Stantec Australia Pty Ltd, and documents were produced by Stantec on 18 November 2024 without objection either by Stantec or at that time by Mr Barrett.
2. Mr Barrett later sought orders setting aside categories of documents in the subpoena. A hearing was held for that application on 3 February 2025 at which I declined to set aside those categories, as I concluded that there was a legitimate forensic purpose for seeking them. However, I made orders for an inspection regime for the documents in which Mr Barrett had a first right of inspection, and to make any objections to inspection of the documents by the Authority.[23]
3. Mr Barrett ultimately did not object to inspection of any of the Stantec documents.
4. The Authority says that in light of its success in resisting Mr Barrett's claim for setting aside categories of discovery, and the ultimate failure of Mr Barrett to make any objection to inspection of any document, it should receive its costs of the hearing relating to the Stantec subpoena objection, and costs relating to submissions made at the time, in May 2025, in relation to the costs of and relating to Mr Barrett's application.[24] The Authority notes that it was successful in its application, and in establishing that the documents had a legitimate forensic purpose. The Court made orders on 3 February 2025 substantially in the terms sought by it.[25]
5. Mr Barrett now says that given that the documents produced pursuant to the subpoena were not in fact of any significance in the trial, he should not have to pay the costs of the hearing relating to his objection to categories of the subpoena and to inspection.
6. I accept the Authority's submissions. The fact that, it is possible ex post facto to assess that the documents were not of any real significance in the trial does not alter the position that I concluded at the hearing on 3 February 2025, being that there was a legitimate forensic purpose in seeking them. Mr Barrett's objection to categories of that subpoena, and his objection to the Authority being permitted to inspect them was the cause of the 3 February 2025 hearing and associated legal submissions. He had made no objection when the subpoena was issued to the production of the documents by Stantec. Ultimately, he also made no objection to any of the documents being inspected.[26] The objection involved an application which did necessitate a hearing, and a response on the part of the Authority, and no strong reason was ever identified by Mr Barrett as to why the objection had been taken. I think it appropriate that Mr Barrett pay those costs on a standard basis. I will make orders to that effect.

1. Mr Barrett seeks interest on the compensation pursuant to s 60(1) of the Supreme Court Act 1986 (Vic).
2. The Authority accepts that s 60(1) applies to the payment of interest on the award of compensation, and that interest is payable on Mr Barrett's award of compensation.[27] It says, however, that there is 'good cause' within the meaning of s 60(1) why interest should not be awarded with respect to a period of approximately 8 months.

1. The hearing of this proceeding had been listed, by orders made on 27 August 2024, for commencement on 21 October 2024.[28] In September 2024, Mr Barrett sought the Authority's consent to file further hydrology evidence and evidence from a new Aboriginal cultural heritage expert (cultural heritage evidence).[29] Mr Barrett also, for the first time, provided two documents relevant to the reimbursement of the cost of using part of the Subject Land for a retarding basin to the Authority, which had been in existence at the time he initially made his discovery (Reimbursement Documents). Mr Barrett took the position that the Reimbursement Documents were not discoverable but were provided to the Authority to avoid delay. However, subsequently Mr Barrett's solicitors advised that the documents were 'relevant to the accuracy of the assessment by both valuers', and the documents were in fact relevant to a subsequent revision in the expert evidence on the valuation of Mr Barrett's claim.[30]
2. The Authority opposed the grant of leave to file the hydrology evidence and the cultural heritage evidence. I heard the parties on the application for leave to file the evidence on 25 September and 11 October 2024. On 25 September 2024, I made orders permitting the filing of the hydrology evidence, vacating the trial date and reserving the question of costs thrown away by reason of Mr Barrett's application for leave to file further evidence. On 14 October 2025, I made orders for the filing of further evidence by both the Authority and Mr Barrett and made other orders for preparation for trial, including for the filing of Amended Particulars of Claim by Mr Barrett and for any Further Amended Particulars of Offer by the Authority.
3. The Authority submits that the interest payable should be 'suspended' in the period from 25 September 2024, being the date on which I made orders vacating the trial date, to 17 June 2025, being the date before the commencement of the trial.[31]
4. The Authority submits that the adjournment was necessitated by the late discovery of the Reimbursement Documents and the application to file further evidence, in circumstances where the Reimbursement Documents should have been provided with Mr Barrett's August 2023 discovery, and the need for the hydrology evidence and cultural heritage evidence could and should have been appreciated earlier so as to avoid any need for an adjournment.[32]
5. The Authority relies on observations as to the award of interest under s 60 of the Supreme Court Act made in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 30).[33] There Justice Elliott observed:

In keeping with the overall purpose of s 60, when determining whether a 'good cause' exists, the discretion is not 'intended to be directed to penalising the plaintiff but to alleviating the defendant in a proper case'. However, the 'good cause' exception should not be seen as diminishing a defendant's culpability or wrongdoing. It instead serves only to protect the defendant against any injustice.

Delay on the part of a plaintiff may be relevant to the question of whether there is good cause to depart from the period of time specified in s 60. The court must consider 'whether the plaintiff's delay, such as it is in a given case, is seen as working such injustice, were the plaintiff to be allowed interest for the whole of the period available' under the legislative provision.[34]

1. Mr Barrett accepted in submissions yesterday that he had in effect, by reason of the application for leave to file further evidence, been the party who had necessitated the adjournment of the trial from the October 2024 date. However, he submitted that this was not 'good cause' for interest not being awarded for the period from the date on which the adjournment was ordered until the start of the trial. He said:

(a) It was reasonable for him to seek an adjournment for the purposes of obtaining further evidence on hydrology and cultural heritage issues, as the relevance and significance of the evidence had been made apparent by that time by the approach taken by the valuation experts.

(b) The adjournment of the trial had no impact on the incurring of interest, because the Authority had at the time that the trial was adjourned in September 2024 made only a nil offer. As a consequence, there was at the time no offer capable of acceptance which could have stopped the accrual of interest, even if the trial had not been adjourned.

1. I did not accept that the fact that the adjournment application had a reasonable basis meant that without more there was no potential 'good cause' for not requiring the Authority to pay interest from the date of the original trial listing to the date on which the trial occurred. The evidence was of a nature that it was not necessary to await the valuation experts' approach to it in order for Mr Barrett to have determined whether further evidence on the hydrology and cultural heritage issues was necessary or not. Mr Barrett also did not put forward any adequate reason, in my view, for not having discovered the Reimbursement Documents at an earlier time. Mr Barrett bears a significant responsibility for the adjournment of the trial at that time.
2. The fact that only a nil offer had been made by the Authority at the time of the adjournment, so that there was no offer capable of being accepted is in a different position. It is clear that the ability of the Authority to make an offer is directly relevant to the potential to limit exposure to interest.
3. In Minister for Energy, Environment and Climate Change v Morton, Garde J observed, with respect to calculation of interest:

I also accept that there is some force in the claimants' submission that the amount of interest payable is largely in the hands of an acquiring authority. If comprehensive and well-directed offers are made by authorities consistently with their obligations as model litigants, and advances of compensation are made at appropriate times, minimal interest will accrue. If offers and advances of compensation are not made, the interest that can accrue can be substantial.[35]

1. It is clear that as a general consideration, delay by the Authority in making an offer, and failure to make any advance of compensation until after the trial, is directly related to the lengthy period of time over which interest accrued on the compensation payable in this case. I do take the Authority's failure to make any offer in a timely way into account as a matter generally relevant to the interest payable and to the way in which I should assess whether there is 'good cause' not to award interest on the compensation amount for some of the period since the proceeding commenced.
2. However, the significance that Mr Barrett gives to the making of only a 'nil' offer at the time the trial was adjourned is that this is enough of itself to compel the conclusion that there should be no suspension of the interest payable. The fact alone that at the time of the adjournment there was a nil offer of compensation is not, in my view, a sound basis on which to reject the Authority's submission that there is 'good cause' not to order interest throughout the entire period of the adjournment. It is true that no offer was made for a significant period, and no advance on compensation was paid until after the trial was concluded.[36] However, an offer was made in March 2025, three months before trial. Had the trial proceeded in October 2024, with all valuation and other evidence being ready for that purpose, it is quite likely in my opinion that the Authority would have made an offer at a time before that trial commenced.[37]
3. The offer made by the Authority was for an amount of $18,725,000 (including $75,000 for expenses), which was significantly less than the amount awarded. Mr Barrett was, in light of the outcome of the trial, justified in not accepting it. It would not be appropriate to say that interest should not be payable to a claimant after the date of an offer that it was reasonable not to accept. Counsel for Mr Barrett says, however, that the fact that the offer was ultimately made in March 2025, some months prior to the hearing also has no significance on whether interest should be payable. This is not entirely consistent with his submission that the absence of any offer capable of acceptance is a sufficient basis of itself to reject the Authority's submission that interest should be suspended following the adjournment of the trial.
4. I do not accept that the absence of an offer at the time of the adjournment is, alone, a sufficient reason to reject the Authority's argument that interest should not be payable during the period after the trial was vacated.
5. I consider that the fact that the trial date was vacated at the instance of Mr Barrett (particularly in circumstances where it may have been possible to avoid the adjournment with earlier appreciation of the need for the relevant evidence and earlier production of the Reimbursement Documents) is a matter which is capable of constituting 'good cause' to not award interest for the period of delay caused by that adjournment. There would be an injustice to the Authority to require it to pay the full penalty interest rate during the entirety of the period during which the proceeding was adjourned at Mr Barrett's instance.[38]
6. However, I also do not accept that the entirety of the period of delay between the 25 September 2024 orders vacating the October trial date until the date of trial can be attributed solely to Mr Barrett's application for an adjournment.
7. After I vacated the October trial date at Mr Barrett's request, the parties proposed a timetable for evidence which led to the trial date in June 2025. The Authority as well as Mr Barrett sought provision for the filing of new evidence.[39]
8. Ultimately, it is a difficult decision to ascertain to what extent the trial could have been held if not for Mr Barrett's initial application for leave to file further evidence. The timetable proposed by the parties suggests that both parties did require some further time to prepare. I do consider it appropriate to hold Mr Barrett responsible for a significant period of that adjournment, and find that it would be an injustice to the Authority to require it to pay interest on all of that period. However, I cannot exclude the possibility that the time period required for preparation for the later trial may have been necessary for both parties to prepare the evidence on which they later relied, regardless of Mr Barrett's initial application. I also take into account that orders were made on 14 October 2024 for the filing of Amended Particulars of Claim, and any Further Amended Particulars of Offer, and that the Mr Barrett filed Amended Particulars of Claim on 3 March 2025, and Authority then filed its Further Amended Particulars containing its first open substantive offer in March 2025.
9. In these circumstances I consider it appropriate to disallow interest for part of the period for which the trial was adjourned from 21 October 2024 until 23 June 2025. I will order that the period for which the Authority is to pay interest pursuant to s 60(1) of the Supreme Court Act excludes the period from 21 October 2024 to 31 March 2025.
10. I will also order that Mr Barrett pay the Authority's costs of and incidental to Mr Barrett's application for leave to file further hydrology evidence and cultural heritage evidence, including all hearings and submissions relating to the making of directions for the filing of further evidence and for the adjourned trial to proceed in June 2025. The Authority seeks related orders that Mr Barrett pay the costs of and incidental to the failure to provide the Reimbursement Documents by way of discovery or pursuant to the overarching obligation to disclose critical documents in s 26 of the Civil Procedure Act 2010 (Vic). I accept that this is appropriate.
11. The Authority also seeks orders for its costs thrown away by reason of the adjournment of the trial. I consider that the orders for costs relating to the application for leave to file further evidence and the late discovery of the Reimbursement Documents sufficiently address any costs thrown away. I will not make a further order in relation to costs arising because of the adjournment.

[1] Barrett v Head, Transport for Victoria [2026] VSC 149 (Reasons).

[2] [2011] VSCA 434, [173] (Warren CJ, Tate JA and Emerton AJA) (citations omitted). See also Murdesk Investments Pty Ltd v Roads Corporation [2007] VSC 175; (2007) 155 LGERA 13, 19 [23] (Osborn J) and Kingston v Head, Transport for Victoria (No 2) [2024] VSC 231, [97] (Quigley J).

[3] Authority's Outline of Submissions dated 30 March 2026, [3].

[4] Respondent's Further Amended Particulars of Offer dated 14 March 2025

[5] Affidavit of Christopher Nathaniel Cantor sworn 30 March 2026 (Cantor Affidavit) [4(l)-(m)].

[6] As observed at [94] of the Reasons.

[11] Authority's Outline of Submissions, [3].

[12] Authority's Outline of Submissions, [6]-[7].

[13] Authority's Outline of Submissions, [7] referring to the observation in the Joint Statement of Valuation Experts dated 28 February 2025, p 4, that the Paper Road was noted as a 'critical assumption/issue'.

[14] Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252, [12] (McLeish, Niall and Walker JJA).

[15] Re Koroneos [2021] VSC 734, [5] (McMillan J), citing Priestley v Priestley (No 2) [2016] NSWSC 1259, [49] (White J).

[16] [2016] NSWSC 1259, [49] (White J).

[17] [2025] VSC 132, [9] (citations omitted).

[20] Expert Report of Charmaine Dunstan, dated 9 May 2024.

[22] Authority's Outline of Submissions, [3(c)].

[23] Order of Harris J in Barrett v Head, Transport for Victoria (Supreme Court of Victoria, S ECI 2023 02648, 3 February 2025).

[24] Authority's Outline of Submissions dated 21 May 2025 and Applicant's Outline of Submissions dated 28 May 2025.

[25] Authority's Outline of Submissions dated 21 May 2025, [3], [11].

[26] Authority's Outline of Submissions dated 21 May 2025, [16].

[27] Authority's Outline of Submissions, [13]. The Authority notes that the new ss 104B and 104C of the Planning and Environment Act, which took effect from 25 November 2025, will impact on this position.

[28] Order 1 of Order of JR McCann in Barrett v Head, Transport for Victoria (Supreme Court of Victoria, S ECI 2023 02648, 27 August 2024). The orders were made by consent and included other orders for preparation for trial.

[29] Affidavit of Julie Maree Colsell sworn 30 March 2026 (Colsell Affidavit), [5].

[30] Colsell Affidavit, [6]. See also Authority's Outline of Submissions [9]-[10].

[31] Authority's Outline of Submissions, [16].

[32] Colsell Affidavit [18]-[20]; Authority's Outline of Submissions [9]-[11].

[33] (2022) 67 VR 1 (Elliott J) (Cargill (No 30)).

[34] Cargill (No 30), 5 [10]-[11] (citations omitted).

[35] (2017) 228 LGERA 71, 108 [125].

[36] On 31 July 2025: Cantor Affidavit, [4(n)].

[37] The Authority's evidence was that it considered it necessary to consider the valuation expert evidence before making an offer. See Colsell Affidavit, [21]. I do not accept that this is the case, since the Planning and Environment Act compensation provisions, including those dispute determination provisions of the Land Acquisition and Compensation Act applied by s 105 of the Planning and Environment Act, quite plainly contemplate the Authority making an offer of compensation without the need for any litigation before the Victorian Civil and Administrative Tribunal or the Supreme Court and thus without preparation of expert reports of the kinds used in this proceeding. However the fact that this was the Authority's position does suggest that once the valuation and all other expert evidence had been finalised for a trial, it would have made an offer and had that been in October 2024, an offer could have been expected at that time.

[38] Cargill (No 30), 5 [11] (Elliott J).

[39] Order of Harris J in Barrett v Head, Transport for Victoria (Supreme Court of Victoria, S ECI 2023 02648, 14 October 2024).