Practice and procedure - Whether respondent should be permitted to lead more evidence when Full Court has remitted case for determination in accordance with judgment of Full Court - Turns on own facts

Application by respondent to lead further evidence dismissed

101 Collins Street Pty Ltd v City of Melbourne, unreported; SCt of Vic (Batt J); 12 April 1996

Barder v Caluori [1988] AC 20

Brewarrana Pty Ltd v Commissioner of Highways (1973) 6 SASR 541

Cicic v Snowy Mountains Hydro-Electric Authority [1964-5] NSWR 178

Doherty v Liverpool District Hospital (1991) 22 NSWLR 284

Duffy v Minister for Planning [2003] WASCA 294

Greater Woollongong City Council v Cowan [1955] HCA 16; (1955) 93 CLR 435

In the Marriage of Abdo (1989) 12 Fam LR 861

Mulholland v Mitchell [1971] AC 666

Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235

Warr v Santos [1973] 1 NSWLR 432

Yates property Corp Pty Ltd (In liq) v Boland [1998] FCA 8; (1998) 85 FCR 84

1 PULLIN J: The Full Court on 4 December 2003 allowed an appeal against my earlier judgment on grounds that I had misdirected myself on the law (Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295). The Full Court said that I had been wrong to "assume ... that there will be a single most comparable sale on which to determine value": see [51] of the Full Court's reasons for decision. As a result of this error, the Full Court concluded that this would only affect the outcome if I was wrong to primarily rely on the September 1994 sale of lot Y104: see [53] of the Full Court's reasons.

2 In [59] to [63], McLure J mentioned a number of points which had to be addressed and which, I suppose, by implication or expressly in some cases, it was said were not addressed. So in [61], for example, her Honour said "if these sales" - and in saying that she was referring to the sales mentioned in [59] - were not comparable, it would be "unsafe to rely on lot Y104" as the most important, indeed the only, comparable sale".

3 At [62], her Honour mentions the fact that lot Y104 was closer to core Northbridge but merely raises this as a point because, as her Honour said, she was not satisfied that the Judge failed to consider that matter simply because it was not mentioned in his reasons for decision. That is an example of a point which would have to be addressed in reconsideration of the matter.

4 In [63], her Honour mentions facts which had to be addressed in relation to the International Food Hall sale. In [65], her Honour mentions the hypothetical development on lot Y104 but does not expressly detect any error in the reference to this evidence. Her Honour then concluded at [66]:

"It may be the case that, approached correctly, significant weight could be accorded to the sale of Lot Y104. However, that is a matter to be assessed by the application of correct principles of valuation. For these reasons I would uphold grounds of appeal 2 and 3."

5 Grounds of appeal 2 and 3 are set out in the Full Court's reasons for decision. Ground 2 reads:

"Contrary to principles of valuation and the evidence of each of the valuers giving evidence, the judge in effect asked and determined which was the most important comparable sale (being as he found Lot Y104 James Street) and based his valuation of the subject land entirely or almost entirely on that sale."

6 What is important to note about that is that the argument, as revealed by that ground, was that the error had been made as a matter of direction by me and that no error was made by any of the valuers of that kind, because it was said in the ground that the misdirection on that point was contrary to the evidence of each of the valuers giving evidence, and that ground was upheld. Ground 3 I will not quote in full, but it began: "In basing his valuation on lot Y104 the judge erred in law and on the facts in that", and then there are a number of subparagraphs indicating the types of error which I have already referred to and which are identified by the Full Court.

7 The grounds of appeal also included a ground which involved a complaint about my rejection of the evidence of value given by the other three valuers, that is, other than Mr Dix; those other valuers being Mr McMahon, Mr Elliott and Mr Spencer. Between [67] and [73] her Honour considered that aspect and rejected those grounds of appeal. At [83] of her Honour's reasons for decision she said:

"For the reasons given I would uphold grounds of appeal 2 and 3 and dismiss grounds 4 and 5. In those circumstances the judgment should be set aside. The appellant has not contended that the trial Judge should have accepted the evidence of Mr Spencer or Mr Elliott in lieu of that of Mr Dix. In the circumstances, the appropriate order is that the matter be remitted to the trial Judge."

"I would uphold grounds of appeal 2 and 3, set aside the judgment and remit the matter back to the trial Judge for determination in accordance with these reasons. I would dismiss the notice of contention. I would uphold ground 5 but dismiss the balance of the cross-appeal."

9 So there was nothing in those reasons for decision which indicated that the Full Court thought that the matter should be retried, and no order was made that further evidence should be led when the matter was remitted for rehearing. When the reasons for decision were handed down, there was some brief debate about the question of new evidence, and at t/s 190 on 4 December 2003 the following exchange took place. Mr Edmonds said:

"Can I just mention one other matter, your Honours. In relation to the remission to his Honour Pullin J, there may be an issue concerning the admission of new evidence. It could either be dealt with on the basis that your Honours make an order or that that matter just be left to his Honour Pullin J."

"It may be in the light of your Honour's (sic) reasons that new evidence would be appropriate. It may be that your Honours touch on some aspect of the evidence which might lead to that."

"We will leave that perhaps to Pullin J. I must say I can't see at the moment why there would be any need for new evidence but perhaps that's a matter that can be raised before him, if need be."

"Very well, your Honour. So those are the orders I would seek in relation to the appeal."

14 The orders which were then made were that the appeal be allowed, the notice of contention be dismissed, and ground 5 of the cross-appeal be allowed, and order 2 was that the orders made by Pullin J on 11 October 2002 be set aside and the matter be remitted to his Honour for determination in light of the judgment of the Full Court. The effect of that order and the judgment of the Full Court is that this case is now in the position it was after the close of both cases before I gave judgment.

15 An application is now made by the respondent to adduce more evidence. The first point to observe is that it seeks a direction which permits the applicant's expert Mr Dix to file a further report, but the applicant is, of course, the one to decide whether it wishes to lead more evidence. The applicant has stated that it does not consider that further evidence should be led, and it has not applied to reopen the case in order to lead evidence from Mr Dix, so there is no prospect in those circumstances, without any reopening of the case, that Mr Dix would be leading further evidence, particularly in the circumstances where, as I have already mentioned, ground 2 of the appeal assumes that the error which was identified in my decision was not an error made by Mr Dix.

16 The respondent seeks also to have Mr Spencer prepare a new report. In effect, the respondent seeks to reopen and lead further evidence from Mr Spencer. In my opinion, the respondent should not be permitted to reopen to lead fresh evidence. I rejected the evidence of Mr Spencer, and a report from Mr Spencer could only attempt to overcome the deficiencies with his evidence which led me to conclude that I should not rely upon it, and which led the Full Court to conclude that I was correct to do so.

17 Whether I should permit a reopening is a matter within the discretion of the Court, and the discretion will generally be exercised taking into account the interests of justice. It would not, in my opinion, be in the interests of justice to permit Mr Spencer to give fresh evidence. This may only complicate the process, and the finality of the trial process would be eroded if, in effect, Mr Spencer was permitted to give evidence which took into account all that has been said by the Court at first instance and the Court on appeal.

18 The applicant submits that the correct approach is to consider whether fresh evidence should be admitted. In my opinion, that is not the basis on which I should be deciding the present application, but if I am wrong about that, and if that is the correct approach, then, in my opinion, it is clear that the respondent does not satisfy the tests which have to be satisfied in adducing fresh evidence, which involves proof that it is highly likely that there would be an opposite result produced and that no reasonable diligence on the part of the defeated party would have enabled that party to procure that evidence.

19 So, for those reasons, I conclude that I should not be hearing any further evidence and that the only directions I should give should be to direct the parties to mediate before a Registrar and to bring in written submissions to allow me to redetermine the matter in the light of the judgment of the Full Court.