//
[2025] WASCA 62
General information, not legal advice.
Court of Appeal (WA)
2025-04-30
Buss P
Original judgment source is linked above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] Merrick Tyler Pty Ltd v Commissioner of Main Roads [2015] WASCA 82 [42] ‑ [52] (Newnes & Murphy JJA & Beech J).
[2] Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 [273] ‑ [274].
[3] Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418, 440 (Isaacs J).
[4] Longworth v Commissioner of Stamp Duties (1953) 53 SR (NSW) 342, 348 (Owen J; Herron J agreeing).
[5] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [337] ‑ [379] (Beech J).
[6] The Adelaide Fruit and Produce Exchange Co Ltd v The Corporation of the City of Adelaide [1961] HCA 20; (1961) 106 CLR 85.
[7] Brisbane City Council v Mio Art Pty Ltd [2011] QCA 234; [2012] 2 Qd R 1.
[8] Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 96; (2015) 207 LGERA 448.
[9] Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 [10] ‑ [11].
[10] Secretary to the Department of Economic Development, Jobs, Transport and Resources v CRG Nominees Pty Ltd [2016] VSC 301.
[11] Secretary to the Department of Economic Development, Jobs, Transport and Resources v Avid Property Group Nominees Pty Ltd [2017] VSCA 136; (2017) 53 VR 490.
[12] Western Australian Planning Commission v Kelly [2007] WASCA 160 [27].
[13] Transport for NSW v Eureka Operations Pty Ltd [2022] NSWCA 56 [75].
[14] Carson v Minister for Environment and Planning [1990] NSWLEC 70; (1990) 70 LGRA 215, 220 ‑ 221.
[15] Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334.
[16] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679.
[17] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129.
[18] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481.
[19] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1.
[20] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491.
[21] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598.
[22] Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317 [34] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ).
[23] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J).
[24] Appellant's submissions par 27 WAB 13.
[30] Appeal ts 38. See also appeal ts 39 ‑ 45.
[31] Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 [130] ‑ [131].
[32] Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [205].
[33] Tabloid Pty Ltd v Pringle [2024] WASCA 152 [99.3], [99.10] (see also [71]).
[35] Magann v The Trustees of the Roman Catholic Church for the Diocese of Paramatta [2020] NSWCA 167 [53] ‑ [56].
[45] The diagram is from GAB 297 and is consistent with Google Earth representations (see GAB 302), Landgate records (GAB 195) and Landgate aerial mapping pictures (see GAB 1166). There is some doubt as to whether the realigned Lenore Road absorbed the whole of the frontage to Mary Street or only most of it. There is no dispute, however, that the effect of the realignment of Lenore Road was to preclude access from Lot 9003 to Mary Street for the purposes of subdivisional development.
[64] ts 283 and to the same effect Mr Highman at ts 312
[66] GAB 252 [6], 255 [28] - [31].
[122] ts 553. The transcript refers to Lot 9004 but in context it is clear that this was a reference to Lot 9005.
[138] Exhibit 33 - Valuers' Joint Witness Statement after Conferral, GAB 1252.
[140] GAB 1392 - 1394, [389] - [391].
[144] Bakota v City of Wanneroo [2022] WASC 462 (Curthoys J) from [54] (primary decision).
[150] Primary decision [85], [87].
[151] Primary decision [93] - [95].
[156] Primary decision [130], [141].
[159] Primary decision [138] - [139].
[161] Primary decision [152] - [153].
[162] Primary decision [180], [189].
[168] Primary decision [213] - [214].
[171] Primary decision [226] - [227].
[175] Primary decision [248] - [249].
[176] Primary decision [252] - [258].
[178] Primary decision [262] - [264].
[179] Primary decision [265] - [267].
[181] Primary decision [283] - [285].
[182] Primary decision [286] - [287]
[195] Appeal hearing, 19/02/2024, ts 34.
[199] Lenz Nominees v Cmr of Main Roads [2012] WASC 6 (Lenz) [235].
[201] Brisbane City Council v Mio Art Pty Ltd [2011] QCA 234; (2011) 183 LGERA 352 (Brisbane City Council) [30].
[204] Kelliher v Kelliher [2015] WASC 478.
[205] Western Australian Planning Commission v Kelly [2007] WASCA 160 (Kelly) [14], [40].
[206]WAB 1. See fn 4, 5 of the appellant's submissions and chronologies.
[212] See for example: appellant's submissions [50], WAB 12 [18] - [19], 18; appeal ts 39 - 40, 42, 44, 44, 55, 65 - 66.
[224] Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] UKPC 15; [1939] AC 302.
[226] Primary decision [94] - [95].
[227] Appeal hearing, 19/02/2024, ts 64.
[234] Appeal hearing, 19/02/2024, ts 29.
[236] Appeal hearing, 19/02.2024, ts 29.
[237] Appeal hearing, 19/02/2024, ts 68.
[238] Appeal hearing, 19/02/2024, ts 69.
[239] LVR (WA) Pty Ltd v AAT [2012] AAT FCAFC 90; [2012] FCAFC 90; 203 FCR 166 (LVR).
[240] Li v Attorney General for NSW [2019] NSWCA 95 (Li).
[241] Porter v The Queen [2024] ACTCA 9; (2024) 21 ACTLR 122 (Porter).
[242] Atanaskovic Hartnell Corporate Services v Kelly [2024] FCFCA 137 (Atanaskovic).
[251] Primary decision [5], [105], [296], [299], [345].
[252] Appeal hearing, 26/08/2022, ts 405 - 406.
BAKOTA
CITY OF WANNEROO
In some cases there may be a fine distinction between 'severance' damage (s 241(7)(a)) and injurious affection (s 241(7)(b)). Some decisions treat the two interchangeably: Cerini v The Minister for Transport [2001] WASC 309 [187] ‑ [201] (Parker J). Other cases treat severance damage as a species of injurious affection: Sisters of Charity of Rockingham v The King [1922] 2 AC 315, 327 ‑ 328 (Privy Council), referred to in Mount Lawley [2004] WASCA (335) [327] (the Court).
However, the two concepts are distinct in the legislation, and can also be distinct in effect. Injurious affection in s 241(7)(b) focuses upon the reduction in the value of adjoining land. Severance in s 241(7)(a) is not so confined. In an appropriate case, severance might include, for example, reliance losses suffered which are independent of the value of the adjoining land.
The before and after method is not anything more than a tool to assess compensation which s 20 of the Act allows. If it is used, it can only be used to assess that compensation which s 20 allows. There are no doubt cases where it is not apt to do so and, in such cases, the court must reject it as a proper method (Carson v Minister for Environment and Planning [1990] NSWLEC 70; (1990) 70 LGRA 215, 221 per Hemmings J). Whether or not the method is apt in any particular case will depend upon the facts and evidence in that case. Moreover, there are cases in which, while as a matter of principle there could be no objection to the before and after method being used, the way in which a valuer has approached his or her task, including the inputs the valuer has used, might make that valuer's application of the before and after method inapt to assess s 20 compensation in that case (See Hieronymus v Minister for Education [1989] NSWLEC 62, pp 9 ‑ 10 per Hemmings J).
A before and after valuation method assesses all the advantages and disadvantages in comparing the original and the remaining land. It does not distinguish between severance and injurious affection (Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2005] NSWLEC 467, [14] ‑ [20]; Mir Bros v RTA NSW [2006] NSWCA 314 [10] ‑ [12]).
The courts have found the before and after method to be the best for assessing compensation for expropriation of a portion of land (such as for a road) (Kelly v Western Australian Planning Commission [2006] WASC 208 [70]; Western Australian Planning Commission v Kelly [2007] WASCA 160 [27] (McClure [sic] JA); Transport for NSW v Eureka Operations Pty Ltd [2022] NSWCA 56 [75]).
For severance and injurious affection:
The two most common methods are a 'piecemeal approach' and a 'before and after' approach: Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 at [70]. A 'piecemeal approach' involves the separate assessment of the matters in s 55 of the Acquisition Act, such as the market value of the acquired land under s 55(a), any loss attributable to severance under s 55(c) and any decrease in the value of the residue land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired under s 55(f). The 'before and after' approach involves comparing the market value of the land immediately before and immediately after the acquisition of the whole or part of the land.
The before and after approach is particularly useful where there has been an acquisition of only part of a parcel of land: Roads and Traffic Authority (NSW) v McDonald (2010) 175 LGERA 276; [2010] NSWCA 236 at [88]. Where there is a partial acquisition of land, the before and after approach involves calculating compensation by subtracting the market value of the residue land immediately after acquisition from the market value of the entire land immediately before acquisition: Gosford Shire Council v Green (1980) 48 LGRA 201 at 208; Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2006] NSWCA 314 at [11], [12]; Sydney Water Corporation v Caruso at [70].
The before and after approach has the advantage of assessing compensation for a number of matters in s 55 of the Acquisition Act in a combined way, without the necessity for separate assessment of each matter: Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW at [46], [57] and [58]; Merlino v Roads and Maritime Services at [23]; Roads and Maritime Services v United Petroleum Pty Ltd ; at . In particular, the before and after approach can determine the amount of compensation to which a dispossessed owner is entitled having regard to the matters in s 55(a), (c) and (f) of the Acquisition Act, being the market value of the acquired land and the effect on the value of the residue land attributable to severance or by reason of the carrying out of the public purpose for which the land was acquired: Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd (2005) 143 LGERA 192; at ; Roads and Traffic Authority (NSW) v Damjanovic ; at ; Roads and Traffic Authority (NSW) v Collex Pty Ltd ; at ‑ [104]; Roads and Traffic Authority (NSW) v McDonald at [88], [89]; Tolson v Roads and Maritime Services at [110].
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) [1950] HCA 35; 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8 ‑ 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas (1988) 180 CLR 491 at 496 ‑ 497; cf R v Birks (1990) 19 NSWLR 677 at 683 ‑ 685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross‑examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 ‑ 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
As Water Board v Moustakas ((1988) 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas (1988) 180 CLR 491 at 497). (emphasis added)
(1997) 96 LGERA 306
(2010) 175 LGERA 276
(2005) 143 LGERA 192
(2006) 146 LGERA 403
(2009) 165 LGERA 419
(2009) 170 LGERA 298
(2019) 99 NSWLR 279
(1985) 59 ALJR 481
(1986) 162 CLR 1
(1982) 150 CLR 310
(1982) 148 CLR 658
(1978) 52 ALJR 291
(2001) 75 ALJR 867
(1950) 81 CLR 418
(1997) 47 NSWLR 631
(1961) 106 CLR 85
(2015) 207 LGERA 448
(2017) 53 VR 490
(2016) 90 ALJR 679
(2011) 183 LGERA 352
(2024) 21 ACTLR 122
(1988) 180 CLR 491
(1990) 19 NSWLR 677
(2012) 186 LGERA 58
(1907) 5 CLR 418
(2020) 91 MVR 334
(2019) 266 CLR 129
(2003) 77 ALJR 1598
(2005) 80 ALJR 317
(1990) 169 CLR 279