Dibb v Transport for New South Wales

Applicable principles

1. In their submissions in support of the motion, the appellants framed the application to rely upon fresh evidence as one made pursuant to s 75A(8) of the Supreme Court Act 1970 (NSW). Subsections 75A(7)-(9) of the Supreme Court Act provide: (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.
2. Where an appeal lies only on a question of law, there may be some doubt as to how these provisions of the Supreme Court Act are to take effect. It is unnecessary in this appeal to resolve this question. It is clear that the documents which the appellants seek to adduce on the appeal could not, in any event, be received applying the well-established principles governing applications under s 75A(7)-(9) of the Supreme Court Act. I also observe that, whilst it is not apparent that there was any contention that any stricter standard applied, in Barkat v Roads and Maritime Services [2019] NSWCA 240 at [50]-[51], Emmett AJA (Leeming JA and Simpson AJA agreeing) treated an application to rely upon further evidence in an appeal under s 57(1) of the LEC Act as falling within the established principles governing applications under s 75A(7)-(9) of the Supreme Court Act.
3. The expression "special grounds" has been adopted to "describe the circumstances which in a particular case will justify resolving the tension between the demands of justice on the one hand and the public interest in bringing suits to a final end on the other, in favour of allowing further evidence to be led": Tjiong v Tjiong [2012] NSWCA 201 at [165] (Meagher JA, Whealy and Barrett JJA agreeing) ("Tjiong") citing Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 (Spiegelman CJ at [10], [22], [27], Campbell JA at [136], Handley AJA at [250]) ("Phoenix").
4. In general, three conditions must be satisfied before further evidence will be received on "special grounds" under s 75A(8) of the Supreme Court Act: 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: see eg Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (2019) 99 NSWLR 447; [2019] NSWCA 73 at [9]-[14] ("Comlin"); 2. The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and 3. The evidence must be such as is presumably believed or, in other words, it must be apparently credible though it need not be incontrovertible.
5. As set out by Meagher JA in Tjiong (at [168]), whilst these three conditions "describe matters which will often have to be taken into account, they do not represent the only considerations which may be addressed when assessing whether there are "special grounds"." Nor is it necessary that in every case each of those considerations must be satisfied: Phoenix (at [135]-[136]). Indeed, this Court has held that the Court might find special grounds even where none of the three conditions is satisfied: Comlin at [69] (Emmett JA, Basten and Meagher JJA agreeing).
6. Even if "special grounds" are made out, there may well be discretionary reasons for not admitting the further evidence: Hampson v Hampson [2010] NSWCA 359 at [21]-[23] (Campbell JA, Giles JA and Handley AJA agreeing).
7. Where further evidence is relied upon in support of contentions that were not advanced at first instance or sought to be led in support of a contention that an appellant suffered injustice by reason of the way in which their case was conducted at first instance, additional considerations arise.
8. First, as set out in Metwally (at 483): "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had 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."
9. This principle was reiterated by Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7; [1986] HCA 33 ("Coulton"): "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."
10. Second, whilst in both the criminal and civil context cases may arise in which it may be found, on appeal, that there was a miscarriage of justice, or unfairness, occasioned by reason of the way in which counsel conducted a case at trial, the circumstances in which this is so are necessarily constrained in the interest of finality and having regard to the adversarial characteristics of our system of justice. In the criminal context, in R v Birks (1990) 19 NSWLR 677 ("Birks") this Court found that there had been a serious miscarriage of justice in circumstances where counsel for the accused had, through inadvertence, neglected altogether to cross-examine the complainant in a criminal trial and the trial judge directed the jury that certain inferences could be drawn from that failure. Gleeson CJ (McInerney AJ agreeing) observed at 684: "The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice."
11. The Chief Justice then (at 685) summarised the relevant principles (McInerney AJ agreeing): "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
12. In the civil context, where an appeal was allowed on the basis of evidence not having been adverted to by counsel leading to a real risk that an injustice occurred, in Chouman v Margules (1993) 17 MVR 144 at 149, Kirby P, having referred inter alia to Birks, observed: "This jurisdiction is, however, exercised most cautiously. As Gleeson CJ pointed out in Birks (above) at 685 it is exercised with a full appreciation of the way in which "the system of criminal justice operates". The mere fact that a mistake or unwise decision in the conduct of a trial is made on behalf of a client by an advocate will not, without more, justify the setting aside of a conviction to avoid a miscarriage of justice. If this is so in a criminal trial where liberty and reputation are at stake, it is clearly so in civil trials. See eg Burchett v Kane (1980) 2 NSWLR 266 at 268 (CA); Seaton v Bumand (1900] AC 135 at 141 (HL); Skrzypkowski v Silvan Investments Ltd [1963] 1 All ER 886; [1963] 1 WLR 525 (CA). Although an appellate court stands as a guardian against serious injustices occasioned by oversight or incompetent representation, its stewardship is exercised within a legal system which depends upon trained advocates who are not admitted to practise law unless and until their basic qualifications and training are verified." (Footnotes omitted).
13. His Honour also held (at [150]), however, that: "If I thought for a moment that the failure to address the 18-metre skid reference in the P4 report was a deliberate or strategic decision made at the time by the appellant's then representative I would have no hesitation in dismissing the appeal: see Williams v Spautz (1993) 67 ALJR 388 at 389; 112 ALR 191 (HC). But this was, properly, not contended for by the respondent."
14. More recently, in Comlin, having previously referred to Metwally and Coulton, Basten and Meagher JJA held (at [12]): "To say that the litigant would generally be bound by the manner in which its case is conducted by its legal representatives is not to deny that there may be exceptional circumstances where that principle will not be conclusive."
15. Third, as is apparent from the authority referred to above, any complaint of miscarriage of justice or unfairness must be considered in the light of the choices made by counsel at trial. As Gaudron J explained in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26]: "The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open." (Footnotes omitted).
16. Her Honour added (at [28]): "As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice." (Footnotes omitted).
17. Moreover, as Gleeson CJ explained in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9] ("Nudd"): " … As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct."
18. Fourth, these considerations also have resonance where an application is made to adduce evidence on appeal that could have been, but was not, sought and led at trial. As Basten and Meagher JJA held in Comlin (at [13]-[14]), having earlier referred to Nudd (at [9]-[10], [16]), where such further evidence had not been called at first instance as a result of a deliberate decision of counsel: "Bearing in mind that counsel has obligations to the court and is not required to call each witness that is proposed by his or her client, and on the basis of the affidavit material, set out by Emmett AJA below, there is no reason to infer that counsel made a decision "incapable of rational explanation on forensic grounds". Nor, it should be added, did counsel for the appellant in this Court suggest that such an inference should be drawn. In these circumstances, it would be contrary to principle to allow the appellant to call evidence drawn to the attention of counsel appearing at the trial and rejected, as further evidence on an appeal."
19. These principles stand strongly against the appellants being permitted to rely upon fresh evidence in the circumstances of this case.

Should the appellants be granted leave to rely upon the further evidence?

1. To the extent that the documents sought to be relied upon on appeal were available with reasonable diligence at first instance, the appellants sought to support their application to adduce further evidence on two bases: fraud and procedural fairness. It is convenient to consider these contentions before engaging with the detail of the various documents sought to be relied upon.

Fraud

1. The appellants contended that the evidence adduced by the respondent on the question of hydrology was "entirely for the purposes of creating a 'deception' ultimately intended to cause financial disadvantage to the appellants" and that this constituted an act of fraud. No evidence was adduced, or sought to be adduced, that could come even close to making good this contention. Rather, as is clear from the evidence relied upon below, the transcript of the proceedings at first instance and the primary judgment, the question of the market value of the Property under s 56 of the Just Terms Act turned, to a significant extent, upon how the willing but not anxious purchaser would likely respond to the potential complications arising from the hydrology issues. Whilst ultimately the primary judge determined part of this issue without regard to the expert evidence, that does not support a contention that there was any fraud in the respondent relying upon the evidence of Dr Martens before the primary judge. Nor was any objection made by the appellants at first instance to her Honour receiving expert hydrology evidence.

Procedural fairness

1. The appellants relied upon the same matters in support of the motion as were relied upon in support of ground 5 of the notice of appeal. As set out at [66]-[79] below, the appellants' contentions as to procedural fairness should be rejected. That reasoning applies equally to the appellants' reliance upon procedural fairness in support of the motion.

The documents sought to be relied upon on appeal

1. Below, using the numbering on the table of documents included in the motion, which is annexure A to this judgment, I explain the basis, consistent with the principles and analysis set out above (which I will not repeat) upon which I was satisfied that leave should not be granted to the appellants to tender the document(s) sought to be relied upon on the appeal. As a matter of generality, to the extent that the appellants rely upon alleged procedural unfairness as justifying the tender of this material to show their own perspective as to matters that were addressed by their experts or counsel at trial, that contention should be rejected for the reasons set out in respect of ground 5 below.
2. Documents 1 to 4: these documents all relate to the Coffs Harbour Bypass and the acquisition of the Property. The documents were plainly available at the time of trial. If they were to be relied upon they should have been, but were not, put to the experts at trial. Moreover, in the absence of expert evidence to explain how they would influence the respective experts' opinions, I could not be satisfied that they would have had any impact upon the result of the case.
3. Document 5: daily rainfall charts prepared by the Bureau of Meteorology ("BOM") for the years 2021, 2022 and 2023 (the document itself is dated 27 April 2024). No explanation was given as to how rainfall since the Acquisition Date, 30 July 2021, could be relevant to the issues at trial or on appeal. To the extent that this document sets out rainfall up to the Acquisition Date, such material was plainly available at the trial. Moreover, no explanation was given as to how, if at all, this material would have significance to the issues at trial or on appeal. It is, in any event, apparent that Mr Barthelmess relied upon BOM information, to the extent he considered it relevant in his report dated 20 March 2023.
4. Documents 6 and 8: an "Engineering Certificate of Survey Data Analysis" dated 1 May 2024 ("Engineering Certificate"), prepared by Mr Kieran Dibb (the appellants' son, whom for convenience I will refer to as Kieran) analysing survey data dated 30 April 2024 (which he attaches) relating to the Property. This was information that could have been, but was not, obtained at trial. Moreover, this Court could not itself draw conclusions as to the significance (if any) of the survey data without knowing what, if anything, the hydrology experts (who did have access to this survey data) would make of it.
5. Document 7: an affidavit of Kieran affirmed on 1 May 2024, purporting to set out his opinion as a civil engineer with over 20 years of experience as to what can be gleaned from the survey data attached to the Engineering Certificate set out above and, to some extent, challenging the conclusions reached by Dr Martens in his report dated 21 March 2023 and tendered at the trial. Again, it is clear that the appellants could, with reasonable diligence, have sought and obtained an opinion in this form from their son at the trial. Mr Dibb accepted as much during his oral submissions on the motion. Instead the appellants relied at trial upon the opinion of Mr Barthelmess. Putting entirely to one side any question of expertise, the appellants should not be permitted, on appeal, to tender expert evidence which was not relied upon at trial. That is particularly so where, as here, this is an appeal on a question of law.
6. Documents 9 and 10: a series of photographs with overlays, dated 2011, 2014, 2018, 2021 (x 2), 2022 (x 2), 2023 and 2024 apparently produced by a program called "Nearmap". To the extent that these documents post-date the Acquisition Date, their relevance was not explained. To the extent that the first of these documents is dated 31 July 2011, which is only one day after the Acquisition Date, it was clearly material available at trial. Nor was its relevance explained.
7. Document 11: an affidavit of Mr Rumble dated 30 April 2024 detailing various allegations regarding the conduct of the Valuer Conclave, detailing his dissatisfaction with the state of the two joint expert reports, dated 28 May 2023 and 6 June 2023 respectively, which he prepared with Mr Lunney and making other criticisms of Mr Lunney's expert report dated 17 May 2023. At [75]-[76] below, I reject the appellants' contention that the Valuer Conclave gave rise to procedural unfairness. In these circumstances, there is no proper basis upon which Mr Rumble's evidence could be relied upon on appeal. Moreover, none of the criticisms Mr Rumble now seeks to make were put to Mr Lunney at trial, to give him an opportunity to respond. Ms McKelvey indicated that if the affidavit of Mr Rumble were to be relied upon on appeal, she would seek to tender a responsive affidavit of Mr Lunney and would also wish to cross-examine Mr Rumble. That underscores my conclusion not to grant leave to rely upon this evidence on appeal.
8. Document 12: a "Suburb Statistics Report" apparently prepared by Mr Dibb on 2 May 2023 (but with a footer indicating that, for the purposes of copyright, the data is that of RP Data Pty Ltd trading as CoreLogic Asia Pacific) and containing what is described as the median property sale price in the Corindi Beach area between the period 2019 and 2023. The document itself pre-dates the trial. To the extent that this pre-dated the Acquisition Date, it was plainly information that was available at trial and, if relevant, could have been accessed and provided to each party's expert valuers who could then have indicated whether, if at all, this impacted upon their opinions as to matters of valuation. To the extent that it post-dated the Acquisition Date, its relevance was not explained. Additionally, if this information were relevant on the question of valuation, it could have been given to, or accessed and referred to by, Mr Rumble in his expert report or oral evidence at trial.
9. Documents 13 to 16 and 27 to 33: documents going to the sale or acquisition price, or valuation, of properties other than the Property. In each case the sale or acquisition took place before the date of the trial. This information was thus available at trial. Moreover, in circumstances where the parties both relied upon expert valuers at trial, the appellants should not be permitted on appeal to seek to rely upon the sale or acquisition price of properties not relied upon by their experts at trial.
10. Documents 17 to 19: correspondence between the appellants and their solicitor and counsel at trial. At the hearing of this appeal Mr Dibb conceded that all of the matters that he complains about as regards the way in which his case was conducted at trial, in support of his application to rely upon further evidence on appeal, were "the result of forensic decisions". In these circumstances, consistent with the principles and my analysis set out above, the documents evidencing communications between the appellants and their legal representatives at trial do not properly support any contention of procedural unfairness.
11. Documents 20 and 21: correspondence from the appellants seeking to engage (unnamed) Senior Counsel during a period when the primary judge had adjourned for the respondent to complete oral closing submissions, and making various complaints about decisions taken by the appellants' legal team at trial. This material has no possible relevance to the issues on appeal.
12. Documents 22 to 26: documents, dated between 2002 and 2022, which detail some communications between both the appellants or Mr Dibb alone, and representatives of the respondent (or other entities within the NSW Government), relating to the compulsory acquisition process for the Property. Given what I say below as to the appellants' contentions as to apprehended bias, the appellants should not be permitted to rely upon these documents on appeal.
13. Document 34: a town planning report dated July 2020 prepared for the appellants by Resource Design & Management Pty Ltd ("RDM"). That document was initially sought to be tendered by the appellants at trial, but was not pressed after its tender was objected to by the respondents. In this regard, consistent with the principles I have set out above, the appellants are bound by their Senior Counsel's conduct of the case below. They should not be permitted to rely upon this document on appeal.

Ground 5

1. In considering ground 5, I have taken into account all of the appellants' submissions, notwithstanding that the matters raised in submissions went beyond the ambit of the ground of appeal, which went to whether procedural fairness was denied because the appellants were denied the opportunity to put into evidence matters that would "have served to damage [the respondent's] credibility and would have supported their case".
2. During the hearing of the appeal Mr Dibb confirmed that the matters relied upon in ground 5 were those identified in the appellants' written submissions, namely Mr Hemmings SC's refusal: "… to enter into evidence even the most basic sales details of [58 Bruxner Park Rd, 63 Bruxner Park Road, 84 Bruxner Park Rd, 70 Bruxner Park Rd and 19 Bruxner Park Rd], refusal to allow Mr Dibb to present testimony on his research into the impact the proposed bypass has had on property values for Korora, presenting his own valuation opinions instead of Mr Rumble's, not putting the hypothetical subdivision valuation into evidence, failing to exploit the valuation conflicts relating to the acquisitions of 14 & 14 A Bruxner Park Rd, failure to bring the RDM report into evidence, and making concessions with TfNSW on matters having major financial implication to the Dibbs, without first consulting with them."
3. The appellants contend that at the hearing at first instance, the appellants did not have the opportunity to state what they considered to be the value of the Property. They contend that this was not due to the incompetence of Mr Hemmings SC. However, they submit that on "any issue that would put [the respondent's] conduct under scrutiny", their legal team would not pursue the argument and that Mr Hemmings SC "ran their case within parameters defined by the [respondent]." Mr Dibb elaborated on this in oral submissions: "… our concern is, and it's an apprehension, your Honour, we were in no position to be able to put evidence or proof. It's how things look is the apprehension, and our apprehension is that Mr Hemmings did pursue matters, but qualified within parameters until it got to a point where he'd let it go, and we saw that right throughout the judgment, wherever it was to do with the matter of compulsory acquisition, wherever it was to do with the church acquisition, any of these matters that were in controversy, they'll just pull out. He would start the argument and just pull back on it."
4. The appellants accept that each of the matters of which they complain was properly characterised as a forensic decision of Senior Counsel. Nonetheless they contend that on this account the trial was procedurally unfair, and, on that basis, the appeal should be allowed.
5. The matters about which the appellants complain fall quintessentially within the ambit of forensic decisions which could quite properly be made by Senior Counsel at trial. As is apparent from the authority set out above, counsel are not obliged to take instructions from their clients on each and every forensic decision they make. Nor are they obliged to run every argument suggested by their clients or tender all material that their clients consider may be of assistance. It is counsel's role to apply their own experienced forensic judgment in such matters.
6. Moreover, to take one example, in circumstances in which the appellants relied upon the expert report and oral evidence of Mr Rumble at trial, it is readily understandable that Mr Hemmings SC did not seek to lead additional evidence going to the issue of valuation either from Mr Dibb or by seeking to tender material as to sales of properties that Mr Rumble had not relied upon. To seek to do so may have undermined the reliability of Mr Rumble's opinions and signalled a lack of confidence by the appellants in their own expert. It is also readily understandable why Mr Hemmings SC may have made the forensic decision not to press Mr Dibb's affidavit evidence as to trends in the property market since 2004 in the Coffs Harbour area. Such evidence, on its face, to some extent relied upon "discussions with landowners" and Mr Dibb's "review of community feedback forums", primary evidence which was not before the Court. In those circumstances, Mr Dibb's evidence would likely have been of low probative value. It was a matter for Mr Hemmings SC's forensic judgment whether to press the tender of the evidence over objection. Moreover, and to some extent, the paragraphs of Mr Dibb's affidavit of 26 May 2023 which were not pressed went to the appellants' proposed amended points of claim, which as set out at [92]-[93] below, ultimately were not pressed.
7. To the extent that complaint is made of Mr Hemmings SC's reliance at trial upon a valuation methodology which was not suggested by Mr Rumble, it is apparent from the transcript at trial that this was advanced by Mr Hemmings SC in circumstances in which it appears that he had identified problems with Mr Rumble's oral evidence and was seeking, by way of alternative case, to advance a case in the appellants' interest in reliance upon figures put forward by Mr Lunney (see as to this at J[252]-[253]). Again, it is readily understandable why Senior Counsel might seek in this way to advance an alternative case in circumstances in which they had concerns that the primary judge may not accept their expert's evidence.
8. There is not a shred of evidence to suggest any deliberate decision by Mr Hemmings SC to act other than in the appellants' interests at trial to the extent that that was consistent with his duty to the Court and his forensic judgment. Mr Hemmings SC engaged in vigorous cross-examination during the trial and advanced detailed written and oral submissions in support of the appellants' interests. The contention that he sought to avoid displeasing the respondent in his conduct of the appellants' case at trial should be rejected.
9. As is clear, notwithstanding the appellants' apparent disagreement with the way in which Mr Hemmings SC conducted their case at trial, the matters relied upon are not such as to establish any procedural unfairness. None of the matters relied upon by the appellants on appeal comes close to establishing that the appellants, represented by experienced counsel and solicitors, did not have a reasonable opportunity to be heard at first instance. That is all that procedural fairness relevantly requires: see eg Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J).
10. Complaint was also made by the appellants about the conduct of the Valuer Conclave and this was relied upon as a further incident of procedural unfairness. In this regard, the appellants allege that Mr Lunney was partisan and behaved inappropriately towards Mr Rumble. They contend that if Mr Lunney pressured Mr Rumble, to yield on opinions or conclusions, then this was procedurally unfair.
11. As to this, Uniform Civil Procedure Rules 2005 (NSW), r 31.24(6) provides "[u]nless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing." Given that the respondent does not agree to the content of the expert conclaves being referred to at the hearing of the appeal, material (such as that which the appellants sought to rely upon) could not properly be tendered on appeal. Moreover, as the appellants concede, there was no objection made at trial as to the conduct of the Valuer Conclave, nor as to the tender of the joint expert reports. To the extent that Mr Rumble was dissatisfied with the tables he produced for the purpose of the second of the joint expert reports, dated 6 June 2023, during Mr Rumble's oral evidence he was permitted to correct the errors he identified. The primary judge also took into account (at J[255(5)]) a further document setting out Mr Rumble's corrected and updated tables and calculations. Beyond this, the appellants did not seek to lead evidence at trial from Mr Rumble indicating any disagreement, or dissatisfaction, with the opinions he expressed in either of the joint expert reports. It follows that the appellants' contention that there was procedural unfairness arising from the conduct of the Valuer Conclave, should be rejected.
12. Whilst not raised in ground 5, the appellants also contend in their written submissions that there was procedural unfairness, entitling them to adduce further evidence, as there was a reasonable apprehension that the primary judge "had formed a fixed view that the appellants expected she would adhere to, regardless of the evidence or the submissions made to say otherwise". The appellants also contend that the test for apprehended bias, as set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ("Ebner"), was satisfied here by reason of "the institutional framework in which the land acquisition process is conducted, which is substantially skewed in favour of the acquiring authority" and by their own experience of interactions with various authorities and their representatives prior to the commencement of proceedings in the LEC. The appellants speculate that the primary judge may have been made aware "within the administrative functions of the LEC" that the appellants' matter was required to be dealt with within certain parameters directed by the respondent. The appellants also contend that negative opinions that developed from the history of their dealings with the respondent found their way into the proceedings at first instance.
13. The appellants did not, however, point to any matter from which a "fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner (at [6]). There is nothing in the institutional characteristics of the LEC that could come close to satisfying that test. There is no basis whatsoever for the appellants' speculation to the contrary.
14. It follows that ground 5 should be dismissed.

Ground 4

1. As set out above, the complaint of denial of procedural fairness under ground 4 relates to what the appellants contend was the imposition of "punitive consequences" upon the appellants were they to press a proposed amendment to their points of claim to rely upon the decision in Drivas (LEC). The appellants contend that the primary judge's approach to the proposed amendment was to put the appellants "in a corner" such that they "had no choice" but to give Mr Hemmings SC instructions not to press the amendment. The appellants also contend that the primary judge put them under "duress" and that they should have been entitled to amend their points of claim as it was an entitlement of any litigant "to run their case according to what the prevailing case law is that applies." They contend that there was no real prejudice to the respondent in the amendments being allowed as "this is a legal point. It's not to do with facts."
2. This ground has no merit given that in Drivas (CA), which was relevantly handed down on 1 February 2024, this Court (Kirk JA, Payne JA and Griffiths AJA agreeing) held (at [88]) that the primary judge in Drivas (LEC) had erred: "… An increase or decrease in value caused only by choices made by an owner prior to the date of acquisition in relation to the land, being choices made because of the possibility or certainty of the land being acquired, are not the types of effects on value which can be regarded as having been caused by the actual or proposed carrying out of the public purpose for which the relevant authority is acquiring the land. Section 56(1)(a) does not require that the land be valued on a hypothetical basis as if such choices had not been made. Her Honour erred in concluding to the contrary. The grounds of appeal relating to assessment of market value should thus be upheld."
3. On 6 June 2024, the High Court refused an application for special leave to appeal against Drivas (CA). Accordingly, in light of the decision of this Court in Drivas (CA), even if the proposed amendment had been allowed and the primary judge had accepted the appellants' contentions as to the so-called "Drivas point" (as it was referred at the trial), that conclusion would have been liable to being overturned on appeal.
4. In any event, having regard to the procedural background, this ground of appeal should be dismissed.
5. First, the appellants' "Class 3 Application" was filed on 12 May 2022, their points of claim were filed on 3 June 2022, and the respondent's points of defence were filed on 6 October 2022. Programming directions were made on 22 June 2022, listing the matter for trial for 11 days on 29 May 2023.
6. Second, on 13 March 2023, the decision in Drivas (LEC) was handed down. In Drivas (LEC) it was held (at [92]), that under s 56(1)(a) of the Just Terms Act, the market value of the property compulsorily acquired should be determined on the basis of what would have occurred at the site but for two decisions by the landowners, respectively to slow and then cease development work on the site because of their suspicion, then knowledge, that the site would be compulsorily acquired.
7. Third, by a notice of motion filed on 26 May 2023, and served on the respondent at 6.17pm on that day (being the Friday before the Monday when the trial was to commence), the appellants sought leave to amend their points of claim in accordance with a draft attached to the motion. That draft included proposed new paragraphs [17]-[24] and further affidavits from the appellants outlining and in support of the Drivas point.
8. Fourth, by a notice of motion filed at 9.58am on 29 May 2023, supported by an affidavit of the solicitor with daily carriage of the matter, the respondent sought leave, if the appellants were successful in their motion, to rely upon an amended points of defence, to file further expert evidence from each of the four experts they had instructed, sought that the hearing dates be vacated (save for the site view scheduled for 30 May 2023) and that costs thrown away and the costs of the additional evidence be paid by the appellants.
9. The respondent's primary position was, however, that the Court should not grant leave to amend the points of claim.
10. Fifth, the notice of motion was heard on 29 May 2023 at the commencement of the trial. Mr Hemmings SC, for the appellants, contended that the proposed amended points of claim did not require further evidence. Mr Hemmings SC contended initially: "… There would be, I'll make the submission, ultimately, but there would be, we would've thought, zero prospect, with the greatest respect, that your Honour would prefer the convenience of maintaining a hearing date over an ability for my client to apply new law to significantly advance his claim. One wonders whether procedural fairness sits there to deny that claim."
11. Later, however, Mr Hemmings SC told the primary judge he had instructions from the appellants that: "… if the only way in which your Honour would be satisfied to give me leave to rely upon the amendment is to exceed [sic] to a request to vacate the hearing dates, my client doesn't press the amendment. … that's a commercial decision that they have made."
12. Ms McKelvey, counsel for the respondent, submitted that her client should be permitted to put on evidence including additional expert evidence, and to test the facts, in support of a submission that the appellants' case was different to the facts before the Court in Drivas (LEC) and as to the valuation impact of the assumed subdivision. Ms McKelvey indicated, consistent with the respondent's notice of motion, that the respondent could not be in a position to meet the Drivas point if the hearing dates were not vacated because the respondent needed to issue notices to produce and subpoenas and make other enquiries.
13. The primary judge then indicated to Mr Hemmings SC that her Honour agreed with Ms McKelvey's submission that the respondent needed further evidence and, without ruling on the effects of Drivas (LEC) said that "I do think it is quite factually dependent". Mr Hemmings SC then withdrew the application to amend, submitting: "If your Honour is satisfied that Ms McKelvey's client would be prejudice[d] if they weren't given the opportunity to adduce fresh evidence I accept that, I'm obviously not going to cavil with that decision, so if the consequence of my amendment is a vacation of the hearing date I don't wish to lose the hearing date. Your Honour has indicated that you accept that Ms McKelvey would need to get additional evidence."
14. As is apparent from the procedural background set out above by way of context, the proposed amended points of claim to raise the Drivas point were not pressed before the primary judge. As the appellants accept, this was their decision. Whilst the appellants may have made what, for them, was a difficult decision, that does not mean that any duress was applied. Duress requires the application of some form of illegitimate pressure: see eg Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45-46 (McHugh JA, Samuels and Mahoney JJA agreeing). There was no illegitimate pressure placed on the appellants by the primary judge. The primary judge simply decided, as submitted by the respondent, that the respondent should be given a reasonable opportunity to respond to the proposed amended points of claim if leave were to be granted to the appellants to so amend, and that that could not be accommodated without vacating the hearing date.
15. Further, whilst costs thrown away by the amendment were sought by the respondent in the event the hearing dates were vacated, the primary judge had not determined that application at the time the appellants withdrew their application to amend. In any event, such an order would not have amounted to any illegitimate pressure on the appellants to withdraw their application. It would have been entirely orthodox for costs thrown away to be ordered to be paid in circumstances where a significant amendment was sought on the eve of a lengthy trial.
16. Finally, I would reject the appellants' contention that the proposed amendment to the points of claim to advance the Drivas point raised a question of law and did not raise matters for evidence. No such contention was made to the primary judge by Mr Hemmings SC. Indeed, no such contention could properly have been made given the extent to which reliance upon the Drivas point raised matters of fact requiring further evidence and the testing of the appellants' evidence, as submitted by Ms McKelvey (see above at [91]).
17. In these circumstances, there was no possible procedural unfairness to the appellants. Ground 4 must be dismissed.

Ground 1

1. The key contention that the appellants make in ground 1 is that the primary judge erred in assessing the market value of the Property under s 55(a) of the Just Terms Act, by reference only to the perspective of the hypothetical willing but not anxious purchaser and failed to consider the hypothetical willing but not anxious seller, contrary to s 56(1) of the Just Terms Act and also to the judgments of Griffith CJ (at 432) and Isaacs J (at 441) in Spencer.
2. So far as is relevant to this ground, s 56(1) of the Just Terms Act provides: In this Act - market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer …
3. The passage from the judgment of Griffith CJ in Spencer (at 432) upon which the appellants rely is relevantly as follows: "In my judgment, the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day … but by inquiring "What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?" It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together."
4. The passage from Isaacs J (at 441) is set out at [21] above.
5. In support of their contention of error, the appellants rely upon the fact that repeatedly in her Honour's judgment, the primary judge referred to the perspective of the hypothetical willing but not anxious purchaser, without any reference to the perspective of the hypothetical willing but not anxious vendor. Further, the appellants contend that, for various reasons including the desirability of the Property and what they submit were circumstances in which "[d]emand far exceeded supply" in the area, the Property would have "achieved a high premium".
6. There is no doubt that the so-called Spencer test should be applied in determining market value under the Just Terms Act, consistently with the terms of s 56(1). However, I would reject the appellants' contention that the primary judge did not apply that test.
7. As set out above, the primary judge plainly directed herself (at J[4]) in accordance with Spencer, and setting out the terms of s 56 of the Just Terms Act, which relevantly adopts the Spencer test. Moreover, it is clear that the primary judge was well aware that, in applying the Spencer test, it is necessary to consider a hypothetical transaction involving a hypothetical vendor and a hypothetical purchaser. Thus, on the issue of zoning, the primary judge identified that the question that her Honour was considering was what each of the hypothetical purchaser and vendor would consider was the applicable zoning of the Property at the Acquisition Date (at J[111], [120]). On the issue of valuation, the primary judge repeatedly referred in her judgment to evidence and submissions identifying the perspective of the hypothetical vendor and where the hypothetical purchaser and hypothetical vendor would meet on value (at J[324], [328], [340], [343], [350], [361], [370], [386]). It is plain, in these circumstances, both that the primary judge was aware of the Spencer test and applied it in reaching her Honour's conclusions on the issue of valuation.
8. It is true, as identified by the appellants, that when considering the hydrology issues, the primary judge did not refer expressly to the perspective of the hypothetical willing but not anxious vendor. Rather, her Honour reached conclusions on this issue as to what risk to lot yield a prudent hypothetical purchaser would consider arose from the available information going to the questions whether there was a river on the Property and whether piping would be permitted (at J[239], [243]).
9. This is readily explicable given the way in which the hydrology issues were litigated before the primary judge and having regard to the nature of these issues.
10. The questions addressed by the two hydrology experts in their respective reports went simply to their opinion as to whether there was a river on the Property, whether it could be piped, and what consequences that would have for site development, albeit that Dr Martens was also asked what advice he would give to the "hypothetical willing but not anxious parties transacting the [Property] at the date of acquisition". In answering that question, Dr Martens set out the advice that he would have given to "a hypothetical willing but not anxious buyer". Logically, it is understandable why Dr Martens focussed his answer in that way. Hydrological risk was something of relevance to the hypothetical purchaser who would be assessing potential risks limiting possible development of the Property. These were thus matters to be considered from the perspective of the hypothetical purchaser, with the hypothetical vendor simply seeking to obtain the highest amount that a purchaser would be willing to pay.
11. The two joint reports of the hydrology experts dated 29 March 2023 and 21 April 2023 respectively, did not expressly address the perspective of either the hypothetical purchaser or vendor. They simply addressed hydrology issues and potential subdivision layouts in light of those issues, albeit that in the first joint hydrology report, in response to a question regarding the likelihood that piping would be approved by the relevant authorities, Dr Martens made reference to paragraphs [36]-[38] of his report which detailed how he would advise a "hypothetical purchaser".
12. The joint report of the planning and engineering experts, dated 2 May 2023, similarly did not address the perspective of either the hypothetical purchaser or vendor. These experts simply addressed what subdivision layouts were feasible and identified that the layout proposed by Mr Hams represented the highest and best use of the subject land on the "[u]npiped [s]cenario".
13. In the first joint valuation report, both Mr Lunney and Mr Rumble agreed that their valuations had been undertaken in accordance with the provisions of the Just Terms Act and that the market value of the Property had been assessed pursuant to s 56(1) of the Just Terms Act. In that joint report, Mr Lunney maintained his opinion that: "… a fully informed intending purchaser of the Subject Property would not calculate the market value of the land by assuming that it would be possible to pipe the water course".
14. Mr Lunney did, however, provide an alternative valuation on the basis that "a fully informed Section 56 purchaser would not assume that it would be possible to pipe the water course which traverses the Subject Property".
15. Mr Rumble disagreed with Mr Lunney's opinion as to what a willing but not anxious purchaser would assume, as he considered that it was not for a valuer to determine what expert evidence a purchaser would rely upon, but added that in his experience, a purchaser was more likely to rely upon a town planning expert with good local knowledge.
16. As is apparent, the expert valuers were advancing their competing valuations on the basis that the hydrology issues were relevant to the market valuation of the Property in accordance with s 56(1) of the Just Terms Act, to the extent that it would influence assumptions made by the hypothetical purchaser.
17. Consistent with this, whilst the parties in their written and oral submissions to some extent interchangeably referred to the "hypothetical parties" or the "hypothetical vendor" or "hypothetical purchaser", on the hydrology issue, in his oral submissions Mr Hemmings SC said that the necessary question was: "… would a hypothetical purchaser assume they're going to get development consent for the subdivision that includes piping."
18. Later, Mr Hemmings SC submitted: "… the question that the Court is working out as the judicial valuer, and your Honour is evaluate task [sic], to work out what the market pays and there are elements that feed into it, and those are all the things we're going - is it a river, is there a controlled activity approval… ... If there is a prospect of piping then the market would pay for it. Now the market wouldn't pay for a mere prospect full value…".
19. That is also consistent with the appellants' written opening submissions at first instance, describing the opinion of Mr Rumble as: "… captur[ing] the wider development potential of the Land which a prudent purchaser would consider."
20. The appellants' opening written submissions also criticised Mr Lunney's opinion as incorrect "when regard is had to the higher development potential available to a prospective purchaser under the R1 zoning".
21. So to submit was consistent with the appellants' written closing submissions that the Court must reach a conclusion as to the approach the "fully informed prudent parties to the hypothetical transaction" would take. On the hydrology issues, as reflected in the expert evidence I have set out above, the approach of the fully informed prudent parties was dependent upon the assumptions made by the hypothetical prudent purchaser. No submission was made, nor evidence advanced, to suggest that the question of hydrology risk had any significance to the hypothetical prudent vendor.
22. To the extent that the appellants submitted at trial that the layout based upon the "unpiped scenario" resulted in a "floor" value being paid, and that no properly informed vendor would agree to sell for that "minimum value only" (at J[343]), the primary judge considered and rejected that contention.
23. In closing submissions, the appellants had contended as to this that the prudent hypothetical parties would approach a sale on the basis of a percentage risk that the parties would, or would not, "get the piped" or the "unpiped" version. Leaving aside that it is the purchaser who would "get" either version, which again supports the primary judge's focus on the perspective of the purchaser when determining the hydrology issues, the primary judge considered and rejected (at J[372]) the contention that the Property should be valued on the basis of a 26 lot subdivision to which a percentage deduction should be made for the prospect that piping would not be permitted, on the basis that this was not an assessment that a "hypothetical purchaser would make." There was no error of law in this conclusion of the primary judge which was informed, in part, by the fact that that approach, being a 26 lot subdivision, was not adopted by either of the two expert valuers (at J[253]).
24. Consistent with the way in which the expert evidence and submissions were framed, and her Honour's rejection of the appellants' contentions as set out above, her Honour clearly considered that the risk arising from the hydrology evidence was a matter that determined what a hypothetical prudent purchaser would pay for the Property and that in that way, it was something to have regard to in determining where the hypothetical willing but not anxious purchaser and vendor would meet on price, as required by both Spencer and s 56(1) of the Just Terms Act. Consistent with the judgment of Isaacs J in Spencer (at 441) set out above at [21], market value cannot exceed what a prudent purchaser is willing to pay for the Property.
25. It follows that ground 1 should be rejected.

Ground 2

1. In ground 2 the appellants contend that the primary judge did not determine the potentiality of the Property for its highest and best use and thus failed to approach her task consistently with s 56(1) of the Just Terms Act. Rather, the appellants submit, the primary judge's decision was premised upon the "lowest and worst use" of the Property. The appellants seek to support this overarching contention by comparing the dollar per m2 value of the Property, having regard to the primary judge's conclusion as to value, with the dollar per m2 value of other properties which the appellants contend to be comparable to the Property.
2. Such comparisons do not disclose any error in the approach of the primary judge.
3. First, the primary judge correctly directed herself as to the proper approach to her task as judicial valuer, including that the Property should be valued on the basis of its highest and best use (at J[9]; see above at [21]-[22]). Both of the expert valuers confirmed, in their first joint expert report, that they had undertaken their valuations in accordance with s 56(1) of the Just Terms Act. The primary judge's preference for aspects of Mr Lunney's valuation methodology over aspects of Mr Rumble's methodology does not suggest any failure to value the Property in accordance with its highest and best use.
4. Second, the comparison which the appellants rely upon in this ground adopts a methodology that was abandoned by the appellants at trial. The appellants, in their written closing submissions, contended for a rate per lot, not a rate per m2, approach to valuation. As the primary judge observed (at J[260]), the appellants did not press Mr Rumble's rate per m2 approach. In these circumstances, the comparison relied upon by the appellants is not of itself suggestive of error.
5. Third, the primary judge, having considered all of the evidence, concluded that the appropriate approach to valuation was on the basis of a seven lot subdivision. That flowed from the primary judge's conclusions on the hydrology issues, and the agreed evidence of the expert planners and engineer as to highest and best use of the Property on the "[u]npiped [s]cenario".
6. In these circumstances, there is no substance to the contention that the primary judge failed to value the Property on the basis of its highest and best use. Ground 2 should be rejected.

Ground 3

1. In ground 3, the appellants contend that the primary judge erred in not ruling that the evidence of Dr Martens and Mr Lunney was inadmissible due to "adversarial bias". In support of these overarching contentions (and without setting out each and every criticism made), the appellants submit, as regards Dr Martens, that he "took advantage of the unavailability of the CAD software by stating in his testimony that he could not understand the survey data" and sought to "discredit the survey data" as it undermined his opinion, that Dr Martens' evidence at trial was "negative and unsubstantiated", and that Dr Martens' approach was "at best cavalier, but more likely was an attempt to "fabricate evidence to serve [the respondent's] narrative." More generally, the appellants submitted that the hydrology evidence as a whole was unnecessary. As to Mr Lunney, the appellants make a number of criticisms of his evidence, including that he selectively avoided using certain properties for the purpose of assessing comparable sales, that he included properties that were not properly comparable to the Property, that he said he had inspected the Property but that this was unlikely as there was no evidence to support his making a site visit, and as to his approach to location adjustment for one of the comparable properties, being the Corindi Property. The appellants also relied upon their criticisms of Mr Lunney's conduct in the Valuer Conclave (which I have already rejected) and also contend that Mr Lunney was tasked by the respondent with making a case for a valuation of the Property in the range of $740,000.00 to $800,000.00.
2. The appellants, in their submissions on this ground, also criticise the primary judge's findings as to the hydrology issues, asserting both that her Honour declined jurisdiction by not making a conclusive hydrology finding and made findings on the hydrology issues for which there was "no proper evidentiary basis". Those contentions fall beyond the ambit of the ground of appeal. Nonetheless, for completeness, I have indicated below why they should be rejected.
3. The appellants did not contend before the primary judge that the evidence of either Dr Martens or Mr Lunney should be rejected by reason of adversarial bias. No objection was made on that basis to the tender of the reports, and no such submission was made in the appellants' written or oral closing submissions. Nor was it suggested, during Dr Martens' and Mr Lunney's oral evidence, that either of them had been given instructions to provide a particular opinion, or had approached their task other than in an objective and independent manner. Consistent with the principles I have set out at [38]-[48] above, in this regard the appellants should be bound by the conduct of their case below. That of itself requires that ground 3 be rejected.
4. In any event, having considered the reports of each of Dr Martens and Mr Lunney, and the transcript of their oral evidence, there is nothing to support the appellants' contention of adversarial bias. To the contrary it is clear that both experts approached their task in a manner consistent with the Expert Witness Code of Conduct.
5. As regards Dr Martens, it is clear that he had the necessary CAD software but nonetheless found the survey data unhelpful. Dr Martens' evidence was that he looked at the layers in the CAD file but was nonetheless not able to resolve the question whether the black dots apparent on the CAD file were the survey points at which the surveyor took spot levels, and that the lack of a legend on the material was "somewhat frustrating" and looked incomplete. That does not suggest any deliberate unhelpfulness or adversarial bias. It was for the appellants, through submissions or through their expert Mr Barthelmess, if appropriate, to seek to counter this evidence. In his expert report, but not in his oral evidence, Mr Barthelmess did, in part, rely upon the respondent's survey data. Contrary to the appellants' submission, the fact that the respondent did not rely upon survey data does not suggest any fudge on the part of the respondent. It simply indicates that, in this case, Dr Martens' evidence was based upon other material.
6. Moreover, the various contentions of the appellants that the evidence of Dr Martens was negative and unsubstantiated are in truth simply instances of Dr Martens giving evidence with which the appellants disagree. Dr Martens' evidence was that he attended the Property and surrounding area on 17 January 2023, made observations, and made estimates in reliance upon those observations and other available data including site information and an LiDAR survey. It was not put to Dr Martens by Mr Hemmings SC that he had not in fact attended the Property on 17 January 2023, albeit that he was asked why he did not take certain photographs when he was at the Property. Moreover, to the extent that the appellants' written submissions on appeal might suggest to the contrary, there is nothing improper about a number of the respondent's experts having attended the Property on the same day.
7. As regards Mr Lunney, there is no basis for the appellants' allegation that there was any adversarial bias in his selection of properties as comparables to the Property or in his evidence as to adjustments for the Corindi Property. Nor is there any basis for the allegation that he likely fabricated evidence about a second attendance at the Property. Whilst in their written submissions in reply the appellants contend that Mr Lunney "merely 'reverse engineered' the valuation task he was assigned to do", there is nothing in Mr Lunney's written or oral evidence to support such a contention. The transcript discloses that Mr Lunney was vigorously cross-examined and responded to such questioning appropriately.
8. Thus, this is not one of those rare cases in which the matters relied upon by the appellants dictated that the primary judge should, of her own accord, have rejected the evidence of either Dr Martens or Mr Lunney, notwithstanding no objection or contention from the appellants to that effect. In particular, there is no basis, in my judgment, for the contention that Dr Martens was either "cavalier" or intended to "fabricate his evidence", or for the contention that Mr Lunney's evidence was circumscribed by any instruction from the respondent to arrive at a particular figure by way of valuation. Those contentions should never have been made.
9. It follows that ground 3 should be dismissed.
10. As to the additional contentions advanced by the appellants going beyond the ambit of ground 3, these should be rejected. The primary judge neither declined to exercise jurisdiction, nor made findings for which there was no evidentiary support, on the hydrology issues.
11. The primary judge identified, correctly, that the relevant question was as to the development risk arising from hydrological features on the Property (as reflected in the heading above J[123]). As to this, the primary judge found (at J[222]) that a fully informed prudent hypothetical purchaser would not obtain material such as the detailed hydrological evidence before the Court, but would instead rely upon their own observations and documents in the public domain.
12. On that basis, the primary judge found (at J[228]) that: "The presence of a watercourse which could be a river applying a plain and ordinary meaning to that term of "an abundant stream" (Macquarie dictionary, revised 3rd ed, 2001) is likely to have been apparent to a prudent hypothetical purchaser at the date of acquisition and that a controlled activity approval to allow it to be piped may need to [be] obtained. Such factors would influence consideration of likely lot yield. Strictly speaking that should be the end of my consideration on the topic of whether a river runs across the Land."
13. The primary judge then turned, "[r]eluctantly", to the expert evidence and resolved areas of conflict between Dr Martens and Mr Barthelmess. During their oral evidence Dr Martens and Mr Barthelmess had agreed that the difference between them (whichever of the two available analytical tools was used) "comes down to" whether there were "bed and banks" on the Property and whether the pool (that was agreed by both to be present on the Property) was a "fluvial feature". The primary judge accepted (at J[235]-[236]) Dr Martens' opinion as to both of these contested matters.
14. As to the survey data (about which the appellants make particular complaint on appeal) the primary judge accepted the appellants' contention that it did not identify any bed or channel, but found that that did not take the issue further in light of her Honours' acceptance (at J[237]) of Dr Martens' opinion that there were "bed and banks" on the Property.
15. Ultimately, her Honour found (at J[239]): "Based on my analysis of the available public information and confirmed by my finding on the disputed expert evidence, a prudent hypothetical purchaser would be likely to consider that a risk to potential lot yield arose at the date of acquisition because a feature of the Land included a river as defined in the WM Act. Put another way to reflect the Applicants' submissions, I do not consider such a purchaser would conclude there was no river on the Land and that therefore there was no risk to lot yield."
16. As to whether a prudent hypothetical purchaser would consider it likely or not that a controlled activity approval under the Water Management Act 2000 (NSW) would be granted by the Natural Resources Access Regulator (the "NRAR"), her Honour, having resolved the differences between the experts in favour of Dr Martens, concluded (at J[243]): "… On balance a prudent hypothetical purchaser would consider there is a real risk that piping of the river under a controlled activity approval would not be allowed by the NRAR."
17. Contrary to the appellants' contention, the primary judge was entitled to take this approach. The primary judge was not required to rely upon expert evidence to determine each matter of relevance to the ultimate question of the market value of the Property under s 56(1) of the Just Terms Act. The question for her Honour was not whether there was in fact a river, nor whether in fact piping would be permitted. The question was as to how the features of the Property impacted upon market value. Each of the matters relied upon by the primary judge was supported by evidence before her Honour. Further, the primary judge properly resolved the conflicts in the expert evidence and found that it confirmed her Honour's conclusion, reached on the basis of publicly available information. The appellants' contentions to the contrary should be rejected.
18. During Mr Dibb's oral submissions on ground 3 he also contended that there was adversarial bias on the part of the primary judge. I have already rejected aspects of this contention at [77]-[78] above. Mr Dibb's further contention that "adversarial bias" on the part of the primary judge was established by what the Court should infer (without evidence) to be the greater "familiarity" that her Honour had with Dr Martens and Mr Lunney, as opposed to Mr Barthelmess and Mr Rumble, is baseless. Neither her Honour's conduct of the hearing, as apparent from the transcript, nor her Honour's judgment, provide any support for such contention.

Ground 6

1. By ground 6 the appellants contend that the primary judge's valuation conclusion was premised upon only 9% of the subject property being zoned low density residential and, further, that that "contradicted" the primary judge's earlier finding that the hypothetical parties should be assumed to proceed on the basis that the Property would have been zoned low density residential (at J[120]). Despite the way the ground was framed, the appellant argued, in addition, that the effect of the primary judge's conclusion, which he asserted was that residences could be built on only 9% of the acquired land, was inconsistent with the finding that, but for the giving effect to the public purpose of the acquisition, the Property would have been zoned low density residential.
2. This ground does not properly fall within this Court's jurisdiction on an appeal on a question of law under s 57(1) of the LEC Act. It is, instead, nothing more than a disagreement with the primary judge's ultimate conclusion as to valuation.
3. In any event, it is misconceived. The primary judge's conclusion as to valuation was predicated upon her Honour's conclusions as to the hydrology issues, and the agreed evidence of the expert planners and engineer as to the subdivision of the Property that accorded with its highest and best use on the "[u]npiped [s]cenario". That subdivision was premised upon the Property being zoned "low density residential" at the Acquisition Date (at J[121]) but took account of the hydrology issues. The primary judge did not value the Property on the basis that only 9% was zoned as low density residential. The primary judge valued the Property on the basis that, as her Honour found, it was, in full, zoned as low density residential. There is no contradiction in the primary judge's reasoning. The finding that, but for giving effect to the public purpose of the acquisition, the land would have been zoned as low density residential was not a finding that residences could be built on the entirety of the land. The decision on zoning was but the first step in determining the number of residences which could be built. As her Honour explained, the real constraints on the number of residences which could be built on the acquired land flowed from the hydrology and town planning evidence.
4. Ground 6 should be rejected.

Ground 7

1. By ground 7 the appellants contend that there was legal error affecting the primary judge's decision by reason of the Valuer Conclave not being judicially supervised. In written submissions advanced in support of ground 3, the appellants contended that the primary judge had to take ultimate responsibility for the conduct of the conclave as part of her Honour's obligation to supervise and oversee "trial procedures" and to "ensure consistency and impartiality and avoid arbitrariness." It is contended by the appellants that the primary judge should have appreciated that the Valuer Conclave had been conducted inconsistently with the Expert Witness Code of Conduct.
2. There is no evidence in support of the contention that there was any non-compliance with the Expert Witness Code of Conduct. Moreover, as set out at [76] above, no complaint was made to her Honour as to the way in which the Valuer Conclave was conducted, and it was not contended before her Honour that either of the two joint reports provided by the expert valuers should be disregarded or given diminished weight on account of how the Valuer Conclave had been conducted. Indeed, the second joint expert report of the valuers was tendered by Mr Hemmings SC at the trial, and he took the primary judge through its contents, without hint of any complaint arising out of the conduct of the Valuer Conclave. Nor was any complaint made as to the tender of the first joint expert valuation report.
3. In these circumstances, ground 7 should be rejected.

Ground 8

1. By ground 8 the appellants contend that there was legal error affecting the primary judge's decision by reason of the location adjustment which the primary judge made, in the course of her judicial valuation, as regards the Corindi Property.
2. No error of principle is identified in this regard, rather, the appellants' contention is that the primary judge erred in the making of that adjustment. Consistent with the authorities discussed at [25]-[29] above, the making of adjustments is a matter of degree and judgment. Disagreement with an adjustment made to a comparable property, for the purpose of determining market value under s 56(1) of the Just Terms Act, is not an error of law. It follows that this ground does not fall within the proper ambit of this Court's jurisdiction on an appeal under s 57(1) of the LEC Act.
3. In any event, there is no error in the primary judge's approach. The primary judge's reasoning (at J[384]) as to the adjustment to the Corindi Property was relevantly as follows: "A major difference in adjustment between the valuers concerned location. Any location adjustment is usually intended to reflect the distance of a particular site from the nearest major urban development here Coffs Harbour. Mr Lunney conventionally adjusted in comparison to the Land which is closer to Coffs Harbour by 10% on that basis. Mr Rumble's approach (written and oral) to a location adjustment of 30% in applying the sale to the Land was very difficult to understand. I was unable to follow his logic in arriving at 30% in referring to other locations such as Sapphire Beach. He seemed to adjust the location of #17 Corindi Beach relative to the Land, as set out above at [374]. As I cannot follow his logic, I cannot accept his adjustment of 30%. I accept Mr Lunney's adjustment of 10% for location."
4. As is apparent, the primary judge accepted the evidence of Mr Lunney in this regard and rejected the evidence of Mr Rumble. As the respondent submitted, it was "difficult to understand" the logic of Mr Rumble's oral evidence as to this adjustment, in particular, his insistence upon the 30% adjustment for location being sourced in the distance between the Corindi Property and the Property, rather than in some difference between the location of the two properties relative to some other place or feature. Whilst the appellants may disagree with this conclusion, there is nothing to suggest that the primary judge erred in so finding, and in accepting Mr Lunney's 10% location adjustment, which was plainly properly based upon available evidence.
5. Ground 8 should be rejected.

Ground 9

1. By ground 9 the appellants contend that the primary judge erred (at J[386]) in "disallow[ing]" the use of the Shepherds Lane Property as a comparable for the purpose of determining the market value of the Property, on the basis that it was a compulsory acquisition. In support of this contention, the appellants submit that it is well established that compulsorily acquired properties can be relied upon for valuation purposes and that the primary judge's decision is inconsistent with this authority, giving rise to a question of law. The appellants also contend in this regard that if this comparable had been used by the primary judge in determining the market value of the Property, it would have made a material difference to the valuation outcome.
2. In support of this ground the appellants rely upon a number of authorities which establish that evidence of compulsorily acquired properties is admissible on questions of valuation and that there are circumstances in which such properties can be relied upon as comparable properties. So much is uncontroversial and is consistent with the decision in Woollams v The Minister (1957) 2 LGRA 338 ("Woollams"). In Woollams, Hardie J held that there was no principle of law which required that sales to an authority with power to compulsorily acquire properties be "rejected completely" albeit as his Honour held (at 346) that compulsorily acquired properties: "… should be used with considerable caution, bearing in mind that the Board had a statutory power of resumption and that it is reasonable to infer that all the vendors knew of that power, and that they would also know that the Board would exercise it and resume their properties if a negotiated sale was not made. The negotiated selling prices may be said to reflect the views of the vendors and the purchaser as to what the vendors would be likely to recover in an action for compensation … rather than to reflect a market selling price agreed upon between a willing vendor and a willing purchaser on the basis of the Valley enjoying the amenities and other conditions which would have prevailed had there been no scheme on foot and under way for its inundation."
3. In support of ground 9 the appellants relied upon a number of cases. In the first, Nardone v South Australian Land Commission (1978) 20 SASR 168 at 174, Jacobs J placed reliance upon a transfer to the South Australian Land Commission. However, in that case his Honour observed (at 174) that: "The importance of the transaction, however, lies in the fact that it appears to have most of the characteristics of an "arms length" transaction, by a willing but not anxious vendor, who had the advice of an experienced independent valuer as well as competent legal advice."
4. The appellants also relied upon Petroccia (at 343) where Wells J rejected a contention that evidence of purchases by the Minister of Environment "should remain amongst the potentially usable sales", but that, like any other such sale, they must be "subjected to critical appraisal in the usual way". However, his Honour had already observed (at 339) that these were not compulsory purchases, and that it appeared that the sales were concluded after negotiations which by-passed the applicable statutory procedures for compulsory acquisition. Moreover, as is clear from his Honour's decision (at 343), the question of weight would turn on the necessary process of "critical appraisal".
5. Further, the appellants relied on Koutsouras v State Rail Authority [1991] NSWCA 168 at 5, in which Meagher JA (Clarke JA agreeing) acknowledged competing lines of authority as to the admissibility of evidence of sales to acquiring authorities, and observed (without resolving the question of which line of authority was correct) that it was "clear beyond dispute that sales to an acquiring authority are to be scrutinized with care, as their very nature suggests that the prices reflected in them are likely to be unnecessarily depressed and therefore not reflective of true market value."
6. Consistent with this, in another case relied upon by the appellants, Merivale Motel Investments Pty Ltd v Brisbane Exposition & South Bank Redevelopment Authority [1988] 2 Qd R 562 at 564; (1987) 64 LGRA 108, Matthews J (Dowsett J agreeing) ("Merivale") held, as to settlements between an owner and a resuming authority: "It seems to me that the question is not one of admissibility but one of weight to be given to such transactions or the use which a valuation court decides to make of them and if the court has available to it other evidence which it considers satisfactory for its purposes, it will not act irrationally if it concludes that it will not derive assistance from the evidence of settlements."
7. In Boral Bricks (Qld) Ltd v Director-General, Department of Main Roads (1997) 20 QLCR 1, the claimant relied on "negotiated settlements with the Department of Transport (Railways)" at various addresses to support his contended valuation of the acquired property. The Land and Environment Court of Queensland articulated the position in Woollams, that evidence of such "settlements" should not be rejected, and relied upon the decision in Merivale to conclude that a detailed analysis of such settlements should be undertaken. Ultimately, in circumstances where the claimant had "no comprehensive understanding of the conditions" of the negotiated settlement, the settlements "would not appear to meet the caution required" such that they could be used to support the rate per m2 value contended for by the claimant.
8. As is apparent, whilst these cases show that evidence of the price at which a property had been acquired by an acquiring authority is admissible, none of the cases relied upon by the appellants in support of this ground went to the weight that should be attached to such evidence. Nor do any of those cases support a conclusion that a court must give weight, on the issue of valuation, to evidence of the price at which a property was compulsorily acquired where there is no evidence as to negotiation or why the vendor agreed with the price offered, as opposed to evidence of a price set after a process of negotiation of some sort.
9. Consistent with this authority, the primary judge admitted evidence of the price at which the Shepherds Lane Property was purchased. This was included in the table of sales relied upon by the expert valuers (at J[262]). The primary judge, however, accepted the respondent's submission that the Shepherds Lane Property was not "comparable" (at J[386]). This was because, as submitted by the respondent and accepted by the primary judge (at J[370]), that property was compulsorily acquired and was not the result of negotiation with an acquiring authority, and the Court did not have any evidence before it as to why the dispossessed owner accepted the Valuer-General's determinations. This conclusion, properly construed, was simply that no weight should be given to the evidence of the value at which the Shepherds Lane Property was acquired in the circumstances. There is no error of law in that conclusion. It is entirely consistent with the authority set out above.
10. Ground 9 should be rejected.

Cross-appeal

1. As set out above, the primary judge found that the appellants should be compensated for stamp duty paid to purchase a replacement property pursuant to s 59(1)(f) of the Just Terms Act. In this regard, the primary judge relied (at J[426]) upon the decision in Drivas (LEC) (at [383]-[396]) that such an entitlement was allowed pursuant to s 59(1)(f) of the Just Terms Act.
2. However, as the respondent contends, that approach was found to be incorrect by this Court in Drivas (CA) (at [115]-[121]). As set out above, the application for special leave to appeal against Drivas (CA) has now been refused.
3. In the circumstances, the respondent should succeed on its cross-appeal. It is unnecessary to address ground 2 of the cross-appeal.
4. It follows that order 1(c) of the primary judge's orders dated 26 October 2023, which awarded the appellants compensation under s 55(d) of the Just Terms Act for stamp duty for a replacement property, should be deleted. In the primary judge's subsequent orders dated 3 November 2023 her Honour noted that the amount of stamp duty, in accordance with order 1(c) of the 26 October 2023 orders, was $57,717.00.

Conclusion

1. It follows that the appeal should be dismissed. As neither party submitted to the contrary, costs should follow the event.
2. Accordingly, the orders I propose are: 1. Appeal dismissed. 2. Cross-appeal allowed. 3. Orders of the primary judge dated 26 October 2023 are varied so as to delete order 1(c). 4. Appellants to pay the respondent's costs of the appeal.

ANNEXURE A No. Document Date Hydrology 1 RMIS EIS extracts: (p.p. 61, 68, 89 &105) 09-19 2 Letter to Valuer General & TfNSW 02-03-22 3 Email from Ray Dibb to Anna Zycki 02-03-22 4 Email from Anna Zycki to Ray Dibb 02-03-22 5 BOM Daily Rainfall Chat for 2021, 2022 & 2023 27-04-24 6 Certificate of Expert Evidence by Mr Kieran Dibb 01-05-24 7 Affidavit of Mr Kieran Dibb 01-05-2024 8 Survey Maps 01-05-24 9 Nearmaps of Subject Land from 2011 to 2025 11-03-24 10 Nearmap of 51-53 Bruxner Park Rd 2021 11-03-24 Valuation 11 Affidavit of Stuart Rumble 01-05-24 12 Corindi Beach Statistics Report 02-05-23 13 Map of TfNSW Acquired Surrounding Properties 22-10-21 14 Table of Korora Sales between 01-05-20 and 01-05-22 06-06-22 15 Spreadsheet Summarising Korora Sales 05-05-23 16 RP Data Report of 4 Banana Land Sales 11-03-24 Mr Hemmings SC 17 Letter to Roslyn McCulloch 21-06-23 18 Email from Mr Hemmings SC 27-06-23 19 Email to Roslyn McCulloch 04-07-23 20 Letter to Senior Counsel (redacted) 04-07-23 21 Email to Senior Counsel (redacted) 04-07-23 Bias 22 Files Notes of Phone Discussion with Terry Green 18-09-20 23 Email from Terry Green to Anna Zycki 01-03-21 24 Letter from Minister Toole to Gurmesh Singh 19-05-21 25 Brief from Patrick Ibbotson to Anthony Rowan 20-06-22 26 Letter from Planning NSW to CHCC 17-09-02 Blue Book Inclusions 27 246 Shephards Lane - HTW Valuation (extract) 02-11-21 28 14A Bruxner - Taylor Byrne Valuation (extract) 16-07-17 29 14A Bruxner - Lunney Watts Valuation (extract) 20-11-18 30 14 Bruxner - Inland Pacific Valuation (extract) 16-11-16 31 14 Bruxner - Inland Pacific Valuation (extract) 26-10-17 32 14 Bruxner - HTW Valuation Report 03-08-20 33 14 Bruxner Park Rd - TfNSW Memorandum 09-08-21 34 RDM Town Planning Report 09-07-20

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2024