Exhibit D1 - a document entitled " Registrar General's Directions ", tendered to explain to the court what constitutes an easement.
Exhibit D2 - Extracts from the December 1988 " Lower Narara Creek Flood Study " and Kinhill's " Floodplain Management Plan for Lower Narara Creek ", under which the subject levee bank was constructed.
Exhibit D3 - an extract from Council's business paper dated 27 September 2005, concerning the levee bank, the related easement at the heart of these proceedings, and the decision to make the subject compulsory acquisition, together with a copy of Council's original POD dated 6 July 2007, on which copy the applicants have emphasised the following in par 4(e): " the Respondent denies that the Lower Narara Creek Floodplain Management System should be ignored in assessing the market value ".
Exhibit D4 - a copy of the valuation report commissioned by the Valuer General and dated 27 October 2006, upon which the applicants rely to demonstrate that construction of the easement resulted in a diminution in the value not only of the easement area " but also the adjoining land ", yet the Council assessed its compensation on the basis of a nil decrease in the value of such " other land ".
Exhibit D5 - a plan depicting possible culverts which could be constructed under the levee and Manns Road to relieve the flooding of the applicants' residue land.
Exhibit D6 - a Hansard extract of the second reading speech for the legislation which regulates (1) Council's access to premises for purposes related to stormwater control works, and (2) Council's liability to compensate landowners for any damage caused. Mr Dillon distinguishes drainage works from flood mitigation works and has concerns about s59A of the Local Government Act 1993 (enacted by that legislation, and amended in 2009), in view of the court's findings.
Exhibit D7 - a title search regarding the applicants' property which Mr Dillon argues contains various irregularities, including recording of two relevant easements, not one.
Exhibit D8 - Mr Dillon's suggested alternative formulation of a single appropriate easement regarding the levee bank, acceptance of which he says would resolve the applicants' NOM if the Council agreed to pay the applicants $85,000 in compensation (as per the original Valuer General report).
Exhibit D9 - Mr Dupont's " supplementary valuation report " dated 3 September 2009, covering " certain scenarios consequent upon " my judgment, which valuation includes an assessment of injurious affection to the residue land as a result of the public purpose.
Exhibit D10 - the Joint Valuation Report dated 4 December 2007, tendered and relied upon in the substantive proceedings (as Exhibit R4), but now criticised by Mr Dillon.
45 Exhibit D8 had been put to the Council's solicitors by email on 16 February 2010 as a way of alleviating the applicants' concerns that Council can "use" the residue land as well as do works on the land which is subject to the easement (see Council's Exhibit G1).
46 At this point I note that Mr Dillon wrongly submitted that this court could act upon any agreement to so amend the easement, by exercising the powers in s 89 of the Conveyancing Act 1919, or the "ancillary" jurisdiction in s 16(1A) of the Land and Environment Court Act 1979. The s 89 powers are within the jurisdiction of the Supreme Court and not this court (see s 7 of the Conveyancing Act 1919), and go far beyond what could be done by this court under its own Act (see Newcastle City Council v Caverstock Group Pty Ltd and Another (2008) 163 LGERA 83 at [50], and Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, at [73]ff).
Submissions
Finality of Proceedings
47 The Council submits that proceedings under the JTC Act are a "once only" opportunity for the finalisation of compensation issues, and that, therefore, the court's decision of 6 June 2008 is final and conclusive, except in so far as the actual amount to be paid by way of compensation for such scour protection works as the court found to be compensable has yet to be determined.
48 On the other hand, the applicants submit that the judgment and orders of and following 6 June 2008 are "interlocutory in nature", presumably on the basis that they did not determine compensation for severance, special value, solatium, or injurious affection.
49 Mr Dillon also submits that the current proceedings are necessary because of (1) "real questions" raised by the earlier proceedings, and by my judgment purporting to finalise them, and (2) "outstanding matters" left unresolved by those proceedings. He says (at [81]-[82] of his submissions):
" 81. Consequently, the findings in the judgment have raised numerous matters which must be considered by the judicial valuer in order to assess 'just compensation' as mandated by the JT Act. His Honour, Biscoe J., in McDonald v RTA of NSW [2009] NSWLEC 105 stated:
"[13] The list of matters in s 55 to which regard must be had when assessing the amount of compensation is subject to the 'just compensation override' in s 54: Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353, 149 LGERA 439 at [28]; Smith v Roads and Traffic Authority of New South Wales) [2005] NSWLEC 438 at [66].
[14] Because of the guarantee in s 3(1)(a), which is re-iterated in s 10(1)(a), the acquiring authority must pay at least the market value of the acquired land unaffected by the proposal: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325, 163 LGERA 245 at [63], [72] per Hodgson JA; Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353, 149 LGERA 439 at [41] per Spigelman CJ; Smith v Roads and Traffic Authority of New South Wales [2005] NSWLEC 438 at [65] per McClellan J.
82. The significant moment of the abovementioned findings potentially affects the assessment of market value as well as many other components of the just compensation. For these reasons the leave sought is considered essential in the in (sic) interest of justice."
Section 59A of the LG Act
50 Mr Dillon submits (T p26, LL35-37) that in my judgment I opened a "sec 59A door" which should now be "shut tightly", or have its impact now factored into redetermining the compensation to be awarded, bearing in mind that the applicants still own land under the levee, as well as around it.
51 Section 59A of the LG Act provides:
"59A Ownership of water supply, sewerage and stormwater drainage works
(1) Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).
(2) A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed.
(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900."
52 Mr Dillon contends that ownership of the works undertaken in constructing the levee vests in the Council by virtue of the s 59A. As a consequence, he maintains (T p27, LL 25-30) that:
" If 59A applies, it subdivides the property. The area beyond the levy (sic) bank, beyond area E, is basically cut off. If I was to drive a tractor from the house down to the far end of the levy (sic) I would be trespassing because the council owns the land, owns the soil. I have no right to graze it. The grass is council's grass. They turfed it; they own it because of 59A, if 59A applies ".
53 Mr Dillon also submitted (T p27, LL36-40) that:
" 59A also enlivens section 635 of the Local Government Act which says that nobody can interfere or you can be penalised for interfering with a storm drainage works. Just things like, you know, digging a fence post hole or burying irrigation or, you know, spraying weeds and poison or planting plants. Any interference with the levy (sic) bank, in theory, is actionable ".
Consideration
Finality
54 Despite Mr Dillon's protestations to the contrary, the NOM clearly seeks a reopening of the substantive proceedings. The court considered on 22 July 2009 that the Short Minutes of Order brought in by the respondent accurately reflected my reasons for judgment, and I remain of that view.
55 No allegation has been made by the applicants that the judgment and orders were made "irregularly, illegally or against good faith". Nor is any "slip" in the judgment or orders alleged, except that the applicants urge the court to use the slip rule to amend my Order 1 to better reflect my reasons and better explain the actual interest acquired for the $45,000 ordered as compensation.
56 Accordingly, I find (1) that the proceedings have been finally determined, except as to one specific consequential detail, and (2) that there is no "slip" requiring intervention of the kind which should be addressed by the application of a slip rule.
57 As five judges of the High Court said in their joint judgment in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 258 ALR 14, at [112]-[113]:
"[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings."
58 The law and principles regarding finality of orders and reopening of cases are now well established. See discussion of the rules, relevant authorities and the applicable principles by Lloyd J in Pittwater Council v Brown Bros Waste Contractors Pty Limited ("Brown") [2009] NSWLEC 50, and by me in Teoh v Hunters Hill Council (No.3) ("Teoh") [2009] NSWLEC 121, at [43]-[60].
59 Lloyd J in Brown carefully distinguished orders that are "final" from those which are properly considered "interlocutory, conditional, or procedural". The orders I have made in this matter are clearly "final".
60 As the Court of Appeal said in Fokas v Kogarah Council [2008] NSWCA 145, at [18], the courts must act promptly to correct any injustice created by final orders. While the orders on this matter were not perfected until 15 months after the judgment was handed down, the thrust of the orders was clear from June 2008 and the NOM (in final form) was not filed until September 2009.
61 Delay in initiating "remedial" action also occurred in Teoh, and in Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales ("Mir") [2005] NSWLEC 419.
62 In Mir, market value had been finally determined but disturbance claims stood over, and some nine months elapsed before the applicant sought to reopen its case on three stated bases - (1) to reagitate the application of the "Before and After" valuation method, (2) to correct a possible arithmetical error, and (3) to introduce fresh valuation evidence on a matter which was debated and determined at trial, but had not been pleaded.
63 McClellan J agreed to reopen the case only in respect of the arithmetical error, if it could be established. His Honour applied the principles laid down by the High Court in Smith v NSW Bar Association ("Smith") (1992) 176 CLR 256, especially at 265-7, saying, inter alia:
"6 The first matter sought to be reagitated is the proper application of the before and after method of valuation, which I utilised in reaching my conclusion in relation to market value. I utilised that approach, which was the approach taken by the parties' valuers, because, after consideration, I concluded that it was appropriate to derive the market value of the acquired land in that manner. Application of the before and after method requires faithful adherence to the relevant principles which include a proper analysis of the situation after the land has been acquired. In this case the evidence disclosed that the parcel of land from which the acquired land has been taken was large and, as against comparable sales, a discount for size was appropriate. With respect to the residue, it being a much smaller parcel, difference considerations arise which are reflected in my reasons for judgment.
7 The applicant seeks to reopen that aspect of the matter, not so much to tender any further evidence, and it is difficult to see what further evidence could be given in relation to that aspect, but to submit that the approach I took involves an error of law. If there be a legal question in that aspect of the matter and there is an error the appropriate forum for which to advance the argument is the Court of Appeal. Leave is declined in relation to that aspect of that matter.
8 The second question is in reality a matter of arithmetic. It is submitted that the calculation which I made when applying the adjustment relevant to consideration to the impact of the M7 contains an error of logic within the arithmetic. If that is the case then I would grant leave to reopen in order to amend the arithmetical calculation. The parties have undertaken to speak with each other about the matter and if they are agreed that an arithmetical error is contained within the calculation they will, on the resumed date, tell me of the error and I have indicated that I will then make whatever adjustment I believe appropriate to the market value. I do so mindful of what the High Court said in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265.
9 The third matter sought to be reopened requires a little more consideration than the first two. …"
64 His Honour went on to explain the third issue (impact of the M7 roadway upon values in the area) in some detail (at [9]-[13]). That issue, although not within the pleadings, had been identified by the parties before trial, and in the valuation evidence and submissions, and was dealt with in His Honour's substantive judgment. The applicant had not complained of being disadvantaged until well after that judgment was delivered when it sought to reopen to produce fresh valuation evidence.
65 His Honour said (in Mir at [14]ff), that Smith made plain that, in considering such a reopening application:
"14. … it is relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, that will normally be decisive. But if that is not the case, it is relevant to enquire whether the hearing is complete, if the reasons for judgment have been delivered and whether or not there may be embarrassment or prejudice to the other side by allowing the matter to be reopened. If that is the case then the rules relating to fresh evidence are suggested as providing a useful guide to the exercise of discretion as to whether or not the matter should be reopened.
15 In the present case it is apparent that a decision was made by counsel that the evidence that was available at the trial was sufficient and appropriate for the resolution of this issue. Although I infer that the further report which is now sought to be tendered was not available and the approach taken by that valuer had not be identified, nevertheless, it is plain that a forensic decision was made that the evidence which was available was sufficient to resolve the issue.
16 It will be the case in many valuation matters that a fresh mind may identify a different approach with a potentially different outcome to the valuation problem. The fact that this has occurred in this case is not a reason, in my opinion, to allow the applicant to reopen.
17 Furthermore, as I have already indicated, this matter has proceeded on the assumption that the market value issue would be determined as a discrete issue. Evidence has been tendered, submissions received, the matter analysed and my reasons for judgment published. In every sense of the matter that fundamental issue in these proceedings has been finally determined.
…
21 The issue of the impact of the M7 has already been heard and determined. The opportunity to proffer an alternative approach to the resolution of that item was available to the applicant at the time of the hearing and, no doubt, a forensic decision was made that the basis upon which the matter was to be argued at that time was appropriate for its resolution. "
66 I adopt, without hesitation, the principles espoused in Smith and Mir.
67 If further authority is needed on the question of parties' remaining bound by the way in which their cases have been conducted, I would refer to the following comments of six judges of the High Court in Metwally v University of Wollongong (No.2) (1985) 60 ALR 68, at [71]:
" 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."
(See also the authorities surveyed by Biscoe J in Bankstown City Council v El Dana [2009] NSWLEC 68).
68 The "just compensation override" in s 54(1), of which Biscoe J spoke in McDonald v RTA, requires the court to have regard to "all relevant matters" contained in the relevant part (Part 3) of the JTC Act to "justly compensate" the dispossessed owner. In this case, pleadings were exchanged and amendments attended to. Directions were made for the orderly conduct and disposal of the proceedings. The applicants formulated their claims, and the issues were clearly defined and joined. Substantial time was devoted to hearing them and coming to a considered decision on them.
69 The Dillons were represented at the hearing by experienced practitioners, including eminent senior counsel well recognised in this area of practice. They chose not to make claims for severance, special value, solatium or injurious affection at their "once and for all" hearing.
70 Like Mrs Teoh (see Teoh at [64]-[65]), Mr Dillon, in his submissions on behalf of the applicants, criticises others, such as Council, Council officers and Council's legal representatives, and has not been especially critical of the court's judgment, but asks the court to "go back, do it again, and try to go a little further for us".
71 The case ran for five hearing days, and most of what transpired is now conveniently ignored. The applicants relied at the hearing on the joint valuation evidence tendered without objection, but now criticise its methodology. Because the overall result to their litigation was a disappointment to them, they now argue that the judgment was only "interlocutory", or a "step along the way" - their submissions refer to the "proceedings to date", "a primary case", and the "findings made to date".
72 All their points, as finally pleaded, were run, and not all succeeded. All that remains of the case so determined is to arrive at a dollar figure to put on one successful disturbance claim.
73 On reconsideration of the proceedings and the judgment, I am satisfied that the court acted as required by s 54(1) of the JTC Act, and by the authorities (including some decisions of my own) upon which Mr Dillon's submissions rely.