provided this is done no later than 12 August 2006.

2 I direct that the proceedings be fixed for further hearing, with two days being set aside, preferably in the first three weeks of September 2006, which hearing shall be confined to the cross-examination of any witness who provides a witness statement and to final submissions in relation to any additional evidence.

Mr Jim Delany SC of counsel instructed by Gadens Lawyers

Mr Chris Horan of counsel instructed by the Victorian Government Solicitor's Office

(given orally at the hearing and subsequently revised)

1 These proceedings concern site valuations of an allotment in the central part of Melbourne; and constitute a test case which is likely to have implications for numerous other like proceedings before the tribunal. The case was heard in March, April and May of 2006. At the conclusion of submissions on 18 May 2006 I reserved the decision of the tribunal. A decision has not yet been given.

2 By letter dated 13 June 2006 the first respondent, the Melbourne City Council, asked that the hearing be reopened to allow additional evidence to be heard in relation to a recent sale of the property at 565 Collins Street, Melbourne.

3 The 2003 sale of this property for approximately $8 million was the key sale relied upon by Mr Jackson, the valuer called on behalf of the applicant in the proceedings. The council says that the recent sale was for a sum in the order of $25 million and is thus highly probative. The council says that the recent sale affects the reliance that the tribunal should place upon the 2003 sale of that property.

4 The council's application is supported by a supplementary witness statement of Mark Karutz dated 8 June 2006. The council's application is also supported by the second respondent, the Valuer-General. In turn, the Valuer-General's support for the reopening of the hearing is supported by a letter from a valuer, Mr Alistair Kensley. The general effect of the letter of Mr Kensley, and the witness statement of Mr Karutz, is that the recent sale of the property at 565 Collins Street not only supports the evidence they gave but, in particular, is relevant to evidence that was put before the tribunal concerning the comparability, or probative value, of the 2003 sale of the property at 565 Collins Street in determining the values of the subject land.

5 The application to reopen the hearing was opposed by the applicant. That opposition is based upon various grounds, including the relevance of the evidence proposed to be called, the desirability for finality in litigation and the question of prejudice.

6 Although the tribunal is not bound by the rules of evidence it is required to conduct its proceedings fairly. It is also required to determine proceedings with as much speed as the requirements of justice permit. Notwithstanding these special requirements, the general rules that have been established in courts in relation to the admission of fresh evidence after the hearing is complete, but before judgment is given, are of considerable assistance. These principles, which might be thought to derive from cases such as Watson v Metropolitan (Perth) Passenger Transport Trust[1] and Murray v Figge,[2] have been usefully summarised by Mr Delany on behalf of the applicant as follows:

... that fresh evidence should only be admitted in circumstances ... when:

(a) it is so material that the interests of justice require it;

(b) the evidence, if believed, could most probably affect the result;

(c) the evidence could not, by reasonable diligence, have been discovered before;

(d) such evidence only being admitted on conditions that ensure no prejudice to the other party by reason of its introduction at a late point of time.

7 It is common ground that the evidence could not have been discovered before the end of the hearing. The report of the sale would appear to have first occurred in the Australian Financial Review on 25 May 2006, which is after the date of final submissions.

8 To some extent the first two criteria are related: because they turn on the materiality or probative value of the proposed evidence.

9 I think that the evidence could be probative; and, if believed, could most probably affect the result. Whether this is so it will depend upon the detailed nature of the evidence; and it may depend upon evidence that is given as to movements in the market between 2003 and 2006 (or, possibly, 1 January 2002 and 2006; or 1 January 2004 and 2006). The reason why I think the evidence could be material is because, as Mr Horan put it for the Valuer-General, the May 2006 sale may be relevant to the weight and reliability of the evidence concerning the April 2003 sale; and, further, because the April 2003 sale was regarded as the key sale by the valuer for the applicant. I recognise that it is possible that the admission of further evidence might ultimately not be probative. But I think that the course that I should adopt now should be guided by the probabilities, rather than by the need to be certain about whether or not the evidence would, in fact, ultimately be determinative.

10 Further, I am satisfied that a procedure can be adopted that will avoid prejudice to the applicant by reason of the late introduction of the evidence about the May 2006 sale.

11 In addition to the factors that are outlined in the cases that I have referred to, it is also relevant that this proceeding has been identified as a test case. If a decision is made in this case which is not regarded as authoritative - because what at least one party regards as key information has not been taken into account - then it will deprive the case of some of the direction which the parties seek to obtain from it. Put it in shorter language: being a test case it is even more important than normal to try and get the "right" answer.

12 I was initially concerned that the recent sale of 565 Collins Street might be conditional in the sense that it would only proceed if the purchaser succeeded in obtaining commitments from tenants. If that was the case I would have refused to have allowed the case to the reopened. But I am persuaded today that that does not appear to be the case. If ultimately I am wrong on this question then I will have to consider that issue, if I am able to, in determining the issue as to costs. Indeed depending on what happens, an order as to costs (if possible) may be necessary to address prejudice.

13 For the reasons that I have given - which are admittedly in short compass - I should permit the application. I have given those reasons in short compass in part deliberately, because it is important that any further evidence be considered fairly. It is better if there are not too many comments at this stage as that might inhibit the proper reception and consideration of the evidence. If need be I will amplify these reasons further when the final decision is given in the case.

14 I am conscious of the delay that might result from allowing further evidence, especially as Mr Delany is not available until the end of August. In order to minimise that delay I feel I can work on substantial parts of the decision in the meantime, so I can decide the case shortly after the resumed hearing. As all experienced practitioners would know, a lot of work is needed to describe background matters and make findings on evidence; and much of that can be done before the final parts of the jigsaw are put into place.

[1] [1965] WAR 89.

[2] [1974] 4 ALR 612.