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.