21 The respondent objects that the new documents sought to be adduced are "secret facts". The expression "secret facts" has been coined to describe facts in existence at the date of compulsory acquisition but which would have been unknown or not discoverable to a prospective purchaser at that time. They are discussed in Alan Hyam, The Law Affecting Valuation of Land in Australia (3rd ed, 2004) at 377 - 378. There are authorities that suggest "secret facts" should not be taken into consideration: Morison v Commonwealth (1971) 34 LGRA 273 (VSC, Stephen J); Manufacturers Mutual Insurance Ltd v Gosford City Council (1981) 27 The Valuer 214 at 215 (NSWLEC, Cripps J). However, the point was left open in Tatmar Pastoral Co Pty Ltd v Housing Commission of NSW (Cripps J, NSWLEC, 17 March 1982 unreported).
22 It is unnecessary for present purposes to address the applicant's submission that it is open to a primary judge in remitted proceedings to correct obiter errors of fact by the Court of Appeal. That is because the applicant's motion can be adequately addressed without considering that route. If the submission had to be addressed, it would require not only consideration of a question of principle but whether, in the present case, there were any such errors and, if so, whether they were obiter. Before leaving this topic I will express the opinion that one of the alleged errors, in any event, is inconsequential. As the respondent conceded in argument, there appears to have been a zoning misdescription when Handley JA wrote that a part of the acquired land comprising an area of 654 square metres was zoned "Special Uses - Drainage 5(a)": 146 LGERA 335 at [67]. It is common ground before me that this area of land was in fact zoned "Residential 2(a)". This is discernible, with difficulty, from a map in evidence before Bignold J which was not reproduced in the appeal book (Exhibit 22). Handley JA merely repeated a slip in a report in evidence of the valuer Mr Paris (at appeal book 3/516 to which his Honour referred). The point is inconsequential because Handley JA was correct in stating that Mr Paris had valued this area of land at only $20 per square metre and that Mr Paris said that his value of $190 per square metre was only for the developable land: at [68] (referring to the appeal book at 3/565). The explanation is that this area of land, although zoned Residential 2(a), lies in the Maxwells Creek riparian zone which is not developable. Further reference to Mr Paris' report (at appeal book 3/517) confirms that Mr Paris valued this area of land at $20 per square metre as part of a larger area of 3,654 square metres which he described as "drainage and Recreation Zoned land".
23 The applicant's motion tests the principle of finality in litigation. That central and pervasive principle was explored in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34] - [36] by Gleeson CJ, Gummow, Hayne and Heydon JJ who said (omitting citations):
[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
[35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called fresh evidence rule) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: [i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.
[36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.