Mosca v Roads and Traffic Authority of NSW

De L v Director-General New South Wales Department of Community Services [No 2] (1997) 190 CLR 207; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 ; Histollo Pty Limited v Director-General of National Parks and Wildlife Service [1997] NSWLEC 209; Histollo Pty Limited v Director-General of National Parks and Wildlife Service [1997] NSWLEC 210; CASES CITED: Manufacturers Mutual Insurance Ltd v Gosford City Council (1981) 27 The Valuer 214 ; Morison v Commonwealth (1971) 34 LGRA 273 ; Mosca v Roads and Traffic Authority (NSW) (2004) 139 LGERA 28; Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79; Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; Tatmar Pastoral Co Pty Ltd v Housing Commission of NSW (Cripps J, NSWLEC, 17 March 1982 unreported)

APPLICANT: Mr J J Webster SC and Ms A Pearman, barrister SOLICITORS: Thorntons Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr J B Maston, barrister SOLICITORS: Corrs Chambers Westgarth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

FRANCO MOSCA v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The applicant moves for leave to adduce further evidence and the respondent moves for the exclusion of evidence proposed to be adduced by the applicant in these part-heard proceedings which have been remitted by the Court of Appeal.

2 The respondent compulsorily acquired the applicant's land at Prestons on 4 October 2002. The applicant objected to the amount of compensation offered by the respondent. His objection was heard and determined by Bignold J: Mosca v Roads and Traffic Authority (NSW) (2004) 139 LGERA 28. There was a successful appeal on questions of law by the respondent and the Court of Appeal remitted the proceedings to this Court for compensation to be determined according to law: Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335. The applicant applied for leave to adduce expert town planning evidence and flooding/drainage evidence in the remitted proceedings. I granted leave to adduce the latter evidence but not the former: Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79. In that judgment I traced the background of the matter and the relevant principles and authorities concerning the exercise of the Court's discretion to give leave to adduce further evidence in remitted proceedings. The remitted proceedings are part heard before me. They had to be adjourned because of the illness of an expert witness.

THE MOTIONS 3 Now before me is a motion by the applicant which (insofar as it is pressed) seeks leave to adduce: (a) further expert valuation evidence from Michael Paris in accordance with his supplementary valuation report dated 25 July 2007 along with four attachments thereto: (i) letter from Mr Paris to Drew Bewsher dated 22 June 2007; (ii) letter from Mr Bewsher to Mr Paris dated 10 July 2007; (iii) letter from Bill Davison of Liverpool City Council to Mr Bewsher dated 21 June 2007; (iv) Liverpool City Council memorandum from Arvind Lal to Barry Millwood dated 13 January 1999. (b) additional sales evidence in Michael Paris' said report in relation to: (i) 62 Bernera Road, Prestons; and (ii) Lot 1 Ash Road, Prestons. (c) evidence of the following two Contributions Plans under s 94 of the Environmental Planning and Assessment Act 1979 : (i) Liverpool City Council - Section 94 Contributions Plan No 6 - Cabramatta Creek, Carnes Hill and Prestons - revised edition August 1997; (ii) Liverpool City Council - Section 94 Contributions Plan No 6 - Cabramatta Creek, Carnes Hill and Prestons - October 1999 edition. 4 Also before me are motions by the respondent:

(a) seeking to exclude paragraphs 6 and 8 from the joint report of the parties' flood experts dated 18 April 2007; (b) in the event that the Court grants leave to the applicant to adduce the above further sales evidence, seeking leave to adduce evidence of a sale at the corner of Wilson Road and Rossini Drive, Hinchinbrook (Lot 1061 in DP 1051506). BACKGROUND 5 Prior to resumption, the applicant's land consisted of a rectangular block 50 m x 400 m running from Skiptons Lane on the east to Ash Road on the west. Maxwells Creek, which had become a man-made watercourse, ran through the centre of the block. A riparian corridor flanking Maxwells Creek was not developable. The resumed land severed the applicant's remaining land into two blocks, one fronting Skiptons Lane and the other Ash Road. The land was resumed for the purpose of the Western Sydney Orbital motorway (WSO).

6 In order for development to occur, trunk drainage works would be required for Maxwells Creek. A 1999 proposal for such works by Mr Drew Bewsher did not proceed further because of the WSO Proposal. Mr Bill Davison of Liverpool City Council gave evidence before Bignold J as to the timing of such works had there been no WSO proposal. According to the evidence of Mr Davison, as at the resumption date council did not have funding for such works and could only have obtained funding if a Contributions Plan was adopted under s 94 of the Environmental Planning and Assessment Act 1979. I quoted from his statement of evidence dated 13 February 2004 tendered before Bignold J in my judgment in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [28], as follows: Section 94 Funding

20. Between 1999 and the Date of Acquisition of the Mosca Property by the RTA, Council did not have available allocated funding to carry out the Bewsher Channel Works. This is because Council did not have in its section 94 Contributions Plan ( Contributions Plan ) a funding source for trunk drainage works along Maxwells Creek. The existing Contributions Plan identifies a funding source directed to funding the acquisition of land zoned for drainage reserve by Council.

21. Section 94 funding is collected on a local and district level, and not on a catchment by catchment basis. There was and is no specific fund for improvement works for Maxwells Creek.

22. To obtain the funds to undertake trunk drainage works along Maxwells Creek the Council would have needed to establish a nexus and formula to raise the necessary funds in a Contributions Plan. The Council allows developers to undertake works, as works in kind, as a condition of their development application ( DA ) approval.

7 The leading judgment of Handley JA on appeal in these proceedings referred to this and other aspects of Mr Davison's evidence and to the s 94 Contributions Plan issue as follows in (2006) 146 LGERA 335: [44] Mr Davison, the Council's Land Development Manager, said that had there had been no WSO proposal further studies and approvals would have been required before the Council could adopt any detailed design for trunk drainage works on Maxwells Creek, and the process would have taken a minimum of two years (blue 3/548). The Council would then have had to commission an EIS which it would have to approve (3/548) before the drainage works could be carried out. [45] Construction of the works would have been dependent on developers or on the Council preparing an appropriate s 94 Contributions Plan (3/548-9). As at 4 October 2002 it had not resolved to acquire any of the land zoned 5(a) or 6(a) or to prepare a s 94 plan to cover trunk drainage works in the Maxwells Creek area (3/549). He would have advised the Council that the commencement of such works should be a necessary pre-condition to development approval for any property in this area (3/549). The Council stated in a letter to the owner's solicitors that he drafted (3/551 E) that the trunk drainage work would have taken 12 months to complete (3/552). [46] He said that the Bewsher channel works under consideration in 1999 would not have made the Mosca property flood free (3/549). Between 1999 and the date of resumption the Council had no available funding for trunk drainage works in the area. The 1992 Contributions Plan made provision for the acquisition of the land zoned for drainage reserve, but not for any trunk drainage works (3/550).

… [60] The Council did not have funding for these works and could only have obtained it if a s 94 Contributions Plan was adopted. No estimate was given of the time that this would have required, or the time that would then have elapsed before the necessary funds had been accumulated. It is not clear however that the Council was having these drainage works designed with a view to doing the work itself, it may have contemplated requiring a developer to do it. [61] The work was said to take 12 months (at [45] of these reasons), and thus would be expensive but there was no estimate of its cost. It is clear however that this must have exceeded by many times the $50,000 allowed by Mr Paris. [62] There was evidence that developers buying land in globo factor s 94 contributions into their price so that values established by comparable sales of in globo land do not need to be adjusted because of the contributions that will have to be paid or provided by the developer. [63] There was no evidence that the Council would have established a Contributions Plan but for the resumption process. It may have contemplated or in the event decided that the cost should be borne by the party developing the corridor. [64] Thus a developer who accumulated sufficient land in this corridor may have undertaken the necessary work either by choice, or as a matter of legal or practical necessity. There was no evidence from Mr Paris or Mr Fiander that such a developer would ignore the cost of works which were not covered by a s 94 Contributions Plan. FRESH EVIDENCE - section 94 contributions 8 Section 94(1) of the Environmental Planning and Assessment Act 1979 provides: 94 Contribution towards provision or improvement of amenities or services

(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both. 9 In evidence before Bignold J were three section 94 Contributions Plans published in 1992, 1996 and 2002 (Exhibits 19 and K). The two further section 94 Contributions Plans published in 1997 and 1999, which the applicant now seeks leave to adduce, are referred to in paras 6 and 8 of the joint report of the parties' flood experts of 18 April 2007 (which paragraphs the respondent seeks to exclude from the evidence), as follows: 6. Investigation of the following Council documents: (a) Section 94 Contributions Plan No 6 - Cabramatta Creek , Carnes Hill and Prestons Release Areas. Liverpool City Council. December 1992. Appendix A, Page 21; (b) Section 94 Contributions Plan No. 6 - Cabramatta Creek, Carnes Hill and Prestons. Liverpool City Council. Revised Edition. January 1995. Appendix A, Page 26; (c) Section 94 Contributions Plan No. 6 - Cabramatta Creek, Carnes Hill and Prestons. Liverpool City Council. Revised Edition. August 1997. Appendix A, Page 33; (d) Section 94 Contributions Plan No 6 - Cabramatta Creek, Carnes Hill and Prestons Residential Release Areas. Liverpool City Council. October 1999. Page 130; (e) Liverpool City Council Memorandum from Arvind Lal to Barry Milwood. 13 January 1999. Subject: Revised Cost of Plan 6 & 7,

indicates that Council apparently were collecting Section 94 contributions towards a regional creek corridor from 1992 to at least 1999. It maybe inferred from this that Council considered a regional creek corridor as being a fundamental component of development of the area and therefore had an idea that a regional creek corridor would be needed for development. …

8. Neither expert is aware of any documents that show the basis of the Section 94 contributions except for: (a) In the 1992 Section 94 plan:

(i) Maxwells Creek - Kurrajong Road to Camden Valley Way $1,529,850

(i) Maxwells Creek - Kurrajong Road to Camden Valley Way $1,588,600 (iii) Add 15% for contingencies…

(i) Maxwells Creek - Kurrajong Road to Camden Valley Way $1,588,600 (iii) Add 15% for contingencies…

(i) Land Acquisition … Maxwells Creek - (Kurrajong Road to Camden Valley Way) Area sq m: 48,320m2 Unit Cost: $10 Cost $483,200. (e) In the 1999 Council Memorandum:

(i) Land Acquisition … Maxwells Creek (Kurrajong Road - Camden Valley Way) $483,200 (ii) Construction of Maxwells Creek $1,588,600 10 The 1995 Contributions Plan, but not the 1996 Contributions Plan, is also referred to in the above report. The 1995 Contributions Plan was not in evidence before Bignold J. Although I drew that to the attention of the applicant on the hearing of the current motion, no application was made for leave to adduce evidence of the 1995 Contributions Plan. That may need to be sorted out on a later occasion.

11 The valuation report of Mr Paris of 25 July 2007 (which the respondent seeks to preclude from the evidence) takes into account the two additional sales on which the applicant seeks leave to rely. Mr Paris determines compensation for market value on two alternative bases: (a) at $940,800 taking into account the matters in paras 6 and 8 of the joint report of the flood experts; (b) at $890,800 not having regard to paras 6 and 8 of the joint report of the flood experts. His report includes the following statements: In determining the compensation having regard to paragraphs 6 and 8 of the Joint Report of Flood Experts held 18 April 2007, I have assessed that the works to construct Maxwells Creek would have all been carried out by the Council using the funds collected under the Section 94 Contributions Plan. I am aware that since 1992 and 1995 there has been considerable development in the area (for example the AV Jennings development of Ash Road), which would have involved contribution towards the cost of construction of Maxwells Creek.

In determining the compensation without regard to paragraphs 6 and 8 of the Joint Report of Flood Experts, I still consider that the evidence already filed in these proceedings shows that the Council was collecting or intending to collect funds for the construction of Maxwells Creek (see the December 1992 and January 1995 editions of the Section 94 Contributions Plan being Exhibit 19 in the proceedings and the July 2002 edition of the Section 94 Contributions Plan being Exhibit K in the proceedings). However, if I am to ignore all potential for the Council to carry out the works, I have allotted a cost of $100,000 for the works…

The reference to the 1995 Contributions Plan is an error. The Contributions Plans in evidence in the proceedings at the moment are 1992, 1996 and 2001 (published July 2002): Exhibits 19 and K. 12 The four documents attached to Mr Paris' report which the applicant seeks leave to adduce in evidence are as follows. 13 The Liverpool City Council memorandum dated 13 January 1999 from Arvind Lal to Barry Millwood is the memorandum referred to in para 6(e) of the flood experts' joint report. Its subject is "Revised Cost of Plan 6 and 7". It refers to Maxwells Creek as being in Precinct Five - Central. The memorandum includes the statement "Transferring of land acquisition to district drainage means the contributions for the land will be collected over a larger area and there will be some issues of nexus for different local catchment areas". Its summary of changes for district drainage includes an item "Add Const. of Maxwells Creek Channel $1,588,600". The memorandum refers to savings as a result of, inter alia, "Transfer of construction costs for Maxwells Creek from Precinct 5 Central to District Drainage". 14 The letter dated 21 June 2007 from Mr Davison of Liverpool City Council to Mr Bewsher states that he is writing to clarify various issues relating to Council's section 94 plan and the matters raised in para 9 of his statement dated 13 February 2004 (tendered before Bignold J). The letter continues: As at the date of acquisition (i.e. 4 October 2002), Council had not included within its five year work program, nor had it resolved to purchase land, to allow undertaking of trunk drainage works along Maxwells Creek.

(a) Liverpool Contribution Plan 2001 which was current at the date of acquisition included an item for land acquisition entitled Maxwells Creek - Kurrajong Road to Camden Valley Way for an amount of $483,200. (b) Council's Section 94 Contributions Plan No 6, Cabramatta Creek, Carnes Hill and Prestons Residential Release Areas , dated October 1999, included an item for land acquisition entitled Maxwells Creek - Kurrajong Road to Camden Valley Way for an amount of $483,200. (c) Council's Section 94 Contributions Plan No 6, Cabramatta Creek, Carnes Hill and Prestons, Revised Edition August 1997 included an item entitled Maxwells Creek - Kurrajong Road to Camden Valley Way for $1,588,600. (d) Council's Section 94 Contributions Plan No 6, Cabramatta Creek, Carnes Hill and Prestons, Revised Edition January 1995, included an item entitled Maxwells Creek - Kurrajong Road to Camden Valley Way for $1,588,600. (e) Council's Section 94 Contributions Plan No 6, Cabramatta Creek, Carnes Hill and Prestons Release Areas, dated December 1992, included an item entitled Maxwells Creek - Kurrajong Road to Camden Valley Way for $1,529,850. I also note that in an internal Council memorandum dated 13 January 1999, which deals with revisions to the cost of Contributions Plans Nos 6 and 7, reference is made to the transfer of construction cost for Maxwells Creek from Precinct 5 Central to District Drainage . In relation to this memorandum, I am also aware that Council's senior Section 94 officer has advised that the amount of $1,558,600 referred to in the 1992, 1995 and 1997 versions of Plan 6 would, based on the above-mentioned memo, involve the construction cost of some form of channel works along Maxwells Creek. However, I am not aware of what form that channelisation was to take. 15 The figures in this letter are reflected in para 8 of the said joint report of the flood experts quoted above at [9].

16 Mr Paris' letter of 22 June 2007 (erroneously dated 27 July in the copy attached to Mr Paris' report) seeks certain information from Mr Bewsher, one of the flood experts. Mr Bewsher's reply of 10 July 2007 attaches two figures showing 100 year flood levels and extents in the region and the context of the proposed drainage works. The letter states inter alia: 2. Included on both figures is the 70 m wide creek corridor which was proposed in my 2003 report, consistent with that which was agreed with Associate Professor James Ball in relation to various other land acquisition matters on adjacent properties along Maxwells Creek. …

4. …I am confident that all of the eastern portion of the site, from Skipton Lane up to the eastern boundary of the creek corridor, could be filled and developed without having an adverse impact on the flood behaviour in adjoining properties … 7. My calculations show that the portion of land on the eastern side of the creek corridor up to the Skipton Lane frontage which could be made free of inundation (including that land which was already free of inundation) comprises 9,565 m2 approximately

8. This assessment has been made on the basis that no Basin 18 was constructed upstream of the subject site, as indicated in my 2003 Report. If Basin 18 was constructed, marginally more land, possibly an additional 470 m2 approximately, would have been available for development. SUBMISSIONS 17 In summary, the applicant submitted that:

(a) the only real issue in the case is the method, timing and funding of the construction works in Maxwells Creek and whether that would have affected the sale price at the acquisition date. (b) the evidence currently before the Court does not enable the funding position of construction works in Maxwells Creek to be determined. It will be necessary for the Court to determine whether the cost of such works would have been paid for by section 94 contributions, carried out by the developer as an offset to section 94 contributions, or shared with the council. (c) the proposed evidence is required to correct " errors made by the Court of Appeal " at [60] - [72] in the leading judgment of Handley JA. The Court of Appeal " misdirected " itself as to the filed evidence. The Court of Appeal's errors were obiter errors of fact and included, but are not limited to: (i) the dictum at [60] that " Council did not have funding for these works and could only have obtained it if a s 94 Contributions Plan was adopted ". That is contrary to the evidence before the Court (i.e. the 1992 and 1996 section 94 Contributions plans) and the evidence now sought to be relied upon in the additional section 94 Contributions Plans, which show a continued application of section 94 Contributions Plans to collect funds for the construction of Maxwells Creek; (ii) the dictum at [67] - [68] that an area of 654 square metres, being part of the resumed land, was zoned " Special Uses - Drainage 5(a) " and had been valued at only $20 per square metre by Mr Paris. In fact it was zoned Residential 2(a) which Mr Paris had valued at $190 per square metre. (d) the proposed evidence shows that the section 94 Contributions plans from 1992 through to 1997 had an amount of $1,588,600 or similar amounts for both the acquisition of land and construction of Maxwells Creek channelisation works; and that this amount was reduced to $483,200 for acquisition of land (only) in the 1999 section 94 Contributions Plan as well as in the 2001 section 94 Contributions Plan, which is already in evidence. The inference, which Mr Davison confirms in his 2007 letter (but which did not appear in his 2004 evidence), is that the section 94 Contributions Plan eliminated the funding for construction works because the introduction of the WSO removed the need to construct drainage works in Maxwells Creek. The Liverpool City Council memorandum of 13 January 1999 explains what happened, namely, that the funding of the construction costs had been transferred into district drainage but had otherwise not been removed from the section 94 Contributions Plan. Consequently, if the public purpose of the WSO were to be ignored (as required by s 56(1) of the Land Acquisition (Just Terms Compensation) Act 1991), this section 94 funding would have been available for the construction of Maxwells Creek works; there would not have been a need for a developer to contribute to the section 94 funding; and that would have increased the market value of the applicant's land at the resumption date. Mr Davison's evidence before Bignold J concerned the situation under the 2001 section 94 Contributions Plan where there was no provision for funding the construction of the works because it had been transferred to district drainage earlier. What Mr Davison is saying now in his 2007 letter is that between 1992 and 1997 there was money collected for the construction of Maxwells Creek but it was transferred in 1999. (e) The Court's discretion to admit further evidence in these remitted proceedings should be exercised so long as it is relevant to the issues: Histollo Pty Limited v Director-General of National Parks and Wildlife Service [1997] NSWLEC 210. 18 In summary, the respondent submitted that Histollo is distinguishable; the applicant's motion offends the principle of finality in litigation; and the applicant is now seeking to introduce into evidence "secret facts". That is, by what has no doubt been diligent digging at the council, historical documents now sought to be introduced into evidence have been located which the parties were unable to find at the trial before Bignold J and which were hidden away in the council's records. The respondent submitted that these have then been subjected to a subtle examination to deduce something of which Mr Davison was unaware when he gave evidence before Bignold J, despite his obviously extensive investigation into the question at that time.

DISCUSSION 19 The effect of the proposed new evidence, as summarised above at [17(d)], is arguable.

20 The principles and authorities concerning the Court's discretion to admit additional evidence in remitted proceedings were reviewed by me in my earlier judgment in these proceedings. The applicant now relies upon a dictum of Pearlman J in her ex tempore judgment on evidence in a criminal case: Histollo Pty Limited v Director-General of National Parks and Wildlife Service [1997] NSWLEC 210. There the Court of Criminal Appeal had remitted issues for determination by this Court. Her Honour said that the appellant "is entitled to adduce fresh evidence so long as it is relevant to these issues". In my view, the case is distinguishable. First, it concerned criminal proceedings. Second, the nature of the remitted issues apparently called for fresh evidence. That is apparent from her Honour's ex tempore judgment on evidence in the same proceedings three days earlier: Histollo Pty Limited v Director-General of National Parks and Wildlife Service [1997] NSWLEC 209. The latter judgment indicates that the matter was remitted to this Court for determination of the issues of whether damage caused or permitted by the appellant was damage to relics as charged and whether, assuming the appellant caused or permitted damage to relics, the appellant did so knowingly. Additionally, because new evidence might have a bearing upon the question of any penalty, the Court of Appeal remitted the issue of the appropriateness of any penalty to be imposed upon the appellant in the event of conviction.

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.

24 In De L v Director-General New South Wales Department of Community Services [No 2] (1997) 190 CLR 207 at 215 it was said in the joint judgment in a different context that, on the one hand, there is the principle of finality of litigation but, on the other hand, courts recognise that accidents and oversights can sometimes occur which, un-repaired, will occasion an injustice.

25 In the present case, it is a question of balancing the principle of finality of litigation against potential for injustice if the proposed evidence is not adduced.

26 I am troubled by the potential for injustice to the applicant, who has been dispossessed of his land and has a statutory right to just compensation, if I do not admit this further evidence. There are a number of reasons. First, the statement of evidence of Mr Davison tendered before Bignold J is dated and was served on Friday 13 February 2004. The then part heard proceedings before Bignold J resumed on Monday 16 February 2004. Mr Davison was cross-examined on 24 February. The applicant therefore had little time to consider the statement and its ramifications, albeit the hearing did resume later in the year. The transcript for 16 February 2004 p 17 records counsel for the applicant informing the Court that due to late service of that statement, the applicant had had no chance of checking it. Second, Mr Davison says in that statement that he had been the Manager - Land Development at Liverpool City Council since April 2002 (prior to which he held a position at another council). Thus, he did not have long experience at Liverpool City Council. The alleged transfer of section 94 contributions, of which he appears to have been unaware in February 2004, occurred before he joined that council. The transcript for 16 February 2004 records counsel for the applicant suggesting to the Court that because Mr Davison did not come to Liverpool City Council until April 2002 he could only be talking about the situation thereafter and that therefore his evidence might not be relevant. Third, the existence of the 1999 council memorandum was unknown to the applicant notwithstanding (I was informed) that subpoenas to produce documents had been issued. I am unaware whether or not the subpoenas were wide enough to capture the 1999 memorandum. Fourth, Mr Davison's recent letter of 21 June 2007 refers to that memorandum to which he did not refer at the hearing before Bignold J, and may be construed as calling for reconsideration of his evidence before Bignold J. Fifth, in that letter Mr Davison refers to information received from "council's senior Section 94 officer". This raises a question as to whether a prudent hypothetical purchaser may have attained at the resumption date information from council that materially differed from the information that Mr Davison (according to his evidence before Bignold J) may have provided.

27 Sixth, if it is the fact (as the applicant contends) that, except for the WSO, the council would have had over $1 million available from section 94 contributions for construction works at Maxwells Creek, then it appears arguable that if that information had been known to a hypothetical purchaser at the resumption date it would have significantly increased the purchase price. That seems to be the effect of the proposed valuation evidence of Mr Paris which the respondent seeks to exclude. Seventh, although the respondent has classified the historical documents sought to be introduced as "secret facts" which cannot be taken into account, that raises questions both of fact (including whether they were "secret facts") and of law (including whether "secret facts" cannot be taken into account) which should not be determined on these motions but at trial. Finally, judicial notice has to be taken of section 94 Contributions Plans: s 94EB(1) Environmental Planning and Assessment Act 1979.

28 The cumulative weight of those considerations persuades me that, notwithstanding the importance of the principle of finality in litigation, on the peculiar facts of the present case as they have emerged on the hearing of these motions, the interests of justice are served by granting leave to the applicant to adduce the proposed fresh evidence in relation to section 94 contributions. That being so, I would entertain any application to adduce further evidence from Mr Davison on the section 94 Contributions Plan issue.

FRESH EVIDENCE - NEW SALES 29 The applicant also seeks leave to rely on evidence of two additional comparable sales at 62 Bernera Road and Lot 1 Ash Road, Prestons. If leave is granted, the respondent seeks leave to rely on one additional sale at the corner of Wilson Road and Rossini Drive, Hinchinbrook. These three additional sale properties have been inspected by me, accompanied by the parties' legal representatives and valuers. 30 The applicant contends that on the sales evidence available at the time of the hearing before Bignold J, the minimum value that could be placed upon the subject land was $190 per square metre or $85,000 per lot. The applicant says that the two new sales upon which it seeks leave to rely shows a minimum value of $200 per square metre.

31 The sale of 62 Bernera Road, Prestons was on 23 February 2003. The sale of Lot 1 Ash Road, Prestons was on 19 December 2003 with the transfer occurring on 30 January 2004. The date of compulsory acquisition of the subject land was 4 October 2002. The hearing before Bignold J occurred in November 2003 and February and June 2004 and his Honour delivered judgment in December 2004.

32 The respondent submits that these transactions would not have been known to the hypothetical vendor and purchaser at the date of acquisition and, further, that the valuers at the hearing before Bignold J apparently did not discover these two sales which suggests that they were not readily available to hypothetical vendors and purchasers at the date of compulsory acquisition.

33 As regards Lot 1 Ash Road, Prestons, the hearing of this case before Bignold J had already commenced when the property was transferred on 30 January 2004. It appears that it has been used as a comparable sale in relation to at least one other resumption case concerning nearby land, albeit the resumption date in that case was later.

34 The timing of the sale of Lot 1 Ash Road relative to the hearing provides an explanation as to why it was not referred to by the valuers at that hearing. Similarly with the sale upon which the respondent seeks to rely if the applicant obtains leave, which occurred on 6 August 2004 after the hearing before Bignold J (but before judgment). In those circumstances I am minded to grant leave for evidence of those two sales to be admitted. There is no explanation as to why the sale at 62 Bernera Road, Prestons was not referred to by the valuers at the trial before Bignold J. However, given that I propose to grant leave in relation to the other two sales and that I have now inspected all three of the additional sale properties, I will also grant leave with respect to this sale.

1. Grant leave to the applicant to adduce the following further evidence: (a) further expert valuation evidence from Michael Paris in accordance with his supplementary valuation report dated 25 July 2007 along with four attachments thereto: (i) letter from Mr Paris to Mr Bewsher dated 22 June 2007; (ii) letter from Mr Bewsher to Mr Paris dated 10 July 2007; (iii) letter from Mr Davison of Liverpool City Council to Mr Bewsher dated 21 June 2007; (iv) Liverpool City Council memorandum from Arvind Lal to Barry Millwood dated 13 January 1999. (b) additional sales evidence in Michael Paris' said report in relation to: (i) 62 Bernera Road, Prestons; and (ii) Lot 1 Ash Road, Prestons (c) evidence of the following two Contributions Plans under s 94 of the Environmental Planning and Assessment Act 1979 : (i) Liverpool City Council - Section 94 Contributions Plan No 6 - Cabramatta Creek, Carnes Hill and Prestons - revised edition August 1997; (ii) Liverpool City Council - Section 94 Contributions Plan No 6 - Cabramatta Creek, Carnes Hill and Prestons - October 1999 edition 2. Grant leave to the respondent to adduce evidence of a sale at the corner of Wilson Road and Rossini Drive, Hinchinbrook. 3. The costs of the applicant's notice of motion filed on 27 July 2007 and the respondent's notices of motion filed on 18 May and 22 August 2007 will be costs in the cause.

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