[2012] NSWCA 404
Dillon v Gosford City Council (2011) 184 LGERA 179[2011] NSWCA 328
Roads & Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335
Judgment (2 paragraphs)
[1]
JUDGMENT
Ex tempore decision
On 7 September 2023, I provided the parties with a 217 page document that was my decision arising from a hearing which took place over some seven days in May 2022.
I was provided, as a consequence of the hearing, with a detailed list settled between the parties of the issues that the parties indicated that I should determine. That list is set out at [1] of my judgment. At a subsequent paragraph in 2, I set out the findings and the determinations I made with respect to each of the matters that had been provided to me by the parties. Some did not require specific elaboration because they were contingent on earlier findings, those earlier findings having rendered them irrelevant.
On 28 September 2023, having provided that decision and directions to the parties that they were to take all the matters which they had previously advised me were necessary to be determined (and had been determined) for input into an agreed Microsoft Excel spreadsheet settled by Dr Ferrier and Mr Halligan, (the forensic accountants who gave evidence in the proceedings), I was informed that what I had said at [42] onwards in my decision required that I should permit the Applicant to ask me to make a further determination based on what I said, in particular at [43] and [44], citing in those two paragraphs longstanding authority of the NSW Court of Appeal (Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 - (Mosca)) and, particularly, the decision of the High Court given in 1956 (Turner v Minister of Public Instruction (1956) 95 CLR 245; [1956] HCA 7) that mandated the approach to be taken by a valuer, whether judicial or otherwise, in valuing a property, that is, it is to be taken at the date of acquisition as it is with all its potentialities.
At [45] to [48], I explained why that was the necessary approach to be taken in these proceedings. I applied the law as the High Court mandated that I do so and as how the Court of Appeal in Mosca obliged me to do.
As I have indicated to those at this hearing this morning, the case that I was presented that led to the conclusions I necessarily had to make - not a "free will choice", to adopt a slightly theological expression, but something that I was mandated to make - was based on the binary case advanced by the Applicant in the proceedings before me.
That binary case with respect to the outdoor advertising billboard signs at Qantas Drive at Mascot was that I should choose whether, as at the date of acquisition by the acquiring authority, there were no signs which had been digitised, or whether there were two or more signs to be regarded as having been digitised. That was the primary question - number 1 in the list of questions that was provided to me by the parties - as the settled range of issues I was required to determine.
I determined that the answer was none.
I proceeded then to address all the remaining issues as remaining relevant, some of them on a contingent basis as the parties had asked me to do, in order to permit the derivation of a compensation amount.
There is now a dispute between the parties as to whether, based on the findings that I was asked to make and applying the law I was obliged to apply, I should now permit what would be further extensive evidence in effect canvassing the outcomes of what was the case run by the Applicant at first instance.
Whilst I might understand the Applicant's sense of grievance and, without expressing any view on it, understand why the Applicant now seeks to go further (than the matters that were defined by agreement between the parties as those which I should determine), and that I now embark on an exercise which, on the evidence of material provided by Dr Ferrier in Exhibit 3 in the proceedings this morning (being a letter of 16 October 2023 of - not said in any pejorative sense, I expressly note - some nine and a half pages in length), and a response letter from the Applicant's forensic accountant, Mr Halligan, dated 18 October 2023 (of some nine pages in length) which letters between them make it clear that, contrary to the submission that is advanced by Ms McKelvey this morning, it is not a simple proposition for determination (should I be minded to entertain the approach now advanced for the Applicant). It would necessitate a further hearing and, in my assessment of the matters that are raised by Dr Ferrier as responded to by Mr Halligan and set out in tabular form on pages 7 and 8 of Mr Halligan's letter, there would also be the necessity for extensive further evidence to enable me to do so.
I am satisfied the Applicant, having elected, presumably on advice, to embark on the case as advanced before me in the hearings in May last year, it is not appropriate to permit them now to decide that they are dissatisfied with the outcome (that arose from the evidence and my application of the law - on high authority that I was bound to take).
Whilst I hear what Ms McKelvey says to me about my freedom to engage with matters as set out in s 38(2) of the Land and Environment Court Act 1979 being relatively at large, but subject to the rules of natural justice, and noting her submission that s 39 of the Land and Environment Court Act also potentially enables me to have regard to a broad range of matters by the conclusory words of that provision in s 39(4), of enabling me to have regard to "the circumstances of the case and the public interest"; I am satisfied that it would be entirely inappropriate for me to permit this matter to continue.
The parties having advised me this morning - in particular, the acquiring authority having advised me - that there is no dispute that the Applicant is entitled to its costs of the proceedings, there is no issue that would stand as an impediment to me making an order determining these proceedings on the basis of the spreadsheet-derived result that comes from the matters I determined in my judgment of 7 September 2023, and I propose to do so.
However, it is also appropriate that I ask Mr Astill at this time whether he has any instruction with respect to the costs of the consideration of these issues since the mention of 28 September 2023.
As it was necessary for me to ask the question as to the costs of these submissions of Mr Astill, he has told me, on instructions, that his client seeks an order for costs in its favour from 28 September 2023 onwards - that being the occasion on which the proposal that I address matters further crystallised (at least before me).
The long-established position (commencing with the frequently cited decision of Wilcox J in the Federal Court in Banno v Commonwealth of Australia (1993) 45 FCR 32 and proceeding through other decisions of the Court of Appeal in this State in Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328, and particularly the decision of the Court of Appeal in Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404 (Brock) addressed costs issues in such cases. The judgment of Tobias JA in Brock that sets out circumstances under which an unsuccessful applicant - that is, even an applicant that is entirely unsuccessful in the outcome of an appeal - can still be awarded costs of all or part of an appeal, provided the case is not run so as to delay the determination of matters; to incur unnecessary expense of the parties; or was based on some form of fanciful or absurd proposition.
I am satisfied that none of those potentially disentitling circumstances arise in these proceedings. The nature of the judgment and, in particular, the questions that were posed to me by agreement of the parties demonstrates both the novelty and the complexity of the matters with which I was required to engage.
I am satisfied, under the circumstances where this jurisdiction is protective of the rights of dispossessed owners, that there should be no order for costs in favour of the acquiring authority and, as Ms McKelvey proposes, the costs of matters requiring exploration up to and including today should be the Applicant's costs in the cause.
It seems to me that with respect to both proposed orders 3 and 4 in relation to pre- and post-judgment interest, the provisions of s 101 of the Civil Procedure Act include the conventional discretionary position in the opening five words of s 101(1) - these being that "unless the Court orders otherwise", interest is payable. Section 98(1) of the Civil Procedure Act also expressly, in the context of costs, makes it clear that there is a discretion.
The costs discretion in this jurisdiction, that is, Class 3 compensation claims designed to be protective of dispossessed owners, is regularly exercised, as I have done this morning, in favour of a dispossessed owner. I am satisfied under the circumstances that a similar discretionary exercise should be made with respect to proposed orders 3 and 4, and I do not propose to make them as sought.
END NOTES:
1. I was earlier asked to make orders redacting elements of my substantive decision in order to protect commercially sensitive information of the Applicant. Such redaction was not opposed by the Respondent and this will be included in my dispositive orders.
2. The orders will also provide that the exhibits are to be returned.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 October 2023