In this valuation appeal concerning mining land, the applicant Perilya Broken Hill Limited moves to vacate the hearing dates of 13-15 and 18 May 2015. The respondent Valuer-General opposes the motion.
Perilya proposes to seek leave to appeal my 30 March 2015 determination of a separate question, and submits that it is of such significance that it is appropriate to resolve it on appeal before any further step in the proceeding is taken. Perilya gives an assurance that it would pursue the leave application and any appeal with due diligence.
The Valuer-General assessed the land value of Perilya's mining land at Broken Hill at $20.9 million as at the base date of 1 July 2007 under s 6A of the Valuation of Land Act 1916. Perilya objected to the Court. Lloyd AJ determined land value at $4.9 million: Perilya Broken Hill Limited v Valuer-General [2012] NSWLEC 235. On 16 August 2013 the Court of Appeal upheld the Valuer-General's appeal on an error of law and remitted the proceeding to this Court for determination in accordance with its decision: Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265, 195 LGERA 416.
The remitted matter came back to this Court on 20 September 2013 when I made pre-trial directions. One of the directions was that facts found by Lloyd AJ and not disturbed on appeal were not to be reopened without leave of the Court.
Between October 2013 and February 2015 there was rather intense interlocutory skirmishing, in the course of which I determined a number of interlocutory applications concerning valuation methodology and evidence: Perilya Broken Hill Limited v Valuer-General (No 3) [2013] NSWLEC 215; Perilya Broken Hill Limited v Valuer-General (No 4) [2014] NSWLEC 97; and Perilya Broken Hill Limited v Valuer-General (No 5) [2015] NSWLEC 20.
On 18 February 2015, I ordered the separate determination of a separate question, which was reformulated as follows on the day it was heard:
Under s 6A(1) of the Valuation of Land Act 1916, is the land value of land containing publicly owned minerals, as defined in the Mining Act 1992, to be determined on the assumption that the minerals are privately owned?
On 30 March 2015, I answered the separate question in the affirmative: Perilya Broken Hill Limited v Valuer-General (No 6) [2015] NSWLEC 43.
By consent, on 1 April 2015 I fixed the matter for final hearing on 13-15 and 18 May 2015. The Valuer-General currently estimates that the hearing should only take two days, but it is unnecessary for me to enter into that debate. On that occasion, I also made consent directions for the preparation of the matter for hearing on the basis that there was to be no further new evidence apart from experts' joint conferencing and reports (based on expert evidence already filed) to be filed by 24 April 2015 (today). In the consent short minutes of that date, one of the issues raised by the Court of Appeal was disposed of by my noting the parties' agreement "that no party disputes the 4% royalty figure in Lloyd AJ's judgment".
Notwithstanding that those directions were by consent, on 21 April 2015 Perilya filed a notice of motion to vacate the hearing dates, with which I am now dealing.
Perilya's submissions start with the proposition, which I accept, that determination of the separate question will have a very significant effect on the land value of such mining land. In the supporting affidavit of Perilya's solicitor, he anticipated that its summons seeking leave to appeal would be filed by today Friday 24 April 2015, but Perilya informed me this morning that it now anticipated doing so on Monday. As I have said, Perilya submits that the outcome of an appeal is of such significance that it is appropriate to resolve it before any further step is taken in the proceeding. In his affidavit, Perilya's solicitor elaborates in this way:
a. Perilya wishes to avoid the inefficiency and expense associated with a hearing based on a ruling about the application of s 6A of the Valuation of Land Act 1916 that it will contend is incorrect;
b. Perilya is presently considering whether, apart from any application for leave to appeal from the determination of the separate question, it would make an application to rely on further evidence at the hearing in this Court (including, in particular, an application to rely on evidence demonstrating the value of mining information that is or would be required in order to identify the nature and value of the minerals in the land) as foreshadowed in [104] of the Court of Appeal's judgment. Perilya wishes to avoid the inefficiency and expense associated with such further interlocutory disputes about evidence at the hearing (where that hearing is based on a ruling about the application of s 6A of the Valuation of Land Act 1916 that it will contend is incorrect); and
c. in the event that Perilya is not successful in its application for leave to appeal or in any appeal, Perilya will consider whether or not to continue to pursue the objection in these proceedings;
d. thus, Perilya considers that the determination of the separate question is a critical element in the valuation of land value in these proceedings, as well as the valuation in other years and of other mines; and that the outcome of any appeal on the separate question will substantially affect how the parties proceed to the final hearing in this matter.
The Court is under a duty to facilitate the quick, as well as the just and cheap, resolution of the real issues in the proceedings, and the parties are under a duty to assist the Court in that endeavour: s 56 Civil Procedure Act 2005. This proceeding has been on foot since 2011 - four years, which is far longer than is generally acceptable in this Court even allowing for the appeal and remitter. At last the finish line is within sight. If the hearing dates, which are only a few weeks away, were vacated to enable Perilya to pursue an appeal from the interlocutory decision on the separate question, there would be a distinct prospect of the appeal process delaying final determination of the proceeding for another year or so.
It is of some significance that on 1 April 2015, after I determined the separate question, the parties consented to the proceedings being fixed for hearing on 13-15 and 18 May 2015 and to pre-hearing directions. Perilya submits that its consent should not weigh heavily against it because it was given shortly after I had delivered judgment on the separate question and without ample opportunity to consider my reasons. On the other hand, the history of the separate question is a remarkably long one, it first having been raised as long ago as the end of 2013. The parties have had a long time to consider the separate question and its ramifications if it were answered in one way or the other, including the prospect of appeal.
It is of concern that after all this time, when the parties have had the most ample opportunity to adduce further evidence or to seek the Court's leave to do so, and with the hearing dates so close, Perilya now raises the possibility in its solicitor's affidavit of an application to rely on new evidence of the value of mining information. The Valuer-General has indicated it would strongly resist such new evidence. In Perilya (No 5) at [6] and [79] I refused the Valuer-General leave to rely on a new methodology, and therefore refused Perilya leave to rely on mining information value evidence that Perilya at that time said was purely responsive to the new methodology. It is precisely evidence of that nature that Perilya's solicitor foreshadows that it is now contemplating seeking leave to adduce. Since in fact Perilya has made no such leave application, I will say no more about it.
At the same time, Perilya flags the possibility - but no more - that if my determination of the separate question were upheld on appeal, Perilya would not continue to pursue the objection in this proceeding, thus bringing the proceeding to an end. That prospect was part of the rationale for ordering determination of the separate question in the first place. If Perilya were to take the extra step and now decide that the proceeding would be at an end if it were unsuccessful on a leave to appeal application or on appeal from a determination of the separate question, then that may well constitute a sufficient reason to vacate the hearing dates or (which may be procedurally simpler), to dismiss the proceeding with Perilya's appeal rights in relation to the separate question determination being preserved. However, that is not the current situation.
The position has now been reached where, after four years of litigation, including an appeal and remitter, the remaining issues to be determined at the final hearing are limited; the evidence is closed except for experts' joint conferencing and report, which are imminent; relatively few facts found by Lloyd AJ and not disturbed on appeal are to be reopened; and the final hearing dates, to which the parties consented, are looming. In my opinion, in the circumstances it is preferable to press on and decide the remaining issues without further delay. If there is then to be an appeal, all issues will have been tried and decided.
Accordingly, the applicant's notice of motion filed on 21 April 2015 to vacate the hearing dates is dismissed.
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Decision last updated: 28 April 2015