The respondent Valuer-General determined the land value of Perilya's mining land as at 1 July 2007 under s 6A of the Valuation of Land Act 1916 at $20.9 million. Perilya objected to this Court. In October 2012 Lloyd AJ determined the land value at $4.9 million: Perilya Broken Hill Ltd v Valuer-General [2012] NSWLEC 235. In August 2013, the Court of Appeal allowed the Valuer-General's appeal for error of law and remitted the matter to this Court for redetermination "in accordance with the decision of" the Court of Appeal: Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265, 195 LGERA 416 at [109]. In September 2013, at the first directions hearing following the remitter, I settled the issues and made directions, including:
1. Facts determined by Lloyd AJ at the first hearing and not disturbed on appeal are not to be reopened without leave of the Court.
2. Subject to any reformulation by the Court at the next directions hearing, the issues for determination on the remitter from the Court of Appeal are as follows:
(1) Does s 6A of the Valuation of Land Act 1916 require the valuation to proceed on the basis that the minerals are privately owned? It is noted that the Valuer General contends that the answer is yes, and that Perilya contends it is no.
(2) In fact, are the minerals, or any of them, privately owned?
(3) If yes to (1) or (2):
(a) What is the quantum of the royalty payable to the Minister under s 284(1) of the Mining Act 1992?
(b) What is the quantum of the seven-eighths of that royalty payable by the Minister to the owner of the minerals under s 284(2)(a) of the Mining Act?
(c) Having regard to the answers to (a) and (b), what is the land value under s 6A of the Valuation of Land Act?
(4) If the answer to (1) above is no and the answer to (2) above is yes (that is, the minerals, or some of them, are publicly owned), then:
(a) What is the compensation under Part 13 of the Mining Act to which the landholder would be entitled for any compensable loss suffered, or likely to be suffered, as a result of mining the publicly owned minerals?
(b) Having regard to the answer to (a), what is the land value under s 6A of the Valuation of Land Act?
3 The Valuer-General is to file and serve a statement of land value for which it contends and its evidence relating to sub-paragraphs 2 (2) and (3) above by 28 October 2013.
4 The proceedings are listed for directions, if possible before Biscoe J, on 8 November 2013.
5 Any notice of motion for separate determination of any issues together with supporting evidence and outline of submissions is to be filed and served by 4 October 2013 and be returnable on 8 November 2013, if possible before Biscoe J.
6 The respondent to any such notice of motion is to file and serve its evidence and outline of submissions by 6 November 2013.
...
As regards the chapeau to order 2 above, there was no subsequent reformulation of the issues by the Court.
In December 2013 I delivered a costs judgment in relation to the last minute abandonment by the Valuer-General of his motion for determination of a separate question as to whether publicly owned minerals had to be treated as privately owned under s 6A of the Valuation of Land Act: Perilya Broken Hill Limited v Valuer-General (No 3) [2013] NSWLEC 215.
In February 2014 the Valuer-General, without leave, filed and served expert evidence relating to a new owner/operator valuation methodology, which vastly increased the valuation assessment of the subject land on a number of different scenarios by up to $318 million. Previously, both parties had assessed value on a passive owner investor methodology that was not questioned in the Court of Appeal.
However, the Valuer-General did not seek, nor in my opinion was he entitled to seek, any increase in his original valuation assessment of $20.9 million.
In response, in July 2014, pursuant to direction 1 made in September 2013, Perilya filed a notice of motion seeking leave to reopen a number of findings of fact made by Lloyd AJ at the first hearing by relying (inter alia) on evidence of mining information valued at some $270 million, particularised in paragraph 1 of the notice as follows:
(a) The estimated cost to obtain / reconstruct mining information (that is, information that is not in the public domain that is necessary or appropriate for the operation of a mine at Perilya Broken Hill) to an adequate level of confidence that would allow responsible operation of the Perilya Broken Hill mine is $270,691,000.
(b) The estimated time to obtain / reconstruct mining information to an adequate level of confidence that would allow responsible operation of the Perilya Broken Hill mine is 7.8 years.
(c) The estimated time required to assess mining information and seek approval to purchase infrastructure and other equipment necessary for the operation of the Perilya Broken Hill Mine is 0.2 years.
(d) The estimated cost of care and maintenance of the Perilya Broken Hill Mine for a period of ten years is $266 million.
There followed my two further judgments (Nos 4 and 5) relating to pre-trial evidentiary rulings, including in relation to the Valuer-General's new owner/operator valuation methodology and Perilya's responsive mining information "defence".
Perilya consistently emphasised, including at interlocutory hearings on 9 and 14 July and 17 December 2014 and 4 and 5 February 2015, that it only proposed to rely on its mining information evidence by way of response to the Valuer-General's proposed new methodology, and not otherwise.
In July 2014 in Perilya Broken Hill Limited v Valuer-General (No 4) [2014] NSWLEC 97 at [10]-[13] and [20], I said:
10 The applicant submits that the matters in paragraph 1(a)-(d) of its notice of motion are responsive to expert evidence supporting a revised methodology adduced by the Valuer-General. As it was put in paragraph 3 of a letter of 8 July 2014 from the applicant's solicitors, Sparke Helmore, to the Valuer-General's solicitor:
The facts set out in proposed order 1, paragraphs (a) to (d) of the Notice of Motion relate to the consideration of mining information in valuation of mining titles. Mr Gleeson and Mr Pendergast have addressed the value of the mining information and the cost to obtain or reconstruct that information in response to the revised methodology relied on by the Valuer-General in these proceedings. Perilya relies on that material in direct response to the case now pursued by the Valuer General in the proceedings. The revised methodology proposed by the Valuer-General's retained expert Mr Gemmell in his statement dated February 2014 involves determining the "total project value" and deducting certain cost components resulting in a value for "mining property", which includes mining titles an mining information. For example, in paragraph 7 of Mr Gemmell's statement he confirms that he has "assumed that all data relating to current land status, ore reserves and mining operations is known and readily available to both the current land owner and the potential acquirer". At paragraph 35 of Mr Gemmell's statement he confirms that he has calculated the value of the "mining property", which includes mine data or mining information, as confirmed by the following statement at paragraph 36:
"...The resultant net present value is the sum value of those project components that have not been included in the inputs. In the models under consideration, this includes land, mine data, and entrepreneurial or managerial reward."
In those circumstances, the applicant contends that it is appropriate for leave to be granted for it to rely on the facts set out in the statements prepared by Mr Gleeson and Mr Pendergast to address and respond to Mr Gemmell's methodology.
11 The Valuer-General disputes that paragraph 1(a)-(d) of the notice of motion are responsive to the Valuer-General's evidence, and submits that it opens up a large new area of the case; that the Valuer-General will incur substantial time and costs estimated to far exceed $100,000 if it has to respond to it, and it is apprehensive that once it puts on its own evidence in reply it will all be admitted into evidence even if the applicant's evidence is not responsive. Therefore, the Valuer-General submits, the issue of whether it is responsive should be determined before the final hearing.
12 The applicant submits that in order to determine whether its evidence is responsive there would have to be a substantial mini-trial before the final hearing; therefore, that it should be deferred to the final hearing when the trial judge will be best placed to rule on it; and that this would be even-handed given that the Valuer-General's notice of motion for leave was stood over by consent to the final hearing.
13. There is weight in both parties' submissions. On balance, in my opinion, it is preferable to stand over paragraph 1(a)-(d) of the applicant's notice of motion to the final hearing subject to two terms. The first term is that if it is ultimately determined to be not responsive to the Valuer-General's evidence, then the Valuer-General's costs of replying to it should be paid by the applicant. Secondly, in the event it is found to be not responsive, it is not, without further order of the Court, to be admitted into evidence.
…
20. In respect of the applicant's notice of motion filed 7 July 2014, the Court makes the following orders:
…
2. In respect of the applicant's notice of motion filed 7 July 2014, the Court makes the following orders:
(1) Stand over paragraphs 1(a)-(d) to the final hearing;
…
(5) …in the event that the Court at the final hearing determines that the evidence referred to in paragraphs 1(a)-(d) is not responsive to the Valuer-General's case (as it appears from the Valuer-General's served evidence), the applicant is to pay the Valuer-General's costs of replying to that evidence, as assessed or agreed, and the evidence is not, without further order, to be admitted.
…
However, the parties subsequently requested me, and I agreed, to rule on whether the Valuer-General should be given leave to rely on his new owner/operator valuation methodology and, if so, whether Perilya should have leave to rely in response on the mining information evidence referred to in paragraph 1(a)-(d) of its 7 July 2014 notice of motion.
In February 2015 I refused leave to the Valuer-General to rely on his proposed new valuation methodology and, consequently, declined to grant leave to Perilya to rely on its mining information "defence" evidence (I also ruled on a good number of other evidentiary matters): Perilya Broken Hill Limited v Valuer-General (No 5) [2015] NSWLEC 20. In relation to the mining information, I said at [6]-[9]:
6 Perilya has consistently objected to the new methodology, claiming that it requires the Court's leave. Perilya contends that leave should not be granted because, first, procedurally it offends the principle of finality of litigation on a remitter and, secondly, it is not true to s 6A because it values the business rather than the land. Lest the new methodology be permitted, Perilya has served responsive evidence raising new and large issues requiring new findings of fact and facts inconsistent with those found earlier and not disturbed on appeal. A striking example is its big ticket responsive evidence that a deficiency in the new methodology is that it fails to take into account the cost of mining information necessary for an owner/operator to operate the mine, which Perilya's expert evidence costs at $270 million, and a related blowout of non-productive start up time from two years (found by the primary judge under the passive investor methodology) to ten years. The VG concedes that if I consider that the mining information issue is arguable - which I do - I should grant leave to Perilya to rely on that responsive evidence…
7 If the VG is permitted to rely on the new methodology, it is difficult to hold Perilya to the remitter principle that facts found by the primary judge and not disturbed on appeal generally should not be reopened. It is difficult to do so because Perilya's approach to the determination of facts on the VG's previous claim of $21 million may well have been quite different if the VG had then advanced his eye-watering current claim of up to $318 million. If, consequently, Perilya is given complete or greater latitude to reopen facts, then the same should be given to the VG for the parties should be treated equally. The general principle of finality would be much eroded and perhaps negated.
8 In short, the VG seeks to scuttle the old valuation methodology ship after it has navigated the shoals and reefs of a trial and an appeal with limited damage - which the Court of Appeal required to be repaired on remitter - and to embark on another valuation methodology ship on uncharted seas in a quest for eldorado, whilst generally objecting to the applicant rearranging the deck chairs of facts not disturbed on appeal.
9 The main issue now before the Court on the motions is whether the VG should be permitted to rely on the new valuation methodology. The other issues are whether leave should be granted to reopen facts found at first instance and not disturbed on appeal or to adduce new evidence, much of which is in response to the new valuation methodology. The question has also been raised as to whether the Court should proceed to determine the preliminary question earlier abandoned by the VG of public or private ownership of the minerals.
I said at [33]-[35]:
33. On 7 July 2014 Perilya filed a notice of motion seeking leave to rely on facts consistent with evidence from its experts Mr Gleeson and Mr Pendergast, which it contended were largely responsive to the VG's new methodology, including facts inconsistent with facts found by Lloyd AJ and not disturbed on appeal. On 15 July 2014 I gave judgment ruling on some parts of Perilya's motion and stood over other parts to the trial: Perilya Broken Hill Ltd v Valuer-General (No 4) [2014] NSWLEC 97. However, at the parties' request, the latter are now before me for determination.
34. In September 2014 Perilya filed a notice of motion for an order that the VG not be permitted to rely on the evidence of the new owner/operator methodology in Gemell 2/14 and Hopcraft 2/14.
35. The VG's new methodology delayed the progress of the proceedings whilst Perilya, lest the new methodology was permitted, responded with expert evidence and the VG filed evidence in reply. Perilya's evidence includes the expert reports of Mr Gleeson of 8 October 2012 (Gleeson 10/12), (much of which relates to the new methodology), 19 May 2014 (Gleeson 5/14) and 23 September 2014 (Gleeson 9/14) and Mr Pendergast of 27 June 2014 (Pendergast 6/14) and 24 October 2014 (Pendergast 10/14). The VG's evidence in reply includes reports filed in December 2014 of Mr Gemell, Mr Hopcraft and Dr Ferrier.
I declined to permit the Valuer-General to rely on evidence of the new methodology for the reasons listed at [45]:
(a) If the VG is permitted to rely on the new owner/operator valuation methodology with its vastly increased valuation scenarios, the proceedings before Lloyd AJ, in the Court of Appeal, and for a substantial time thereafter in this Court on the remitter, were little more than a warm-up for the main event (on the remitter), which will be very different and more costly than otherwise. The issues settled in 2013 will radically change and there will likely be a far lengthier and costlier hearing in the order of up to three weeks than the three days that would otherwise likely be the case, as well as the associated preparation costs. The remitter principle that facts found and not disturbed on appeal should generally not be permitted to be reopened would likely be much eroded if not negated. Because of the sheer magnitude of the valuations under the new methodology compared with the old methodology, it becomes difficult to refuse leave to Perilya to reopen facts found by Lloyd AJ and not disturbed on appeal. Once that happens, it will be difficult not to treat the VG equally in that respect.
(b) The principle of finality of litigation is offended by the advancement of the new owner/operator methodology on the remitter. The instruction manuals applied by the VG for many years, Lloyd AJ, the Court of Appeal and this Court for months thereafter on the remitter, proceeded on the basis of the parties' agreed passive investor methodology. The owner/operator methodology could have been advanced before Lloyd AJ but was not.
(c) The VG seeks to start again when there has been no appeal or evidence that the passive investor methodology is wrong or incapable of deriving the land value. Even if the new methodology is an available alternative methodology, on a remitter after an appeal one should not throw out what has not been shown to be impermissible in order for the VG to pursue a new case. Even the proposed new evidence that a purchaser in the market would likely be an owner/operator is contentious. Perilya says it has evidence of passive investors purchasing mines. At trial the Court would have to decide whether to adhere to the passive investor methodology or reject it in favour of the owner/operator methodology.
(d) The Court of Appeal expressed no concern with the passive investor methodology as such. Leeming JA's only concern, although he expressed no concluded view, was with the quantification of one input into that methodology, namely, whether the quantification of the rent (royalty) at 4% of profits was the appropriate quantification: at [76]. This does not require, nor do the errors of law found by the Court of Appeal at [74]-[75] necessitate the new owner/operator methodology. In the absence of any additional evidence suggesting any other quantification (there appears to be none), it is difficult to see why the 4% quantum agreed by well advised parties before Lloyd AJ, adopted by his Honour and not overturned on appeal should not stand for the purposes of this case. Leeming JA approved the submission of senior counsel for Perilya that there is nothing in the VL Act or the Mining Act that makes that quantification necessarily incorrect or unavailable for the parties or the Court of Appeal to adopt: at [37].
(e) These proceedings are in Class 3 of the Court's jurisdiction which are required to be conducted "with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper administration of the matters before the Court permit": s 38(1) Land and Environment Court Act 1979. Further, the Court is bound to seek to give effect to the facilitation of the just, quick and cheap resolution of the real issues in dispute when it exercises any power given to it by the Civil Procedure Act 2005 and the rules of Court: s 56(2) Civil Procedure Act. These principles are hostile to permitting reliance on the new methodology with all its consequential additional expense and time.
(f) The relatively huge valuations under the new owner/operator methodology are put forward in a context where the VG does not, and in my opinion cannot, contend for a land value of more than the $20.9 million the subject of these proceedings. The VG hitherto based that assessment on the old methodology. Therefore, the main significance of the new methodology relates to post 2007 years. However, the VG is free to rely on the new methodology when assessing land value for those years because the bar to doing so in this case is a procedural bar arising from the VG's conduct of the proceedings.
(g) In the context of the passive investor methodology, both parties have adduced evidence as to the compensation payable if the minerals are required to be treated as publicly owned, on the example given in the Court of Appeal's judgment at [75].
(h) It is insufficient reason to permit the new methodology that Perilya is free to apply for a special costs order to displace the ordinary rule that no costs are ordered in valuation appeals: r 3.7 Land and Environment Court Rules 2007.
I added at [46]:
46 Having decided that the VG should not be permitted to rely on Gemell 2/14 and Hopcraft 2/14, it follows logically that all other evidence relating only to the new owner/operator methodology will likewise be excluded. My decision does not bar the VG from endeavouring to rely on the new methodology for land value assessments in future years.
Consequently, I declined to permit Perilya to rely on its responsive mineral information evidence, at [79]:
Although I stood over prayers 1(a)-(d) of Perilya's July 2014 notice of motion to the trial, Perilya now seeks that I determine them in advance of the trial if the VG's new methodology is permitted. They contain Perilya's big ticket contentions (to which I have earlier referred) that a major deficiency in the VGs new methodology is that it fails to take account of the cost of obtaining mining information, costed for Perilya at $270 million, and fails to allow for a related blowout in the start up period of the mine from two to 10 years. If I had permitted the VG to rely on the new methodology, I would have given leave to Perilya to respond in terms of 1(a)-(d) of its 7 July 2014 notice of motion. As I have refused the VG such permission, I do not propose to grant the leave sought.
In Perilya Broken Hill Limited v Valuer-General (No 6) [2015] NSWLEC 43, delivered on 30 March 2015, I determined a separate preliminary question as follows:
Under s 6A(1) of the Valuation of Land Act 1916, the land value of land containing publicly owned minerals, as defined in the Mining Act 1992, is to be determined on the assumption that the minerals are privately owned.
By consent, on 1 April 2015 I fixed the matter for final hearing on 13-15 and 18 May 2015.
Notwithstanding that this was by consent, on 21 April 2015 Perilya filed a notice of motion to vacate those hearing dates in order for it to pursue leave to appeal against determination of the separate question.
On 24 April 2015 I dismissed Perilya's motion: Perilya Broken Hill Limited v Valuer-General (No 7) [2015] NSWLEC 67. I referred at [13] to the possibility raised in a supporting affidavit by Perilya's solicitor of an application to rely on evidence of the value of mining information:
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.
On 1 May 2015 Perilya emailed a draft of a proposed notice of motion to the Court, with which I am now dealing. It was filed and heard today, 5 May 2015.
[2]
SUBMISSIONS
In support of the motion Perilya read an affidavit of its solicitor, Mr McKelvey, much of which is in the nature of submissions. He said he had been now instructed to file an appeal against the decision in Perilya (No 6) following the conclusion of the remitted proceedings. He said that, as he had earlier foreshadowed, he had also now been instructed to seek leave to rely on further evidence accounting for the value of mining information in the valuation exercise required by s 6A of the Valuation of Land Act. He contended that it would be an error of law to value the land without accounting for the value of the mining information. He referred to the Court of Appeal's judgment at [85] that the s 6A valuation is not some private dispute between parties who are free to frame the issues between them, and indeed to proceed on an assumed and false basis. He said:
15.1. The recent decision in Perilya No 6, in light of the methodology required by the Court of Appeal, has a very significant effect on the determination of the land value of the Applicant's land;
15.2. Perilya has been aware of the Valuer General's contention that the valuation was to be undertaken generally on the basis described in Perilya No 6. However, since the decision in Perilya No 6, and after Perilya has recently consulted with its retained experts, it has formed the view that it is necessary now to contend that that basis for valuation is incorrect if it does not account for mining information
15.3. This case involves matters of importance to the valuation of Perilya's mine in other valuation years and, further, the valuation of numerous other mines under the Valuation of Land Act 1916 throughout the State;
15.4. Perilya will submit that, if the valuation does not account for value of the mining information, it will not properly apply s 6A of the VL Act, and the Court will fall into error;
15.5. To deny the Applicant the opportunity to rely on evidence regarding the mining information will prevent Perilya from being able to make submissions as to the approach required by s 6A, contrary to the intention expressed at [104] of the decision of the Court of Appeal;
15.6. To allow Perilya to rely on evidence about mining information does not prejudice the Valuer General.
He concluded:
I am instructed that the Applicant concedes that if the proposed further evidence accounting for mining information is not admitted, or Perilya is otherwise prevented from making submissions that the value of the mining information must be brought to account as part of the valuation exercise, then it cannot achieve a result in this remitted proceeding which is lower than the valuation against which the objection has been lodged. If the leave requested in the Notice of Motion is not granted then I am instructed that the Applicant could not oppose (but would not consent to) the Court dismissing the proceeding. For the avoidance of any possible doubt, Perilya takes that position without prejudice to its rights to appeal, including an appeal against the decision in Perilya No 6 and any decision made against Perilya in this application.
Perilya submitted that the Court should be prepared to entertain its mining information contention that is (at least) reasonably arguable and will not cause substantive prejudice to the Valuer-General. Perilya submitted that that approach was particularly appropriate because the Court of Appeal had given the Valuer-General the opportunity to change course substantially by raising an argument which undermined his own methodology and went further than was ever put below, and the Court of Appeal said that Perilya was entitled to feel some sense of grievance arising out of what has happened, but upheld the appeal because the valuation disclosed an error of law and was not some private dispute between parties who are free to frame the issues between them but rather affects third parties: at [83], [85].
Perilya submitted that in light of the reasons of the Court of Appeal at [83] and [85], the leave now sought should be granted as a matter of fairness and case management because:
1. The valuation is not a private dispute between the parties, but rather involves principles of importance to the valuation of mining land throughout the State.
2. If the valuation does not account for the value of the mining information, it will not properly apply s 6A of the Act, and the Court will fall into error. The efficient disposition of the proceeding requires that submission to be considered in the remitted hearing, with supporting valuation evidence.
3. To allow Perilya to rely on the mining information evidence does not prejudice the Valuer-General. In its submissions, the only prejudice identified by the Valuer-General is, effectively, that the hearing dates for the remitted hearing may have to be vacated. Given the Valuer-General's conduct of this matter and the history of the proceedings, that delay cannot be said to be truly prejudicial.
Perilya accepted that the principle of finality has a role to play even in relation to an arguable point of law, and that I am not bound to allow it to rely on the mining information evidence. Rather, in the proper exercise of the Court's discretion, Perilya should be allowed to rely on it.
Perilya conceded that the mining information evidence could have been raised before Lloyd AJ.
In summary, the Valuer-General submitted that:
1. the principle of finality of litigation identified in Perilya (No 5) at [22] and a number of the reasons given for not permitting the Valuer-General to rely on its new owner/operator methodology in judgment No 5 at [45] (quoted above) are also reasons for not permitting Perilya to rely on the mining information evidence, particularly given Perilya's concession that that evidence could have been put before Lloyd AJ;
2. had the mining information evidence been raised in a timely way before Lloyd AJ in support of a contention that s 6A land value was nil, it is likely that the Valuer-General at that time would have looked at an alternative methodology therefore at that stage he may have advanced the owner/operator methodology;
3. it would be an injustice to the Valuer-General to hold him to the passive investor methodology if Perilya is allowed to raise the mining information issue in fresh evidence;
4. if the motion is allowed, the Valuer-General would have to move again to bring forward the owner/operator methodology;
5. the mining information evidence is not required by law, but is a question of fact. It is no more than a new costs line in the spreadsheet attached to Lloyd AJ's judgment;
6. the proceedings are only concerned with the 2007 base date year. The parties are not constrained from seeking to rely in subsequent years on, respectively, an owner/operator methodology and mining information evidence.
[3]
consideration
Two principles are of particular importance when considering Perilya's motion.
The first is the principle of finality. When an appeal from this Court on a question of law is allowed and the proceedings are remitted to this Court for determination in accordance with the decision of the Court of Appeal - as occurred in this case - the public interest in the finality of litigation firmly constrains the discretion to thereafter admit additional evidence or to allow additional issues to be raised. The undisputed findings in evidence stand and all that is called for is the determination of the outstanding issues on the existing evidence unless the errors of law found on the appeal otherwise require or, exceptionally, other circumstances make it appropriate: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178, 168 LGERA 1 at [85]-[88] and [118] approving Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282 at [24]-[25] (Biscoe J); Perilya Broken Hill Limited v Valuer-General (No 5) [2015] NSWLEC 20 at [22]. A successful appeal on a question of law does not redefine the original hearing as a warm-up for the main event on the remitter.
The second principle concerns the Court's statutory duties of expedition. The proceedings are in Class 3 of the Court's jurisdiction, which are required to be conducted "with as much expedition as the requirements of this Act and of every other relevant enactment and as the proper administration of the matters before the Court permit": s 38(1) Land and Environment Court Act 1979. Further, the Court is bound to seek to give effect to the facilitation of the quick, as well as the just and cheap, resolution of the real issues in dispute when it exercises any power under the Civil Procedure Act 2005 and the rules of court: s 56 Civil Procedure Act.
These important principles have been under siege from both parties in the present case, including in Perilya's motion now before the Court.
Several considerations weigh heavily against granting Perilya's motion.
First, following remitter by the Court of Appeal to this Court for determination "in accordance with the decision of" the Court of Appeal, Perilya's motion is for leave to contend for a large and contentious variation of the methodology at the first hearing by relying on the allegedly huge cost of mining information and to rely on contentious evidence to support that variation. None of this was raised in, or is required by the findings made by, the Court of Appeal. The proposed new issue and evidence could have been raised at the first trial.
Secondly, Perilya has already been refused leave to rely on evidence going to the value of mining information: Perilya (No 6). The reason was that, as Perilya consistently emphasised, this evidence was purely in response to the Valuer-General's proposed new valuation methodology belatedly advanced by the Valuer-General following the appeal. As the Valuer-General was refused leave to rely on that methodology, leave having been opposed by Perilya, Perilya's mining information was irrelevant and therefore leave to rely on it was also refused. Having succeeded in its endeavour to block the Valuer-General from relying on the new valuation methodology, and after Perilya consented to hearing dates being fixed in the near future without mining information as an issue, Perilya very recently changed tack and sought to rely on mining information evidence as free standing. This is such a change in the landscape that I do not think it would be even-handed to grant the motion without allowing the Valuer-General the further opportunity to seek to rely on its new owner/operator methodology. That would substantially take the case back to where it started - after four years.
Thirdly, the motion is made at five minutes to midnight, as it were, and if granted will delay and disrupt the finalisation of the proceedings in other respects. The appeal was allowed in August 2013 and after a great deal of intense interlocutory skirmishing over evidence and a preliminary issue - which delayed finalisation for far longer than is generally acceptable in this Court - the hearing was by consent fixed for four days in a little more than a week's time. If the motion were to be granted, it would put the Valuer-General's pre-trial preparation under undue pressure by requiring him to reconsider a large and contentious issue within a short time frame, even allowing for the fact that the Valuer-General has obtained evidence concerning that issue when it was put as responsive to the Valuer-General's new methodology. It is almost certain that the hearing dates would have to be vacated. Given the history of the proceedings, I would not regard a costs order in favour of the Valuer-General as an adequate answer.
Fourthly, I do not accept Perilya's submission that it would be an error of law under s 6A of the Valuation of Land Act not to take account of its new mining information evidence. This submission is contrary to its implicit stance until very recently, which was that it only sought leave to rely on mining information evidence in response to the Valuer-General's new methodology, thus signifying it was not required by law to be taken into account generally. In any event, in my opinion it is no part of the interpretation of s 6A that it is mandatory to consider the proposed mining information evidence. It is purely a matter of evidence and not of law. In effect, Perilya is seeking to introduce a new costs item in the spreadsheet attached to Lloyd AJ's judgment.
Fifthly, the Valuer-General's original 2007 assessment at stake in this case is $20.9 million and cannot be increased, whereas the Valuer-General's proposed new owner/operator methodology contends for a valuation assessment of up to in excess of $300 million and Perilya's proposed mining information evidence contends for a cost of mining information of almost $300 million. Thus, the main significance of both appears to concern post 2007 years when those very large issues could be ventilated. Nevertheless, I accept that the 2007 assessment has substantial financial consequence for Perilya, for instance in relation to Council rates.
For these reasons, Perilya's motion should be dismissed.
That being so, Perilya concedes that there is no utility in the proceedings continuing and does not object to the proceedings being dismissed (which would not prejudice any appeal that it might institute in relation to my determination of the separate question, or its motion). Accordingly, and as sought by the Valuer-General, I also propose to dismiss the proceedings.
[4]
ORDERS
The orders of the Court are as follows:
1. The applicant's notice of motion filed on 5 May 2015 is dismissed.
2. The proceedings are dismissed.
3. The exhibit may be returned.
[5]
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Decision last updated: 06 May 2015
Parties
Applicant/Plaintiff:
Perilya Broken Hill Ltd
Respondent/Defendant:
Valuer-General
Cases Cited (12)
Judgment
These proceedings are a valuation appeal concerning mining land and are on remitter from the Court of Appeal. The applicant, Perilya Broken Hill Ltd, now moves for orders that it have leave to contend for a variation of the methodology applied by Lloyd AJ at first instance in these proceedings in Perilya Broken Hill Pty Ltd v Valuer-General [2012] NSWLEC 235 to account for the value of mining information and, in relation thereto, to rely on statements of evidence of experts Mr Edward Gleeson dated 19 May and 27 June 2014 and Mr Ken Pendergast of 4 May 2015.
Perilya concedes that if the motion is unsuccessful there is no utility in the final hearing in a little more than a week and does not object to the proceedings being dismissed.
For the following reasons, I propose to dismiss the motion, and, consequently, the proceedings.
THE MINING INFORMATION EVIDENCE
Lloyd AJ determined land value at $4.9 million on the basis that the owner was a passive investor and would receive income from the mine operator once it was up and running based upon the income received by the mine operator after expenses. On Perilya's cumulative discounted cash flow methodology adopted by Lloyd AJ, the greater the expenditure that must be incurred to make the mine operational and the longer it takes to get the mine operational, the lower its land value. Therefore, it has always been in Perilya's interests to magnify expenditure and increase time. His Honour accepted Perilya's evidence that to make the mine operational it would be necessary to install additional plant, equipment and machinery at a cost of $195 million over two years: at [13]-[16]. By way of the proposed mining information evidence, Perilya now seeks to say that it would take not two years but ten years before the mine could be made operational and that the expenditure over this ten year period would rise to $270 million to obtain information essential to the effective operation of the mine. This evidence could have been placed before Lloyd AJ; no explanation has been offered as to why it was not.
In Mr Pendergast's statement of evidence dated yesterday, he opines that mining information has a value separate to the value of the land; that the land value of $32.222 million assessed by the Valuer-General's expert Dr Ferrier in his December 2014 report represents the value of the land and mining information; and that based on Mr Gleeson's estimate that it would cost $270 million to reconstruct the mining information, the land without the mining information would have a nil value. In support of its contention that mining information is distinct from the land, Perilya cites Commissioner of State Taxation (WA) v Nischu Pty Ltd (1991) 4 WAR 437 Resource Capital Fund III LP v Commissioner of Taxation [2013] FCA 363 and Commissioner of Taxation v Resource Capital Fund III LP [2014] FCAFC 37, 225 FCR 290 which, however, were decided in different statutory contexts.