The Eddie Arnott Corporation Pty Ltd v Sydney Metro

Factual background to these procedural rulings

1. On 2 February 2024, the Court made orders that the applicant file and serve any additional lay evidence by 22 March 2024.
2. On 5 August 2024, the applicant filed and served the 5 August 2024 affidavit.
3. On 29 November 2024, the Court made order 5 as follows: 5. Dr Imad Arnaout is to file and serve by 24 January 2025: (a) expert valuation evidence for the leasehold interest; (b) any lay evidence which, pursuant to s 61 of the Civil Procedure Act 1995, is to be no longer than 20 pages (including any annexures or exhibits) and is not to refer to: (i) communications that are without prejudice; (ii) communications between the parties to acquire the land by agreement under section 10A process of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) that occurred prior to the commencement of these Proceedings; and (iii) anything said or of any admission made in a conciliation conference under s 34 of the Land and Environment Court Act 1979, a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document.
4. On Friday, 24 January 2025, the second respondent filed and served the documents titled "Lay Evidence for City Dental Practice Leasehold" and "Expert valuation Evidence for City Dental Business Leasehold Interest Filed Under Joinder Related Orders".
5. On Monday, 17 February 2025, the Court made orders for the applicant and second respondent to file and serve any response to the first respondent's objections in the evidence book by Friday, 21 February 2025. As at the date of these rulings, the applicant and second respondent have not complied with those orders.
6. On Tuesday, 18 February 2025, the applicant and second respondent filed and served the 18 February 2025 affidavit.

First respondent's objections to the expert valuation report of John Sanidas filed on 23 July 2024

1. In relation to the expert valuation report of John Sanidas filed and served on 23 July 2024 for the applicant, the first respondent has objected to "Annexure J", specific paragraphs of "Annexure A", and all of "Annexure I".
2. The first respondent submitted that these annexures and paragraphs refer to without prejudice material, refer to communications made by the parties during the minimum period of negotiation for acquisition by agreement of at least 6 months, during which the authority of the State is to make a genuine attempt to acquire the land by agreement before initiation of compulsory acquisition (the s 10A period), and without prejudice offers made by the first respondent with the intention of reaching a settlement. Section 10A of the Just Terms Act provides relevantly in relation to the minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process; and in relation to taking s 10A into account in a civil cause of action (emphasis added): 10A Minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process (1) This section applies to land that is affected by a proposal for acquisition by an authority of the State, other than a proposal to acquire - (a) Crown land, or (b) an easement, or right to use land, under the surface for the construction or maintenance of works, or (c) a stratum under the surface for the construction of a tunnel. (2) The authority of the State is to make a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice. (3) The owner of the land and the authority of the State may agree to a shorter or longer period of negotiation for the acquisition of the land by agreement. (4) The Minister responsible for the authority of the State may approve a shorter period of negotiation, but only if the Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to have any longer period of negotiation. Any such approval requires the concurrence of the Minister administering this Act (being concurrence given for the particular approval or given generally for an approval of that kind). (5) This section does not prevent a continuation of negotiation after the giving of a proposed acquisition notice. (6) The authority of the State is not required to comply with this section if - (a) the owner of the land notifies the authority that the owner is not prepared to negotiate with the authority for the acquisition of the land by agreement, or (b) the owner of the land cannot be located after the making of reasonable inquiries. (7) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action.
3. The bases of the first respondent's objections are set out in the first respondent's table of objections to the applicant and second respondent's evidence reproduced in Annexure A to these reasons, and are the subject of the Court's rulings as indicated in column 6 of that table. In summary, the first respondent's objections are to the following effect: 1. "Annexure I" and "Annexure J" to the expert valuation report of John Sanidas dated 23 July 2024 attach a without prejudice offer of compromise from the first respondent to the applicant dated 6 June 2023; and 2. paragraphs of "Annexure A" and "Annexure I" to the expert valuation report of John Sanidas dated 23 July 2024 refer to communications between the first respondent and applicant during the s 10A period, including the "format of without prejudice offer[s] made by the First Respondent to the Applicant".
4. My rulings in relation to these objections are set out in Annexure A to these reasons. In summary, my reasons are as follows:

(1) Relevance

1. Relevantly, s 38 of the LEC Act provides in relation to procedure and the rules of evidence in Class 3 proceedings (emphasis added): 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. … (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.
2. As reproduced above, s 38(2) of the LEC Act provides in relation to the rules of evidence in Class 3 proceedings that "the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits".
3. In Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 (Pochi), Brennan J held in relation to statutory tribunals where statute has excluded the rules of evidence that a decision-maker must still make every attempt to administer substantial justice by basing their decision on material which has "probative value" and is relevant to the "existence or non-existence of facts relevant to the issue to be determined" at [492]-[492]: …although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'" (16). That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (17) said: "These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue" (18). Lord Denning M.R. in T. A. Miller Ltd. v. Minister of Housing and Local Government similarly said: "Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law" (19). [1]
4. Applying the test laid down by Brennan J in Pochi, I find that the evidence concerning the s 10A process sought to be adduced in the annexures to the expert report of John Sanidas is not relevant to the existence or non-existence of facts relevant to the issue to be determined, namely, an objection to the amount of compensation offered by the first respondent to the applicant and second respondent under a s 66 of the Just Terms Act.

(2) Section 10A process

1. As noted, the evidence objected to by the first respondent in the annexures to the expert report of John Sanidas refers to a without prejudice offer and communications between the parties made in an attempt to acquire the land by agreement pursuant to s 10A of the Just Terms Act. The first respondent submitted that such evidence is precluded by s 10A(7) of the Just Terms Act which provides that "[n]othing in this section gives rise to, or can be taken into account in, any civil cause of action". The first respondent submitted that "understood in the context of its proper purpose, the meaning of s 10A(7) is clear; disputes about compliance with s 10A(2) are not to be considered by the courts in the substantive determination of a civil cause of action" and that these proceedings are "appropriately characterised as a civil cause of action so as to fall within the scope of s 10A(7)".
2. In obiter in Desane Properties Pty Ltd v State of New South Wales [2018] NSWSC 553 (Desane) regarding submissions concerning negotiations envisaged by s 10A, Hammerschlag J said at [240]: RMS put that the negotiations envisaged by s 10A is the occasion upon which the public purpose will be communicated to the landowner. I do not accept this submission. It is untenable because s 10A(7) provides that nothing in the section gives rise to, or can be taken into account in, any civil cause of action.
3. In accordance with Desane and s 10A(7) of the Just Terms Act, I find that the substance of negotiations engaged in by the parties by reason of 10A cannot be taken into account in this civil cause of action.
4. I am satisfied that these Class 3 proceedings are a civil cause of action, being a civil proceeding commenced in the Court pursuant to a statutory right of an applicant to challenge the amount of compensation offered by an acquiring authority.

(3) Collateral challenge to the validity of the s 10A decision making process in Class 3 proceedings

1. Further, the first respondent submitted that this Court does not have jurisdiction to hear an argument as to the validity of the acquisition in this case, s 20 of the LEC Act not operating in Class 3 proceedings to extend the Court's jurisdiction. The Just Terms Act is not a "planning or environmental law" specified in s 20(3) for the purposes of attracting the operation of s 20(2) of the LEC Act.
2. In Ousley v The Queen (1977) 192 CLR 69 McHugh J said in relation to a collateral challenge at 98-99: A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. … The term "collateral challenge" is confined to challenges that occur in proceedings where the validity of the administrative act is merely incident in determining other issues.
3. In Ray Fitzpatrick Pty Ltd v Minister for Planning (No. 4) [2008] NSWLEC 161 Sheahan J considered whether the Court has jurisdiction to "go behind the statutory offer to consider its validity, or the validity of the Valuer General's 'determination' on which it is based - either at this stage or at any other stage of these or similar proceedings" in a Class 3 proceeding at [63]: Any challenge to a Valuer General's determination under the JTC Act may be brought only as a judicial review case in the Supreme Court of NSW (where the Valuer General would be a Defendant), and not by way of valuation appeal/review proceedings in this Court (where again the Valuer General would be a Respondent), nor by way of a collateral challenge in JTC Act proceedings before this Court, where the Court sits as a judicial valuer under s.66 of the JTC Act and s.19(e) of the Court Act (and the Valuer General is not a party). The JTC Act is clear.
4. I find that in these Class 3 proceedings, any challenge to the validity of decisions made or not made in the s 10A process would be a collateral challenge in the course of the Court hearing and disposing of the applicant's objection to the amount of compensation offered by the acquiring authority for the purposes of s 66 of the LEC Act. The "primary object" of the proceedings is not the setting aside or modification of the validity of decisions made or not made during the s 10A process. In accordance with Ray Fitzpatrick Pty Ltd v Minister for Planning (No. 4) [2008] NSWLEC 161, I find that any challenge to the Valuer General's determination, or other decisions made or not made in the s 10A process cannot be brought by way of a collateral challenge to proceedings under s 66 of the in Just Terms Act in which the Court sits as judicial valuer.
5. Dr Arnaout did not refer to any particular decision made, or not made, in the s 10A process which he seeks to impugn. [2] Further, I am satisfied that judicial review proceedings would be properly characterised as a civil cause of action such as to fall within the scope of s 10A(7). In any event, Dr Arnaout indicated by his email dated 27 February 2025 that the applicant and second respondent did not intend to commence a challenge to the "validity of the acquisition at this stage".

First respondent's objections to the affidavit of Dr Imad Arnaout dated 5 August 2024

1. The first respondent has objected to 757 "parts" of Dr Arnaout's affidavit dated 5 August 2024 (noting that the 5 August 2024 affidavit uses a mix of numbered and unnumbered paragraphs) on various bases including that the affidavit: 1. refers to without prejudice material; 2. contains submissions which are not evidence as they do not contain "proof of the facts asserted"; 3. refers to communications during the s 10A negotiation period. The first respondent referred to s 10A(7) of the Just Terms Act and submitted that the purpose of s 10A(7) is "to ensure not only that the requirement to engage in a process of negotiation by agreement may not be used against a party in subsequent proceedings but the substance of the communications in which that requirement is given effect is protected"; 4. refers to communications and materials prepared in relation to the s 34 conciliation conference conducted on 14 December 2023 "and the respondent does not consent to its admission: LEC Act s 34(11)-(1)". Section 34 provides relevantly in relation to conciliation conferences: 34 Conciliation conferences … (11) Subject to subsections (10) and (12) - (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. (12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document. ; and 1. is unfairly prejudicial and responding would be an undue waste of time. For example, the first respondent submitted that the affidavit's "unsubstantiated" references to "pressure tactic[s]" and "manipulat[ing] the negotiation process" are unfairly prejudicial and it would require an undue waste of time to respond.

Applicant and second respondent's response to the first respondent's objections to evidence

1. At the further pre-hearing mention on Tuesday, 25 February 2025, Dr Arnaout, on behalf of the applicant and second respondent, made the following oral submissions in response to the first respondent's objections to evidence: 1. In relation to the first respondent's objections to the applicant and second respondent's evidence outlined above at [8]-[9], Dr Arnaout said "I object to all their objections, and I do not agree with them." 2. In relation to the first respondent's objections to his 5 August 2024 affidavit and 18 February 2025 affidavit, Dr Arnaout said that: 1. the 18 February 2025 affidavit only contains 60 pages of additional content. The other pages are from the first [5 August 2024] affidavit; 2. the first respondent is trying to "stifle evidence of the breach" contained in Dr Arnaout's affidavits of "September, August and February". The affidavits provide "an accurate account of the first respondent's conduct central to Dr Arnaout's defence … They include "correspondence", "meeting records" and "other evidence showing a failure to negotiate in s 10A [of the Just Terms Act]"; 3. the first respondent "has not made comment about section 10A … the silence is an implicit acknowledgement of the validity of the claim" and is "seeking to avoid accountability by excluding s 10A materials"; 4. the material in Dr Arnaout's evidence concerning 10A of the Just Terms Act shows the importance of "negotiat[ing] in good faith" otherwise "fairness, transparency and accountability is undermined". The s 10A process has a "minimum period of negotiation" and should be a "fair and just process" and property owners' rights should be "protected"; 5. the Court should reject the first respondent's request to omit s 10A materials and instead require the first respondent to respond to his evidence because this "aligns with the principles of procedural fairness and ensures that the acquisition process is conducted transparently and in accordance with the law."; 6. courts scrutinise whether authorities made genuine attempts to negotiate, "there is caselaw and literature available, but I will not be able to retrieve these things accumulated over the last couple of years"; and 7. the letter titled "'Commencement of compulsory acquisition of free hold interest in land" contained in the first respondent's tender bundle was not received by the applicant and second respondent "in line with the communication protocol … the first time I received this was in the bundle of documents from the legal representatives".
2. The first respondent's detailed objections to the affidavit of Dr Arnaout dated 5 August 2024 are the subject of the rulings set out in Annexure A to these reasons. In summary, my reasons are as set out above in relation to the first respondent's objections to the expert valuation report of John Sanidas filed on 23 July 2024, namely: (1) relevance; (2) section 10A process; and (3) collateral challenge to the validity of the s 10A decision making process in Class 3 proceedings.

First respondent's objections to the document titled "Lay Evidence for City Dental Practice Leasehold" filed on 24 January 2025

1. The first respondent objected to the last sentence in paragraph 2(ii) of the document titled "Lay Evidence for City Dental Practice Leasehold" in which Dr Arnaout asserts "For some unknown reason Sydney Metro persists with refusing to release Versions 4 and 5 of the latest updated North Projects QS Report" on the basis that it is a submission and unfairly prejudicial. The first respondent submitted that the evidence should be rejected or alternatively treated as a submission only and not proof of the facts asserted.
2. My ruling in relation to this objection is set out in Annexure A to these reasons. In summary, I have determined to treat this sentence as a submission only and not as proof of the facts asserted.

First respondent's objections to the document titled "Expert Valuation Evidence for City Dental Business Leasehold Interest Filed Under Joinder Related Orders" filed 24 January 2025

1. The first respondent objected to paragraph [1] of the document titled "Expert Valuation Evidence for City Dental Business Leasehold Interest Filed Under Joinder Related Orders" on the basis that the paragraph was written by Dr Arnaout and therefore was not expert evidence. The first respondent submitted that the evidence should be rejected or alternatively treated as a submission only and not proof of the facts asserted.
2. The first respondent also objected to the last sentence in paragraph 1.A.iii in which Dr Arnaout asserts "For some unknown reason/s Sydney Metro persists with refusing to release Versions 4 and 5 of the latest updated North Projects QS Report" on the basis that it is a submission and unfairly prejudicial, and submitted that the evidence should be rejected or alternatively treated as a submission only and not proof of the facts asserted.
3. The first respondent also objected to the second sentence in paragraph 1B on the basis that it refers to without prejudice material.
4. My ruling in relation to this objection is set out in Annexure A to these reasons. In summary, other than objections which I have determined to treat as a submission only, my reasons for upholding the first respondent's objection to the second sentence of paragraph 1B are as my reasons are as set out above in relation to the first respondent's objections to the expert valuation report of John Sanidas filed on 23 July 2024, namely: (1) relevance; (2) section 10A process; and (3) collateral challenge to the validity of the s 10A decision making process in Class 3 proceedings.

The first respondent's wholesale objection to the 18 February 2025 affidavit of Dr Imad Arnaout

1. The first respondent objects to the entirety Dr Arnaout's affidavit dated 18 February 2025. The objections can be summarised as follows: 1. the 18 February 2025 affidavit was filed otherwise than in accordance with directions of the Court; 2. the timing of service and length of the affidavit (633 pages) will cause prejudice to the first respondent in such close proximity to the hearing; and 3. the contents of the affidavit will cause prejudice to the first respondent, including that it: 1. appears to be a substantial duplication of the affidavit of the second respondent dated 5 August 2024; 2. refers to communications during the minimum period provided for acquisition by agreement before initiation of the compulsory acquisition process in s 10A of the Just Terms Act; 3. refers to communications between the applicant and first respondent in and in relation to a conciliation conference arranged pursuant to s 34 of the LEC Act; 4. makes numerous "unsubstantiated prejudicial allegations against the first respondent (particularly in the context of the s 10A negotiations but also more generally)"; and 5. is otherwise in the nature of submissions (at least 40 pages of the affidavit was said to be in the nature of submissions).

Non-compliance with the Court's rules and the Court's order made 29 November 2024

1. The first respondent submitted that the applicant and second respondent require leave to rely upon the affidavit of Dr Arnaout dated 18 February 2025 pursuant to r 35.9 of the Uniform Civil Procedure Rules 2005 (UCPR) [3] and cl 10 of the Land and Environment Court Practice Note Class 3 Compensation Claims. [4]
2. The affidavit was not filed in accordance with a direction of the Court. In particular, Dr Arnaout's affidavit of 18 February 2025 was not filed in accordance with Order 5 of the orders made on 29 November 2024 [5] as it does not comply with the order as to the timing of filing of the affidavit, the length of the affidavit, and the content which is not to be referred to.

Prejudice to the first respondent

1. Further, the first respondent submitted that its instructing solicitors have compared the affidavit of Dr Arnaout dated 18 February 2025 against the affidavit of Dr Arnaout dated 5 August 2024 and consider there to be only approximately 58 pages of new material. It was submitted that: 1. approximately 70% of that new material appears to be in the nature of legal submissions; 2. "overwhelming parts" of the 18 February 2025 affidavit otherwise relate to communications during the s 10A period, contrary to the Court's orders of 29 November 2024 (see Order 5(b)(ii), as set out above in fn 6); 3. reference is made to communications during a s 34 conciliation conference (eg paragraph [132(c)]); and 4. in the remainder of the affidavit, Dr Arnaout appears to give similar evidence, although not always using the same language, to that in the 5 August 2024 affidavit.
2. In relation to prejudice, the first respondent submitted firstly, that the reliance sought to be placed by the applicant and second respondent upon the 18 February 2025 affidavit is contrary to their obligations under s 56 of the Civil Procedure Act 2005 (NSW) (CP Act) to facilitate the just, quick, and cheap resolution of the real issues in dispute; it was submitted to be inconsistent with s 57 and s 60 of the CP Act to ensure the efficient use of judicial resources and that the costs to the parties is proportionate to the importance and complexity of the subject matter in dispute.
3. Secondly, it would be an unduly onerous task for the first respondent to prepare objections to the 18 February 2025 affidavit, 633 pages in length. Preparation of the first respondent's objections to the 5 August 2024 affidavit took an "excessive amount of time", approximately 36 hours (ie 4.5 days) by the solicitors and approximately 25 hours by counsel. A similar amount of time was estimated to be required to prepare objections to the 18 February 2025 affidavit.
4. Thirdly, the cost and time wasted for the first respondent to prepare objections to the 18 February 2025 affidavit would be disproportionate and contrary to s 60 of the CP Act, given the first respondent's estimate that more than 600 pages duplicate those in 5 August 2024 affidavit.
5. Fourthly, it would be unreasonable to allow the introduction of 663 pages of evidence so close to the substantive hearing, set down to commence on 3 March 2025. This would cause the diversion of the first respondent's legal resources and prejudice the first respondent's preparation for the hearing.
6. Fifthly, in relation to the "extensive references" in the 18 February 2025 affidavit to communications during an attempt to acquire the acquired land by agreement, as required pursuant to s 10A of the Just Terms Act, the Court could not take these communications into account: s 10A(7) of the Just Terms Act.
7. Sixthly, in so far as the 18 February 2025 affidavit seeks to elicit communications and documents prepared for the purpose of, in the course of, or as a result of a s 34 conciliation conference, such evidence is prima facie inadmissible and the first respondent does not consent to its admission: LEC Act, s 34(11)-(12). In circumstances where the Court is asked to make rulings on the admissibility of such evidence in the 5 August 2024 affidavit, it would be unreasonable for the first respondent to be put to the task of objecting to such evidence again.
8. Seventhly, to the extent that the 18 February 2025 affidavit includes, on the first respondent's calculations, at least 40 pages in the nature of submissions, this has also objected to, and submitted to be confusing.
9. The first respondent did not object to the second respondent, Dr Arnaout, relying upon a further affidavit, provided that such evidence did not duplicate evidence, complied with the terms of the Court's orders made on 29 November 2024, and was otherwise limited to a "reasonable" page length. The first respondent proposed orders which would "give the applicant and second respondent an opportunity to rely on further evidence, whilst limiting the prejudice caused to the first respondent, and ensuring efficiency in the use of judicial resources".
10. In relation to first respondent's wholesale objection to the affidavit of Dr Arnaout dated 18 February 2025, I find as follows.
11. I am satisfied that the 18 February 2025 affidavit was not filed by leave of the Court or otherwise in accordance with r 35.9 of the UCPR or cl 10 of the Practice Note for Class 3 Applications. I find that the affidavit would cause prejudice to the first respondent as I am satisfied that: 1. The 18 February 2025 affidavit is a substantial duplication of the affidavit of the second respondent dated 5 August 2024 as there is only around 58-60 pages of new material in the 633 page affidavit. 2. The timing of service and the 633 page length of the affidavit would cause prejudice to the first respondent in such close proximity to the hearing if allowed, noting that the first respondent's objections to the 605 page 5 August 2024 affidavit took approximately 36 hours by the solicitors and 25 hours by counsel to prepare, and the first respondent estimated that a similar amount of time would be required to prepare objections to the 18 February 2025 affidavit. 3. The 18 February 2025 affidavit refers to communications during the minimum period provided for acquisition by agreement before initiation of the compulsory acquisition process in s 10A of the Just Terms Act. Section 10A(7) provides "Nothing in this section gives rise to, or can be taken into account in, any civil cause of action. (emphasis added)" 4. The 18 February 2025 affidavit refers to communications between the applicant and first respondent in and in relation to a conciliation conference arranged pursuant to s 34 of the LEC Act in circumstances where the first respondent does not consent to the admission of the evidence, making the evidence not admissible in any proceedings before any court in accordance with s 34(11)(a). 5. The 18 February 2025 affidavit makes numerous unsubstantiated prejudicial allegations against the first respondent particularly in the context of the s 10A negotiations but also more generally, and is otherwise in the nature of submissions (at least 40 pages).
12. Having regard to the matters in ss 57 and 60 of the CP Act, I find that the cost of responding to the 633 page length 18 February 2025 affidavit would not be proportionate to the importance and complexity of the dispute.
13. For the reasons submitted by the first respondent, I have determined to reject the 18 February 2025 affidavit of Dr Imad Arnaout. However, I will grant the applicant and second respondent leave pursuant to s 61 of the CP Act to file and serve an additional lay affidavit by 2pm on Friday, 28 February 2025, no longer than 20 pages in length, which is not to refer to: 1. communications that are without prejudice; 2. communications between the parties to acquire the acquired land; or 3. anything said or of any admission made in a conciliation conference arranged under s 34 of the LEC Act, a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document.

Witnesses not required to be available for cross examination

1. A further issue which has arisen in preparation for the hearing set down to commence on Monday, 3 March 2025 concerns the email dated 31 January 2025 sent by Dr Arnaout notifying the first respondent that the applicant and second respondent required the following witnesses for cross examination at the substantive hearing: 1. Ms Robyn Scott (Senior Acquisition Manager Property/Sydney Metro, during 2021/2022); 2. Mr Aaron Davis (Senior Acquisition Manager Property/Sydney Metro, during 2021/2022); 3. Mr Jeffrey Appel (Acquisition Manager Property/Sydney Metro, during 2021/2022); 4. Mr Stuart McDonald (first respondent's town planner); 5. Mr Ben Masters (first respondent's valuer); 6. Mr Tony Hill (Partner, Ashurst); and 7. Mr Peter Regan (Chief Executive, Sydney Metro).
2. At the pre-hearing mention on 17 February 2025, the first respondent drew the Court's attention to the fact that the applicant and second respondent had made a request to cross examine certain former officers of Sydney Metro and others at the hearing and that those witnesses would not be made available. The first respondent provided the Court with submissions on this issue and filed in Court on 25 February 2025 the affidavit of Laetitia Chattat, sworn 24 February 2025 (Chattat 24 February 2025).
3. The first respondent said that its expert witnesses, Mr Stuart McDonald and Mr Ben Masters, would be made available for cross examination.
4. However, in relation to Ms Robyn Scott, Mr Aaron Davis, Mr Jeffrey Appel and Mr Peter Regan, the first respondent said that it had not adduced, nor will it adduce evidence from any of them. Similarly, Mr Tony Hill is the solicitor on the record for the first respondent, and the first respondent had not adduced any evidence from Mr Hill, nor did it intend to do so for the purpose of the substantive hearing. None of Ms Scott, Mr Davis, Mr Appel, Mr Regan nor Mr Hill has provided an affidavit in the proceedings.
5. Rule 35.2(1) of the Uniform Civil Procedure Rules 2005 (UCPR) relevantly provides in relation to cross examination that a "party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made" (emphasis added).
6. I am satisfied that none of those persons is a witness of the first respondent in the proceedings that is required to be available for cross examination. Practice Note Class 3 Compensation Claims, Schedule B (Usual Directions), p. 19 at [9] states that leave is required to lead evidence from the witness, the substance of which is not included in a document served in accordance with the Court's directions. The first respondent submitted, and I am satisfied, that it would irregular for the applicant and second respondent to obtain leave to call these persons for the substantive purpose not of cross examination as suggested by Dr Arnaout's email, rather for eliciting oral evidence in chief.
7. Ms Chattat deposed in her affidavit of 24 February 2025 that Ms Scott, Mr Davis and Mr Appel are no longer employees of, or consultants engaged by, Sydney Metro and therefore the first respondent has no control over their attendance at the proceedings. The Court would need to grant the applicant or the second respondent, being self-represented, leave pursuant to r 7.3 of the UCPR to issue subpoenas. Whilst Dr Arnaout's purpose of requesting the persons for cross examination by Dr Arnaout is not stated, the first respondent apprehended that it was to elicit evidence of communications between the applicant and the first respondent made pursuant to s 10A of the Just Terms Act where an authority of the State is required to make a genuine attempt to acquire the land by agreement.
8. The first respondent submitted that the Court would apprehend that the substantive purpose of requesting these witnesses for cross examination is to attempt to elicit evidence that the Court cannot have regard to pursuant to s 10(7) of the Just Terms Act. The first respondent objected to any such evidence being elicited.
9. Further, in relation to the request for Mr Hill to attend for cross examination, the first respondent apprehended that this was for the purpose of attempting to elicit communications and documents prepared for the purpose of, in the course of, or as a result of a s 34 conciliation conference which is, prima facie, inadmissible. The first respondent did not consent to its admission: LEC Act s 34(11)-(12).
10. I am satisfied that neither Mr Regan nor Mr Hill is required to attend Court to give evidence. I am also satisfied that leave should not be given to the applicant or the second respondent, pursuant to r 7.3 of the UCPR, to issue subpoenas to Ms Scott, Mr Davis and Mr Appel.

Orders

1. The Court makes the following orders and directions: 1. Noting that leave has not been granted pursuant to r 35.9 of the Uniform Civil Procedure Rules 2005 for either the applicant or the second respondent to rely on the affidavit of Dr Imad Arnaout dated 18 February 2025, pursuant to s 61(3)(e) of the Civil Procedure Act 2005 (NSW) (CP Act), the affidavit of Dr Imad Arnaout dated 18 February 2025 sought to be adduced by the applicant and second respondent is rejected. 2. Pursuant to s 61 of the CP Act, the applicant and second respondent are granted leave to file and serve an additional lay affidavit by 2pm on Friday, 28 February 2025, no longer than 20 pages in length, which is not to refer to: 1. communications that are without prejudice; 2. communications between the parties to acquire the land comprising Lot 7 in Strata Plan 65054 known as Shop 1A, 5 Hunter Street, Hunter Arcade, Sydney, by agreement under section 10A process of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) that occurred prior to the commencement of these proceedings on 21 February 2023; or 3. anything said or of any admission made in a conciliation conference arranged under s 34 of the Land and Environment Court Act 1979 (NSW), a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document. 1. The first respondent to file and serve any objections to evidence filed and served in accordance with order 2 above by 9am on Monday, 3 March 2025. 2. The applicant and second respondent to file and serve any response to the first respondent's objections in accordance with order 3 above by 9am on Tuesday, 4 March 2025.

Endnotes

1. Pochi was applied in a Class 3 proceeding by Sheahan J in Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1999) 106 LGERA 266; [1999] NSWLEC 211 at [271].
2. In an email received at 12:59pm on Thursday, 27 February 2025, Dr Arnaout drew the Court's attention to Elmasri v Transport for NSW [2021] NSWSC 929. This case, from what it seems to the Court, concerns a challenge to a decision made in the court of the s 10A process brought in the Supreme Court of New South Wales.
3. Rule 35.9 of the Uniform Civil Procedure Rules 2005 provides: 35.9 Filing of affidavits (cf SCR Part 38, rule 6; DCR Part 30, rule 6; LCR Part 25, rule 6) Except by leave of the court, an affidavit must not be filed unless it is filed - (a) in accordance with these rules, or (b) in accordance with other rules of court applicable to the court in which it is filed, or (c) in accordance with a practice note applicable to the court in which it is filed.
4. Clause 10 of the Practice Note Class 3 Compensation Claims provides: If any party fails to comply with a direction of the Court that some action be taken by a specified time, and the defaulting party is not able to take that action within five working days of the specified time, the defaulting party is to: (a) have the matter relisted; (b) file and serve, when relisting, an affidavit explaining the noncompliance, the reason for the non-compliance, what action the party proposes to take and when the party proposes to take action to comply with the direction; and (c) provide short minutes of order of the directions and orders the party seeks for the Court to make.
5. Order 5(b)(ii) of my orders dated 29 November 2024 provided that: (5) Dr Imad Arnaout is to file and serve by 24 January 2025: (a) expert valuation evidence for the leasehold interest; (b) any lay evidence which, pursuant to s 61 of the Civil Procedure Act 1995, is to be no longer than 20 pages (including any annexures or exhibits) and is not to refer to: (i) communications that are without prejudice; (ii) communications between the parties to acquire the land by agreement under section 10A process of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) that occurred prior to the commencement of these Proceedings; and (iii) anything said or of any admission made in a conciliation conference under s 34 of the Land and Environment Court Act 1979, a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document. 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: 27 February 2025